On Feb 15, 2009, at 7:35 PM, richardsan wrote:
> > don't be too hasty, gentlemen: > http://news.cnet.com/8301-13579_3-10164264-37.html?tag=newsFeaturedBlogArea.0 While the subject matter of the applications is totally juvenile, the actual legal argument here is straight-up trademark case law, particularly over trademarks using common words. The use of common-word trademarks is generally held to be very narrow, in that you can only bring a complaint when the infringer is selling something that competes directly with your usage of the trademarked words. Microsoft owns a trademark on the word Windows, but this doesn't mean Pella has to change the name of what they're selling. It DOES mean that I can't sell a program called "Windows Pull My Finger" without either getting permission or getting sued by Microsoft. (Air-O-Matic could also sue me, but with less chance of success, because I'm selling a computer program for a completely different platform.) The essence of trademark fights is "Can a reasonable layperson be confused over whose product they're obtaining or using?" This was why Apple had to change the name of their Zeroconf technology from 'Rendezvous' to 'Bonjour'. The trademark 'Rendezvous' was already being used by a company selling a network self-configuration technology, even though it wasn't based on the Zeroconf standard. This can be blurry: Apple was allowed to call Mac OS 9, 'OS 9' despite there already being an operating system called OS9, that had been on the market a long time. In that case the judge ruled that OS9, an obscure OS mainly used in industrial control equipment was sufficiently different from Apple's OS 9 that a reasonable person would not get confused. In this case Apple also had the advantage of a long precedent of calling their system Mac OS N, when N was a number, and 9 WAS the next number in a row. In this case both plaintiff and defendant are fart noise apps for the iPhone, which CERTAINLY meets the narrowness criteria. What the makers of iFart mobile are asking, basically that a competitors pre-existing trademark be voided because simply it's a common phrase associated with making fart noises. (Which was the REASON it was called 'Pull my finger' in the first place!) But existing case law says that someone CAN trademark a common word or phrase, so long as the trademark is restricted to a sufficiently narrow field. Microsoft can trademark 'Windows' in the realm of computer software, they cannot trademark Windows generically. The only sliver of hope that iFart Mobile has is that you cannot usually trademark a common word or phrase as it is used commonly. Pella, while insulated from being sued by Microsoft over the use of 'Windows' in their name by virtue of the word being used in completely different context, is ALSO insulated from being sued by Andersen Windows for the use of the word 'Windows' because that's what they both MAKE. I cannot call my window company 'Anderson Windows' unless I have a very clear standing to the name Anderson, and possibly not even then. It all comes down to the 'reasonable person being confused' test. The only time you can trademark something generically is when it is truly your own, self-created trade mark: Xerox, Kleenex, Microsoft. I cannot sell Microsoft tissues, despite the enormous difference in markets,even if my tissues are very small and very soft. If the judge grants this, that ruling will overturn a significant amount of precedent. All over a fart joke. But this is the kind of stuff that moves the law. Sometimes it's Brown V Topeka, sometimes it's Falwell V Flynt. -- Bruce Johnson University of Arizona College of Pharmacy Information Technology Group Institutions do not have opinions, merely customs --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "StrataList-OT" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [email protected] For more options, visit this group at http://groups.google.com/group/StrataList-OT?hl=en -~----------~----~----~----~------~----~------~--~---
