Date: Fri, 7 Apr 2000 14:44:25 -0400 From: Bob Johnson <bobj@atlantic.net> To: dhesi@rahul.net Cc: questions@freebsd.org Subject: Re: "FreeBSD" as trademark Message-ID: <00040715534600.08132@scanner.engnet.ufl.edu>
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> Date: Fri, 7 Apr 2000 02:22:02 -0700 (PDT) > From: dhesi@rahul.net (Rahul Dhesi) > Subject: Re: "FreeBSD" as trademark > > "FreeBSD" is a composite term made up of two words: "Free" and "BSD". > The word "Free" is not trade-mark-able when used with its normal meaning > of "free of cost". The word BSD *might* be trade-mark-able if the > University of California decided to make it so; but they didn't. I > doubt that anybody else could claim trade mark rights over the word > "BSD", when used to refer to "BSD". A valid trade mark gives the > claimant a monopoly over the trade mark, and I doubt that anybody except > the University of California could exercise such a monopoly over 'BSD'. > > The composite term "FreeBSD" would be a very, very weak trade mark, if > it could be one at all. It would probably be no stronger a trade mark > than any of these other composite words: > > FreeMarket > FreeLunch > FreeSoftware > FreeSample > I'm not a lawyer, and I haven't even played one on TV, but... I think you completely misunderstand trademark law. Context is of utmost importance in determining the validity of a trademark. For instance, the word "Apple" is a trademark of Apple Computer Corporation when used in the context of computers (http://www.apple.com/legal/default.html#tm). The same word, "Apple", used in the context of music, is a trademark of Apple Records, which markets The Beetles' songs. Apple Computer's forays into the music world (marketing the iMac) have cost them -- they lost a trademark infringement suit lodged by Apple Records (see http://www.nametrade.com/namecost.html). If you visit Apple Computer's web site, you might also notice that Apple has trademarked composite words such as "AppleLAN", and even "AirPort", that, under your theory, should be invalid as trademarks. Yet somehow, I don't notice anyone challenging these trademarks. In truth, it doesn't really matter whether a trademarked term is a composite of well-known words. Although making up a new word (e.g. Pentium) gives better protection, it can still be lost (which Thermos corporation discovered the hard way). > Now as to whether a trade mark is *claimed* over 'FreeBSD', that's a > different question. I believe there is such a claim. But a claim alone > does not make a trade mark legally valid. > > The closest one could come to a valid claim would be to claim a trade > mark over the distinct upper and lowercase in 'FreeBSD'. But it's my > understanding that US trade mark law does not allow a trade mark to be > claimed solely based on the way upper and lowercase are used. You are partially right. The combination of upper and lower case alone might not be sufficient to distinguish a trademark. But that, combined with a specific context (computer operating systems), should be quite sufficient to distinguish FreeBSD as a trademark, particularly since almost everyone in the world who has ever seen or heard the term knows it refers to a specific product, rather than a generic category of products. A trademark can even be based on the specific font used to print a word. The letters "IBM", when printed in the distinctive lined font used by IBM, is their trademark, and context is probably not significant in determining it's enforceability. For example, I could start a business called "International Bug Managers", and make my living in pest control. I might very well get away with using the initials "IBM" on a business card or something, but I'm quite certain that if I printed them in IBM's special font, I'd have no hope at all of prevailing in court. > > A more distinctive name like 'Walnut Creek FreBSD' would probably make a > good trade mark, as would a more abbreviated version like 'WC-FreeBSD'. > > But prefixing 'Free' to a word is a poor way of generating a legally > valid trade mark, especially when the resulting phrase is used with the > same meaning as the original word without the 'Free' prefix. > - -- > Rahul Dhesi <dhesi@email.rahul.net> (spam-filtered with RSS and ORBS) The only significant issue is whether FreeBSD, Inc. has been sufficiently aggressive in defending the trademark. The fastest way to lose a trademark is to let others use it without permission. Once that becomes established as "normal", you've lost the right to require them to get permission, i.e., you've lost the trademark. -- Bob Johnson bobj@atlantic.net To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-questions" in the body of the message
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