Samba Runs Into Naming Problems In Germany 318
roadrunner2000 writes: "Some German company claims to have the right on the brandname "samba", so they try to sue everyone in Germany which uses
the open source project "Samba". Get more information from
Heise Online" From the Fish Translation, it seems that the acronym SAMBA stands for something else in German. If you can add more information, post it below.
trademark for word != trademark for logo (Score:2)
I think it is interesting to see that finally lawyers come to an understanding what the net and information techonlogy can mean to them: a wonderful playground where they can find easy prey. I sure hope they try to sue every company that is offering samba support, because I could imagine that IBM and HP could get seriously annoyed by this and get their lawyer amanda to squash their opponents... or else samba has to be renamed... or stopped. I wouldn't mind, I never saw the need for windows connectivity anyways... hehe...
Re:Samba is a proper noun (Score:1)
If your name happens to be Elton John Smith, and you play piano, you don't have to give up your career... and you can even mislead people (to some degree) legally. A great world.
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Another German Samba (Score:2)
Bingo Foo
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Re:Nothing wrong with protecting a trademark. (Score:2)
The users of the software are not selling it as their own product, even if they use it in a business setting, and the "owner" of the software is not profiting monetarily from its sale. This should be thrown out, regardless of whether the trademarks conflict.
Worst case, the Samba maintainers should be allowed to change the name of the package, not penalized for something from which they did not derive a profit.
Exactly (Score:3)
Rename the "German Release" of Samba to:
In-germany-this-is-freeware-SMB-not-samba-that-
Call it "Samba" for short.
Dictionary words... (Score:1)
"Hi, welcome to 1349736. We provide simple solutions for getting your 298301 up and running in a 73947 environment."
I wish more people would be willing to do an honest day's work to earn a buck.
-Effendi
Re:Explanation (from a German) (Score:2)
Um, no. It's more like if Oracle sued you for making a cheese pizza or car called "Oracle". Trademarks do not apply across different domains; there can be an ACME furniture and an ACME widgets at the same time. For a fun experiment, look at the phone book under 'ACME'. It's the John Smith of corporations
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You hear this everywhere, but it ain't so (Score:1)
Perhaps a quick email to FINANCE.Stuttgart@c (Score:1)
And this is a list of their top 10 customers (Score:2)
In this case i'm less concerned about a business trying to defend their name than about the way they do it, namely using 'Abmahnung' demands where unsuspecting businesses get a letter demanding money from them just because they used the wrong wording in their advertising (see this comment [slashdot.org] for a pretty good explanation).
Re:Acronyms and Trademarks (Score:1)
-- Sig (120 chars) --
Your friendly neighborhood mIRC scripter.
Re:Open source software? (Score:1)
No, during World War II, the OSS was the name of the U.S. special forces, so they're very sensitive about it.
I told you not to mention the war! I did once, but I think I got away with it.
"Well, you started it."
"We did not!"
"Yes you did, you invaded Poland."
When they started having SHAREHOLDERS. (Score:1)
Capitalism at its best. Perverting the soul of a once decent website at its worst.
---------------------------------
Sheesh... (Score:2)
Is Germany going to sue Disney for naming that one lion Samba in the Lion King?
Agh.
Re:Germany man! (Score:1)
Good info on it is at http://www.wohlmut.com/beer/morebeer.html
I know I'm off-topic but I'd like to see if
Re:translation (Score:1)
At any rate, the name "Babblefish" appears fully approriate, both for the translator's input and output
Re:Explanation (from a German) (Score:1)
Both SAMBAs are software that allows interoperation over a network.
This is not RDBMS vs. Pizza.
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addidas (Score:1)
Re:Explanation (from a German) (Score:1)
I do, however, disagree with you on one point. While its certainly true that companies need to protect their trademarks, and if you created a mySQL clone named Oracle, you would be a target for a law suit, I don't think in this case this law suit is warranted at all. Samba is nothing like this other companies product of the same name, and Samba really isn't a product in the traditional sense of the word. There is no threat of trademark dilution, especially since Samba wasn't developed in Germany, at least not as its primary market.
It seems the closest analogy I can think of to something not open source would involve me purchasing a certain product here, then moving to Germany and bringing the product with me and getting sued because there's a different product with the same name there.
so does it here (Score:1)
Re:adidas sambas (Score:1)
Re:Adidas has used "Samba" for a while now (Score:1)
Re:FYI: This is a current major problem in Germany (Score:2)
l8r
Sean
Re:Sheesh... (Score:2)
In other words, they're just doing their job, and are in no violation of any reasonable moral or ethical standard of which I am aware.
The feasibility of that citizen's approach seems questionable, I admit, but that's another issue entirely.
Re:Dictionary words... (Score:2)
WWJD -- What Would Jimi Do?
Re:The McDonald's coffee case (Score:2)
In most other countries the amount would have been equal to estimated damages (and medical costs etc), not some percentage of profit (size of company, stock value, whatever).
Punitive damages seem to be one of those anglo-american inventions that are not widely used in rest of the world... And it's kind of hard to understand that even if punitive damages are used, why are they handed to suing party as kind of a bonus, instead of, say, being given to a volunteer organizations or funds ("McDonals Fund for Healing Coffee Burns?"), or, god help, used for filling the bottomless government coffins.
What SAMBA means (Score:4)
timeline (Score:3)
The SMB implementation seems to have been around since 1991, but doesn't seem to have been called "Samba" until 1994.
The CMG trademark claim may be legitimate under the current trademark categories in Germany (and probably US categories as well).
As an aside, the UK trademark office is down overnight (CMG's Samba is used in the UK as well), and the German trademark office charges $2/search, with a $75 minimum. The US PTO web services seem really nice in comparison (and it lists lots of "Samba" trademarks, although all of them seem to be "typed drawings" rather than words).
Re:[OT] Slashdot running doubleclick ads! (Score:2)
At any rate, Hemos gave a perfectly satisfactory answer to this in a previous article. Slashdot/Andover contracts with all of their advertisers independently and does not deal directly with ad companies. However, certain advertisers have all their advertising done through doubleclick et. al. So to display those ads on Slashdot, they have to pull it from the doubleclick ad server.
I'm not trying to kiss up to anyone here, just pointing out that I believe Slashdot is not being hypocritical by displaying ads that come off a doubleclick server. However, they probably should figure out a way for those ads not to set a cookie.
Tort reform (Score:2)
I agree whole-heartedly. For my thoughts on the matter, see my page at honeypot.net [honeypot.net].
Re:Acronyms and Trademarks (Score:2)
According to Webster's, the word doesn't have to already exist; it can be a new word. Webster's cites "snafu" and "radar", two terms of World War Two vintage, as examples. Implicit is the idea that the new word has to be pronounceable and ideally easy to remember.
Frequently, acronyms are formed that use existing words (and sometimes the acronym is invented first and the phrase name represented is designed to fit the acronym). Here are some examples of acronyms that use existing words:
BASIC....Beginner's All-Purpose Symbolic Instruction Code
NOW......National Organization for Women
WHO......World Health Organization
Abbreviations that use the first letter of each word in a phrase are sometimes referred to as initialisms. Initialisms can be but are not always acronyms. AT&T, BT, CBS, CNN, IBM, and NBC are initialisms that are not acronyms. Many acronym lists you'll see are really lists of acronyms and initialisms or just lists of abbreviations. (Note that abbreviations include shortened words like "esp" for "especially" as well as shortened phrases.)
Summing up:
An abbreviation is a shortening of a word or a phrase.
An acronym is an abbreviation that forms a word.
An initialism is an abbreviation that uses the first letter of each word in the phrase (thus, some but not all initialisms are acronyms).
This highlights that trademarks are nonsense (Score:2)
Is this concept too difficult for judges to comprehend? Why are they even entertaining such legal action, when name clashes are such an obvious result of national trademarking?
Apache JServ name conflict (Score:2)
Re:The McDonald's coffee case (Score:2)
So basically McDonalds did a cost/benefit calculation and figured profits were more important than inflicting serious wounds. And let me make a point, people spill food and drinks on themselves, it happens all the time and places that serve millions of people a year should probably take that into account. Don't try the gun/smoking analogy. Firstly analogies are logical fallacies, they illustrate but do not prove a point and second, at least nowadays, people realize that smoking and guns are dangerous. When I get a slushy I don't expect it to dissolve the lining of my stomach, just as one would not expect a cup of coffee to cause 3rd degree burns.
The original amount she received was one days PROFIT from McDonalds COFFEE sales. Millions of dollars. It was a punitive judgement, as in "you put profits before the health of your customers". She got it because she stepped forward when others didn't. She lost all of it on appeal except for lawyer's fee's and medical bills.
The McDonald's coffee case (Score:3)
Just a quick note on frivolous lawsuits:
The "McDonald's coffee case" is frequently held up to ridicule as a classic example of a frivolous lawsuit. After all, old lady spills coffee on herself and gets burned, then sues - what's more to know?
The coffee one gets out of a home coffee machine is about 140 degrees F. A really hot cup of coffee out of a commercial device might hit 160. During the trial, a McDonald's QA manager testified that company policy dictated that their coffee be maintained at not less than 180. That's enough to cause a third degree burn in less than five seconds.
Which is what happened. Stella Liebeck was handed a cup of this coffee in a styrofoam container. When she spilled it, the burns were bad enough to necessitate the use of skin grafts. I refer you to the Consumer Attorneys of California [caoc.com] pages, where they lay out a pretty good summary of the proceedings.
If you want to make fun of the US judicial system, go ahead, we can take it. But don't make fun of a poor old lady who got handed a little coffee grenade. Some people screw up, but she just got screwed.
Re:Sheesh... (Score:3)
Companies can't force individuals to use these terms, but in business and legal correspondence only the official product names can be used.
"Samba" is being used on its own here, not with some company name preceding it. That's the big case here.
Casio is in BIG trouble (Score:3)
Re:Explanation (from a German) (Score:2)
In this case, its a computer software company, suing over a computer software name. Banking software vs. networking software.
Its the same domain.
We've all been one-upped (Score:3)
Adidas has used "Samba" for a while now (Score:3)
Re:The McDonald's coffee case (Score:2)
The fact is that the coffee was too hot. The issue is that she was stupid to have spilled it in the way she did.
translation (Score:2)
Providers of support for the open SOURCE often commodity Samba are affected by a warning wave. Several companies, which are entered in the Web on a list, received a writing, in which they are requested to offer Samba no longer in the name of the company CMG to apply, to drive out or in the trade use. Samba is a software, with itself the Unix and Linux computer as server and Clients in a Windows network to begin leaves. The program free of charge available in the Web belongs to the most renowned success projects in the area open SOURCE often commodity. The name SaMBa comes from the SMB log used in Windows networks.
After information of a coworker of CMG opposite c't the warning is based on a word label within the area of " data processing programs " (class of goods GK 9) for its own bank software ( standard log-on reporting department banks , briefly SAMBA). A Germany width internal message concerns itself, was called it with CMG, in order to protect the own rights. How many warnings were sent away, the company did not want to indicate however. CMG sets the article the subject of the warning to 100.000 Marks; the assigned attorneys want to have refunded the warned company in each case from costs from scarcely 1900 Marks to 8 August.
Volker Lendecke, one the Samba developer, let enter a picture label for the Samba Logo however in the last year in the area " creating programs for data processing and EDP call circuits " (class of goods GK 42). Most important target was to protect the Samba project from such warnings avowed Lendecke.
Re:Samba in Germany (Score:3)
Brazilians has the right to SAMBA! (Score:3)
So, like Sting being Stung, I doubt this infringement will hold up in court.
Re:FYI: This is a current major problem in Germany (Score:2)
I think the problem is how you should define what's a 'correct' name. Just because any company on the world uses "Explorer" you can't be forced to use anything else for your own brand name.
I've heard of a case in germany where someone got sued because he linked to another web site where the sueing person was offended. That's ridiculous!
Something's pretty wrong with german law. I live in Austria, which is next to Germany, and I always read c't and there are lots of articles about things like that! I hope Austria's law is different in this case.
But there's the big problem: law and computers don't mix. Laws are much too slow evolving for this industry.
This will get worse. (Score:3)
trademark categories too coarse (Score:2)
In any case, another important question will be when CMG applied for their trademark. If Samba (the free SMB implementation) was in common use in Germany before then, it will likely be exempted from claims, even from someone holding a registered trademark, just like it would be in the US.
Re:Nothing wrong with protecting a trademark. (Score:2)
1: They are both software, and sometimes that can be confusing enough. For example, my boss has confused ASP (Active Server Pages) with ASP (Application Service Provider). And you don't have to be stupid for that, you need some context to make sure which ASP you are talking about.
2: You bet? Well it is not an argument unless you know.
3: Even though Samba-SMB is not commercial, it is marketed by commercial companies, and german Samba has much to lose by not defending their trademark.
4: Someone claims a copyright for SMB-Samba, right? The license does not matter, the copyright matters.
translation (Score:2)
Ex: VIC-20 became VC-20 (Score:3)
SAMBA, a must have for Unix/Windows interoperability should be able to accomodate - Just call it FreeSMB or something.
SOMBE
SIMBA
SUMBY
etc
Re:damn what a bunch of morons (Score:2)
... Intel has the letter 'i' patented.
Re:Explanation (from a German) (Score:2)
> "Well, it looks like they weren't
> really trying to take our trademark;
> why don't we just be friendly and
> understanding and work something out?"
> Instead of, "Ha ha ha ha! We're
> going to sue your fucking ass!"
Exactly.
*This* is the big question in the current debate about a number of similar incidents over here in Germany.
In fact, people are trying to proof in two particular cases that these brand names were registered solely to make money from the sueing that follows. One was "Explorer", the other was "Webspace".
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Re:Nothing wrong with protecting a trademark. (Score:2)
Well, obviously they are not just upholding their trademark but trying to make revenue by "Abmahnung" lawsuits. I mean, they basically sent bills to all subscribers of the SAMBA/FreeSMB mailing list. If they would just wanted to protect their trademark they just would have contacted the authors, probably via the mailing lists.
This is just another Abmahnung ripp off, as it is pretty common in Germany these days, and our government is still sound asleep...
I mean, protecting your brand name - fair enough. Sueing the Samba team if they refuse to - they have been warned. But that this kind of behaviour is legal practice is just embarrassing for German law and judges!
[OT] Slashdot running doubleclick ads! (Score:2)
Given doubleclicks arch-evil plans for our browsing click-trails, I would suggest Andover.net and Slashdot reconsider their use of doubleclick.
[Off topic] Re:The McDonald's coffee case (Score:3)
Coffee is boiling water to which flavoring has been added. It follows that when you order a cup of coffee, you're asking for water which was very recently boiling. You are not ordering water that has been carefully chilled to a specifc temperature far below the boiling point. If you want coffee chilled to the (comparatively) frigid temperature of 160 degrees, then you should ask for that.
Face it, if the old woman had ordered boiling water that had been poured over ground coffee beans, and then casually stuck it between her legs, the court would have held her mentally incompetent, a hazard to herself, and locked her up the county mental ward.
When you make an unwarranted assumption about pizza, and burn the roof of your mouth, everybody laughs. Heck, you laugh at yourself. If you sued the restaurant, the judge would laugh. The moral of this story is not that you shouldn't laugh. It's that you shouldn't go through life making assumptions with no thought to the consequences. Especially when the potential consequences are severe. If something is hot, make sure it is not *really* hot. If something pushes hard, make sure it won't squash you like a bug. Ditto for electricity, liquid fuels, acids, etc. Safely testing assumptions is quick and easy, it just takes mental effort. Nobody ever won a Darwin Award just by being stupid. They won in almost all cases by disregard for consequences.
Alternate Name (Score:2)
Sins
Is
Not
Samba
--worth a smirk anyway
New name for Samba (Score:2)
how about "GNU/SAMBA" (Score:3)
(hey, I just realised that my sig is on-topic!)
Re:Explanation (from a German) (Score:2)
Technically, that is what they are doing (the "friendly" approach) and that is what an "Abmahnung" is. It is a request to stop violating a trademark without actually taking it to court (but with the implicit or explicit threat of doing so if the other doesn't back off).
Now the thing is that they charge lawyer's costs with that (which are presumably a lot lower than the costs when you lose in court). This has in the last years led to widespread abuse of this system (a certain Munich based lawyer became very notorious for that) by trademarking incredibly common terms (Explorer, Webspace, ...) then sending out serial requests with lawyer's charges of around $500-$1000.
They claim that this is their cost, in fact it's nothing more than letters created with the serial letter function of some word processor. They bet on the fact that none of their victims has the money to spare to risk going to court and settle this for real (they still might lose) or that they have enough money that they don't bother. Microsoft is paying royalties to some small company for using the trademark "Explorer" in Germany.
Re:[OT] Slashdot running doubleclick ads! (Score:2)
Yes, such as the famous "Open Fawking DSL" project.
Re:translation (Score:2)
The CMG has made a press release. You can read it at http://www.cmg.de/aktuelles/aktuell. htm#P7_138 [www.cmg.de].
I don't make a translating here, but the main points are:
I think, their action was a little bit hasty and big companies tend to have a different view than the open source community, but they seem to be on the right way now. :-)
cu
Waldmeister
Hey, I have a product named Germany!!! (Score:2)
Here's What The German SAMBA Is (Score:5)
Context (Score:2)
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Re:Sheesh... (Score:2)
I don't see that -anywhere- in the babelfishified version, but... Is it just me, or is there an awful lot of truth-twisting on /. these days.
*gel
Re:translation (Score:2)
Re:[OT] Slashdot running doubleclick ads! (Score:2)
The post:
This is also addressed [slashdot.org] in the Slashdot FAQ [slashdot.org].
Basically, Slashdot is no longer controlled by just CmdrTaco and Hemos, Andover.net is a company, and needs to turn a profit. And a reality of advertising on the Web is DoubleClick.
Re:damn what a bunch of morons (Score:2)
Maybe someone whould tell Microsoft, who have trademarks on things like "Windows Media", "Mobile Explorer", "Links", and registered trademarks on "Natural", "Starts Here", and of course "Windows". Most large corporations have managed to get trademarks on a number of common words and phrases.
Re:The McDonald's coffee case (Score:2)
You missed the point: Nobody can explain why the woman should get millions of dollars. Sure, McDonald's may be fined ten million dollars, I don't care, but what people (outside the USA) really can't understand is why it should all go to the person suing the company. Just compensate her for the medical costs and lost revenues (for the time in court), and let the rest go to a charity organization, the government, whatever.
Spilling hot coffee on yourself should not be a "get rich quick"-scheme.
Re:The McDonald's coffee case (Score:2)
Psychology holds that people tend not to seek full information when their pet arguments can only be damaged by it. There is certainly a moral to this incident, but it has little to do with the litigation-crazed nature of the justice system.
But I'm sure your friends and family consider your discourse on the topic quite impressive, so please do not let me (or truth) hinder you in this.
Some German trademark and computer law information (Score:2)
The German trademark law is a bit complicated, I'm afraid, and there is probably nothing in the Web in English, but here's at least some information [markenagentur.de] in the form of translated headings to get you an idea of how it is structured.
Those out there with some knowledge of German might try the Bundesgesetzblatt [bundesgesetzblatt.de] (the Federal Law publishing board) or this comprehensive overview [internetmarken.de] of German trademark law with the texts included; I think you can forget the idea of having it babelfished [altavista.com], though, because it's probably a bit too complicated in style to translate properly. Another good resource is the web site of the DPMA (Deutsches Patent- und Markenamt) [www.dpma.de], the German Patent and Trademark Office.
If you know some German and want to go for an entirely different view of the matter, you might have a look at the other side's point of view [gravenreuth.de], in this case in the form of the aforementioned lawyer Günther von Gravenreuth, well known (not to say notorious) for his actions against private and commercial [heise.de] "computer piracy". There even exists an FAQ [ailis.de] for people who had legal trouble with him in one specific matter.
The European Union point of view on trademark law is available at the European Patent Office [european-p...office.org], with loads upon loads of links to various European and other offices and institutions, European law texts, patent databases and other stuff.
Re:Copyrighted ACRONYM???! (Score:2)
When are people like this going to realize the differences between the words, trademark, copyright and patent?
You meant, trademark.
Re:Nothing wrong with protecting a trademark. (Score:2)
Yup. It's a moderately fast dance for a couple, based on a 4/4 rythmn and latin-influenced music. The basic step involves reciprocating side-steps with emphasis on moving the hips. This is decorated with moves such as the "mambo" and "rumba".
Copyrighted ACRONYM???! (Score:2)
Gee, I think I'll copyright RADAR, or FBI, or CIA, or...
You get the idea. The complaint is complete bull-puckey.
Don't get bent out of shape (Score:2)
In any case, get over it and have a different name under for SAMBA in Germany. If the other company has been around first and flaunting their name first, then they have the rights.
Imagine a Japanese company having a computer product called Windows before MS. MS would have had to sell their product in Japan under a different name. (Would have been pretty funny too)
Re:What about ASP? (Score:2)
Re:translation (Score:2)
It probably translates to something like this:
Standard Authentification/Login (in/for) Information Transfers (for) Banking Corporations
yours,
AC, live from Germany.
[off topic] Re:The McDonald's coffee case (Score:2)
Facts:
This is the case of someone misusing a product and suing because they don't want to accept the blame. There is no difference between this case and the luser who lost some fingers trying to stop the blade on his chainsaw quickly.
If you use the product in the normal fashion, you will not be hurt. If you misuse it, you may be hurt. Why is this so hard to grasp?
As a side note, why does anyone trust the Consumer Attorneys of California, a group which has a very powerful financial incentive for encouraging frivilous suits? Would you trust a Microsoft report on Apache?
__
Rampant Lawsuits ?? (Score:3)
Oh, wait, that's right...
Q-Bert
Re:The McDonald's coffee case (Score:2)
Let's do the math assuming each of the 25,000 McDonalds stores sells 10 cups of coffee a day (each morning they probably sell that many cups every 15 minutes):
25,000 * 10 * 365 * 10 = 912,500,000
Even if you seriously underestimate McDonald's coffee sales and significantly overestimate the number of complaints, you're literally talking about less than a one-in-a-million chance. If you're an American, you stand a greater risk of accidental death in a swimming pool or falling asleep while smoking.
__
WARNING: Rant follows... (Score:2)
So, it's OK to ignore all common sense and do stupid things, and expect others to take the blame for you? If you step on a nail and puncture yourself, you don't sue Craftsman for making the nail sharp, do you? If you put your hand on a lit stove burner and burn your hand, you don't sue Whirlpool because the stove was too hot, do you? When you burn the roof of your mouth on a hot piece of pizza, you don't sue Domino's because they made the pizza too hot, do you?
Yeah, so this old lady got burned by hot coffee. How in the hell do you think coffee is served, COLD? I used to work at a McDonalds in my teenage years, so I know about how hot McDonalds coffee is. But common sense dictates that hot coffee is not to be placed between your legs, it's to be placed in your car's cup holder, or any related holding device. Granted, the car that Mrs. Liebeck was in didn't have a cup holder, but maybe she could've thought of a better place than between her legs to put that cup of coffee. But rather than use common sense, she put the coffee between her legs, opened the top...and made history as a prime example of the "sue happy" mentality of America today. Yes, McDonalds was partly to blame because they served their coffee at a rather hot temperature, but perhaps Mrs. Liebeck could've used a little common sense and not placed that hot coffee between her legs.
And the moral of this rant is? Use your common sense people! When you spill hot coffee on yourself, it's going to burn. When you stick a fork into an electrical outlet, you're going to get shocked. When you step into the oncoming path of a speeding train, you're going to get killed. When you run on a slippery surface, you're going to fall on your ass. Don't expect a company to make you wealthy for life just because you're an idiot.
And for further reading of lawsuit abuse, I suggest everyone check out Overlawyered.com [overlawyered.com].
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Re:Here's What The German SAMBA Is (Score:2)
Nothing wrong with protecting a trademark. (Score:5)
So, there is a preexisting product in the German software market called 'SAMBA', and the company that makes it wants to protect it's investment in that name. I think they're right. The SAMBA project should refer to the product be a different name in the German market. Even Anheiser-Busch has to refrain from selling a beer called Budweiser in some markets, because that name was already taken.
There are good reasons for protecting trademarks, and OSS should play by the same rules as everybody else.
Re:Here's What The German SAMBA Is (Score:5)
Re:[off topic] Re:The McDonald's coffee case (Score:2)
__
Re:WARNING: Rant follows... (Score:2)
But that's not negligence on behalf of the nail maker, is it? If Craftsman makes their band saw blades 50% sharper, and you stick your hand in it and lose it, that's not Craftsman's fault that the saw cut through your hand. It's your fault because you stuck your hand in there.
"...if that stove heated the entire stovetop rather than just the burner; if that pizza burned its way completely through the roof of my mouth and burned out my sinuses, I might consider it."
IANAL, but in those two cases, you'd have a chance, because there would be negligence on behalf of the stove maker and the pizza place. That would be if the companies in question knew about the problem and didn't fix it.
"Why? Because I can't be reasonably expected to assume any of these circumstances."
You mean to tell me that you can be reasonably expected to know that a nail is sharp, that a stove is hot, and that a pizza is hot? Pardon me for saying so, but if you couldn't expect that, you're a moron. Now, as I said, if there was negligence on behalf of Company X, and they knew about it, you'd have a case going. But if you're just suing because you're too stupid to realize that the razors made by the Widget Razor Company were sharp when you sliced your hand off, you deserve to be ridiculed.
"Similarly, the jury felt that the woman in the case shouldn't be reasonably expected to assume that the coffee she buys at the drive-through window is undrinkably hot and will burn through to muscle before she can get her pants off."
She shouldn't have expected the coffee to give her third-degree burns, that's a fact. And I can see where McDonalds would be at fault for serving 180-degree coffee. But unless she specified otherwise, she should have expected that the coffee would be hot to some degree. How else do you think coffee is served anyway? And the fact that she stuck it between her legs makes her look like a real dumbass. Whether McDonalds was responsible or not, if you stick coffee between your legs and it spills, it will burn, whether it's 140 degrees or 180 degrees.
"And before you go off on a big legal reform kick, remember that the lawsuit is YOUR main protection as an individual against corporate abuse."
You're right, lawsuits are an individual's protection against corporate abuse. Note the bold print? If Company X acted negligently, then you have a case. But if you acted negligently, you deserve to be laughed out of court. Don't expect a jury to bow down to you because you were stupid to protect yourself from yourself.
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Re:Acronyms and Trademarks (Score:2)
Technically, ``Nabisco'' wouldn't be an acronym but a sort of abbreviation. Something like ``FoMoCo'' or ``MoPar''. As for true acronyms... ``DEC'' is/was a trademark of Digital Equipment Corporation and I believe ``IBM'' is a trademark of you-know-who.
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Re:WARNING: Rant follows... (Score:2)
You're right, you shouldn't have to assume that the nail has barbs in it. Then again, maybe you should look where you step next time. Nails are designed to be sharp, with or without barbs. And if you step on one, it will hurt.
"I shouldn't be reasonably expected to assume that a stove would heat its entire top. I shouldn't be reasonably expected to assume that pizza would burn out my sinuses."
Which is why I said that, even though IANAL, you'd have a case there if negligence could be proved.
"You mean, a company that ignores repeated warnings that it's selling a product in a state that's not simply useless to the consumer but actually hazardous to their health in order to avoid having to throw away coffee for a few extra minutes isn't negligent?"
No, McDonalds was negligent in that matter. They served the coffee at an unusually hot 180 degrees, and that's why Stella Liebeck got the third degree burns. However, perhaps it could've been avoided had Mrs. Liebeck found a better place to put that coffee than between her legs. Nobody should expect that their coffee will be hot enough to burn a hole through your skin, but you should expect that, unless you specified otherwise, the coffee will be hot. Just because McDonalds served dangerously hot coffee doesn't mean we should have to tell Mrs. Liebeck, "Hey, you shouldn't have to assume that coffee is usually served hot, let others pay for your stupidity!"
You're responsible for your own actions. Just because you cut your hand off when you stuck it underneath a running lawnmower doesn't entitle you to be compensated for your stupidity. Lawyers are here to protect us from negligent individuals and organizations, they're not here to protect us from our own stupidity.
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damn what a bunch of morons (Score:2)
In the Lion King it's Simba not Samba.
The snake is the Mamba not Samba.
And I better not get some idiot trying to correct me and say that the Mamba is a dance because that would be the Mambo.
I think that everyone who doesn't live under a rock (excluding the morons) knows that Samba is a dance, and that under at least US trademark law you can't TM an English word or common phrase. Unfortunately I'm unsure on what the German law would conclude.
Re:Nothing wrong with protecting a trademark. (Score:2)
By a company selling a similar type of beer. If 'Budweiser' had been the name of a bestselling vodka, they probably could have come to an arrangement.
Trademark law generally allows that a trademark on a name in one realm (say, software) doesn't necessarily obviate the ability to use the same name in another realm (say, soft drinks). Thus apple computer and apple records were able to coexist.
If you think about it for a bit, you'll see that this *must* be so --- there's a limited number of valid words; if it's not ok for different companies to use the same word in different spheres of operations, soon all company and product names will be things like xzytrph because all of the words are already trademarked.
Re:Here's What The German SAMBA Is (Score:2)
Re:Nothing wrong with protecting a trademark. (Score:2)
Precisely --- the legal issue is that the breweries in Ceske Budjovice (Budweis, in German) have the rights to the Budweiser trademark, as it applies to beer. The Czech government and the Budvar breweries have been engaged in legal battles with Anheuser-Busch for years, and at one point the Czech government had to quash an attempt by Anheuser-Busch to buy the Budvar breweries.
The *original* cause of the problem is that after WWI, the companies located in the defeated powers lost their trademark rights under US law --- there was a similar case between Bayer Co in the US and Bayer AG which ended when Bayer AG bought out Bayer Co.
Only in europe :-) (Score:2)
I hate German lawyers the most.
It will be very hard to tell which way this case will go. If they get a nationalistic judge, free software will lose out, and probably be asked to pay damages (its free, doh!). If they get a younger and better educated judge, the case will get thrown out. If they get a clued-in judge, the banking system will lose and be chastised for such a frivilous case. But clueful judges are rare in Germany, and the banking system will know which is the best court to file for their advantage.
the AC
Explanation (from a German) (Score:5)
Okay, here's the deal:
In Germany, a firm called CMG seems to have registered a trademark for the word 'Samba'. That trademark refers to banking software, which seems to handle all kinds of banking transactions, using forms, etc. If you feel like wading through a longish list of features in German, see their product site [www.cmg.de].
CMG, makers of that software, have sent out snail mails to all people subscribed on a German Samba mailing list (i.e. the UNIX SMB software), and have demanded that all users immediately stop using, distributing, or advertising said software. Yeah, that's right: if you're using it, you have to stop doing so right now.
CMG is doing a so-called 'Abmahnung', i.e. a non-judicial process in which a private business/person can demand money from someone disrespecting their trademarks/trade laws. The total value of this process - CMG wouldn't say how many people are affected - is said to be about 100 000 German marks (DM), which is about $60,000. Their lawyers are also demanding 1900 DM from each of the parties involved. That's right - you were using Samba, you got the letter, you have to pay their lawyers about $1200 - until August 8. They'll probably sue the involved parties for that sum of money afterwards.
The c't article adds that Volker Lendecke, one of the German Samba developers - in order to avoid such trademark issues - had already registered a Samba pictorial logo trademark in Germany last year.
Such 'Abmahnung' demands are pretty common in Germany, lawyer firms routinely search advertising directories, etc. for anything that may be considered ambiguous in any way, or infringing on anyone's trademarks, and send out ludicruous demands out, often to people who have no way of acting against them. Whilst it's easy to claim that Germans are idiots and no such thing would ever happen in the US (free speech, etc), please remember that frivolous suits are pretty uncommon in Germany: people claiming money for eating peanuts and suing because they were allergic to nuts and there was no 'WARNING: May contain nuts' label on the box, or people suing because they spilled hot McDonalds coffee on themselves, would be laughed out of court in Germany. This is a fairly normal thing - the same would happen in the US if, say, I created a mySQL spin-off and called my new database 'Oracle' or 'Interbase', I'd be in a lot of trouble for trademark infringement. *shrug* It's that simple. Firms have to defend their trademarks, or they lose them if they become diluted.
Alex T-B
St Andrews
Re:Samba is a proper noun (Score:2)
That said, and overgeneralisations cast aside, the legal system of a given country is their right to establish. Just because another country's mindset and worldview disagrees with it does not make either right or wrong. The choice to 'do business' in a country includes the choice to abide by their business-related laws.
The only thing I would request of Germany et. al. (including the USA), is that non-profit status be given software "groups" developing 'free' software and special rights given to protect them against such lawsuits as they have little means of defence.
This would, of course, not apply to 'services' companies who give away software but sell a service.
Re:Nothing wrong with protecting a trademark. (Score:2)
True, but the SAMBA in question is a transaction or log on system for banks. i.e. networking software. I have a feeling that those two areas (filesharing network software & transaction-based network software) are probably too close to use that defense.
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Re:The McDonald's coffee case (Score:2)
FYI: This is a current major problem in Germany (Score:5)
It is possible to register the commercial use of a product name for a certain business category. This is a good thing, of course, since this is meant to help you protect your trademark. Once you have registered your product's name, you can sue anyone who abuses this product name.
E.g., as in this case, there is a company who owns the right to use the product name "Samba" with computer-related services, and thus, they can threaten to sue anyone who abuses "their" product name in the same category.
However, they cannot go after any dance school here in Germany that happens to be named "School of Samba" or something like this. It's a different business category.
Now, the government agency that is registering these names is obviously rather clueless, as are several courts here in Germany.
A few years back, a (very) controversial German lawyer started to sue any computer reseller who mentions the "Triton" motherboard chipset in his ads or price lists, because he was defending a client's rights to the product name "Tricon". Strangely enough, because of the "striking name similarity", this lawyer has won several times.
Right now, this lawyer is helping another client defend his rights to the computer-services related product "Explorer".
Yes, if your product is named "Explorer" and you sell or distribute it in Germany, you'll have to pay a hefty fee to this company. "To distribute" also means linking to it(!) and this lawyer is sending out numerous bills to website owners running a list of Shareware links to products such as "FTP Explorer".
Yes, it is claimed that Microsoft has paid a fee to be "allowed" to use the word "Explorer" in Germany, too.
This is a big major pain in the *ss here in Germany and an obvious abuse of German law. They are going after the little guys by sending their bills to site owners and those who merely mirror a site. Recently, c't, a major German computer magazine, put a few applicates which used "Explorer" in their name on a CD-ROM that came with the magazine. This has promptly started a legal battle which began by threats to sue every single newspaper shop in Germany selling c't.
This lawyer has become a bit of a persona-non-grata in the German net community, but he himself really enjoys this fame and status and brags a lot about his new "Explorer"-related court cases in the German usenet groups de.soc.recht.misc or de.soc.recht.datennetze. In fact, I am sure that he'd love to know that folks talk about him on a foreign forum.
Anyway, all this madness has lead to a disturbing trend of everyone threatening anyone else to sue about a product name. Try to search for "Abmahnung" on Dejanew or in the Heise Newsticker.
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Re:Sheesh... (Score:2)
Of course, doing that with a German article is kinda wrong... I mean, reading bablefished versions of articles makes my head hurt almost as much as reading l33t-speak.
Re:Don't get bent out of shape (Score:2)