Killustrator Author Required to Pay Two Grand

This article on heise-online reveals some more information on the KIllustrator dispute. If my understanding of the German article is correct, the lawyer firm of Reinhard Skuhra Weise & Partner has issued a cease and desist letter to the University of Magdeburg, employer of KIllustrator's author, Dr Kai-Uwe Sattler. The cease-and-desist letter complains that kIllustrator's advertising damages Adobe's brand-name and damages the reputation of Adobe's product. The lawyers required that the University sign the cease and desist letter, destroy the kIllustrator-package, name every KIllustrator user, and disclose the profit they made from it. Finally the lawyers sent a bill for 4686 DM (German Marks, approximately 2000 dollars) not counting value added tax. Should the University not sign, the lawyers will sue for a million DM (approximately 400 thousand dollars) . Kai-Uwe Sattler is happy to change the name, but doesn't want to pay this bill. When he suggested changing the name, the lawyers rejected his proposal saying "Do you know any lawyer who works for nothing?" The lawyers insist on payment. Sattler regrets that Adobe never contacted him before calling upon lawyers to ask him to change the name of his software. Udo Skuhra, who works at the lawyers' firm, refused to talk to heise-online about the cease-and-desist letter, and refused to state whether Adobe asked his law-firm to issue it.

Update: 07/04 03:30 PM by S :Joerg from Germany sent us a small correction: Apparently the lawyers want any packaging of KIllustrator destroyed, not the project itself. Perhaps they think it comes in a box?

From Adobe's website:

Quote: [adobe.com]

Conduct business on the highest ethical basis

Life is too short to be ashamed of anything we do. Truth, honesty, and integrity in all of our dealings with other people allow us to always be proud of our association with Adobe.

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAH!

Re:My girlfriend is going to be pissed....

Would never work. My ex-girlfriend has prior art.

A mirror for y'all.

Fight the power! And stuff!

http://bitey.net/mirrors/killustrator-0.7.2.tar.gz [bitey.net]

- A.P.

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Well, this certainly changed my perception..

Where I used to regard someone like Adobe with complete and utter apathy, I now regard them with hate.

There's a difference between protecting their brand and being insane. They turned a situation that could be solved effortlessly into a messy legal battle. Does anyone doubt that the developer would have just changed the name if Adobe had come along and said "Hey dude, cool stuff, but we're kind of peeved that it's named 'Illustrator', can ya change it? We spent gazillions of dollars promoting the name 'Illustrator' and we feel kind of taken.'"

Christ, this is enough to make me want to infringe on one of their brands just out of retaliation.

Hmm. Could they feel threatened by open source?IIRC, they used to even recommend the Gimp when users asked them to port Photoshop to Linux.

[e-mail] doesn't work

That email address bounces with a "user unknown" error. Does anyone have a working adobe marketing or PR email address?

Danny.

Re:This IS infrigement

While I agree in principle, I don't think I can agree that "Illustrator" is generic when it comes to naming software simply because it's a word that existed in the language already--and it seems to me that's ultimately the case you're making.

I'd submit that Illustrator isn't a "generic" description. Generic description would be "Adobe Vector Drawing Program"--or even "Adobe Draw," which, indeed, has precedents similar to the ones you cite: Mac Draw, Corel Draw, Lisa Draw, Cricket Draw (for those of you with long, long memories). But "Adobe Illustrator" seems to be in the category of names like "Canvas" (Deneba), "Freehand" (Macromedia) and "Expression" (MetaCreations, now reverted back to Creature House). All of those words were, and are, relatively common English words, too--but they don't refer to a class of computer graphics programs. They refer to specific computer graphics programs, all of which have been in production for a decade or longer.

While I don't condone Adobe's handling of this (or the approach of allowing lawyers to handle it this way for them, if that's what happened), this is not a case of a company just laying claim to a common word and trying to sue anyone who uses it. This is a case of a company, or their agents, seeing another program in the same field as theirs using a name which is deliberately similar to the name that refers specifically and only to their product in that field.

Comment from a German Jurist

WARNING: Also I have studied the German law, trademarks are not my specialty and I give no guarantees about the content of this post. (IANAL yet, too)

There are some mistakes in the descripition of the German Law system you made.

Abmahnung is just "cease and desist". Quite okay if you ask me. They can normally only be send out by the holder of the right that was violated (the trademark). But the BGB knows the so-called GoA - Geschäftsführung ohne Auftrag. It allows you to act on behalf of someone if it is clearly in their interest. In this case I can see problems for the lawyers if they did not contact Adobe first, because their actions have cost Adobe a lot of PR, not exactly in the interest of Adobe.

The 4600,- DM are probably derived from the "Streitwert" the estimated contested sum that would be fought about in court. Proabably the "Adobe Illustrator" trademark was considered to be worth millions so the legal fees are calculated from there after the German "BRAGO" - BundesRechtsanwaltsGebührenOrdnung - (try babel on that one) a state imposed billing statute for lawyers.

There have been decisions in the past, that sending out multiple form letters to trademark violators does not entitle you to full compensation with BRAGO fees for every case.

Finally the German legal system does give you the right to claim your own legal fees from the losing party before court. (Therefore the BRAGo, can't get more than that from your opponent). This is nice, because poor people can sue before the courts -- unlike in the US of A.


--

I guess I can see why adobe did this ... kind of

If you don't issue any warning and come down on anybody who "infringes" like a ton of bricks, the number of repeat offenders is likely to be low.

I don't necessarily AGREE that this is anykind of infringement, but I can see how that might be their strategy.

Re:internal memo: Adobe

Before you send that letter, read this [slashdot.org] post from a German citizen. It would seem that this is an independent law firm engaging in purely self-interested behavior.

Re:Storm Warnings Ahead.

They may not be Illustrator yet, but the concept of "good enough" is not to be underestimated.

Congratulations, sir! You obviously possess the necessary qualifications to serve as Vice President of Product Development at Corel. Please report to your office at 8am sharp, Thursday morning.

--

Re:Adobe Contact Info:

more contact info... remember, be nice.

Press/Analyst Contact Info.
Public Relations:
Kevin Burr
VP, Corporate Communications
408 536.3021
[e-mail]
---

Adobe Contact Info:

San Jose Corporate Headquarters
Adobe Systems Incorporated
Tel: [phone]

and remember, be courteous, and follow the advocacy howto. be polite when you ask if they know what their lawyers are upto
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Hey, maybe a way out...

Obviously, the lawyers haven't got the faintest clue what their doing (other than the usual protection racket sort of thing).

Offer, instead of the flat $2000, to settle for license to keep the KIllustrator name for 30% of the profits from it. :-)

---

Re:This IS infrigement

What's more, though IANAL, a trademark owner has to defend his trademark if an infringement is brought to his attention--or else someone in a court case down the road can say "You knew about infringers XYZ and you didn't do anything about them; you don't have the right to do anything about me, either."

It's definitely too bad about the lawyers demanding $2K, as well as all those other insane concessions, but that's something they're going to have to work out between themselves. The fellow simply should have known better to begin with.

This should come as a major wake-up call to all the people who make packages with functions and names similar to trademarked programs--the KIllustrators and FreeMWares [slashdot.org] of the world: Don't mess with companies who have more money and more lawyers than you. You can complain all you want about how incredibly unfair it is, and deeply wrong, and boycott and send nasty letters all you want to, but at the end of the day, they'll win. And don't look to the Electronic Frontier Foundation or the ACLU to help defend you, either--your freedom of speech does not include the freedom to transgress others' property. DeCSS is somewhat defensible due to the ambiguous nature of the DCMA versus the public's right of fair use, but this is quite a different matter--there is no DeCSS-like legal ambiguity about trading on someone else's name to try to popularize your own product.

--

Re:*cough*bullshit*cough*

I doubt that even in law, presuming that both sides had equal representation, Adobe would win. I think that they doubt this too, otherwise they the bludgeon approach?

When they open with "Drop the name and pay me cash, if you fight me, I take all you've got." I can't help be believe that their motives are amoung the lowest available.

These aren't people who are trying to negotiate to protect their rights. The closest analogy is to bandits or highway men saying "Your money or your life!".

Any person, group, company, or corporation that uses such an approach can only be called evil. ... well, one can also call them vile, I suppose.


Caution: Now approaching the (technological) singularity.

QUESTIONS on the German system from a non-German

Questions:

How does the German legal system handle it if multiple lawyers send similar letters for the same issue, each demanding money? How far can that go? Can every law firm in the country simultaneously do it?

Does the German legal system allow the law firms, when acting independently like this, to carry out the lawsuit (e.g. the 1.000.000 DM threat) as well? Or do they have to arrange with the owner of the allegedly infringed property to do that? And if they are allowed to, can multiple firms do that?

I guess we (outside of .DE) could accuse the lawfirm of "Nazi practices" (how would I say that in German?). I don't know if you're allowed to make references to that past there (apparently it's taboo in France). But at least we can here in the USA (even for our own evil history of slavery).

Re:This IS infrigement

You don't see people cleaning the window with "Kwindex" or wiping their noses with "Gnokleenex" do you?

That's because Windex and Kleenex are artificial words created specifically to be used as trademarks. "Illustrator" is an ordinary English word. There's a big difference.

If "illustrator", the word, is indeed trademarked by Adobe for vector drawing software, then Killustrator will have to go. But "illustrator" is a stupid trademark nonetheless. That's like trademarking "window cleaner" or "tissue paper" instead of Windex and Kleenex.

Comment on the German system from a German

Hey

In Germany, we have what is called an 'Abmahnung'. This is basically a 'Warning', and can be issued by pretty much anyone who operates a law office of any kind. This 'Abmahnung' is part of the German law system; if you spot any kind of infringement on copyright / trademark or even trade law, you can issue a warning to the infringing party, and send them a bill for your costs. This is extremely common, and a whole law industry subsides on it. Usually, the infringement warnings can be quite justified, but sometimes people get overzealous in their quest for cash.

An example is if you use what's called 'improper' advertisements - in Germany, you're not allowed to use unfair adverts; 'unfair' is considered anything comparative, e.g. you're not allowed to say 'Our car has a higher top speed, better acceleration, and a lower price than the BMW 325i, the Volvo S60, and the Mercedes 230.' If you did, you'd get an 'Abmahnung', even if BMW, Volvo, and DaimlerChrysler didn't sue immediately.

So yeah, it's a sucky system. German society is very free and open in most respects (what'd be considered porn (tits, penises, etc) can be seen on normal network TV and nude beaches are very common, but the BUSINESS system and laws are stuck in the middle ages, biased heavily towards big business. (a bit like Japan, to be honest)

Sorry if this veered off towards explaining German business practices and society too much, but it's important to understand what's going on. Somebody's spotted a trademark infringement and pounced on it. And make no mistake about it: if the guy sues, he'll lose. Hell, so would I if I made a spreadsheet app called KExcel and distributed it, often as part of for-pay packages. (like Linux distros) To 'excel' is a simple word, and can't be trademarked, but in respect to spreadsheets, it can be protected. Brand dilution. It sucks, but that's how it works.

Alex T-B
St Andrews

Re:[e-mail] doesn't work

http://www.adobe.com/aboutadobe/pressroom/prcontac ts.html [adobe.com] gives Cara Broglia [e-mail] [mailto], [phone], as the PR Manager for Adobe Illustrator. (Note, they don't say just Illustrator).

People, THINK for a minute!

Adobe is in the right here! It's called KIllustrator, for God's sake! Any impressionable kid could take that to be a contraction of Kill-You Castrator.

Bravo bravissimo [iinet.net.au], Adobe. Thanks for Thinking About The Children (TM).

< tofuhead >
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This smacks of Fraud!

It is a very common ploy: independant "lawyer's firms" scouts small businesses, non-profit organisations, etc., and try to find petty violations, then send threatening letters to said businesses, requesting payment of fines. Usually, the violations they look for are accidentally mislabeled prices on product, or other inane stuff like that.

The catch is, those firms do have no authority to do this, and the "fines" are entirely for their own pockets. Moreover, often if it is not even sure whether the "violation" took place at all: those threatening letters are often sent months after the alleged facts, when the shopkeeper has already re-arranged his display window since long, and can no longer determine/remember whether this or that article was correctly labeled or not.

Scams like this are regularly featured on police information TV programs such as "Vorsicht Falle, Nepper, Schlepper, Bauernfänger". If I were kIllustrator's author, I'd contact Adobe, and ask them whether this "laywer's firm" is actually operating in Adobe's authority. Chances are good they aren't.

Trademark Law

Under US law, trademark protection against dilution is defined by 15 USC 1225 [cornell.edu]. Germany's law is probably somewhat similar. I suspect that Adobe's trademark is registered in the US.

After reading the law (something I'd recommend for most Slashdotters), it seems to me that the claim of trademark dilution is somewhat iffy.

The key shortcoming is that 15 USC 1225(c)(1) only authorizes an injuction against "another person's commercial use in commerce of a mark or trade name" (emphasis added). Moreover, per 1225(c)(4)(B) "noncommercial use of a mark" is not actionable.

I believe that a strong case can be made that KIllustrator is not a commercial use by the good Dr. Sattler.

Even if it is somehow commercial use, then by 1225(c)(2), injunctive relief is the FULL extent of relief unless the person "willfully intended to trade on the owner's reputation or to cause dilution of the famous mark". The idea that Dr. Sattler did this seems rather absurd to me.

Thus under US law, I would doubt this case would go anywhere at all.

Who didn't see it coming?

Early on I emailed the KIllustrator author and told him that the name was a liability. His response was roughly, "What are they going to do, sue me?". I am in no way surprised by this and think it was moronic to name KIllustrator as such.

Stupid people get what they deserve.

Re:"Nazi practices"??

Or maybe, just "Nazi practices", in the sense of "encouraging denunciation". Actually, this even goes one step further than just denunciation: the "denunciator" gets to perform the execution part of the punishment as well, and can help himself to the reward...

In which mentality is it considered ehtical that a lawyer who has no mandate from the injured party, goes out, and randomly demands cash from third parties? In other places, this is called extortion. Looks like this law needs some serious Vergangenheitsbewältigung.

Re:Comment on the German system from a German

Sure-fire way to lose your shirt: Ask for legal advice on Slashdot ...

The above is partly correct, mostly not, however:

1. Any interested party (competitors, "fair-competition societies", lawyers acting on their behalf, lawyers on their own) can send out cease-and-desist letters against companies engaging in UNFAIR COMPETITION. This would be: claiming to have a product in stock when you do not; reneging on advertised prices, stuff like that.

2. Only the TRADEMARK OWNER or COPYRIGHT HOLDER (or lawyers acting as their APPOINTED agents) may send out cease-and-desist letters against trademark or copyright infringers.

So, thinking that some lawyer with no connection to the trademark holder sends out a cease-and-desist letter is ridiculous. Yes, technically that would be possible, but then this lawyer would have to answer to the bar association for that.

3. My most important advice, and IANAL: GET A LAWYER! Killustrator is close enough to Adobe Illustrator to possibly be infringing.

4. The money they are demanding is not damages but reimbursement of their legal fees. That's SOP, but nobody says you HAVE to pay it. Heck, I could send you a letter demanding 5 grand. Would you pay?

Least expensive solution: Sign a cease-and-desist letter WRITTEN BY _YOUR_ LAWYER but don't reimburse them for their fictional legal fees. After that, they cannot sue you for DM 400.000 but only for the legal fees. And this is a risk you can take: even if you lose in court, the legal fees for a lost $2000 case are neglegible. A lawyer can simply look up the risk you are taking in BRAGO, the German "price table" for legal fees ...

-Martin

Impossible Demands

The lawyers required that the University sign the cease and desist letter, destroy the kIllustrator-package, name every KIllustrator user, and disclose the profit they made from it.

These guys didn't do their homework, did they?

This IS infrigement

Everybody's going to jump on board with the Linux side of things here, but let's look at the facts.

Adobe owns the Illustrator name. It's not "Adobe Illustrator", it's "Illustrator". It's been around for ages and while not the best product in my eyes it certainly is better at this point that the K-version.

Regardless of platforms or competing or profits, Adobe owns the name. It's not a matter of "huzzah huzzah intellectual property" or anything. Names have been trademarked and defended for years. You don't see people cleaning the window with "Kwindex" or wiping their noses with "Gnokleenex" do you? NO!, because the base name is owned by a company.

As for the lawyers demanding to be paid, they should go fuck themselves. If the author's willing to change the name, he has already made the correct choice. Now, the lawyers have to do the right thing in turn and just leave it be.

Obviously they won't. Somebody go set up a Paypal account or something, maybe the author could do that, and we could contribute a buck each if neccessary.

*cough*bullshit*cough*

Quoth the poster:

...a program that cannot run on the same platform as another is clearly not a rival...

I was going to go on a rant and list several reasons why you're wrong here, but there are only two that really matter.

1. Reality. MacOS X will run both Illustrator and KIllustrator. So even by your logic, yes they are direct competitors.*
2. Philosophy. Even if they didn't run at all on the same platform, your attitude is precisely what Free software is trying to dethrone - that your choice of operating system or platform is limiting rather than empowering. If App Q isn't available for your platform, bug the developers, learn another OS, look for a substitute, etc. The bottom line is that if learning a new skill is all that stands between you and a task, you've got no reason to whine.

What Adobe did was right and proper. It sucks that this poor schmuck is getting nailed, but if he'd had half a brain he would have expected it. The best post [slashdot.org] from the last article said, in part,

"Whether or not you "believe" in Intellectual property has no bearing on whether it exists, and if it is legally binding.

Fighting the system through simple noncompliance is not the answer, talk to your govt reps, and demand action. If nobody complains, then nothing changes. The whole point of democracy is that you stand up and be heard, not just bitch and moan cuz you're not in charge."

Amen.

*Granted, there are some technical troubles between Apple and Adobe, but you can bet those will be ironed out - Apple users are very important for Adobe. You could also say that the people using Illustrator are unlikely to have the technical chops to get KIllustrator running under X. First, that's only an education problem, and doesn't help your argument. Second, you can bet that better installers are coming for all of user-land Free software).

"We all say so, so it must be true!"

What the author should do

I believe the fine was actually 2500 euros. OK, the author should create his own currency on bits of paper, called 'keuros' and send 2500 keuros to the lawyers.

When the lawyers complain, he can say, 'keuros', euros, aren't they the same thing ?

Storm Warnings Ahead.

"The lawyers required that the University sign the cease and desist letter"

OK, this makes perfect sense. Adobe has a right to defend their trademark. To this point, I have no problem understanding them, or agreeing with them.

"destroy the kIllustrator-package"

This almost certainly comes from a background of commercial software, where one person controls the source. What do they mean by destroy? Here are three possibilities I can think of off the top of my head:

1) KIllustrator is not distributed by the University or author under that name. This is reasonable, if this is what they mean, but I don't think it is the most probable interpertation.

2) All copies of the software in the hands of the challenged parties are destroyed. Harsh, but also possible. In fact, likely.

3) Wipe the software from the face of the earth. Absolutely impossible. Under the GPL license, people can create derivative works from versions already existing, unless I have misunderstood the GPL. Even the authors themselves do not have the power to retract that freedom, once the code is licensed under GPL. Even if Adobe were to acquire copyright to the codebase, it wouldn't stop the versions already existing from forking into new projects. Which they almost certainly will, under a name Adobe can do nothing about.

(Incidently, those of you who worry about the fact that forking is allowe to occur in open source software, this is an ideal case illustrating why the risks are worth it.)

"name every KIllustrator user"

Again, absolutely impossible. Every developer who as used the code, and every end user? I'm quite sure no one has the faintest idea who all those people are. Someone needs to explain the concept of anonymous downloads. Also, the software is given away free, under GPL. No one has any right to tell people to stop using it. DISTRIBUTING it under that name, yes, but how can using it be an act of trademark violation? Why do they even care? Can someone who knows more about law please tell me why they are interested? (Not rhetorical - I'd really like to know.)

"and disclose the profit they made from it."

Uh - if you count development time and computer equipment, that's probably a fairly large negative number. Anyway, I doubt it can be calculated except on the presumption that there was revenue from somewhere. What else would lawyers mean? (Again not a rhetorical question.) If that is what they mean these guys have absolutely no clue what or who they are dealing with.

"Finally the lawyers sent a bill for 4686 DM (German Marks, approximately 2000 dollars) not counting value added tax."

I don't understand why this isn't Adobe's bill. If the legal system is set up such that lawyers only make money from stuff like this, it's no wonder we have frivilous lawsuits all over the place. This should be a routine part of their paid job for Adobe, if it's Adobe who wants this action taken. If it's ment to be a warning to others, they need to calm down and consider the possible consequences of this "warning" - namely a buch of open source coders determined to write software which will free them from having to pay money to a company who uses tatics like this as SOP. KIllustrator, even if they kill it, is not the only fish in this ocean. Sodipodi and Sketch come readily to mind. They may not be Illustrator yet, but the concept of "good enough" is not to be underestimated.

"Should the University not sign, the lawyers will sue for a million DM (approximately 400 thousand dollars)."

Please tell me that they would have to show this amount of damage has been done. Considering the attitude the courts displayed when Microsoft held up KOffice as competition, I would think 400,000 in damage is going to be just a bit tough to justify. Of course, I may be overestimating the legal system.

"Kai-Uwe Sattler is happy to change the name, but doesn't want to pay this bill. When he suggested changing the name, the lawyers rejected his proposal saying "Do you know any lawyer who works for nothing?" The lawyers insist on payment."

To nit-pick, I believe sometimes lawyers actually will take a case without pay. (It's rare, but I know someone who was helped in a difficult time in her life buy just such a kind soul.) Of couse that's beside the point, but I thought it worthwhile to call them on it - if they can nitpick, why can't we? Anyway the important part is that their only source of income is implied to be from this kind of thing, and not Adobe directly. Also, the attitude of the developer was not sounded out and apparently makes absolutely no difference. Brrrr.

"Sattler regrets that Adobe never contacted him before calling upon lawyers to ask him to change the name of his software."

I would very much like to know if this was Adobe's intention, or if this is some lawyers who just aren't on a leash. Right or not (and in the trademark matter I believe they have some justifible grounds) they are going to get a huge amount of bad press. They may be indifferent to the free software community at large, but this is a good way to inspire the competition of open source people. They may not be so indifferent if an open source Illustrator clone starts to eat away at market share.

What really worries me, however, is that this sets a precident for other action. Whatever Adobe's intent was, we need to be EXTREMELY careful from now on when naming open source products. If this action is effective, open source opponents *cough*Microsoft*cough* will adopt this as a standard technique. Time to get creative.

Send 200,000 pennies.

Actually, send DM4684 in the smallest denomination of German coin. Personally, I think it would be worth the extra cost of shipping that much metal.

TheFrood

Trademark Violation?

First of all, I'd like to look over what they are asking them to do:

destroy the kIllustrator-package

Well, we all know that with respect to the GPL and the people who already possesses the code to KIllustrator, this is like asking the seas not to break.

name every KIllustrator user

And because of the distribution medium, we also know that there is probably no chance of fulfilling this requirement.

disclose the profit they made from it

And we all obviously know that no profit was made from this software. How much money did you pay for KIllustrator on your desktop? That's what I thought.

The *BOTTOM LINE* is that this man, no matter his position, was working for the good of every user that exists. He was creating and maintaining software for free, to be GIVEN AWAY. He wasn't looking for fame, or for fortune. And yet, I see so many people turn a cheek and say 'Oh, but Adobe's product is called Illustrator, so he should pay anyway.' JESUS H. CHRIST. If there weren't people out there like this good man working to produce great software for people who BELIEVE in what I hope all of the people reading this post do, then the open source movement wouldn't be. OK. Granted, he named his FREE software package similar to a commercial counterpart. Like it is the first time. NO, that isn't an excuse. However, I believe that:

a) Adobe could have handled this in a much nicer fashion. The profits off of the platforms that KIllustrator runs on that adobe COULD be making are exactly *ZERO*. I wish to embed this into people's minds, because it is important. Yes, they have a good reason to keep their options open with their trademark, but at this time, what KIllustrator could take from them is absolutely NOTHING. So why not keep it simple????

b) It's been discusses time and time again, but if you, yourself, use any free software, whether at home or at work, and you agree with adobe and it's lawyers on this, you need to start questioning yourself. All I'm trying to say is that good people and good hackers are the ones that work on projects such as these. Dr. Kai-Uwe Sattler is just the front man for these lawyers, but yet so many people that thrive on so much of the work that people like Dr. Kai-Uwe Sattler do, want to turn a cheek on his temporary misfortune in his case. I'm not even saying that this is the first time, because it's not. It happens all too often. He is one of the many GOOD PEOPLE, working in THEIR OWN TIME, for YOUR BENEFIT. For the BENEFIT OF ALL PEOPLE who wish to have the choice. So tell me, when did he become the enemy? I apologize for the rant, but I believe what was said must be said.

Revelations 0:0 - The beginning of the end.

Author, which author?

Why Dr. Kai-Uwe and not one of the other authors? There are many people involved with this project and although he is a leading light in the project he is not solely responcible. Put it this way: it takes a lot of people to built a Ford car, if its not built correctly and it drives its self in to a tree, killing your cat in the process, who do you sue? It certainly ain't the guy in the factory who made a mistake when he put the wheels on.

Of course I'm sure there is a counter example that carries the same amount of common sense as too why Dr. Kai-Uwe should be the target?

Something else more worrying, the article states they sued his employeer and not Dr. Kai-Uwe directly could this possible prompt employers to start having new emloyees sign agreements that they are not to work on Open source projects etc? Another bit of common sense, if I go and steal a car it's not my employeer that gets arrested, it's me, where does this logic come from in trademark law? I though law for the most part was meant to follow common sense.

Ah, bugger this thing smell a little anyway and I seriously wonder if the law firm hasn't just seen a chance to make an easy buck (unlikely I know but it's lawyers we're talking about), if so I don't think it's going to be so easy.

As for new name sugestions I quite like Kartist.

My girlfriend is going to be pissed....

If she had known you could get money for name infringement, she would've gone after the developers of BitchX a long time ago.

This certainly casts a different light on things

Sattler regrets that Adobe never contacted him before calling upon lawyers to ask him to change the name of his software. Udo Skuhra, who works at the lawyers' firm, refused to talk to heise-online about the cease-and-desist letter, and refused to state whether Adobe asked his law-firm to issue it.

Many large companies employ lawyers to work independently to protect what they believe to be their intellectual property, with the lawyers basically being self-funding.

I wonder if this is what's happened here? If so, I have to tone down my criticism of Adobe in the previous Slashdot about this issue because, well, lawyers are lawyers, and what they don't know about technology issues (like enough to know that a program that cannot run on the same platform as another is clearly not a rival, and moreso, that a client might just have chosen a generic name for their product that could reasonably be said to apply to all the products aimed at the same application) they make up in determination and legal maneuvering.

That's not to say it's good that it's happened: Absolutely it is not. Nor is it to say that Adobe are blameless - in my view, they need to keep a leash on groups that operate in their name. But it does at least explain why Adobe have engaged in an activity so likely to alienate potential customers as apparent high-handed corporate bullying of a clear underdog.
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Re:This IS infrigement

They don't "own" the name, they've trademarked it, and that trademark, in the view of many of us (myself included) is not legitimate, because it is a generic word that can legitimately describe any application that performs the same function as the Adobe product.

We're treading on dangerous ground when we let trademark law obliterate the English language. In general, when the generic has been used to name a product, trademarks have been kept out of the picture because nobody wants to go down that road. That's why Lisa Paint, MacPaint, PC Paintbrush, Deluxe Paint, Windows Paint, and Paintshop Pro can all share the same moniker. That's why General Motors and the Ford Motor Company aren't sueing one another.

Comparing Illustrator to Kleenex or Windex seems to be missing the point. Kleenex is not a generic description of tissue paper. If Kleenex had to call their product "Tissues", and trademarked it, there'd have been a storm of protest if they'd tried to enforce those trademarked. Likewise Windex isn't called "Glass Cleaner", and if it had been, Windex would never have been able to defend it without substantial opposition.

IANAL, I can't comment on whether generic descriptions being trademarked is a special legal case or not, but I know that morally the position is indefensable. You cannot, and should never, take a generic description for something, something that someone would slip into a conversation to refer to something generically which would mean anyone clued up would understand what they're refering to without necessarily associating it with a particular brand, and say "This word is mine now, because I've registered it, so anyone who uses it is going to be sued if they're not refering to what I want them to be refering to." That's absolutely outrageous. And if the law allows it, and I hope it doesn't, it should be changed.
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Re:Comment on the German system from a German

at-b's post about the 'abmahnung' system in germany is correct.

I would bet dolllars to pesos that Adobe knows nothing about this.

Also, I would like to add, that unlike in the US, lawyer's fees in Germany are not a negotiated percentage of the loot^H^H^H^H award, but are fixed in fee schedule. [meides.de]

That is how they come up with the odd $2000 fee. I believe they could have legally charged closer to $3000.

Also, there probably is no talk about changing the name, this seems to be a 'abmahnung' for the advertisement on the university web page, thus the university gets the bill.

I once got one of these because I ran an ad for computers I was selling. I included "free deivery and setup". I was 'warned' that the delivery and setup was not free, but actually calculated in the price of the computers. So I was misleading customers about it being free. Had to pay about $1000 for that mistake. I know that system sucks.

In defiance of common sense

Well, common sense is the most misnamed term in the language, as it's not very common...

IF KIllustrator infringes Adobe Illustrator (Adobe's trademark registration is not just "illustrator", it's the whole word "Adobe Illustrator) Then this software package is also im violation:

Microsoft Word (infringes Word Perfect)

I'd assume that Word is sold in Germany under that name.

So, some advice to would-be IP lecherous lawfirms: Go after Microsoft! You can't get rich by stealing money from those who have none (which is why your predecessors, the highwaymen didn't rob the poor, but the rich)

Recent success Corporations have had in claiming trademark ownership of plain language nouns and verbs is downright scary. Clear Channel communications, for example, is suing and threatening smaller competitors across the country for calling radio stations "KISS", which is a common, plain English VERB, just like illustrator.

And even worse, the Federal courts are letting them do it. In fact, one Federal court in CA even put a cease and desist order on Clear Channel (ordering them not to put a station called KISS in Bakersfield, where American General Media already had a station with that name), and they promply went out and defied that order the NEXT DAY... The same judge not only didnt hold CC in contempt, he reversed his own order!

Why is Clear Channel so vociferously fighting to own the name KISS? Simple, it's much easier and cheaper to automate hundreds of Top 40 pop (IE, the stations that play Britney Spears and the boy bands), to hundreds of different markets, if they all have the same name!

This should give you an idea how far our courts and government seem to be willing to sacrafice Constitutional liberty and freedom for the mere CONVIENIENCE of a massive corporation!

Trademarks, copyright, and patent law is in the Constitution, which places STRICT limits on their duration and applicibility. Which has been completely ignored by Congress and past Presidents who passed and signed into law the "DMCA" and the "Sonny Bono Copyright Extension Act".

German law is different in this regard

If I recall correctly, German law differs substantially from US law in this regard. Someone should check.

As I recall, in Germany, law firms can independently police certain laws and write "cease and desist letters"; Adobe need not have been involved in this. I believe they can also charge the recipient of those letters for their work.

However, it seems that 4684DM far exceeds their expenses. The law firm seems to use the threat of sueing to achieve compliance in order to recover excessive legal fees for themselves. If I were Sattler, I would write a letter stating that I disagree with their interpretation of trademark law and admit no wrongdoing, but that I am changing the name immediately to avoid further legal harrassment by their lawyers. Then I would separately ask the law firm for an itemized bill for their labor (that's what the money is for, so one can expect a bill). I'd check the work and rates with another lawyer or a consumer agency and pay only what's fair and reasonable (I suspect no more than 100-200DM).

I think if this went to court, the law firm would have a hard time recovering more than reasonable costs for writing the letter. I think any case about the trademark would also be hard to make: "killustrator" is a non-trivial variation on a generic term, it doesn't seem "confusingly similar" to "Adobe Illustrator", and furthermore "killustrator" is not a product that is for sale and therefore may not even infringe. Again, talking to a lawyer should help here, since trademarks like "Adobe Illustrator" may be protected differently in Germany.

Re:This IS infrigement

You don't see people cleaning the window with "Kwindex" or wiping their noses with "Gnokleenex" do you? NO!, because the base name is owned by a company

Kleenex and Windex are not words that exist outside of their trademarks. Illustrator is an english language word. If this is to be allowed what is to stop a company from bring an operating system to market and trademarking the names "OS" and "Operating System"?

What about any and every other OS that is released, rival or not? The owner of the "OS" trademark could be used as a weapon to crush compeitors or alternatives.

I don't think that it's unreasonable for Adobe to ask them to not call their product something so similar to "Illustrator", but being that this is about lawyers making money and not about protecting the Adobe trademark, I have to say that this is bullshit.

Re:Comment on the German system from a German

This is inaccurate insofar as "Abmahnungen" regarding trademark violations are the sole right of the trademark owner (section 14 MarkenG), as opposed to other unfair competitive practices, which can be handled by a wider range of organizations (section 13 (2) UWG). See also the recent message by von Gravenreuth on de.soc.recht.misc, Message ID <9hsqrg$evq$06$[e-mail]> (in German).

In this case specifically it appears to be safe to assume that unless the lawyers are totally clueless they are acting on behalf of Adobe.

-- Reimer Behrends