Comment Not to Worry [RE stmt fr Listar Project Founder] (Score 1) 142
[Apologies in advance for any cultural mistakes; this is my inital posting, and visit].
Note: IAAIPL, I am an IP lawyer ('tho long ago an academic in math/comp sci). That said, unless there are unusual unmentioned facts, the is not a big problem here and folks have introduced unneeded complexity. [Apologies too if this post becomes lengthy; quite a bit of misinfo' among the posting so some clarification seems helpful).
1. "in commerce" is a term-of-art -- it doesn't mean "commercial" in the "money-changes-hands" sense, i.e., most goods/services/information can support a trademark. Consider the many familiar charities and other public service activity, as well as free magazines and newsletters (some w/out advertising). E.g., I seem to recall a decision deciding ownership of a Tm for an annual improve-the-neighborhood block party!
Ex: (closer to Open Source): I'm doing a Tm for an academic project that's to build a database of information in a particular scientific field. The lead professor thought up a good name, and the US Patent & Trademark office has approved it. The info will be free, the contributors are volunteers. No money involved. No problem.
In a word, open source per se isn't a fatal issue. The name of course has to be used in a Tm sense, to identify goods or services (e.g., to use it only as XYZ, Inc. won't cut it), and in interstatae commerce, which likely will be the case if your website and copies of the software are provided over the internet.
2. Problems down stream: infringement occurs if multiple dimensions to intersect - the basic test is confusing similarity, not just in the choice of word but in eyes of the marketplace (which usually means closely allied products, channels of distribution/advertising, and -- as implied by the posting about the "Fitness Factory" -- sometimes geography).
3. I'd suggest the following as prliminary steps now (needless to say, none of this is specific legal advice since there may be additional facts and law that comes into play). That said:
a. Get the Nolo Press book (exclusively) on trademarks (B&N, Borders, ... or try . Spending $25 on and a few hours with the book will go a long way to clarifying things, helping you do the Tm right, and substantially increase the bang-for-buck you get should you engage a lawyer.
b. search your new name on the internet and at www.uspto.gov. If you get thru that but are insecure, there's Thomson & T's cadillac search for about $370.
c. I'd take some exception to the otherwise useful post by wyctld that a Tm is just filing out a form. In some cases it is, but often there are judgements to be made that require thought, perhaps experience or they'll come back to haunt. The Nolo book will help in this regard.[metaphor, your code is more likely to run well if you know something about the machine/compiler]
d. The Tm filing fee is now $325, not $250 anymore.
e. A small amount of specific legal advice is probably a good idea, may is necessary. Just be sure the lawyer is (1) versed in Tm's; and (2) sensitive to the needs of projects and small business (preferably s/w).
3. You may find free legal advice if your city has some technology entrepreneurship promotional org's. They often have workshops and other events that include intellectual property discussions, Q&A, etc.
cheers,
lexyber (mkrieger239@aol.com)
Note: IAAIPL, I am an IP lawyer ('tho long ago an academic in math/comp sci). That said, unless there are unusual unmentioned facts, the is not a big problem here and folks have introduced unneeded complexity. [Apologies too if this post becomes lengthy; quite a bit of misinfo' among the posting so some clarification seems helpful).
1. "in commerce" is a term-of-art -- it doesn't mean "commercial" in the "money-changes-hands" sense, i.e., most goods/services/information can support a trademark. Consider the many familiar charities and other public service activity, as well as free magazines and newsletters (some w/out advertising). E.g., I seem to recall a decision deciding ownership of a Tm for an annual improve-the-neighborhood block party!
Ex: (closer to Open Source): I'm doing a Tm for an academic project that's to build a database of information in a particular scientific field. The lead professor thought up a good name, and the US Patent & Trademark office has approved it. The info will be free, the contributors are volunteers. No money involved. No problem.
In a word, open source per se isn't a fatal issue. The name of course has to be used in a Tm sense, to identify goods or services (e.g., to use it only as XYZ, Inc. won't cut it), and in interstatae commerce, which likely will be the case if your website and copies of the software are provided over the internet.
2. Problems down stream: infringement occurs if multiple dimensions to intersect - the basic test is confusing similarity, not just in the choice of word but in eyes of the marketplace (which usually means closely allied products, channels of distribution/advertising, and -- as implied by the posting about the "Fitness Factory" -- sometimes geography).
3. I'd suggest the following as prliminary steps now (needless to say, none of this is specific legal advice since there may be additional facts and law that comes into play). That said:
a. Get the Nolo Press book (exclusively) on trademarks (B&N, Borders,
b. search your new name on the internet and at www.uspto.gov. If you get thru that but are insecure, there's Thomson & T's cadillac search for about $370.
c. I'd take some exception to the otherwise useful post by wyctld that a Tm is just filing out a form. In some cases it is, but often there are judgements to be made that require thought, perhaps experience or they'll come back to haunt. The Nolo book will help in this regard.[metaphor, your code is more likely to run well if you know something about the machine/compiler]
d. The Tm filing fee is now $325, not $250 anymore.
e. A small amount of specific legal advice is probably a good idea, may is necessary. Just be sure the lawyer is (1) versed in Tm's; and (2) sensitive to the needs of projects and small business (preferably s/w).
3. You may find free legal advice if your city has some technology entrepreneurship promotional org's. They often have workshops and other events that include intellectual property discussions, Q&A, etc.
cheers,
lexyber (mkrieger239@aol.com)
