Sean Kellogg writes:
> On Wednesday 06 December 2006 14:08, Michael Poole wrote:
>> Alleged possibilities of confusion abounds. There is quite a
>> difference between that and actual likelihood of confusion,
>> particularly no one has cited any holdings that appear to be on point.
>
> Holding? In a trademarks case? You're kidding, right? Very, VERY few
> trademark cases ever make it to appeal. It's simply not worth it. Trademark
> law is not found in holdings, it is found in the legal community that
> surrounds the protection of marks, it is found in the PTO (US or otherwise),
> and in the treaties of trademark law. This isn't anything to cite to because
> most of this is handled between reasonable people, represented by lawyers,
> who come to reasonable agreements. (I would say more about d-l's obsession
> with legal citation, but it would be horribly OT.)
I am no more kidding about trademark holdings than I would about
copyright or patent holdings -- cases which probably make it to trial
or appeal about as rarely as trademark cases. I could ask whether you
are kidding about "the legal community" coming to "reasonable
agreements", but I think I know the answer.
For example, from Mattel, Inc. v. MCA Records, 296 F.3d 894,900 (9th
Cir. 2002):
Simply put, the trademark owner does not have the right to control
public discourse whenever the public imbues his mark with a meaning
beyond its source-identifying function. See Anti-Monopoly,
Inc. v. Gen Mills Fun Group, 611 F.2d 296, 301 (9th Cir. 1979).
("It is the source-denoting function which trademark laws protect,
and nothing more.")
In this case, it is not just the *public* that imbued the Firefox mark
with a meaning beyond its source-identifying function. The Mozilla
Foundation actively contributed to that through the prior policy on
use of the name.
There is also the whole "in commerce" aspect of trademark laws. I
think it is no understatement to say that it is rather hard to
plausibly claim that any single Debian package is a commercial
article.
Michael Poole
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