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From: bzs@ussr.std.com (Barry Shein)
Newsgroups: gnu.misc.discuss,comp.org.eff.talk,comp.unix.bsd,comp.os.mach,misc.int-property,alt.suit.att-bsdi
Subject: Re: Are you sure UNIX is a trade mark?
Message-ID: <BZS.92Sep11185233@ussr.std.com>
Date: 11 Sep 92 23:52:33 GMT
References: <KANDALL.92Sep9170758@globalize.nsg.sgi.com>
<farrow.716074432@fido.Colorado.EDU> <18ns8rINNd81@agate.berkeley.edu>
<1992Sep11.084516.16908@infodev.cam.ac.uk>
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In-Reply-To: rwe11@cl.cam.ac.uk's message of Fri, 11 Sep 1992 08:45:16 GMT
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>I was always under the impression that dilution of a trade mark came from
>other companies being permitted to sell products using the same mark, if the
>manufacturer of `Scotties' were to start calling their product `Kleenex'
>and no action were taken then dilution would have occurred, but to say
>"pass me a Kleenex" is not. Similarly, many people I know call a vacuum
>cleaner a Hoover; but, to the best of my knowledge Hoover is still a trade
>mark of guess who...
One source of confusion lies in the fact that there is more than one
way to lose your trademark, and I can see from some of these notes
that people are sort of mixing the ideas together.
Not protecting usage of your mark in reference to other, similar
products is certainly the best known way (generic.)
Another is allowing others to use your mark but not controlling the
quality etc of the product it is being applied to. For example, if
Kentucky Fried Chicken sold franchises and did little to enforce what
those franchises sold as "Kentucky Fried Chicken", and the product
actually varied widely. Although all the franchises are associated
with KFC and intend that the mark KFC refers to their chicken product
alone, and have duly licensed the right to use the mark, that is not
enough, there must be identification with a single product of some
predictable character.
Perhaps the distinction is subtle, but it is important.
For example, suppose, just suppose, I were a software company which
had a product called, oh for argument's sake, USLIKS. And I licensed
out the right to call many other similar products USLIKS. And those
other products all modified them over a period of a decade in wildly
varying ways until they really didn't much resemble each other in many
critical ways (oh, they're all chicken, and they're all fried,
however...)
P.S. Realizing that someone who knows little or nothing about these
matters will now decide that it doesn't fit his/her world view of the
algorithmic reduction of trademark law to a single well-defined
sentence here is a cite:
Foster & Shook, Patents, Copyrights & Trademarks, John Wiley & Sons,
1989, p 183-4.
"Once you have a patent or copyright, you do not risk losing your
rights if you make a poor choice of a licensee. In the case of a
trademark, however, you do run that risk...you can lose your rights by
licensing to someone whom you do not require to maintain your standard
of quality...When you lose control of the quality, public deception
occurs, as the mark no longer indicates what people expect from the
product..."
--
-Barry Shein
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