Re: [LAD] Impro-Visor created on sourceforge

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To: Raymond Martin <laseray@...>
Cc: <linux-audio-dev@...>
Date: Saturday, August 8, 2009 - 4:34 pm

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On Sat, Aug 8, 2009 at 4:41 AM, Raymond Martin wrote:

> Another fool. Trademarks apply to commercial interests, the program is

Sorry you are incorrect. Then again you have shown a strong desire not to
admit when this is the case in past discussions, so I don't expect you to
change your mind.

Trademarks apply to any product, be it software or physical, or company. A
trademark is simply an identifying mark that differentiates something from
the competition. This applies to Open Source software just the same as it
does any other.

> Maybe you should check the fact that there is already another program

y

Possibly, I don't know the situation or history with those products. It is
completely seperate from this situation however.

>

No, it will be whoever decides to defend their trademark first.

There is a reason. A scumbag company forced trademark issues to the front

That is your opinion. I would disagree, very strongly in fact.

> Okay, maybe for names and logos used by FLOSS, the creative commons

Once again, see what i already wrote. If a company does not defend its
trademark, then the rights to that trademark are lost. Trademarks HAVE to
be defended to remain valid. Thus forcing the CC isn't really an option as
much as I enjoy the concept of the CC licensing.

Trademarks can only be in violation when they are on similar things.

Once again, WRONG. Trademark violations are when the use of a similar
name, logo, image, etc. causes confusion with the original product. The
products don't necessarily HAVE to be similar, just cause confusion with th=
e
trademark.

Something funny about confusing names. For my needs jconv can be a very

Which is why this does not apply as a trademark issue, it does not cause
confusion with either products.

So this would not be okay in Germany only, if there was a trademark

Wrong, see above.

Then Bob is guilty first and my project name is just due to his application=
s

r

Yes someone else did something wrong, I am just copying them so I must be i=
n
the right. That is EXACTLY it. /sarcasm

Seriously, you need to understand what you are writing about much better
before you spout off drivel as fact. I am not a lawyer, but I obviously
understand trademark law much better than you do. Not only that as a moral
or ethical issue which you seem to think you are taking the high ground on,
this is just wrong.

Since there is so much confusion surrounding how copyrights work

The irony is amazing.

This is FOSS, not commercial enterprise,
things do not need to operate exactly the same as in proprietary
situations. That goes as much for trademarks as it does for copyrights.

Idealogoically you are correct. However the same LAWS apply to both.

They made all kinds of crazy claims

I am going to stop repeating myself correcting you on trademarks.

Claimed infringements on trademarks have to show that the existence

Or confusion in the marketplace with that product.

I suggest you read up...
http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

Specifically this part...

"

7. What constitutes trademark
infringement?

If a party owns the rights to a particular trademark, that party can sue
subsequent parties for trademark infringement. 15 U.S.C. =EF=BF=BD=EF=BF=BD=
1114,
1125.
The standard is "likelihood of confusion." To be more specific, the use of =
a
trademark in connection with the sale of a good constitutes infringement if
it is likely to cause consumer confusion as to the source of those goods or
as to the sponsorship or approval of such goods. In deciding whether
consumers are likely to be confused, the courts will typically look to a
number of factors, including: (1) the strength of the mark; (2) the
proximity of the goods; (3) the similarity of the marks; (4) evidence of
actual confusion; (5) the similarity of marketing channels used; (6) the
degree of caution exercised by the typical purchaser; (7) the defendant's
intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.),
cert. denied, 368 U.S. 820
(1961)
.

"

Note that damage to sales is not mentioned as a factor.

At this point I am done with this topic, Harvard has said anything I could
on the topic in a pretty clear article linked to above, and I certainly tak=
e
their word on this well above Raymond's.

Seablade

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On Sat, Aug 8, 2009 at 4:41 AM, Raym=
ond Martin <laser=
ay@gmail.com
> wrote:
Another fool. Trademarks apply to commercial interests, the program is
non-commercial in nature. Thus it would be very difficult for anything
to be done about this for creating a free program from a free program.
Sorry you are incorrect.=C2=A0 Then again you have sh=
own a strong desire not to admit when this is the case in past discussions,=
so I don't expect you to change your mind.Trademarks apply to =
any product, be it software or physical, or company.=C2=A0 A trademark is s=
imply an identifying mark that differentiates something from the competitio=
n.=C2=A0 This applies to Open Source software just the same as it does any =
other.
=C2=A0M=
aybe you should check the fact that there is already another program called=

improvisor that exists that is not Impro-Visor, it is a commercial company<=
br>
that could claim trademark infringement against Impro-Visor.
Possibly, I don't know the situation or history w=
ith those products.=C2=A0 It is completely seperate from this situation how=
ever. =C2=A0

So if anybody is in a problem it will be Impro-Visor first.
No, it will be whoever decides to defend their tradem=
ark first.
There is a reason=
. A scumbag company forced trademark issues to the front
even though they were doing FOSS. Trademarks in FOSS are just as bad as
software patents. Too bad most people do not get that.That is your opinion.=C2=A0 I would disagree, very strongly in fact.=C2=A0
Okay, maybe for n=
ames and logos used by FLOSS, the creative commons
should be forced as an agreement or something similar to this.Once again, see what i already wrote.=C2=A0 If a company does =
not defend its trademark, then the rights to that trademark are lost.=C2=A0=
Trademarks HAVE to be defended to remain valid.=C2=A0 Thus forcing the CC =
isn't really an option as much as I enjoy the concept of the CC licensi=
ng.
Trademarks can only be in violation when they are on simila=
r things.=C2=A0Once again, WRONG.=C2=A0 Trademark violatio=
ns are when the use of a similar name, logo, image, etc. causes confusion w=
ith the original product.=C2=A0 The products don't necessarily HAVE to =
be similar, just cause confusion with the trademark.
Something fun=
ny about confusing names. For my needs jconv can be a very
good audio application and a very useless Japanese code conversion.Which is why this does not apply as a trademark issue, it doe=
s not cause confusion with either products.
=C2=A0So this would not be okay in Germany only, if there was a trademark
applicable in Germany.Wrong, see above.
Then Bob is guilt=
y first and my project name is just due to his applications
name. Who is more guilty, a single person trying to do FOSS or a professor<=
br>
and educational institution that should be in a better position and act mor=
e
appropriately? If my name is similar to theirs by derivation and that is
similar to the commercial one, then Bob and his ilk have unclean hands befo=
re
I ever made a project. Yes someone else did something=
wrong, I am just copying them so I must be in the right.=C2=A0 That is EXA=
CTLY it.=C2=A0 /sarcasmSeriously, you need to understand what you a=
re writing about much better before you spout off drivel as fact.=C2=A0 I a=
m not a lawyer, but I obviously understand trademark law much better than y=
ou do.=C2=A0 Not only that as a moral or ethical issue which you seem to th=
ink you are taking the high ground on, this is just wrong.
Since there i=
s so much confusion surrounding how copyrights work
in FOSS, it should be no surprise that similar misunderstandings exist
for trademarks in the same situation.The irony is ama=
zing.=C2=A0This is FOSS, not commercial enterprise,
things do not need to operate exactly the same as in proprietary
situations. That goes as much for trademarks as it does for copyrights.=
Idealogoically you are correct.=C2=A0 However the same LAW=
S apply to both.
They made all kinds of crazy claims
and did not understand how futile it is for one FOSS project to try
to go after another one. I still have my similar name even though
they have a trademark. Trademarks are for commercial interest.=
I am going to stop repeating myself correcting you on trademarks.<=
br>

Claimed infringements on trademarks have to show that the existence
of a similarly named product causes or potentially causes damage
to the trademark holders product, company, bottom line, and so on.=C2=
=A0
Or confusion in the marketplace with that product.I suggest you read up...http://cyber.law.harvard.edu/metaschool/fish=
er/domain/tm.htm

Specifically this part..."

7. What constitutes trademark infringement?

If a party owns the rights to a particular trademark, that party can sue su=
bsequent parties for trademark infringement. 15 U.S.C. =EF=BF=BD=EF=BF=BD 1114, 1125.
The standard is "likelihood of confusion." To be more specific, t=
he use
of a trademark in connection with the sale of a good constitutes
infringement if it is likely to cause consumer confusion as to the
source of those goods or as to the sponsorship or approval of such
goods. In deciding whether consumers are likely to be confused, the
courts will typically look to a number of factors, including: (1) the
strength of the mark; (2) the proximity of the goods; (3) the
similarity of the marks; (4) evidence of actual confusion; (5) the
similarity of marketing channels used; (6) the degree of caution
exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. =
denied, 368 U.S. 820 (1961)
.
"Note that damage to sales is not mentioned as a factor.=
At this point I am done with this topic, Harvard has said anythi=
ng I could on the topic in a pretty clear article linked to above, and I ce=
rtainly take their word on this well above Raymond's.
=C2=A0=C2=A0=C2=A0=C2=A0 Seablade

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Messages in current thread:
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 10:33 am)
Re: [LAD] Impro-Visor created on sourceforge, Thomas Vecchione, (Sat Aug 8, 4:34 pm)
Re: [LAD] Impro-Visor created on sourceforge, drew Roberts, (Sat Aug 8, 7:19 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 7:21 pm)
Re: [LAD] Impro-Visor created on sourceforge, drew Roberts, (Sat Aug 8, 8:58 pm)
Re: [LAD] Impro-Visor created on sourceforge, Ralf Mardorf, (Sat Aug 8, 9:08 pm)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 7:37 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 5:28 pm)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 6:07 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 6:19 pm)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 6:26 pm)
Re: [LAD] Impro-Visor created on sourceforge, drew Roberts, (Sat Aug 8, 7:44 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 7:57 pm)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 8:01 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 8:12 pm)
Re: [LAD] Impro-Visor created on sourceforge, james morris, (Sun Aug 9, 11:25 am)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 7:50 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 8:02 pm)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 8:05 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 8:13 pm)
Re: [LAD] Impro-Visor created on sourceforge, Chris Cannam, (Sat Aug 8, 7:55 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 6:31 pm)
Re: [LAD] Impro-Visor created on sourceforge, Patrick Shirkey, (Sat Aug 8, 6:36 pm)
Re: [LAD] Impro-Visor created on sourceforge, Raymond Martin, (Sat Aug 8, 6:49 pm)