Serious trademark trouble.

[David Johnson]

On Sat, 12 Aug 2000, Ean R . Schuessler wrote:
> My understanding is that the validity of trademarks stands on an 
> organization's consistent use and regular defense of a term in the course
> of commerce. The longer this mark stands formally unchallenged, the more
> difficult it will become to unseat it. If this company develops products,
> packaging, advertising and other evidence of commerce and can show use in
> various markets this will also increase the viability of the mark.

There is also the principle that if a trademark becomes commonly used
to refer to a general class rather than a specific product, the
trademark can be lost. Past examples include "aspirin" and "elevator".

A corollary to this is that the current use of a term to refer to a
general class would serve to deny the grant of a trademark. "Open
Source" is commonly used to refer to software that has freely
modifiable and redistributable source code, whether or not it uses an
approved OSI license. As an example, the Apache license was only
recently approved, yet it has been called open source since the day the
term was coined.

As long as the development community associates "Open Source" with a
general class of software, a company would find it extremely difficult
to protect their trademark. When the general public also associates
the term with a class of software, the trademark would not be viable.

But I'm not losing much sleep over this. There is commercial Open
Source software right now that advertises the term. This current usage
in reference to commercial software is enough to deny the trademark.

Lest there be misunderstanding, IANAL.

-- 
David Johnson
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