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The Stealth Trademark
Monday, July 04 2005 @ 07:52 PM EDT

For those of you hyperventilating about the NY Times story about a guy who trademarked the word "stealth," I suggest you read the following:

http://www.biglist.com/lists/lists.inta.org/tmtopics/archives/0404/msg00092.html
http://www.biglist.com/lists/lists.inta.org/tmtopics/archives/0404/msg00093.html

INTA is a list where trademark lawyers (and others interested in that topic) talk to each other about cases in the news and nutty pro se litigants who bring off-the-wall actions -- usually because they don't understand the law, sometimes because they are malicious, and sometimes because they think litigation is the road to Easy Street or fame -- and how they eventually get squished in court, and things like that. As you can see from those links, when he goes to court, Leo Stoller usually loses.

Why all these companies in the New York Times story just caved in is another story. But it tells you how important it is to stand up and get some claims settled once and for all, which is what IBM, to its credit, is doing with SCO.

Anyone can sue anyone for anything they like. I can sue you for being an alien from Mars, if I want to, or say you stole my boat. It's making it stick that is the hard part. Especially if I never had a boat, for example. If you immediately cave in and say you'll return my boat that you never stole, and go out and buy me a boat to make me go away happy rather than go to court, I have successfully gamed the system. If instead you take the time and carefully prove to the court that I lied, I probably will end up paying your legal expenses. For example, in the first link, you may have read what happened to Mr. Stoller when he tried to tangle with Timex. The comment at the top of the page tells what happened:

If you will run a lexis search, you will find that a number of years ago Leo opposed Timex who took him to federal court and won a judgment of about $100,000 again Mr. Stoller. I wonder if he ever paid, it certainly didn't cool his jets!

Timex Corp. v. Stoller, 3:95 CV 2505(GLG), UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, 961 F. Supp. 374; 1997 U.S. Dist. LEXIS 10938, April 7, 1997, Decided, April 8, 1997, FILED

Yes, lawyers don't always spell perfectly either. Go down the INTA list, and what do you see?

Defendants were entitled to summary judgment because plaintiff's trademark registration did not cover the products at issue, there was no evidence of prior and continuous use, and the mark was neither distinctive nor famous. . . .

Claims of trademark infringement under both state and federal law failed where the trademark holder was unable to establish likelihood of confusion between its mark and another's on consumer products. . . .

Plaintiff denied injunctive relief in a trademark infringement action because the defendants' use of certain products did not create a likelihood of confusion and did not infringe plaintiff's trademarks as a matter of law. . . .

A plaintiff's trademark infringement action was dismissed because the plaintiff failed to establish the validity of its trademark and failed to show a likelihood of confusion among customers such that defendant's use constituted an infringement. . . .

After comparing two wholly dissimilar products, the court evaluated the likelihood of confusion, found defendants had no reason to want the public to associate their product with plaintiffs, and held there was no trademark infringement. . . .

In Lanham Act trademark infringement suit, defendant was entitled to award of attorneys fees from plaintiff, because plaintiff's claims were meritless, and it employed dilatory tactics. . . .

Trademark law, as you can see, isn't so crazy that you can take an English word, used by everyone on Planet Earth, and claim proprietary rights in it for all uses, everywhere. It doesn't work like that. Here's an explanation on how trademark law does work on Bitlaw. The brief explanation in the Times article is correct as far as it goes.

What also does sometimes work in corporate America is to use the threat of litigation as a stick to get money. Many believe that is what SCO thought would happen. It didn't. It's also why software patents are so, so dangerous, because what patents control is so much broader than what trademark law offers. What Stoller does will be replicated by those claiming patent rights, and in fact it already does happen, and eventually no one outside the Rich Boys Patent Club will be able to write software anywhere on earth. We will have to plant a big sign on Planet Software that says "THE END," as far as development by individuals or small and medium companies at that point, because the Stollers of this world will have won.

As you know, they are deciding how to vote on software patents in Europe today. I hope they read about Mr. Stoller first and extrapolate. Don't ever pass a law anywhere about anything, please, without thinking about the Stollers and the SCOs of this world. Because they are waiting in the wings, salivating.

And by the way, that in a nutshell is why we *do* still need the GPL. We need it because of the SCOs in the world.


  


The Stealth Trademark | 51 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: radix2 on Monday, July 04 2005 @ 08:11 PM EDT
thanks

[ Reply to This | # ]

Off-Topic here
Authored by: radix2 on Monday, July 04 2005 @ 08:13 PM EDT
links would be nice :)

[ Reply to This | # ]

Off-Topic here
Authored by: inode_buddha on Monday, July 04 2005 @ 08:17 PM EDT
Please make links clickable, such as (for example)
<a href="www.example.com">example.com</a>

Also be sure to set post mode as text or html. This was posted as text. You
could just cut-n-paste the address and post as html.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

The SCOs, and the Microsofts
Authored by: qu1j0t3 on Monday, July 04 2005 @ 09:10 PM EDT
Not forgetting the magnificent roster of thuggery linked at left and ongoing
today, as they lobby (baksheesh) hard for a system that will give their patents
global power to crush competition.

[ Reply to This | # ]

The Stealth Trademark
Authored by: inode_buddha on Monday, July 04 2005 @ 09:48 PM EDT
INTA is a list where trademark lawyers (and others interested in that topic) talk to each other about cases in the news and nutty pro se litigants who bring off-the-wall actions -- usually because they don't understand the law, sometimes because they are malicious, and sometimes because they think litigation is the road to Easy Street or fame -- and how they eventually get squished in court, and things like that. As you can see from those links, when he goes to court, Leo Stoller usually loses.
Hrmmm, I should have known that there would be a list for such topics. Is it open to joe average (who will ultimately be ruled by such legalese)? Be right back, gonna google on it...

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

Kipling: Dane-Geld
Authored by: Anonymous on Monday, July 04 2005 @ 09:56 PM EDT
Dane-Geld
A.D. 980-1016

It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: --
"We invaded you last night--we are quite prepared to fight,
Unless you pay us cash to go away."

And that is called asking for Dane-geld,
And the people who ask it explain
That you've only to pay 'em the Dane-geld
And then you'll get rid of the Dane!

It is always a temptation for a rich and lazy nation,
To puff and look important and to say: --
"Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away."

And that is called paying the Dane-geld;
But we've proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: --

"We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!"

=============
See also http://en.wikipedia.org/wiki/Danegeld

[ Reply to This | # ]

Payoffs - is it really so surprising?
Authored by: cmc on Monday, July 04 2005 @ 10:11 PM EDT
I understand the importance of defending yourself in court, especially against
this man who seems to like to sue people a lot, even though it's all baseless.
But is it really surprising that people give in and pay him off? Big companies
don't want to be bothered with the (possibly negative) publicity of something
like this. Small companies and individuals probably don't have the resources to
go to court and fight. The problem is that defending yourself, even when you're
completely innocent and the charges against you are completely baseless, can be
very costly. Even if you win, and manage to be awarded attorney's fees, you've
still lost money because of lost production (especially if you're a one- or
few-employee company). At least that's the way I see it. I think we'd all like
to say that we'd fight until our dying breath, but when all is said and done,
when we run out of money and can no longer pay for housing or food, we very well
may decide differently.

cmc

[ Reply to This | # ]

No infringing software, only tricky hardware...
Authored by: Anonymous on Monday, July 04 2005 @ 11:04 PM EDT
Got to thinking about all those old TTL boards I used to wirewarap before
microcontrollers were cheap (care to do a FFT in hardware? -- yes it was done by
many!)

I can see it now, use the micro to do the mundane and use programable logic to
do the "tricky" part -- as in circumvent software patent claims).

Back to the future -- here we go again.......

[ Reply to This | # ]

The Stealth Trademark
Authored by: AllParadox on Tuesday, July 05 2005 @ 12:25 AM EDT
This sounds a whole lot like trademarking "Lite Beer", then trying to
prevent competitors from selling "Light Beer".

It didn't work for the big brewing company.

I can't see it working for some johnnie-come-lately.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

I don't get it
Authored by: Anonymous on Tuesday, July 05 2005 @ 03:26 AM EDT
Yesterday you were telling us how great the American legal system is, and today
it's in disarray. Which is it?

[ Reply to This | # ]

Frankenstein "Monster"
Authored by: lsmft on Tuesday, July 05 2005 @ 03:47 AM EDT
Monster cable does this to anyone using Monster.

Link

Entrepreneur Magazine has done this to Entrepreneur.

They have essentially taken the word out of the language. In a recent case that EntrepreneurPR lost.. "The brief decision of the Appeals Court also fails to address the request made in an amicus curiae brief filed by the Minnesota Homebased Entrepreneurs Association (MHEA). In the brief, the non-profit MHEA asked the court to provide some guidance, in the event they found in favor of EMI, as to what one might be able to add to the word "entrepreneur" in order to avoid infringement if "PR" and "Illustrated" (as was the case with Smith's company and its publication) are insufficient.

The Appeals Court did not answer that question, leaving the rest of us to assume that there is nothing one could add to the word "entrepreneur" in order to avoid infringement." L ink http://www.mnhomebiz.org/publications/entrepreneur-lawsuit-ruling.html < p> Perhaps our governments position is that they would rather some entity take "ownership" of an entity (be it a trademark, or patent, or land or mineral rights) rather then have an entity with no clear ownership. The reason being, entities will only (sic) put money into something that they can show sole title to.

[ Reply to This | # ]

The Stealth Trademark
Authored by: Anonymous on Tuesday, July 05 2005 @ 12:26 PM EDT
Isn't what Stoller is doing tantamount to fraud?

Isn't he attempting to get payment for something that he rightfuylly has no
standing to get paid for?

I see no difference between Stoller, and those who scam old ladies by telling
them they won the lottery, but need payment for the "taxes" up front.
Such cons and grifters get locked up when caught. People like Stoller is still
walking free.

I think the reason why Stoller is free, is that he is using similar methods as
many "honorable" corporations. If the patent office and the courts
would do a better job of slapping down companies (for example Ford) that use
trademarks as a club to suppress free speach, and the patent office were more
diligent in examining new patents, there would be fewer grifters who wold think
about gaming the courts for easy cash. In the same bag of corporate crookery, we
have those who patent-hijack standards.

Then there are those who keep a large patent portfolio of ideas (with no
intention of making a product). Patents were originally made so that a
entrepeneurs would receive some protection for a limited time against being
copied. Patents were not intended as a tool for grifters to extort money from
real entrepreneurs. The reason all these grifter are still in business at all,
falls on the shoulders of the US patent office for allowing unpatentable
patents, and on the courts as well as legislature, who over the years have
stretched the applicability of patents way beyond the pale.

For there is no doubt, this guy is a good ole grifter.

[ Reply to This | # ]

The Stealth Trademark
Authored by: Anonymous on Tuesday, July 05 2005 @ 12:54 PM EDT
Great news ! I have just trademarked the word "the". I demand that you
all pay me 10 cents each time you use (licence) this word !

I will be in touch with Stoller's attorneys shortly.

[ Reply to This | # ]

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