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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:

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.

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