31
Dec/02

More Litigation Involving Domain Name Transfers


Register.com has announced that it obtained an injunction against the “Domain Registry of America” regarding its “slamming” tactics to induce domain name transfers.



31
Dec/02

Will MECCA COLA Hit The Spot?


The NY Times reports on the success of MECCA COLA, a cola drink targeted at Muslims who wish to boycott Coca-Cola.  You can look at MECCA COLA’s trade dress here.  Sainsbury came out with a red can for its Classic Cola years ago and had to remove the white stripe (Google Sainsbury Cola Trade Dress).



31
Dec/02

ZILDJIAN


Armand Zildjian, chairman of the Avedis Zildjain company, died recently. If you have seen a drum set, then chances are you have seen the flowing ZILDJIAN mark on cymbals or drumsticks.  The Avedis Zildjian company was founded in Constantinople in 1623 and moved to Massachusetts in 1929.  Zildjian is the oldest family business in the U.S. (the oldest U.S. family business founded in the U.S. is a Southern resort which, I am afraid, started life as slave plantation).

Family Business Magazine has compiled a list of the oldest family businesses in the world.  Number one is a Japanese construction business named KONGO GUMI, now reportedly in its 40th generation.



30
Dec/02

Judging a Book by The Brand on its Cover


An article from BrandChannel on branding in the publishing industry addressing, in part, the concept of author as brand.



30
Dec/02

Overused Termz in the Hood


Front page Wall Street Journal article today on over-use of a final Z replacing a S in brandz like BRATZ.



30
Dec/02

.BIZ Lottery Class Action Notice of Settlement


If you filed multiple applications for a .BIZ domain name prior to September 25, 2001, you may be eligible for partial refunds of your application fees, according to this notice of settlement of the class action on the Neulvel site.  The deadline for acting is February 28, 2003.



30
Dec/02

I Would Like LINDOWS-brand windows Software Please


Good article in the NY Times (free online subscription version here) on the trademark dispute between Microsoft and Lindows, in which Lindows, in response to MS’ allegation that LINDOWS infringes WINDOWS, apparently is seeking to get a holding that WINDOWS does not function as a legally protectable trademark.  Note the ‘legally protectable’ bit.  It clearly does function as a trademark.  If I say “Windows Sucks”, you know what I mean, and that’s proof of secondary meaning.  In fact, given that apparently 400 million people use the product, I would venture that we have something of a paradox.  WINDOWS might be one of the strongest trademarks in the history of the world, and, according to Lindows, may not be legally protectable (at least in the US).

The wrinkle is, in part, in Sec. 15 of the Lanham Act (15 USC 1065(4)) which states that “no incontestable right shall be acquired in a mark which is the generic name for the goods or services or a portion thereof . . “  Note the present tense of the clause.

Lindows may argue that it merely has to show that in the 80′s, when MS choose the mark, WINDOWS was the generic term for software which breaks a screen display into separate rectangular displays.  As in: “Please hand me that windows software.”  The NY Times article has a good introduction to the state of play in the 80′s on this point, which indicates that at least the term WINDOWING was regularly used as a descriptive (not generic) term (while relevant, that does not establish that WINDOWS was the generic term at the time).  More determinative would be evidence that people referred to non-MS windowing software as “windows software” or had “windows functionality.” MS argues that the real generic term for the product GUI or graphics user interface.  I would imagine that MS also argues that the present tense of the section suggests that the proper time frame should be when the third-party use begins (namely when LINDOWS was adopted).

The article does not mention that MS still must disclaim the term WINDOWS when filing for marks such as WINDOWS XP, which means that MS has to concede the point vis a vis th US PTO (which hurts but doesn’t end its argument in civil court).

Finally, no doubt because the NY Times is yet to discover my international metasearch, the article also doesn’t point out that MS might well own registered trademarks of the WINDOWS name without disclaimer, in other nations., and possible would be able to stop LINDOWS there.

The article does mention that the founder of LINDOWS was also the founder of MP3.COM, and therefore had telephone numbers for defendants’ lawyers in his PDA.

p.s.  There is a lot of material on this case on the web.  Google “Lindows motion papers” for a start and you will find this from Lindows itself.

p.p.s. In the article, Lindows’ attorney plays the populist card making the statement that no one should be able to establish a monopoly in a word.   While not precisely the same, grabbing MP3.COM, and LINDOWS (the best abbreviation for a Linux Windowing program), is not precisely altruistic behavior either.



29
Dec/02

Use of AOL E-mail Address Enjoined


On the whole, I have not seen too many trademark decisions involving AOL user names.  My guess is that if someone was using [famous trademark]@aol.com, a letter to AOL might do the trick.  In any event, there has been a Northern District of Texas case in which the owner of the trademark EMC MORTGAGE received a preliminary injunction against use of the email address [email protected].  Bear Stearns v. Lavalle, No. 3:0-CV-1900-D (N.D. Texas Dec 3) (not yet up on Judge Fitzwater’s section of the Court’s website).



29
Dec/02

Internet or internet?


The NY Times today reports on Professor Jospeh Turow of the Annenberg School for Communication at the U of Penn., whose upcoming book on the Internet (MIT Press) will conspicuously not use an Initial Cap when discussing the internet, uh, Internet.  His argument is that the Internet has become a part of the ‘everyday universe’ and therefore should be lowercase, like air, water, radio and television.

An argument can be made that the word should retain its proper noun status as unlike radio or television, there is one specific Internet to which we refer, the one defined in Section 230(f)(1) of the Communications Act of 1934, which section defines Internet as “. . . the international computer network of both Federal and non-Federal interoperable switched data networks.”

As the article points out, we continue to use initial caps for World Wide Web, but tend not to for website or weblogs.



24
Dec/02

And Regards to Your Friends Postmaster and Undeliverable


I just received spam beginning:

Dear Info.  We wish you a Merry Christmas.