Comment by kube-system

Comment by kube-system 10 days ago

12 replies

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Yes, but ultimately trademarks are a consumer protection, and what matters in granting a trademark is protecting consumers from harm.

I don't know much about this OSS project... but if there's a case that they need this trademark to protect consumers from harm, then that's your winning argument.

> If setting your usage price to $0 means no trademark, that's a pretty big attack on non-commercial services.

If you really are not doing commerce, trademarks are irrelevant. You can't get one, and you don't need one.

Dylan16807 10 days ago

> Yes, but ultimately trademarks are a consumer protection, and what matters in granting a trademark is protecting consumers from harm.

Yes, protecting consumers. And people are equally consumers of something whether they pay $1 or $0.

> but if there's a case that they need this trademark to protect consumers from harm, then that's your winning argument.

Other than the normal argument for trademark and the evidence of use they had? If you have to show a specific argument for harm, that's way too high of a bar.

> If you really are not doing commerce, trademarks are irrelevant. You can't get one, and you don't need one.

Define "commerce" here.

If we count competing in the market but your product happens to be $0 as commerce, then sure I can agree but this project passes the test.

If a price of $0 disqualifies you from "commerce" then no way, trademarks are not irrelevant and you do still need one. Consumers need to be able to find your product and avoid imitators.

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  • kube-system 10 days ago

    No, you absolutely don't have to price a product in order to be engaging in commerce. But you do have to engage in exchanging goods and services with somebody else. And if you're not, then you don't qualify for a trademark because trademarks are marks that you get to use when you do trade.

    I am not asking for the evidence of what that commerce is. I personally do not care nor do I make the judgment of what qualifies.

    But, if you want a trademark, you need to show the trademark office what trade you are going to do with the mark you want them to grant you exclusive use of.

    And if you're not going to do any trade, then you don't need to worry about it. Because you cannot infringe on a trademark without doing trade.

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    • Dylan16807 10 days ago

      > No, you absolutely don't have to price a product in order to be engaging in commerce. But you do have to engage in exchanging goods and services with somebody else.

      Okay cool, glad we're on the same page there, but then I don't understand why you even made your initial comment saying "I can understand why you're frustrated if you feel like you've lost something, but trademarks serve a purpose for facilitating commercial trade."

      By your definition, they are engaged in commercial trade. And that was well-documented in the initial post.

      > But, if you want a trademark, you need to show the trademark office what trade you are going to do with the mark you want them to grant you exclusive use of.

      And the issue is the trademark office is not taking their evidence. They're looking at hundreds of thousands of downloads and saying "hmmmm, might be 99% non-EU, we don't care"

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      • marcjschmidt 10 days ago

        > "hmmmm, might be 99% non-EU, we don't care"

        That is what fascinates me the most. The basic assumptions of everything I presented was non-EU. Somewhat annoying, but seeing it objectively, I think it was a skill issue on my lawyers side. They should have said to me "Marc, look, we need hard proof. Ask your fucking users on twitter, on github, an discord, we need a list of X users confirming they are from the EU and use this thing". I believe in good-will on the EU side, that they interpret data in a positive way in my favor - but the exact opposite happened.

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      • kube-system 10 days ago

        > And that was well-documented in the initial post.

        I mean, there was some documentation. I don't know if it was well documented.

        There's like 160 million reasons why the other company has better documentation.

        Ultimately, the a point of holding a trademark is to give you some legal firepower. Going up against the company with $160 million, you're pretty much screwed anyway.

        Their best bet in this scenario is to just use the name anyway and not piss them off. There are plenty of organizations, even very for-profit companies, that use the same name and don't have any problem with it because it's not confusing anybody or pissing anyone off.

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        • Dylan16807 10 days ago

          > There's like 160 million reasons why the other company has better documentation.

          Better documentation of someone else's user count?

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marcjschmidt 10 days ago

Following this logic, does this mean if I have a project name like ABC, and some company decided to incorporate in this name plus registering the trademark, I have to give up the name when they decide to come after me? Like I have a github.com/ABC, a npmjs.com/org/ABC. All just gone, because trademarks right gives them the right, and I have nothing that protects me?

If that is the case, ok. It's just that I was naive enough to believe I could protect my little open-source project from this using a trademark. The EUPIO somewhat confirmed in their writing that you don't need commercial activities, but you need "genuine use", which is, again, hard to prove if you don't collect user data.

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  • kube-system 10 days ago

    "ABC" is already a trademark. There's probably dozens if not hundreds of trademarks for "ABC".

    Trademarks are only the right to use a name commercially for a particular good or service.

    Anything outside of that is fair game.

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ummonk 10 days ago

If I consume a good or service then I’m a consumer, whether I had to pay for that good/service or not. As a consumer, it is in my interest that I can look up the name of the good or service and not have confusion as to which good/service I’m obtaining.

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  • kube-system 10 days ago

    Yep. And if someone uses OPs mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services, then they have the right to sue them.

    I don't think that's happened though.

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    • Dylan16807 10 days ago

      But you don't get those protections or ability to sue if your trademark gets rejected, which is the problem here.

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      • kube-system 10 days ago

        I don't know about the EU, but in the US a registered mark only gives you the presumption that's valid. But those presumptions can be challenged in court.

        Of course, if you can't prove to the examiners that you even have a right to the mark, you're probably gonna have one snowball's chance in hell of a time proving that someone else's use of it is invalid in court.

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