[Am-info] Microsoft Releasing Records to Lindows

[T. Guilbert]

In a message dated 2003 March 05 (Wednesday), timestamp 11:44 AM, 
   on the topic Re: [Am-info] Microsoft Releasing Records to Lindows,
   Mitch Stone <mitch@accidentalexpert.com> wrote:

"|If I remember correctly, the "Victor's Secret" shop was owned by a
"|guy  named Victor. The question of whether this individual had a
"|legitimate  right to using his own name despite the prior trademark
"|must have  complicated matters in this case (caveat: I haven't read
"|any summaries  of the court's decision yet).

Nope:  own name never has been a defense in a trademark infringement
case.  Even if your name were Mitch Microsoft, you would not be
allowed to sell software you wrote as Microsoft software. 

Basic trademark law is very simple:  it derives from the law of unfair
competition (and in the common law jurisdictions, until very recently
legal rights to exclude others from using a mark were completely
dependent on prior use of the mark in commerce and completely
independent of the registration process).  The only standard for
determining trademark infringement is _likelihood_ of confusion;
_actual_ confusion may be used as a proof of likelihood of confusion,
but actual confusion never is necessary to prove likelihood of
confusion, and, symmetrically, actual confusion is not conclusive
proof of likelihood of confusion. 

I have not got around to reading the decision in the Victor's Secret
case, but from the summaries I have seen, it appears to explicate an
entirely different branch of the law, antidilution, which is statutory
in origin and based on an original New York state statute (later
copied in the statutory codes of many other states).  Antidilution,
which has its own set of rules, does not apply to all trademarks, only
to marks that are _both_ distinctive _and_ famous.  

In an antidilution case, likelihood of confusion is irrelevant;
dilution of the _distinctiveness_ of a famous mark (Rolls Royce brand
radio tubes was a famous early case), even completely absent any
possibility of confusion, is the only standard.  The parallels between
the Victoria's Secret case (antidilution, of the summaries I have read
are correct) and the Lindows litigation (traditional trademark rules)
are therefore difficult to draw, and ready conclusions of the likely
outcome of the latter case based on the reasoning of a decision
grounded in different rules must be highly suspect.  (Of course, _if_
the Victoria's Secret case is a traditional trademark infringement
case and not an antidilution case, you may ignore all of the above and
forget that I wrote it.) 


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