[Am-info] Microsoft Releasing Records to Lindows

[Erick Andrews]

On Tue, 11 Mar 2003 13:08:36 -0800, T. Guilbert wrote:

>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.) 

Gee, "T", you sound just like a lawyer!  <g>

-- 
Erick Andrews