[Am-info] Microsoft Releasing Records to Lindows

[T. Guilbert]

In a message dated 2003 March 11 (Tuesday), timestamp 05:06 PM, 
   on the topic Re: [Am-info] Microsoft Releasing Records to Lindows,
   Mitch Stone <mitch@accidentalexpert.com> wrote:

"|So, let me see if I understand this. If I ran a hamburger stand
"|called  Mitch's Hamburgers, and trademarked that name, I could
"|legally prevent  anyone named Mitch from selling hamburgers under
"|their own name?

"|If that's the case, I'm going to change my name to John and start 
"|trademarking everything in sight.

You have it part right.  

If (1) you are the first to use MITCH in commerce to distinguish your
hamburgers from others' hamburgers in your geographic area, and (2) as
applied to hamburgers, MITCH is not descriptive, then, yes, you have a
legal right to prevennt a junior user -- even one named Mitch -- from
using MITCH to designate his hamburgers.  This is true whether or not
you register the mark, which is a way to gain some procedural
advantage, but does nut enlarge or diminish the underlying right. 
[Aside:  most of the errors in understanding of trademark law and
copyright law derive from using the terms trademark and copyright as
verbs; many errors can be avoided by consciously deciding not to use
the terms as verbs.] 

Caveat:  operating a business called Mitch's Hamburgers (trade _name_)
does not designate the hamburgers sold therein as MITCH brand
hamburgers (trademark).  The law of trademarks and the law of trade
names overlap, but the name of a business does not inherently transfer
to the products sold by the business. 

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