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Re: Logo War: Red Hat Takes On DataPortability



On Fri, Feb 22, 2008 at 3:57 AM, Duvelle Jones <duvelle jones gmail com> wrote:
> I will be quite honest here. From what I can tell I think that it is a
>  little disappoint that Red Hat had to go an flex their lawyer might
>  against DataPortability in what can be considered here as a coincidence.

Here's the basic problem..... US trademark law demands ACTIVE policing
of a trademark, for the mark to remain protected.  This is direct
contrast with how copyright and patent law works.  If you don't
actively police your trademark, then it can lose its protected status.

Does it matter to the US legal system which rely on to protect the
Fedora trademarked logo that this group isn't "a bad guy".. no.. no it
doesn't.  If Red Hat doesn't actively protect the Fedora trademark
logo, it could lose the ability to protect the logo when someone
deliberately infringes with an aim to cause confusion or disparage
this project's reputation.

A cease and desist letter is the legal mechanism that the US legal
system will recognize in situations where the infringing status is in
dispute.  If Red Hat doesn't use mechanisms recognized by the US legal
system (the system which ultimately determines whether a trademark is
still protected), then the trademark on the Fedora logo is
jeopardized.   Even if the other logo is found to be not infringing,
there has to be a legal ruling on the matter to point to later, to
show that a court decided the two logos were not too similar.

The ultimate goal here is the continued protection of the Fedora logo
as a registered trademark.  There is no malice in the C&D letter. The
other logo is similar.  If its too similar then if Red Hat doesn't
speak up now about it(in a way recognized by the US legal system) then
future "bad guys" can point to its existence to show that the Fedora
mark is no longer deserving of protected status because Red Hat failed
to adequately police it.  Trademark law doesn't let us choose which
people we must protect the mark from... we must protect the mark
equally and vigorously or we lose the right to protect it from anyone.


>  But that is just a wild thought in the mist of it all. Even so, I will
>  agree with John here, as unfortunate as it is, this seems to be a
>  Working Group that it trying to pull some honourable work.

Intent simply doesn't matter from a trademark perspective.  And the
reason the C&D went out has nothing to do with the goals of the
organization.  If their logo is "too similar" from a legal
perspective, then we need to have them change the logo. If their logo
is not "too similar" from a legal perspective then we need to have the
appropriate court ruling to that effect.  Unfortunately, the way the
US legal system treats trademarks forces our hand, unless we are
willing to give up the protected status of the Fedora
logo...completely.

-jef


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