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Groklaw Explains the Cyberlaw "Trademark" 37

Posted by kdawson
from the black-letter dept.
I Don't Believe in Imaginary Property writes "PJ of Groklaw has written in more detail about the lawyer trying to get a servicemark on the term 'cyberlaw'. (We discussed this here a few days back.) First, she notes that it's only a trademark application at this point. Furthermore, 'cyberlaw' is a generic term with 300,000+ hits on Google and an entry in some dictionaries and reference sites. In other words, while it's silly for a law firm that should know better to file a trademark application, it shouldn't and probably won't be granted if the law is followed. The article is interesting because it spells out the difference between trademarks and servicemarks, as well as explaining the law surrounding them — a law that differs significantly from copyright law."
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Groklaw Explains the Cyberlaw "Trademark"

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  • "Service mark"
    Means "jumped the shark".
    Gone with you then,
    Cyber-highwayman
    Burma Shave
  • by langelgjm (860756) on Tuesday January 22, 2008 @09:17AM (#22136782) Journal
    For me, the website [cyberlawpc.com] in question already shows "TM" after the word CyberLaw. It's also the fifth hit on Google. If all they've done is apply for the trademark, are they still allowed to used the "TM" mark?
  • We can rely on that now? I hadn't heard...
  • That is all it is about.
  • It's sad that the article has to explicitly state that copyright laws and trademark laws are different.

    This is why the concept of "intellectual property" has to be dispensed with immediately. It creates the erroneous impression that trademarks, servicemarks, copyrights, and patents are all somehow related, and that they have something to do with the notion of real ownership of tangible things. But of course they are not related, and they having nothing to do with true ownership.

    The concept of intellec

    • ...the concept of "intellectual property" has to be dispensed with immediately. It creates the erroneous impression that trademarks, servicemarks, copyrights, and patents are all somehow related, and that they have something to do with the notion of real ownership of tangible things. But of course they are not related, and they having nothing to do with true ownership.

      The term "intellectual property" is quite useful for exactly the reason you object to it. It refers to property that is not tangible. It's useful to differentiate tangible property from intangible property no matter which side of the debate you are on. There are lots of different types of tangible property, from land to zebras, with all kinds of varying rules that apply to maintaining and transferring ownership, but we still consider all that stuff to be tangible property.

      Terms like "real ownership" or

      • by sepluv (641107)

        It refers to property that is not tangible.

        The whole point is that most people who have looked into this (including many experienced legal academics) don't think "intellectual property" is property (in part, because it is not tangible) and believe it is unhelpful, and even divisive, to call it that. Please bear in mind that it is a matter of public record that the term "intellectual property" was first used in the name of WIPO, and, whatsmore, was intentionally coined by the stakeholders who were behind t

      • The term "intellectual property" is quite useful for exactly the reason you object to it. It refers to property that is not tangible. It's useful to differentiate tangible property from intangible property no matter which side of the debate you are on. There are lots of different types of tangible property, from land to zebras, with all kinds of varying rules that apply to maintaining and transferring ownership, but we still consider all that stuff to be tangible property.

        The laws you mention about real pr

  • by cenonce (597067) <anthony_t AT mac DOT com> on Tuesday January 22, 2008 @11:16AM (#22137854)

    PJ as usual gives a good overview of what is going on. What she doesn't really spell out is that the mark needs to be viewed in reference to each one of these services. It is possible that CYBERLAW, when used in connection with some of these services, is descriptive, and not really generic. However, in this case, it may be so highly descriptive with any of these services that no amount of evidence will be sufficient to prove "secondary meaning" (i.e., acquired distinctiveness) - which just means that CYBERLAW for this guy will never become like INTERNATIONAL BUSINESS MACHINES has for IBM. In that sense, the difference between generic and descriptive is pretty moot.

    It always concerns me when I see a laundry list of goods and/or services in an application, especially in this case, when most, if not all, of the services listed generally fall under the USPTO accepted identification of "legal services". That it is often a sign of an inexperienced trademark attorney.

  • Widows is a generic term. Shell is a generic term. Word is a genric word.
    • by ricegf (1059658)

      Widows is a generic term.

      You probably mean Windows. If so, then note that Microsoft uses (tm) and not (r) - because it hasn't been successfully registered. Also remember that they paid Lindows $20 million to drop the countersuit alleging that Windows is an improper trademark (and of course, changed Lindows to Linspire). Being a rich monopolist has its privileges.

      Shell is a generic term.

      For gasoline? You honestly say, "Honey, we need to stop for some shell"???

      Word is a genric word.

      Yes, for a sho

      • by Rudolf (43885)
        If so, then note that Microsoft uses (tm) and not (r) - because it hasn't been successfully registered.

        Please stop spreading this myth. Microsoft has several registered trademarks for "Windows". You can search for yourself at http://www.uspto.gov/ [uspto.gov]

        This one might interest you:

        Word Mark WINDOWS

        computer programs and manuals sold as a unit; namely, graphical operating environment programs for microcomputers. FIRST USE: 19831018. FIRST USE IN COMMERCE: 19831018

        Registration Number 1872264

        Owner (REGISTRA

        • by ricegf (1059658)

          And they use the (r) here plain as day [microsoft.com]. Mea culpa - it would have been so easy to look first. *blush*

          The rest of my statements were accurate, however, despite my lapse of memory. Microsoft's initial request for a trademark on Windows was rejected as generic, but they succeeded in overturning that ruling on appeal. Lindows sought to have the trademark invalidated as generic as part of their countersuit. Microsoft launched a blitz of lawsuits worldwide to (I believe) drive Lindows into financial distress

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