Linbot

[Kevin Russell]

Erik Max Francis wrote:
> 
> Kevin Russell wrote:
> 
> > But there's still an element of picking-on-the-little-guy here.
> 
> Probably not.  They almost certainly would have behaved the same way
> with a sizeable company that was behaving the same way.  In fact, one
> could argue that they would be far more aggressive about such a case,
> because that would present a greater threat than an amateur project.
> 
> > "LinkBot" comes awfully close to a generic term.  Both "link" and
> > "bot" are established terms in the field.
> 
> But they didn't trademark the words _link_ and _bot_ separately, they
> trademarked the word _LinkBot_.  That is a totally legitimate trademark,
> although you might not agree with it.  When trademarking names, it
> matters who gets there first.

No.  When trademarking names, it matters who gets there first and can
subsequently make it stick in court.

Whether you're trademarking a single word or a combination of words is
completely irrelevant.  The issue is how generic a description the
trademark (of whatever length) is of the thing it names.  

Non-words made up out of the blue (like "Xerox", "Reebok", "Kleenex") 
are nigh on iron-clad.  Real words that are unrelated to the product 
(e.g., "Marvel" detergent, "Teddy Bear" pizza, "Turbo" cola, "Python" 
programming language) are relatively safe bets, as are (parts of) real 
words that are related to the product but combined in a way that's 
novel at the time (e.g., "Microsoft", "Netscape").  Using a name that's 
nothing more that a generic description of the product ("car") or a 
combination of related words in a non-novel combination (including any 
general modifier-noun sequence) are bad bets and often fail to survive 
any attempts to enforce them.

If I manufacture a machine that makes coffee, I could call safely call 
it "Vlorgas", "Linkbot", or "Owl".  I could a little less safely call 
it "Coffee Wizard".  I could not call it "Coffee Maker" (or 
"CoffeeMaker" for that matter).  I might succeed in getting the 
trademark registered, I could send all the threatening letters I wanted 
to other people, but I'd never succeed in enforcing the trademark if 
they ignored my letters and I had to take them to court.

If I manufacture a bot that checks links, I could safely call it 
"Vlorgas", "Owl", or "Coffee Maker", but "LinkBot" is a really stupid 
bet.  I could send all the threatening mail I wanted to small fry, 
without a lot of risk.  But that's about it.

I'd have to send similarly threatening initial letters to large 
companies too.  But, given the general flimsiness of my case (and the 
unlikeliness that the lawyer I can afford will be able to beat the 
office tower of lawyers they can afford), I'd try to cut a deal fast 
-- you give me some money, I sell you the worthless trademark, everyone 
escapes hassle-free.  If the giant ignored my overtures, I'd have to 
choose between a) losing my trademark through inaction, and b) taking 
them to court and running the very real risk of losing my trademark 
anyway and hefty lawyer fees to boot.

I'm not saying Watchfire sent Marduk threatening mail because he
was a little guy.  You right, they'd have to send the mail to 
anyone.  I'm saying they got away with it because he's a little guy,
who can't afford the non-zero risk that he'd get a wonky judge on a
bad day.

-- Kevin