Re[2]: Copyright and Trademarks

Subject: Re[2]: Copyright and Trademarks
From: "Ridder, Fred" <Fred -dot- Ridder -at- DIALOGIC -dot- COM>
Date: Wed, 16 Dec 1998 08:46:00 -0500

First, the usual disclaimer about not being a lawyer (nor
ever playing one on TV...).

Second, I'd like to recommend a website that contains a
wealth of solid information (and a whole lot of links to other
sources of information) about trademarks:

In replying to Sylvia Braunstein's question about copyright
and trademarks, Elna Tynes said (in part):
>The only rule is that in published documents, you must
>honor copyrights and trademarks, according to the law
>that applies to them.

This is correct as far as it goes, but is only one half of the
story, and may not be the half that Sylvia was asking about.
In addition to what you must do to respect the intellectual
property (IP) of others (e.g. their trademarks and copyrighted
text), there's the issue of what you need to do to retain as
much protection as possible for your own (or your company's
own) intellectual property. Usually, this involves a statement
that you reserve all rights relative to the copyright and a
declaration of what names your company considers to be
its trademarks.

Elna also said:
>In the case of trademarks, you must acknowledge the
>owner of the trademark, with language along the lines of
>"xyz is the trademark [or service mark] of Enormous Corp."

My quibble here is with the use of the word "must". Explicitly
acknowledging other companies' trademarks is optional, but
is usually a good idea on the principle of reciprocal respect
of intellectual property. The only thing that is actually required
by trademark law is that you must *not* use any company's
trademark in a way that makes it appear to be your own

In his reply to the same query from Sylvia Braunstein, John
Cornellier said (in part):
>Still, will Anything Bad happen to you if you don't comply?

The answer here is that if you do use someone else's trademark
in an inappropriate way (e.g. if you claim it as your own or if
you imply that it is your own IP), you can be sued by the owner
of the trademark. However, unless the owner has registered the
trademark, they must first establish that they have legitimate
rights to the trademark and then must establish that your
misappropriation of the trademark has caused actual damage.
In other words, it's a civil matter rather than a criminal one,
and if you don't deliberately and maliciously misuse someone
else's intellectual property, it's highly unlikely that you'll ever
be sued. But since so little effort is required to acknowledge
others' trademarks, there's no reason not to do so.

In a follow-up question, Sylvia Braunstein herself asked:
>When referring (over and over again) to a part X as part of
>your product, do you post the (tm), ® symbols throughout the
>document or is it enough to post them once at the
>beginning of the document?

This is a question for your company's legal department or legal
adviser. It's never specifically required that you use the symbols
at all. As with copyright, you do get certain basic protection
rights for trademarks whether or not you ever declare them. But
the more explicit and consistent you are about declaring your
rights, the easier it will be for your lawyers to establish their
case if you ever decide to sue another company for trademark
infringement. Whether this scenario ever plays out depends on
a whole lot if intangible factors including the perceived value
of your trademark property. It's a judgement call, and that kind
of judgement is what lawyers get paid for.

Fred Ridder ( Fred -dot- Ridder -at- Dialogic -dot- com )
Senior Technical Writer
Dialogic Corp.
Parsippany, NJ

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