Trademark usage (was UNIX v. Unix)

Subject: Trademark usage (was UNIX v. Unix)
From: "Ridder, Fred" <Fred -dot- Ridder -at- DIALOGIC -dot- COM>
Date: Thu, 6 May 1999 13:45:04 -0400

Since the thread on UNIX vs. Unix refuses to die a quiet
death, I thought I'd chime in with a few more general
comments about trademark usage.

One post in the thread gave an example:
>For e.g., if I write:
>"Linux is a Unix clone"
>I'm within my rights to use lowercase. But if I write:
>"If you are using the Digital UNIX system..."
>You would be obliged to use uppercase UNIX.

This post embodies at least two common misconceptions
about trademarks.

First, there is little that "obliges" us to use trademarks
properly. Misusing a trademark is *not* a criminal issue.
It is not illegal for me to say "I just used a kleenex to
wipe up a coke spill from the formica in the kitchen" when
I know I should really say "I just used a Kleenex facial
tissue to wipe up a Coke soft drink spill from the Formica
laminate in the kitchen" if I really wanted to use these
three trademarks properly.
Rather than establishing a criminal offence, trademark
law simply allows the owner of a trademark to sue
someone in civil court if they think they can prove that
the way that person or company misused their trademark
has caused them to suffer a loss. This can be a direct
loss, for example someone siphoning off sales by using
a trademark which is deceptively similar to yours, or it
can be an indirect loss in the value of the trademark as
intellectual property. In practice, trademark owners seldom
do more than send abusers a "cease and desist" notice
requesting them to use the trademark properly. Why, then,
do we try to use other people's trademarks properly in
what we write? Primarily to avoid any remote possibility
of having to destroy and replace some of our own
documentation products if we ever received a "cease
and desist" order for trademark misuse, but also because
we hope that if we respect the trademarks of others, they
will use _our_ trademarks properly in return.

But what is proper usage of a trademark? It's not just a
matter of spelling it correctly and following the owner's
capitalization conventions. To use a trademark _properly_,
one must use it as an adjective to differentiate one product
of a specific type from others of that same type. For
example, "Kleenex facial tissue" uses the trademark to
distinguish the Kimberly-Clark product from the same
type of paper goods manufactured by Scott Paper or
anyone else.
The example sentence "If you are using the Digital UNIX
system..." does use UNIX as an adjective, but is still not
proper usage because the adjective is not modifying the
the "right" noun for the product type, which would be
"operating system". To use the UNIX trademark properly
would require some awkward construction like "If you
are using the type of Digital system that runs the UNIX
operating system...". But then there's still the question
of how to use the Digital trademark properly in this
sentence. All of which points up the reality of the
situation: no matter how careful we are, we are bound
to misuse at least some trademarks at least some of
the time.

Not a lawyer (and never wanted to be...),
Fred Ridder
Dialogic Corp.
Parsippany, NJ


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