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" Traffic generated by users being misled into going there is not legitimate in terms of the trademark." FixUbuntu is a very very very very clear case of nomin
by DannyBee 13y ago
" Traffic generated by users being misled into going there is not legitimate in terms of the trademark."
FixUbuntu is a very very very very clear case of nominative fair use.
I can't think of a less close case in recent memory.
They are using the trademark as it should be used - to describe the product they are talking about.
The fact that Ubuntu may not like what they are saying makes no difference.
The disclaimer makes clear it's not associated, and they don't pretend, anywhere, that they are associated.
- rlpb 13y agoNo, it's passing off, which is a violation of trademark law. Using the name Ubuntu to describe and criticize the product Ubuntu is fine. Appearing to be an official website to lure visitors in is not. That's passing off. If walk into a branded store only to find a notice that it isn't actually that brand, it's still passing off. > The disclaimer makes clear it's not associated... This was only added in response to the "stop doing it" request.
- tptacek 13y agoI'm going to go with the opinion of the open source lawyer ('DannyBee) on this one, in favor of the random message board commenter who appears to be quoting Wikipedia.
- DannyBee 13y ago1. Passing off only applies to unregistered trademarks. For registered trademarks, it's just trademark infringement. Since ubuntu is a registered mark (or so they mention in the C&D), passing off simply would not apply. 2. Nominative fair use, as I mentioned, is a complete defense to trademark infringement (including passing off), and most other related things, including dilution. If FixUbuntu claimed or implied they had a business relationship/etc, there would be an issue. They don't. Trademarks do not give you the ability to stop others from using certain words, they give you the ability to stop others from confusing consumers about the source of goods. Plus, you know, criticism of products is among the most protected speech possible when it comes to trademarks ...
- clarkm 13y agoThen how was Facebook able to force the extension FacebookFixer to rename itself to FFixer?
- jlgreco 13y agoVindicating yourself in a courtroom can be extremely expensive.
- tedunangst 13y agoThey were also using the Facebook name to describe their own product. Fix Ubuntu is not (yet) the name of a separate product. When they start hosting a downloadable UbuntuFixer package, expect more trouble.