2 ms·

That's...half right. If a term becomes generic, a trademark is abslutely lost under US law. And one of the easiest ways for a term to become generic is via un

by Lazare 11y ago

That's...half right. If a term becomes generic, a trademark is abslutely lost under US law. And one of the easiest ways for a term to become generic is via unauthorized third party use. If Kickstarter didn't immediately threaten to sue, eg, Indigogo asking people to "come kickstart a project on Indiegogo" then they would be on a short path to losing their trademark by virtue of, yes, their failure to police their trademark. So yes, there is absolutely a requirement to police third parties using your trademark in a way that treats the term as generic...which isn't the case here. Even if every damn project on Kickstarter said they were a "Kickstarter staff pick" it doesn't make "kickstarter" into a generic term for "crowdsourced funding".

pbhjpbhj 11y ago
Genericisation is pretty orthogonal to supposed "failure to police". Moreover genericisation is definitely not an issue here as the trademark is being used to refer to the services of the trademark owner. >one of the easiest ways for a term to become generic is via unauthorized third party use // Yes, sort of. The third parties are the public though. In practice words used as marks don't become generic terms because your competitors infringe your trademark, they become generic when you corner the market and in the public perception your product becomes synonymous with that type of good/service. Ordinarily when people raise this "failure to police" argument they're claiming that Jack Daniels have to sue - for example - a writer for using a similar style of writing on their book-cover or they'll lose their RTM. >I don't understand how that isn't a huge trademark issue for kickstarter, since american trademarks are on the base of "protect it or lose it". (Mithaldu up-thread) // The badge does appear to use the authority of Kickstarter's mark, in order to sell Kickstarter's product, this isn't a competitor appropriating a mark but a customer using a mark without express permission. There might be a case for exhaustion of rights (where a supplier can't sue a customer for retailing goods with their TM on). It's not deceptive of origin and apparently it's also truthful. Incidentally "kickstart a project" is perfectly acceptable - you can't trademark common language, or rather you can sometimes but still not prevent others from using that language. "Kickstarter" wasn't and isn't a term in the relevant fields, indeed the part of a motorbike is just a kickstart but normal extension of language would have someone who kickstarts something termed a "kickstarter" - it's a terrible choice for a RTM and should probably have been rejected by the USPTO. In truth Indiegogo should triumph over such an attempt by Kickstarter to sue for RTM infringement, but Indiegogo would probably be shy as IP cases are seemingly often poorly judged. "kickstart" is already common language, "Kickstarter" isn't however: "I'm looking to kickstart this project" doesn't use the RTM.

by Lazare 11y ago

pbhjpbhj 11y ago

Genericisation is pretty orthogonal to supposed "failure to police". Moreover genericisation is definitely not an issue here as the trademark is being used to refer to the services of the trademark owner. >one of the easiest ways for a term to become generic is via unauthorized third party use // Yes, sort of. The third parties are the public though. In practice words used as marks don't become generic terms because your competitors infringe your trademark, they become generic when you corner the market and in the public perception your product becomes synonymous with that type of good/service. Ordinarily when people raise this "failure to police" argument they're claiming that Jack Daniels have to sue - for example - a writer for using a similar style of writing on their book-cover or they'll lose their RTM. >I don't understand how that isn't a huge trademark issue for kickstarter, since american trademarks are on the base of "protect it or lose it". (Mithaldu up-thread) // The badge does appear to use the authority of Kickstarter's mark, in order to sell Kickstarter's product, this isn't a competitor appropriating a mark but a customer using a mark without express permission. There might be a case for exhaustion of rights (where a supplier can't sue a customer for retailing goods with their TM on). It's not deceptive of origin and apparently it's also truthful. Incidentally "kickstart a project" is perfectly acceptable - you can't trademark common language, or rather you can sometimes but still not prevent others from using that language. "Kickstarter" wasn't and isn't a term in the relevant fields, indeed the part of a motorbike is just a kickstart but normal extension of language would have someone who kickstarts something termed a "kickstarter" - it's a terrible choice for a RTM and should probably have been rejected by the USPTO. In truth Indiegogo should triumph over such an attempt by Kickstarter to sue for RTM infringement, but Indiegogo would probably be shy as IP cases are seemingly often poorly judged. "kickstart" is already common language, "Kickstarter" isn't however: "I'm looking to kickstart this project" doesn't use the RTM.