From: T0Morrow@aol.com
Date: Sun Feb 14 1999 - 15:33:47 MST
Although I often helped ExI head off possible infringements of its trademarks
and service marks back when I was still on the board of directors, please note
that I no longer speak for the organization. My comments here merely reflect
my continuing abstract interest in trademark law.
Does the use of "Extropian" in "Extropian Agroforestry Ventures, Ltd." (EAV)
infringe on ExI's rights? Here, as generally, the question is whether
consumers of ExI's services would likely be confused by this new use of
"Extropian." Notably, "Extropian" appears here only in connection with
"Agroforestry"--a term that helps to distinguish this use of "Extropian" from
ExI's use. Compare an on-line magazine called "Extropic Journal." Then, too,
the apparent for-profit status of EAV makes its use look less likely to
confuse than, say, a think tank called "Extropian Studies Institute."
I set aside the separate question of the possible dilution of ExI's marks.
Inquiring minds might want consider the applicability of section 43(c) of the
Lanham Act.
den Otter wrote:
>> I would think that the term extropian meaning someone or thing
>> operating in an extrophic manner has been used extensively enough
>> to be a generic public domain term like libertarian, lutheran,
>> egallitarian etc.
That remains a question of fact, resolution of which would rely in part on
evidence of ExI's past efforts to prevent others from using its marks in ways
that were likely to confuse consumers. I doubt that casual observers would
have all the evidence that they need to resolve that question.
Mike Lorrey nicely summarizes some of the considerations of tax-exempt
organizations thinking about policing their marks:
>[W]hile promulgation of the use of these terms over as wide an area as
>possible is beneficial to extropy as a whole, there is the risk of dilution
of
>its meaning, as well as the possible development of negative public opinion
>of it if its use, especially for commercial purposes, if it is not overseen
and
>licensed by someone at ExI.
I think that Mike speaks a little too broadly, however, in saying that,
>While common use of the word obviously is not restricted under the
>'fair use' clauses of copyright laws (in the US or Canada), use by a
corporate
>entity which ExI does not have interest in or some measure of oversight
>or control over is a definite infringement on the copyright and trademark.
Again, the question as regards infringement (though not dilution) is whether
or not the use is likely to confuse consumers as to the source, origin, or
affiliation of ExI. Some uses of "Extropian"--even by huge, for-profit
corporations--may not go that far. Consider, for example, "Not Extropian
Cremation, Inc."
None of this is to say, of course, that ExI should passively decline to object
to such uses of "Extropian." Game theory, corporate culture, litigation
resources, public relations, and so forth might play a role in resolving that
difficult question.
T.0. Morrow
t0morrow@aol.com
http://members.aol.com/t0morrow/T0Mpage.HTML
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