Path: utzoo!attcan!uunet!lll-winken!lll-tis!ames!mailrus!tut.cis.ohio-state.edu!cs.utexas.edu!utastro!bigtex!james
From: james@bigtex.uucp (James Van Artsdalen)
Newsgroups: comp.sys.ibm.pc
Subject: Re: Prior use of the name "ARC"
Message-ID: <8276@bigtex.uucp>
Date: 20 Sep 88 21:02:58 GMT
References:  <422@pigs.UUCP>
Reply-To: james@bigtex.UUCP (James Van Artsdalen)
Followup-To: misc.legal
Organization: F.B.N. Software, Austin TX
Lines: 32

> There is prior use of the word "REAL", and yet The Dairy Council has a
> trademark on the word "REAL" and the stylistic logo which goes with it.
> If you wish to use "REAL" with your dairy products, you must first get
> their permission.

Or if you think the trademark is invalid, you can use it anyway and
start planning legal strategy.  When the government registers a
trademark, it isn't set in stone, and the government doesn't
authenticate its validity.  Being "registered" merely shifts the
burden of proof in any lawsuit.  The "age" of the trademark also
counts (after a few years the trademark becomes "incontestable",
meaning the entire burden of proof rests with you).

> Arguing that Miriam Webster placed "REAL" in the public domain with
> his first dictionary will not win.

In and of itself, no.  But this is one of the things that can push the
burden of proof back on the Dairy Council.  There is nothing unique or
special about the Dairy Council's usage of "real": many products could
make an identical claim, whereas no one can claim they make "Exxon
gasoline" except Exxon (Exxon is an example of a very good trademark).
Doubtless the Dairy Council claims the stylized logo and everything
else as one trademark.  I seriously doubt the Council would risk a
decision in a suit over a phrase like "Our milk is real milk too!", as
they stand too great a risk of losing what they have.

Eventually you would run into free speech problems anyway.  I rather
suspect that the federal courts would look in askance at restrictions
on usage of the English language.  Many otherwise well maintained
trademarks are lost this way.
-- 
James R. Van Artsdalen    ...!uunet!utastro!bigtex!james     "Live Free or Die"
Home: 512-346-2444 Work: 328-0282; 110 Wild Basin Rd. Ste #230, Austin TX 78746