Erik wrote:
Um, I'm not sure there even *is* a registered Wikipedia trademark, let alone in Russia. Until we have such a trademark, we can only ask them nicely to stop, but they're acting in full compliance with the law.
IIRC from my business law classes, registration is only needed before seeking actual legal action in court (just as with copyright infringement). But "Wikipedia" is still a trademark of the Wikimedia Foundation. That's why registered trademarks and plain old trademarks have different symbols to represent them. IANAL but the ru.Wikipedia/Wikipedia.ru use does seem to cause a very real confusion as to what Russian "Wikipedia" is the actual one that is part of the Wikimedia family.
Some relevant paras from http://www.wikipedia.org/wiki/Trademark
A trademark (or, as referred to in Commonwealth countries, a "trade mark") is a distinctive name, phrase, symbol, design, picture, or style used by a business to identify itself to consumers.
Like "Wikipedia"
Trademarking is a central legal component for corporate branding.
The basic policy of trademark law is to prevent the public from being deceived and allow the producer of a product to have a specific product associated with a specific manufacturer,
Like a wiki encyclopedia named "Wikipedia"
By identifying the source of goods or services, marks help consumers to identify their expected quality and assist in identifying goods and services that meet the individual consumer's expectations.
Like our NPOV policy and standards of quality.
Another underlying purpose of trademark law is protecting the owner's investment in the quality of the goods or services sold under the mark known as dilution.
Allowing Wikipedia.ru to exist as a wiki encyclopedia will dilute our trademark and encourage the creation of encyclopedias and similar things at Wikipedia.us, Wikipedia.uk, Wikipedia.au, Wikipedia.fr, Wikipedia.de, Wikipedia.info, Wikipedia.biz etc. The word "Wikipedia" would no longer be associated with just our encyclopedia project - we will have lost control of our trademark and IIRC once that happens we will not be able to regain control either legally or practically.
Therefore, trademark law protects businesses from unfair competition and deceptive advertising by their competitors which can dilute the distinctiveness of a mark.
Like having a Wikipedia.ru with advertisements. We can't control what they post and whether or not they sully the Wikipedia name.
But,
Atlanta-based Coca-Cola Corporation that sold a soft drink called "Coke" in red and white cans would clearly be guilty of trademark infringement, confusing consumers as to the source of the product (though such confusion need not be intentional to be infringing). On the other hand, a company selling the carbonized coal byproduct called "coke" to steel mills would not likely be guilty of infringement, because there is little chance any consumer will mistake the two.
This is why I think Wikimedia.de is less of a problem.
However,
The advent of the Domain Name System has lead to attempts by trademark holders to take over domain names based on trade mark rights. Unlike a trademark, which is restricted by country and class of goods, domain names can be global and not limited by goods or service.
So IMO we are on pretty solid legal grounds here even without the last paragraph (IMO, the last paragraph is a bit morally wrong and we shouldn't approach this matter via that route unless forced to do so).
-- Daniel Mayer (aka mav)
Daniel-
IIRC from my business law classes, registration is only needed before seeking actual legal action in court (just as with copyright infringement).
According to
http://www.iusmentis.com/trademarks/crashcourse/procedure/
- - - -
Unregistered trademarks
It is worth noting that some countries, in particular the United States, also provide trademark rights for unregistered trademarks. The mere use in commerce of a particular sign can turn that sign into a trademark, which others may not use for the same types of goods and services. Such unregistered trademarks are sometimes indicated with the suffix TM, while registered trademarks are indicated with the famous R in a circle R.
- - - -
(Note that the name Wikipedia has neither a TM nor an (R) next to it.) Are we on solid enough legal ground with an "unregistered trademark" to send nastygrams to some guys in Russia? I highly doubt it. And I wouldn't want it to be any other way. Trademarks are evil enough as it is.
Regards,
Erik
From: "Daniel Mayer" maveric149@yahoo.com
Erik wrote:
Um, I'm not sure there even *is* a registered Wikipedia trademark, let alone in Russia. Until we have such a trademark, we can only ask them nicely to stop, but they're acting in full compliance with the law.
Trademarks do not have to be registered as Daniel correctly states. There is also the passing off issue. Basically trademarks and domain names are now overlapping areas of concern.
It has nothing to do with the fact that Wikipedia is not a business. Here is a recent decision that dealt with the use of the name of a religious figure: http://arbiter.wipo.int/domains/decisions/html/2003/d2003-0248.html If you read the decision you will see that goods and services include such things as "Charitable services" and "meditation".
The advent of the Domain Name System has lead to attempts by trademark holders to take over domain names based on trade mark rights. Unlike a trademark, which is restricted by country and class of goods, domain names can be global and not limited by goods or service.
I do not know if this is a completely accurate statement of the law; but the problem is that Wikipedia.ru is using the name to publish an encyclopedia and ru.wikipedia.org What is the point of two Russian Wikipedia's or two German Wikipedia's. The problem with the Russian site is that it is not released under the GFDL. They use a bsd type of copyleft license: http://www.wikipedia.ru/wiki/license/bsd-doc.htm However, it is not completely clear that it is compatible with the GFDL. It requires a disclaimer and that disclaimer becomes viral because it MUST be incoporated into any subsequent texts I.e. if you want to give a greater warranty I am not sure you can, but I haven't examined that issue in much detail.
Perhaps they should be asked to reliquish the name. Do Wikipedians want to be associated with porno sites (at least one of the links from their main page link to a Russian porno site, and in Russia you do not need to limit such site access to adults, another liability issue for Wikipedia!
If they do not want to comply with Wikipedia standards it is simple enough to complain to the WTO. If WTO rules in Wikimedia's favor, they will have to relinquish the Wikipedia name. IMO Wikimedia has a good case, long history, lots of press both in the US and abroad.
So IMO we are on pretty solid legal grounds here even without the last paragraph (IMO, the last paragraph is a bit morally wrong and we shouldn't approach this matter via that route unless forced to do so).
I am not sure why it is morally wrong to try and keep the WIkipedia name associated with a high level of standardization. Non-profit organizations do get into trademark and unfair competition disputes, you would be suprised at how many churches want to prevent someone for misappropriating their name (I have researched the case law in this area).
Certainly it would be more considerate to try and settle the dispute with them, but I do not see why it is morally reprehensible to resort to legal recourses if Wikipedia standards are not upheld and someone wants to use the Wikipedia name.
Alex756
Maveric149 wrote:
Erik (Eloquence) wrote:
Um, I'm not sure there even *is* a registered Wikipedia trademark, let alone in Russia. Until we have such a trademark, we can only ask them nicely to stop, but they're acting in full compliance with the law.
IIRC from my business law classes, registration is only needed before seeking actual legal action in court (just as with copyright infringement). But "Wikipedia" is still a trademark of the Wikimedia Foundation. That's why registered trademarks and plain old trademarks have different symbols to represent them.
IIRC (but not from a bona fide business law class), you must /use/ the symbol for a trade (or service) mark, even though you don't have to register it, to defend it. That is, you must put "TM" (or "SM") by your name to stake your claim. But you don't need the circled "R" -- and can't unless you register.
This is different from copyright law, where you need no circled "C".
IANAL but the ru.Wikipedia/Wikipedia.ru use does seem to cause a very real confusion as to what Russian "Wikipedia" is the actual one that is part of the Wikimedia family.
I agree. But are we defeding the name properly? It seems to me that we ought to stick up a "TM" (or "SM"?) posthaste! IANAL either, so let's hope that Alex speaks up.
[If we let wikipedia.ru go by] - we will have lost control of our trademark and IIRC once that happens we will not be able to regain control either legally or practically.
This is another difference from copyright law. A trademark must constantly be defended or it goes away. That's why there are "Webster's Dictionary"s all over the place, but only one "Merriam-Webster Dictionary" (the descendant of the original); they didn't defend "Webster's" for a while so lost the case when they started.
I suppose that if we fail to defend "Wikimedia" from wikimedia.de, then we'll lose the right to defend it from other random wikis; but we won't lose the right to defend it from other /encyclopaedias/. OTOH, since wikimedia.ru is a wiki encyclopaedia, it's all or nothing. But here I'm thinking logically, rather than legally, to hypothesise; so take it with a big grain of salt.
Atlanta-based Coca-Cola Corporation that sold a soft drink called "Coke" in red and white cans would clearly be guilty of trademark infringement,
(You're missing "[A] company other than" at the beginning here.)
The advent of the Domain Name System has lead to attempts by trademark holders to take over domain names based on trade mark rights. Unlike a trademark, which is restricted by country and class of goods, domain names can be global and not limited by goods or service.
So IMO we are on pretty solid legal grounds here even without the last paragraph (IMO, the last paragraph is a bit morally wrong and we shouldn't approach this matter via that route unless forced to do so).
I agree. Remember when Prema Toys sued a 12-year-old kid named "Pokey" over <pokey.org>? (They dropped legal action after bad publicity.)
-- Toby
From: "Toby Bartels" toby+wikipedia@math.ucr.edu
I agree. But are we defeding the name properly? It seems to me that we ought to stick up a "TM" (or "SM"?) posthaste! IANAL either, so let's hope that Alex speaks up.
I mentioned it before, but it is not really necessary. TM or SM only gives notice in some places that the sign functions as a trademark. Using the circled R is illegal unless registered. The trademark functions through usage. Wikipedia is associated with a certain wiki project that rests on Boomis servers with the permission of Jimmy Wales. It has been publicised in major media outlets around the world. That is what gives it protection. If Shri Chinmoy can shut down web sites that use his name (though there was a free speech argument and the woman who had those sites decided not to fight him, she might have won on those grounds) why can't Wikipedia protect its good name.
I suppose that if we fail to defend "Wikimedia" from wikimedia.de, then we'll lose the right to defend it from other random wikis;
Maybe rather than defend, just enter into a licensing agreement with them. They can use the Wikipedia logo if certain conditions are met. If they agree the contract will bolster the argument that the Wikipedia name and logo are trademarks. I'd also offer the same agreement to the Russian guys, but they might not take it because they may say, "Go ahead you Americans, take us Russian Capitalists to court! We don't care!" (Who won the Cold War?)
but we won't lose the right to defend it from other /encyclopaedias/. OTOH, since wikimedia.ru is a wiki encyclopaedia, it's all or nothing. But here I'm thinking logically, rather than legally, to hypothesise; so take it with a big grain of salt.
Tryng suing for trademark infringment in Russian court. You are going to need an expensive set of lawyers to do that. I don't know any western lawyers who do pro bono litigation in Moscow for American non-profits, but there is not really any need to sue.
I agree. Remember when Prema Toys sued a 12-year-old kid named "Pokey" over <pokey.org>? (They dropped legal action after bad publicity.)
Those days are long gone. That is why they have domain name resolution procedures. It is all done through the mail. (though you can go to the hearing). Most likely the decision will be written in Russian and English so that both sides can understand the outcome (don't quote me on that).
Alex756
wikipedia-l@lists.wikimedia.org