NetNews Usenet Archive 1992 #20/NN_1992_20.iso/spool/gnu/misc/discuss/2996

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From: [e-mail] (Matt Brown)
Newsgroups: gnu.misc.discuss,comp.org.eff.talk,comp.unix.bsd
Subject: Re: Are you sure UNIX is a trade mark?
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Date: 9 Sep 92 21:06:27 GMT
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>In article <[e-mail]> [e-mail] (Rahul Dhesi) writes:
>Let me quote from AT&T's "UNIX SYSTEM V RELEASE 4 BSD/XENIX
>compatibility Guide", which has an AT&T logo on the cover.  My copy has
>ISBN 0-13-933664-8.  On page 1 we find:

>  UNIX System V Release 4.0 is, among other things, a merge of UNIX
>  System V with the enhanced BSD UNIX Operating System.  (BSD UNIX is
>  also known as "Berkeley UNIX.")

>AT&T is correct.  BSD UNIX is indeed also known as "Berkeley UNIX."
>(And this implicitly admits that BSD is also known as "BSD UNIX.")

>The terms "BSD UNIX" and "Berkeley UNIX" have come into common use.
>Note that "UNIX" is a noun and "BSD" or "Berkeley" is a qualifier.  A
>trade mark, under US law, cannot be a noun.  As soon as it becomes a
>noun in common usage, its trade mark status is in jeopardy.

>I'll make you a deal.  Give me the same legal budget that AT&T has.  If
>I can't prove in court that UNIX is no longer a trade mark, I will
>paint my head yellow.

If you use this quote as your primary exhibit, have that yellow paint handy.

"BSD UNIX" in this instance is used as a compound modifier to "Operating
System" as in "what kind of operating system? BSD UNIX Operating System."

At worst, it could be argued to be a proper noun in the second sentence, and
therefore not a "noun in common usage".

I'd be willing to take the yellow-head challenge that somewhere prior to
this quote, maybe on the cover or title page, you will see a trademark
notification for UNIX either as a registered trademark of Unix Labs, or
if the book is older, as a trademark of ATT.

This, I believe, is what really counts.  The ability of a company to
protect its 'property" rests upon its usage and its aggressive defense
of proper usage by others.  In other words, if you publish a UNIX book
without once giving ATT/USL its due, they can sue to protect the trade-
mark, after asking you to correct or withdraw the faulty usage. In that
case, every piece of correspondence would strengthen their case.

If, over time, it can be proved that they have not suitably prot-
ected their trademarks, then the common usage stuff comes into play.
I am pretty sure that just showing scattered instances where they did not
defend won't work if they have selectively pursued enough other infringements.

Now, I'm not a lawyer, and I'm not pretending to be one, but from what
I have seen, ATT would win, unless they decided it wasn't worth the
legal fees to match you dollar for dollar.  They might even get the
case thrown out as frivolous, unless you could show that an action of
theirs had caused you physical or monetary damages. Then you would pay
a fine and their fees.

Matt
I will gladly defer to an expert legal opinion in this, but I haven't seen
one yet (and I might have missed it, not having read all posts in all above
groups. So educate me).