Sandra Braman on Sun, 1 May 2011 22:25:14 +0200 (CEST)

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Re: <nettime> '@Radical Media' threatens radical media conf

Common words can be trademarked if they are used to refer to something quite other than what is meant in a common sense way by those words. The position taken in this post to nettime is that what @Radical Media does is far enough away from the activities of those who see themselves within the radical media community that it would have been legitimate for them to trademark the phrase. Trademarks are geographically specific, but given this company's clients it may be that they do have global reach for the trademark.

An entity that trademarks common words for use to refer to something other than what is commonly meant by those words does NOT have the right to prevent others from continuing to use those words in their common sense way. Apple can't stop all of us from talking about apples, or even selling them, even though it is selling computers trademarked Apple.

Titles cannot be copyrighted. Another book could be published using the title "Radical Media," by an author other than John Downing, either on the same subject or on a very different subject. The issue here, though, is trademark law, not copyright law.

Cease and desist orders are often issued in an attempt to simply bully someone to stop doing something. Often they are ONLY efforts to bully and present positions that would dissolve in the face of legal judgment. In this case, the decision not to engage legal advisors immediately -- rather than yielding -- may have been premature. Non-profit public interest groups such as the Electronic Frontier Foundation can provide at minimum an education in the pertinent law; collections of other cease and desist orders that have been ignored because they weren't actually grounded in a strong legal position; and potentially involvement in legal defense if that an actual legal process begins.

Sandra Braman

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