Proper use of the word PHOTOSHOP...... dont get yourself into any legal mess =D =p

[quekky]

right or wrong?

I go to the photo shop to develop my films

 

[vince123123]

Well, what you need to do is to take out revocation proceedings against the registered trade mark on the grounds that "in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for the product or service for which it is registered."

This can occur before someone actually sues you, or it can be raised as a defence or counterclaim if that someone has already strated suing you.

ok, would the common (generic) use of the public in an informal way be a legally plausible argument to override the rights to a registered trademark? that means if more people is going to use Photoshop in an informal way, now can anyone use Photoshop as their own trademark and still win the case?

 

[zoossh]

Well, what you need to do is to take out revocation proceedings against the registered trade mark on the grounds that "in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for the product or service for which it is registered."

This can occur before someone actually sues you, or it can be raised as a defence or counterclaim if that someone has already strated suing you.

well, your phrasing is getting a bit technical. basically, you are saying, yes, that is the case, to my question?

if the term becomes an informal common usage subsequently, a term that is initially invented by the company without being previously used, can lose its rights to the trademark? i get the idea you are saying that if Adobe does not pick on the common public on this issue, it would be seen as "inactivity" and becomes grounds against Adobe's rights to the trademark. is that what you are saying?

 

[vince123123]

Yeap you are right, if they dont take steps to stop it becoming generic, it may very well be the subject of a revocation action.

well, your phrasing is getting a bit technical. basically, you are saying, yes, that is the case, to my question?

if the term becomes an informal common usage subsequently, a term that is initially invented by the company without being previously used, can lose its rights to the trademark? i get the idea you are saying that if Adobe does not pick on the common public on this issue, it would be seen as "inactivity" and becomes grounds against Adobe's rights to the trademark. is that what you are saying?

 

[zoossh]

Yeap you are right, if they dont take steps to stop it becoming generic, it may very well be the subject of a revocation action.

yah, but it seems that the flaw is in the legislation, dun you think so? i mean i know that is besides the question, but still i dun think that is right, isn't it?

 

[vince123123]

Why do you say its a flaw? Many coutnries follow the same position. The idea of a trade mark is intended to act as a badge of origin for goods/services. If the trade mark, through whatever reasons, has been so commonly used until it becomes generic, it no longer serves the purpose of designator of origin.

Do you know which company owns the trade mark "escalator"? or "zipper"? or "linoleum"? These marks have became generic until most public don't even know who the original people are anymore.

yah, but it seems that the flaw is in the legislation, dun you think so? i mean i know that is besides the question, but still i dun think that is right, isn't it?

 

[zoossh]

Why do you say its a flaw? Many coutnries follow the same position. The idea of a trade mark is intended to act as a badge of origin for goods/services. If the trade mark, through whatever reasons, has been so commonly used until it becomes generic, it no longer serves the purpose of designator of origin.

Do you know which company owns the trade mark "escalator"? or "zipper"? or "linoleum"? These marks have became generic until most public don't even know who the original people are anymore.

i say it is a flaw becos as a layman, i believe the law should protect the society and not just those informed. to me, although we follow the laws, we dun always agree with it, becos it is not always right. sometimes what every countries follow, may be exactly the wrong thing.

as for the question about who owns the trade mark escalator and zipper, i'm probably less concerned about the trademark, but rather what happened to the patent. the issue that we dun even know who owns the trademark is becos the original manufacturer do not exist sufficiently in the market to make the distinction, unlike the case for panadol for example. if they dun exist anymore, then it doesn;t matter about the trademark.

 

[vince123123]

Hmm? How does rendering a TM generic cause a harm to society?

I think we are talking about trade marks now so I'm not sure if you want to go on to patents. Patents are 20 years only anyways o perhaps they hvae expired by now.

The question is not so much whether you know the exact owner, but whether you see "escalator" or "zipper" as a brand anymore.

i say it is a flaw becos as a layman, i believe the law should protect the society and not just those informed. to me, although we follow the laws, we dun always agree with it, becos it is not always right. sometimes what every countries follow, may be exactly the wrong thing.

as for the question about who owns the trade mark escalator and zipper, i'm probably less concerned about the trademark, but rather what happened to the patent. the issue that we dun even know who owns the trademark is becos the original manufacturer do not exist sufficiently in the market to make the distinction, unlike the case for panadol for example. if they dun exist anymore, then it doesn;t matter about the trademark.

 

[zoossh]

Hmm? How does rendering a TM generic cause a harm to society?

actually exactly. so i thought Adobe should not stop the TM from becoming generic and i thought rendering a TM generic should not gives other companies the ground to infringe on Adobe's commerical rights on its trademarks when Adobe Photoshop is well in existence. since the zipper's original maker is not even known to us, that is probably a different story.

well, i just thought what it should be and what not. i understand the laws may say a different thing, perhaps.

 

[vince123123]

Why can't adobe take steps to prevent its mark from being generic?

Also, you only know abt the tm because u knew abt it even before it got generic. However, just liek zipper, there are lots of other users who may not recognise it as a TM many years from now, the same way that you do not recognise zipper or escalator or band-aid as trade marks.

actually exactly. so i thought Adobe should not stop the TM from becoming generic and i thought rendering a TM generic should not gives other companies the ground to infringe on Adobe's commerical rights on its trademarks when Adobe Photoshop is well in existence. since the zipper's original maker is not even known to us, that is probably a different story.

well, i just thought what it should be and what not. i understand the laws may say a different thing, perhaps.

 

[zoossh]

Why can't adobe take steps to prevent its mark from being generic?

Also, you only know abt the tm because u knew abt it even before it got generic. However, just liek zipper, there are lots of other users who may not recognise it as a TM many years from now, the same way that you do not recognise zipper or escalator or band-aid as trade marks.

then why can't adobe be able to protect its trademark while the term becomes generic?

the reason why we do not recognise the zipper as a trademark is not becos the zipper is use as an informal generic term. it is becos there is no existent brand that exist today that uses it while others cannot use it.

so the problem is not becos of the term becoming generic, but rather becos the law says if the term becomes generic, other brands can use that trademark too.

 

[vince123123]

The law doesn't say that other brands can use the TM.

The starting premise of the law is that it allows you to REGISTER your mark as a trade mark. However, if the mark no longer serves as a badge of origin, it is no longer registrable. There are many marks which are not registrable, not only marks that become generic.

For example, nondistinctive words liek "SUPER", "GOOD" etc are not registrable.

These rules preserve the integrity of the trade mark REGISTRATION system.

You are free to continue using yoru generic mark as a trade mark if you want, you only face difficulties trying to enforce it.

Perhaps the reason why generic marks like "zipper" and "nylon" is no longer in use is becuase of that reason, there is no reason to continue to invest in that brand since it is no longer capable of protection.

By the way, rollerblade is still in existence. same as "scotch tape".

Other generic brands still in existence are "velcro" and "lycra", and "spandex" and 'rollerblade"

Apparently it seems the zipper people are still around: see http://www.ideafinder.com/history/inventions/zipper.htm

then why can't adobe be able to protect its trademark while the term becomes generic?

the reason why we do not recognise the zipper as a trademark is not becos the zipper is use as an informal generic term. it is becos there is no existent brand that exist today that uses it while others cannot use it.

so the problem is not becos of the term becoming generic, but rather becos the law says if the term becomes generic, other brands can use that trademark too.

 

[zoossh]

The law doesn't say that other brands can use the TM.

The starting premise of the law is that it allows you to REGISTER your mark as a trade mark. However, if the mark no longer serves as a badge of origin, it is no longer registrable. There are many marks which are not registrable, not only marks that become generic.

For example, nondistinctive words liek "SUPER", "GOOD" etc are not registrable.

These rules preserve the integrity of the trade mark REGISTRATION system.

You are free to continue using yoru generic mark as a trade mark if you want, you only face difficulties trying to enforce it.

Perhaps the reason why generic marks like "zipper" and "nylon" is no longer in use is becuase of that reason, there is no reason to continue to invest in that brand since it is no longer capable of protection.

By the way, rollerblade is still in existence. same as "scotch tape".

Other generic brands still in existence are "velcro" and "lycra", and "spandex" and 'rollerblade"

Apparently it seems the zipper people are still around: see http://www.ideafinder.com/history/inventions/zipper.htm

i feel that the premise of the law should allow one to register the mark as a trade mark if at the point of registration, they are not terms already being used and is appropriate for that matter, and the law should protect the trademark no matter whether the term becomes generic later or not, until the owner of the trademark ceased to exist. neither the law or the company should have the rights to interfere how the common public uses their language, but the law should refrain other companies from using that trademark as their own trademark, whether or not the term has become generic.

i can see why the companies face difficulties trying to enforce it. "B.F. Goodrich sued to protect its trademark but was allowed to retain proprietary rights only over Zipper Boots."

 

[vince123123]

The law is such for good reasons - things may change after registration. If you only take the factual situation at the point of registration, then it doesn't take into account what happens in the future. A trade mark registration (unlike a patent) can be perpetual (ie it will never expire as long as renewal fees are paid).

If lets say 200 years later, things change, and that mark is no longer a trade mark, through genericism, going bust etc (just like no one knows abt the zipper anymore), the quesiton is then whether the zipper TM is one which serves its purpose of being a brand. No one even recognises zipper/nylon etc as brands anymore, and to give these words a monopoly on the marketplace would mean an anomaly.

Imagine this, Ahmad, a local guy, decides to sell zippers for a living. He calls his shop "Ahmad's Zipper". If the zipper TM is allowd to remain on the register even though it is generic, Ahmad will be potentially infringing on the ZIPPER trade mark ergistration.

But the public knows the shop as "Ahmad, the guy who sells zippers", and no one even knows that "ZIPPER" is a registered trade mark due to genericism.

i feel that the premise of the law should allow one to register the mark as a trade mark if at the point of registration, they are not terms already being used and is appropriate for that matter, and the law should protect the trademark no matter whether the term becomes generic later or not, until the owner of the trademark ceased to exist. neither the law or the company should have the rights to interfere how the common public uses their language, but the law should refrain other companies from using that trademark as their own trademark, whether or not the term has become generic.

i can see why the companies face difficulties trying to enforce it. "B.F. Goodrich sued to protect its trademark but was allowed to retain proprietary rights only over Zipper Boots."

 

[zoossh]

The law is such for good reasons - things may change after registration. If you only take the factual situation at the point of registration, then it doesn't take into account what happens in the future. A trade mark registration (unlike a patent) can be perpetual (ie it will never expire as long as renewal fees are paid).

If lets say 200 years later, things change, and that mark is no longer a trade mark, through genericism, going bust etc (just like no one knows abt the zipper anymore), the quesiton is then whether the zipper TM is one which serves its purpose of being a brand. No one even recognises zipper/nylon etc as brands anymore, and to give these words a monopoly on the marketplace would mean an anomaly.

Imagine this, Ahmad, a local guy, decides to sell zippers for a living. He calls his shop "Ahmad's Zipper". If the zipper TM is allowd to remain on the register even though it is generic, Ahmad will be potentially infringing on the ZIPPER trade mark ergistration.

But the public knows the shop as "Ahmad, the guy who sells zippers", and no one even knows that "ZIPPER" is a registered trade mark due to genericism.

i'm not taking just a factual situation, but i think we do have differing opinions on it. i still believe that the person who invented the phrase for his trademark should get to retain the exclusiveness to it as a trademark, such that even if his trademark get to be referred to the product by almost everyone, only he gets to use the trademark on his production whereas other people get to think of something else to refer to the same product. hence if people get to know this product only (ie generic) via the trademark, they would tend to get the product that carries this trademark rather than other product that do not get to carry the trademark, thus to his advantage. it would mean a monopoly only in terms of the trademark, since he invented it.

if the company retains its commerical exclusivness to the trademark, and they themselves do sell this product, people will still know this as a brand (if they are buying) even if the trademark is getting generic, and i can't see any infringement, as far as reasoning goes (perhaps not by the legal aspect). people may not get to know it as a registered trade mark if all the same products carries the same name printed on the label or do not carry even carry a name printed on the label.

For exmaple, i want to get a zipper. there are "Ahmad's Zipper" and plenty of other brands like "Ali's fastener" and "Peter's tightener". maybe i would like to get "Ahmad's Zipper" since "Ahmad's Zipper" comes first to my mind when i think of zipper, and as they originated with the product and have the longest history. next i hear more about "Ali's fastener", ok, there is some added features, now i would consider this too.

this is the kind of thinking process that may go thru the consumer's mind. the advantage goes to the merit of the originator who made the brand famous by virtual of its quality. and other manufacturer has to earn their place by merit of their additions.

actually we can already see Adobe Photoshop in this situation. The situation is as i say, the term is getting generic already, the brand is still in existence and robust, and competitors is not yet using their trademark. as such, i do believe that Adobe should get to retain this trademark exclusively to their product, whether or not the generic use can be reversed.

 

[vince123123]

Just to clarify, in my example, Ahmad did NOT invent the zipper - he's just a local guy selling zippers. The original ZIPPER TM was done by someone else.

The point is, when a TM is so generic until it refers to the goods, everyone will say " I want a zipper", "does your pants have zippers". The question now is, is it then right for the original ZIPPER person to stop ALL shops from using the word "ZIPPER" when they are selling zippers (of the exact same type - since the patent for zippers expired eons ago)? The word zipper has become synonymous with the goods itself.

Just like we can never register the word "BOOKS" if we are selling books, the same would then apply. No one is going to trace history to see who invented the word "ZIPPER", at that point in time now, everyone refers to that fastener as a "zipper".

For your Adobe photoshop paragrpah, that is ebcause they are now on the threshold of being generic - and you happen to be living through that era. Again take the examples of TMs that have gone generic so long ago that you, living today, never consider them as TMs anymore.

i'm not taking just a factual situation, but i think we do have differing opinions on it. i still believe that the person who invented the phrase for his trademark should get to retain the exclusiveness to it as a trademark, such that even if his trademark get to be referred to the product by almost everyone, only he gets to use the trademark on his production whereas other people get to think of something else to refer to the same product. hence if people get to know this product only (ie generic) via the trademark, they would tend to get the product that carries this trademark rather than other product that do not get to carry the trademark, thus to his advantage. it would mean a monopoly only in terms of the trademark, since he invented it.

if the company retains its commerical exclusivness to the trademark, and they themselves do sell this product, people will still know this as a brand (if they are buying) even if the trademark is getting generic, and i can't see any infringement, as far as reasoning goes (perhaps not by the legal aspect). people may not get to know it as a registered trade mark if all the same products carries the same name printed on the label or do not carry even carry a name printed on the label.

For exmaple, i want to get a zipper. there are "Ahmad's Zipper" and plenty of other brands like "Ali's fastener" and "Peter's tightener". maybe i would like to get "Ahmad's Zipper" since "Ahmad's Zipper" comes first to my mind when i think of zipper, and as they originated with the product and have the longest history. next i hear more about "Ali's fastener", ok, there is some added features, now i would consider this too.

this is the kind of thinking process that may go thru the consumer's mind. the advantage goes to the merit of the originator who made the brand famous by virtual of its quality. and other manufacturer has to earn their place by merit of their additions.

actually we can already see Adobe Photoshop in this situation. The situation is as i say, the term is getting generic already, the brand is still in existence and robust, and competitors is not yet using their trademark. as such, i do believe that Adobe should get to retain this trademark exclusively to their product, whether or not the generic use can be reversed.

 

[zoossh]

Just to clarify, in my example, Ahmad did NOT invent the zipper - he's just a local guy selling zippers. The original ZIPPER TM was done by someone else.

yup, i misread.

The question now is, is it then right for the original ZIPPER person to stop ALL shops from using the word "ZIPPER" when they are selling zippers (of the exact same type - since the patent for zippers expired eons ago)?

actually i think our different opinion may just end up over here. i actually think that the above is right. i think the other shops should on their own initiative named their products with a more generic term than the trademark that exist with the existing original company.

Again take the examples of TMs that have gone generic so long ago that you, living today, never consider them as TMs anymore.

actually it is not a question of whether i consider them as TM or not, becos i feel that TM exist as they are, and is not up to the difference of how people consider (actually in the first place, if i dun even know of it, there wouldn't be a case of "considering").

i thought the examples just go to show that these TMs in the past hardly have their market existence known now and had their requests overruled by the court.

 

[redstone]

People say "photographer should not photoshop their photos"

You can say "Ok, my comp doesn't have Photoshop. I use GIMP to edit my shots" :bsmilie:

 

[zoossh]

People say "photographer should not photoshop their photos"

You can say "Ok, my comp doesn't have Photoshop. I use GIMP to edit my shots" :bsmilie:

i prefer using "post processing" as a more generic term, but somehow i dun see a problem with the public with use of photoshop - i think the only people who need to worry are competitors of adobe.

 

[jbma]

Adobe should be proud about it.