Just wanted to post this comment in case some of you didn't completely exhaust all the resources from Derek's archival post. It's from
. I thought it was a pretty sound description from someone who seems to know their shit about the ins and outs of Trademarks.
I've been compelled to register to clear up some schoolboy-level misunderstandings of trademark law that are being propagated here. As a disclaimer, my own background in IP law is only as much as I've picked up on mandatory training (to ensure we don't cause a legal fiasco in our jobs) and has more to do with patents, which are a much more cut-and-dry field.
The idea that someone can "register" a patent and then anyone who uses it is "infringing" is a common fallacy that comes from confusing trademark law and patent law. Trademark registration is simply a way of publishing your trademark so that others can avoid infringing upon it and provides no additional legal protection. If anything, it is for the legal benefit of others, who can avoid wasting money developing what turns out to be someone else's distinctive mark. All trademarks, registered and unregistered, whether they have that little "TM" sign or not, are equally protected.
Trademark "infringment" is a civil offense that's decided on a "reasonable" basis. Essentially, someone infringes on your trademark if their actions can be reasonably expected to lead to confusion between themselves and your business/products/whatever in practice. For example, if I release a product called "Coca Cola", then obviously that will confuse any reasonable customer into believing that it's made by the Coca Cola Company. You could argue that the product is a cheeseburger and not a soda, but that probably won't fly because the "Coca Cola" name itself is so tightly bound to the Coca Cola Company in the public consciousness. I would obviously be trading off Coca-Cola's reputation as a business.
However, suppose that tomorrow a children's book company decided to call itself "Caterpillar", with a cute little green caterpillar as the logo. That word is the trademark for a hugely successful and well-known brand of hydraulic equipment, and a great deal of licenced merchandise tying into that image. However it's extremely unlikely that any reasonable individual would confuse the two companies. The word "Caterpillar" is not distinctive enough, and not unique enough, for that confusion to arise when the two companies are in entirely different lines of business. Therefore that would not constitute an infringement.
As another example, suppose you have a company called "Venice Blinds" that produces blinds to be sold under store own-brands. Another company calling itself "Venice", and producing blinds, would likely be confused with the original by buyers for retail chains, and therefore that trademark would have been infringed upon. However a blinds company called "Spiffy Blinds" could put out a set of Venetian blinds called "Memories of Venice" direct to the consumer. Given that nobody in consumerland is aware that "Venice Blinds" exists, there's no risk of customer confusion. If "Venice Blinds" was a household name, it might be that a reasonable person would belive that "Memories of Venice" was somehow derived from Venice Blinds' product range, and we're back to infringement.
As you can see, trademark law is very context-sensitive, and it is very much based upon the public awareness of the mark. Trademark law is engineered to ensure business cannot trade off each other's reputations. It's not like patent law, or a registered design, where someone is given an exclusive right to something in exchange for registration.
We have a special case here in that EDGE Games' web-site attempts to present Langdell's licencees' products as his own, and therefore he is acting contrary to his obligation, as a trademark holder, to protect his mark's distinctiveness. If Edge is his trademark, he is obligated to ensure that people know that those products were not actually his. In fact he is doing the opposite, and therefore his trademark is diluted. This would not lead to a very positive outcome if he was attempting to defend the mark in court: defendants could argue that his claim was in bad faith.
To exacerbate matters, he uses the distinctive marks of EDGE Magazine as his own logo and a huge amount of former EDGE Magazine website content (much of which still links back to
www.edge-online.co.uk) for his own business, which means that in all likelihood he's infringing on Future Publishing's trademarks in the form of the distinctive EDGE Magazine "E" symbol, which is much more strongly linked with that magazine than it is with EDGE Games.
Mr. Langdell has no reason for accusing the Edge iPhone game of "copyright infringement", as some sites have reported, which is an entirely different tort. I suspect mistranslation somewhere.
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