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Re: [OT] Turtle

From: Thomas Hruska <thruska_at_cubiclesoft.com>
Date: 2006-05-18 17:36:07 CEST

Stefan Küng wrote:
> On 5/18/06, GRH <gheard@neo.rr.com> wrote:
>> Haven't you guys been using the tortoise image for years starting with
>> TortoiseCVS? I thought that in trademark law, a trademark (even
>> registered)
> Slight misunderstanding here: we're not the same guys as the ones
> working on TortoiseCVS. We started TortoiseSVN based on their ideas
> and some of their shell code. But we've never worked for TortoiseCVS.
> Their turtle is called Charlie, ours doesn't have a name (yet?).
>> is invalid when the trademark in question has been in use for years (even
>> unregistered)? I wouldn't know for sure, I haven't done any trademark
>> work
>> in at least 10+ years.
> I'm not even sure we could trademark the tortoise. After all, it's an
> animal like any other animal. Also the name "turtle" or "tortoise" is
> not likely able to be trademarked (at least, I *hope* that's not
> possible, but with todays law system and corporations, everything is
> possible).
> I think the only thing we actually could trademark would be the name
> "TortoiseSVN" and our specific logo. But I doubt that someone else
> would hijack "TortoiseSVN" or our logo.
> Stefan


Registering a trademark is best done through a good patent/trademark
lawyer the first time who understands the paperwork involved.
Trademarks in the U.S. are registered with the United States Patent and
Trademark Office (USPTO - www.uspto.gov). It is important to note that
a registered trademark is different from a trademark but both are
equally valid marks as long as witnesses are available to demonstrate
historical proof of the strength of the mark.

The fact is, unfortunately, TortoiseSVN makes NO claims to its mark.
Microsoft is currently not in violation of Trademark Law because no one
here has publicly labeled the mark as a Trademark. This is easily
remedied by putting the letters TM into the logo's graphic mark and
after any mention of TortoiseSVN. Then you have to re-write a LOT of
documentation. Currently you use TortoiseSVN as a _noun_. You have to
change it to be an _adjective_ to use the TM symbol. For example:

TortoiseSVN is a Subversion client, implemented as a Windows(R) shell


The TortoiseSVN(TM) Subversion client is implemented as a Windows(R)
shell extension.

Trademarks are _FREE_. Registered trademarks are _NOT_. There are
differences between the two. Currently you have no legal standing on
TortoiseSVN as a word mark nor the tortoise as a graphical mark.
Graphics are easily modified - just add a TM somewhere to the right of
the image. Once you have enforced the trademark and made it
"recognizable", then you will have the power to make legitimate legal
claims against Microsoft using a Turtle in conjunction with version
control software.

My guess is that registering a trademark _NOW_ would invite a contention
claim from Microsoft (and get a rejection from the USPTO). That is,
Microsoft Legal is just waiting for this list to attempt a registration
and ultimately force you to change your mark. However, the converse can
also be true. This list can change its legal status and then wait until
Microsoft files for a registered trademark on "Turtle" and then Stefan
and other members can file contention for prior rights to the mark.
Trademark law (at least in the U.S.) covers similar marks for similar
software. So, since Turtle is being used in connection with version
control software, this is a blatant attempt to shove TSVN out of the
picture by creating a "similar work". Microsoft has already
successfully sued other organizations (including a 17 year old named
Mike Rowe who obtained the domain mikerowesoft.com) forming _legal
precedent_, which means the ball is in TSVN's court at the moment (until
Microsoft makes a move for trademark status). Basically, you have a
limited timeframe to establish the existence of trademark rights to the
tortoise in conjunction with version control software.

My recommendation is to first splatter TM's (either 'TortoiseSVN (TM)'
or 'TortoiseSVN<sup>TM</sup>' all over the website and documentation and
alter all uses of TortoiseSVN to be as exclusively as an adjective as
possible. I recommend looking at a number of websites who use
trademarks to get a feel for how they write sentences that use their
marks. Also, make sure that marks that are recognized but not owned by
this group are aligned to their respective owners using a similar
adjective format (e.g. the Windows(R) mark is owned by Microsoft(R)
Corp., NOT this group). A simple TM will legally protect the TSVN mark
from being blatantly copied. It will help to protect the mark from U.S.
organizations (e.g. Microsoft) if the mark is partially 'owned' by
someone in the U.S.

Just to cover all bases, Microsoft may not be able to trademark "Turtle"
as a word mark, but a combined logo with a word mark like "Turtle
version control" _IS_ more than likely a valid mark as far as the USPTO
is concerned.

I may not be a lawyer, but I understand Patent and Trademark Law well
enough to know how to use trademarks properly. Everything above comes
from experience and a lot of background research.

Thomas Hruska
CubicleSoft President
Ph: 517-803-4197
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Received on Thu May 18 17:35:43 2006

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