Re: Never ever use word BitKeeper if Larry does not like you

Stephen Satchell
2003-03-15T00:45:27Z

At 04:11 PM 3/14/03 +0000, Stephen C. Tweedie wrote:
> > Let's try a little simple substitution since you seem to be needing coffee
> > this morning:
> >
> > "Red Cap: a proprietary Red Hat clone"
> > "The goal of this system is to produce a system compatible with Red
> Hat"
> >
> > Go run those statements by your lawyers, Alan, and then please report
> > what they said back here.
>
>I just did, and they said just what I'd expect from common sense. A
>compatibility claim is, in principle, just fine.
>
>Specifically, any attempt to pass off something that didn't come from
>Red Hat as an official Red Hat product was verboten; but
>
> I would distinguish this from someone who is promoting their own
> product, let's call it BillyBob's Linux, and who makes a claim
> that it is "compatible with Red Hat Linux." So long as the
> compatibility statement is not used prominently in the
> advertising of the product and so long as the statement is, in
> fact, true, this would likely constitute a fair use of our mark,
> roughly along the lines of comparative advertising.

Disclaimer: I am not a lawyer in any country.

I think, fellow Stephen, you are missing the point. The example includes a
trade name, "Red Cap" as the trademark for the new system. Now, I am not a
lawyer but I have been exposed to some of the seamer side of trademark
disputes, and "Red Cap" may well fail the trademark confusion test as not
being sufficiently different from the original trademark to avoid a person
from mistaking "Red Cap" for "Red Hat". The same, I assert, is true for
"KitBeeper" and "BitKeeper".

To take Mr. McVoy's example and show how to distance the new trademark from
the old one, let's look at your company name and Larry's straw man, "Red
Hat." Using that trusty writer's tool, the Thesaurus, we can come up with
some less confusing new trademarks:

Scarlet Cap
Crimson Chapeau (I like this one because of the alliteration)
Cherry Beanie
Blood Crown
Firehat
Ruby Headdress
Siena Skimmer

just to name a few.

So, what could be done for a working title of a project that is "compatible
with BitKeeper(tm)" that would not fail the confusion test?

Column A
-------------
Code
Codex
Opus
Root
Stem
Matrix
Nibble
Byte (dangerous, as it could lead to a confusion claim)
Two
Twovalue

Column B
-------------
Safe
Fortress
Holder
Bastion
Post
Bank
Stronghold
Arranger
Recorder
Matrix (repeated here as a possible second word)
Web

So, Pavel, take one from Column A, and one from Column B, and you have
candidate trademark names for your BitKeeper workalike, if you want to do
that much of a stretch.

I also through out these possibilities: NBK (Not Bit Keeper), NBKsafe,
SourceNBK, CodeNBK, ByteNBK, and so forth. To further drive the joke
"inside" try NBic, SourceNBic, and so forth. (I don't recall the pen
company selling source control software, so the only claim that the Bic
company sould make is trademark dilution -- your lawyer would best
determine if that is a possibility.)

To take it to the absurd, call your clone AJ or CL; it worked for Kubric
with the HAL 9000 in the movie, with IBM building much of the facade and
even allowing the use of its trademark typeface.

The third option is to forget the nonsense of building on the BitKeeper
name and come up with a name that best describes the functionality of what
you are doing, or (common) use the initials of the primary developers or
investors.

Interestingly enough, there was a discussion on a private mailing list I
subscribe to that was discussing the shortcoming of CVS and other source
management tools. I don't recall enough of the discussion to inject it
here; many of the participants on that list also read LKML, so they could
chime in with their ideas themselves. Try to think of real-life projects,
and how your source repository can simplify jobs commonly encountered when
trying to maintain a product.

I'll shut up now.

Satch

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