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Topic: My take on Stardock (Read 224424 times)
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Elestan
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As an actual attorney (transactional, corporate law), I do want to point out that you should be extremely wary of any individual interpreting the law and applying it to the facts of this dispute (e.g. Elestan), and stating their opinion of which party is in the wrong on any given issue. Hi svs, thanks for joining us here. You're right; I'm not a lawyer, and nobody should be relying on anything I say as professional legal opinion. I'm opining on things only because no actual lawyer has stepped up to provide a more informed opinion, and my opinions should be considered semi-educated guesses at best. I try to make sure to restate that fairly regularly.
I have read a whole lot of application of faulty knowledge of the law to facts that have been hand-selected by each of the respective parties. Great! Would you be willing to help us make it better? Have you spotted any places where my knowledge of the law was faulty? I've learned a couple new things about trademark law already, and I'd love to hear any insights that you, as an actual lawyer, might be able to share with us.
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« Last Edit: April 08, 2018, 10:45:54 am by Elestan »
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Krulle
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*Hurghi*! Krulle is *spitting* again!
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The problem for me is that anglo-saxon judges don't rely solely on the text of the law alone, but on previous decided cases too (case-law).
The whole judge thing in the US and British laws makes it extremely difficult for outsiders (non-practicioners) to guess where it is going, as you might want to interpret the easily accessible law text, but the whole sets of previous decisions which may tangentially be i fluentisl on this case is simply not known, and even less easily interpretable.
Personally, I don't like that way of speaking right. Too little law, too much case-law.
Hence the need for good attorneys is much greater is the US/UK than in continental Europe. They need to know and have great experience in the case-law. Those who find better case-law (for their argument) win, not necessarily those who according to law interpretation alone...
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« Last Edit: April 08, 2018, 11:58:30 am by Krulle »
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svs
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Season 1 Diamond Tiara is best pony
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« Last Edit: April 13, 2018, 03:37:18 am by Death 999 »
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Krulle
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*Hurghi*! Krulle is *spitting* again!
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I don't find elestan trolling. Based on the stuff that is out and open, he has well founded line of logic. And he has already several times changed once further elements were published.
I like his way, but your insistence that only lawyers are allowed to interpret a case is trolling. Trolling in favour of using expensive attroneys, instead of finding solutions.
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svs
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Or maybe Cookie Crumbles
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« Last Edit: April 13, 2018, 03:37:51 am by Death 999 »
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Krulle
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*Hurghi*! Krulle is *spitting* again!
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Yet you have not specified a single point where he IS wrong, e.g. by citing a relevant passage of law and how that contradicts his interpretation. And you are a lawyer.
Sorry.
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Krulle
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*Hurghi*! Krulle is *spitting* again!
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Okay, let's start using applicable paragraphs, selected based on superficial googling, soI still, and won't ever, have an in-depth knowledge of the law at hand...
15 U.S. Code § 1114 - Remedies; infringement; innocent infringement by printers and publishers
(1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive. As used in this paragraph, the term “any person” includes the United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, or other persons acting for the United States and with the authorization and consent of the United States, and any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. The United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, other persons acting for the United States and with the authorization and consent of the United States, and any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. Well, there is no cmmercial use yet. No product for sale, yet. It's not even an advertisement yet. It's simply an announcement that development may soon begin of a product, that continues the original storyline of Star Control II. Now I find Stardocks situation even worse than before. This announcement was not yet made with much of a commercial mind, as there is no indication that a product WILL be SOLD. Just that Activision has now allowed Ff and PR3 to do a side-project.
Again, case-law will likely have limited my interpretation considerably, but I cannot be bothered to spend time into finding and reading case-law, and consider the relevance to this case. Also, there is the issue that FF and PR3 knew that a product using the trademark is in development and was at that time close to open a beta testing. There are arguments to be made for confusing the trademark, but so far FF and PR3 have not shown much with regard to commercial interests....
Anyway, this paragraph of section 5 continues:
(2) Notwithstanding any other provision of this chapter, the remedies given to the owner of a right infringed under this chapter or to a person bringing an action under section 1125(a) or (d) of this title shall be limited as follows: (A) Where an infringer or violator is engaged solely in the business of printing the mark or violating matter for others and establishes that he or she was an innocent infringer or innocent violator, the owner of the right infringed or person bringing the action under section 1125(a) of this title shall be entitled as against such infringer or violator only to an injunction against future printing. (B) Where the infringement or violation complained of is contained in or is part of paid advertising matter in a newspaper, magazine, or other similar periodical or in an electronic communication as defined in section 2510(12) of title 18, the remedies of the owner of the right infringed or person bringing the action under section 1125(a) of this title as against the publisher or distributor of such newspaper, magazine, or other similar periodical or electronic communication shall be limited to an injunction against the presentation of such advertising matter in future issues of such newspapers, magazines, or other similar periodicals or in future transmissions of such electronic communications. The limitations of this subparagraph shall apply only to innocent infringers and innocent violators. (C) Injunctive relief shall not be available to the owner of the right infringed or person bringing the action under section 1125(a) of this title with respect to an issue of a newspaper, magazine, or other similar periodical or an electronic communication containing infringing matter or violating matter where restraining the dissemination of such infringing matter or violating matter in any particular issue of such periodical or in an electronic communication would delay the delivery of such issue or transmission of such electronic communication after the regular time for such delivery or transmission, and such delay would be due to the method by which publication and distribution of such periodical or transmission of such electronic communication is customarily conducted in accordance with sound business practice, and not due to any method or device adopted to evade this section or to prevent or delay the issuance of an injunction or restraining order with respect to such infringing matter or violating matter. (D) (i) (I) A domain name registrar, a domain name registry, or other domain name registration authority that takes any action described under clause (ii) affecting a domain name shall not be liable for monetary relief or, except as provided in subclause (II), for injunctive relief, to any person for such action, regardless of whether the domain name is finally determined to infringe or dilute the mark. (II) A domain name registrar, domain name registry, or other domain name registration authority described in subclause (I) may be subject to injunctive relief only if such registrar, registry, or other registration authority has— (aa) not expeditiously deposited with a court, in which an action has been filed regarding the disposition of the domain name, documents sufficient for the court to establish the court’s control and authority regarding the disposition of the registration and use of the domain name; (bb) transferred, suspended, or otherwise modified the domain name during the pendency of the action, except upon order of the court; or (cc) willfully failed to comply with any such court order. (ii) An action referred to under clause (i)(I) is any action of refusing to register, removing from registration, transferring, temporarily disabling, or permanently canceling a domain name— (I) in compliance with a court order under section 1125(d) of this title; or (II) in the implementation of a reasonable policy by such registrar, registry, or authority prohibiting the registration of a domain name that is identical to, confusingly similar to, or dilutive of another’s mark. (iii) A domain name registrar, a domain name registry, or other domain name registration authority shall not be liable for damages under this section for the registration or maintenance of a domain name for another absent a showing of bad faith intent to profit from such registration or maintenance of the domain name. (iv) If a registrar, registry, or other registration authority takes an action described under clause (ii) based on a knowing and material misrepresentation by any other person that a domain name is identical to, confusingly similar to, or dilutive of a mark, the person making the knowing and material misrepresentation shall be liable for any damages, including costs and attorney’s fees, incurred by the domain name registrant as a result of such action. The court may also grant injunctive relief to the domain name registrant, including the reactivation of the domain name or the transfer of the domain name to the domain name registrant. (v) A domain name registrant whose domain name has been suspended, disabled, or transferred under a policy described under clause (ii)(II) may, upon notice to the mark owner, file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under this chapter. The court may grant injunctive relief to the domain name registrant, including the reactivation of the domain name or transfer of the domain name to the domain name registrant. (E) As used in this paragraph— (i) the term “violator” means a person who violates section 1125(a) of this title; and (ii) the term “violating matter” means matter that is the subject of a violation under section 1125(a) of this title. (3) (A) Any person who engages in the conduct described in paragraph (11) of section 110 of title 17 and who complies with the requirements set forth in that paragraph is not liable on account of such conduct for a violation of any right under this chapter. This subparagraph does not preclude liability, nor shall it be construed to restrict the defenses or limitations on rights granted under this chapter, of a person for conduct not described in paragraph (11) of section 110 of title 17, even if that person also engages in conduct described in paragraph (11) of section 110 of such title. (B) A manufacturer, licensee, or licensor of technology that enables the making of limited portions of audio or video content of a motion picture imperceptible as described in subparagraph (A) is not liable on account of such manufacture or license for a violation of any right under this chapter, if such manufacturer, licensee, or licensor ensures that the technology provides a clear and conspicuous notice at the beginning of each performance that the performance of the motion picture is altered from the performance intended by the director or copyright holder of the motion picture. The limitations on liability in subparagraph (A) and this subparagraph shall not apply to a manufacturer, licensee, or licensor of technology that fails to comply with this paragraph. (C) The requirement under subparagraph (B) to provide notice shall apply only with respect to technology manufactured after the end of the 180-day period beginning on April 27, 2005. (D) Any failure by a manufacturer, licensee, or licensor of technology to qualify for the exemption under subparagraphs (A) and (B) shall not be construed to create an inference that any such party that engages in conduct described in paragraph (11) of section 110 of title 17 is liable for trademark infringement by reason of such conduct. 2 does not seem to apply, at least not to FF and PR3, but could apply to their PR firm. And the sites/blogs that republished the PR post. But it links to15 U.S. Code § 1125 - False designations of origin, false descriptions, and dilution forbidden
(a) Civil action (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. Here we are. But then, this passage is also relevant for copyright law. And Stardock has gone to great lengths to associate their rpdocut with FF and PR3 as well, and misrepresenting the nature of their service into getting Origins done/approved.
No, I'll stop here, and I am very sure I misinterpreted these parts, as I started from https://cyber.harvard.edu/metaschool/fisher/domain/tm.htm#7 , and did not look at the hierarchy of the law titles....
I will furthermore disregard all this again, as it remains complex issues, and the texts are too long to actually cite in forum posts. I would need simply too much time to read myself properly into the law texts, and their hierarchy. And I will never be able to become complete. There is a reason why practicioners need a law degree and years of practice before being allowed to speak before court.
Neither Elestan nor myself have done so, or ever made believe we are doing so or consider ourselves par with practicioners.
And, if I may take Frogboy's statement of how much he dislikes forum newcomers to enter discussions, you seem to fall within his categories.
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Death 999
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We did. You did. Yes we can. No.
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Krulle, thank you for giving me a hint of what svs must be feeling.
I cannot possibly see how your first argument is right. The announcement was definitely marketing.
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Krulle
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*Hurghi*! Krulle is *spitting* again!
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Now I know what bugs me about svs's posts: He does not allow Elestan an opportunity to defend him/herself... While broadly attacking Elestan for being wrong on ALL accounts.
Yet you have not specified a single point where he IS wrong, e.g. by citing a relevant passage of law and how that contradicts his interpretation. And you are a lawyer.
Sorry.
Straw man argument, sir. You ask me to prove a negative, vis-a-vie the fact that Elestan actually has no knowledge of the law. The fact I am not specifically addressing his argument does not infer any degree of accuracy in his opinion. He, and honestly you (no offense), have zero knowledge of the topic you are arguing. I don't mean this to sound insulting, but ti is accurate. Your opinion is so separated from fact as to be rendered meaningless. No, I asked you to povide a single point, with argumentation, why Elestan is wrong. So that Elestan can defend himself. You only generally state that Elestan is wrong. From the beginnings, assumptions, down to the interpretation/conclusion.
e.g. the 1988 agreement. The interpretation does not require much knowledge of law, as the agreement is self-sufficient. How is Elestan's conclusion that the licensing agreement regarding selling/distribution of the games has ended wrong?
edit:some spelling errors corrected
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« Last Edit: April 08, 2018, 04:11:06 pm by Krulle »
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Elestan
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Would you be willing to help us make it better? Have you spotted any places where my knowledge of the law was faulty? From the transactional, corporate law angle (my field of focus), I can ensure you that your views are severely flawed in the understanding of the actual law AND your application is flawed due to lack of knowledge of the necessary, underlying factual basis from which you are depending on for your analysis. I think you mean 'assure', not 'ensure'. I'm entirely open to the possibility that my views are badly flawed, but if you want to say so and be taken seriously, you'll need to point to the flawed statements I've made, rather than making generalized accusations of incompetence.
I can't specifically point you to the facts you are ignoring in your application of the law because you either lack knowledge of the applicable law or lack possession of the the full body of facts required for application. I can't correct your knowledge of the applicable law at issue because you have no decernable underlying knowledge of the law that is applicable to this dispute. Sorry, but your logic here makes no sense. I've made a lot of statements in this thread. All you need to do is point to a few of them, and cite laws or facts that contradict them. Instead, you're making a circular argument claiming that you can't prove my lack of knowledge because I lack knowledge.
Please cite a single statute, reg, case law, etc that directly supports your assertions. If you cannot at least directly cite one of the sources of law in each post, please refrain from further comments. You are asserting that any sort of commentary on legal matters must include legal citations to have any value. That assertion is false; I'm writing commentary, not a legal brief that needs to be built from the ground up on statute. My intent is to apply sourcing rigor roughly similar to Wikipedia, in which not all statements need to be sourced, but If someone were to point to a particular point that they believe I've gotten wrong, I would find further support for it, or withdraw it and thank them for correcting me. That's happened only a couple of times, and I'd love for it to happen more often.
You are nothing but a troll throwing out garbage. ...and at this point, you've stepped over the line into ad hominem, and violated the posting rules of this forum.
Straw man argument, sir. I'm glad to see you are acquainted with argumentative fallacies such as the Straw Man. Let me point you to another, The Courtier's Reply:...in which a respondent to criticism dismisses the arguments of the critic by claiming that the critic lacks sufficient knowledge, credentials, or training to credibly comment on the subject matter.. Frogboy has twice tried to use this tactic against me here, and I asked the moderators not to take action against him for it, because I genuinely want to hear his perspectives. But it's getting a little old, and having more people launching baseless attacks does not help the conversation. If you want to provide constructive criticism or an entirely different well-reasoned perspective, I would welcome it, but otherwise, it would be best if you were not here.
EDIT: Just noticed I hadn't responded to this bit:he THINKS he has some basis in knowledge that places him on even-keel with an IP Attorney. I'm quite certain that I think nothing of the sort, and indeed have made statements to the opposite effect on numerous occasions.
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« Last Edit: April 09, 2018, 01:17:49 am by Elestan »
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