Flat View must not be called "Flat View"

[admin]

I agree that, in marketing, impression is everything, but in this case I would find it ridiculuous to sell a feature that's commonly known as "flat view" under a different name. That's almost cheating. It is a flat view, and when I'm not allowed to use that term I will take the nearest allowed term ("flattened view"). After all, almost every file manager has this feature, so it's not such an impressive thing as to make a big noise about it.

I understand and was pretty sure you would assume this position, but it's your decision in the end, and just in case you hadn't thought of it, you now have this option. It was just a suggestion, after all, and I don't blame you for wanting to trade on a term EVERYONE else uses.

Absolutely, your point of view was totally valid.

(I'm not annoyed or so. Written communication is often ambiguous as to the tone, and you would need too many words to convey your mood while saying/writing something. So please take my short notes in broken English not as offensive, unless I make it clearly offensive by using CAPITALS, bold face, and aggressive emoticons... ).

[admin]

BTW, I somehow got infected by this trademarking idea, it just looks so cool! So I updated my website and planted some trademarks behind terms that deserve it, e.g. Mini Tree™. Pure marketing, i.e. brain washing.

[j_c_hallgren]

BTW, I somehow got infected by this trademarking idea, it just looks so cool! So I updated my website and planted some trademarks behind terms that deserve it, e.g. Mini Tree™. Pure marketing, i.e. brain washing.

At least here in USA, you have to file paperwork with govt agency to trademark a term...just putting that on website isn't going to do anything and actually can cause problems if someone challenges it, I believe.

[admin]

BTW, I somehow got infected by this trademarking idea, it just looks so cool! So I updated my website and planted some trademarks behind terms that deserve it, e.g. Mini Tree™. Pure marketing, i.e. brain washing.

At least here in USA, you have to file paperwork with govt agency to trademark a term...just putting that on website isn't going to do anything and actually can cause problems if someone challenges it, I believe.

No, that's the case with (R) (registered trademark), not with (TM) (unregistered trademark).

[Drasden]

I hope this helps you. In short, they have no rights in any country or region and you can ignore them. -

You might consider politely asking them the following: what country, and government body in that country, will enforce your trademark claim?

An explanation -
Trademarks are NOT international. They must be registered and approved in each country or commercial area (such as the EU or MERCOSUR) where they will be utilized (and in the commercial category of utilization).

The ability to receive a valid trademark will vary on the government or body approving the trademark. The bottom line is that no person, company, or entity can make an international trademark claim. Trademarks are granted per country or physical commercial region/area.

It is the responsibility of the country or commercial area that registers/grants a trademark to enforce it. This is why they will not grant trademarks without first considering the uniqueness. It is also why you cannot successfully receive a trademark on a word, symbol, name, or phrase, that is already in common usage.

**What you have done, and why they are complaining:
By using the word in a similar product, you have made it impossible for them, in the future, to successfully make a trademark claim, in most countries or regions, on the phrase 'flat file'. If they had or have a pending trademark in process with some country, you have made it extremely unlikely they would get the trademark.

You can rest easy that GPSoftware would not find a court to entertain a complaint on the matter. Perhaps they might file a complaint in Australia, but it would not see the light of day. If by some chance it did make it to court, neither you nor any representative from your company could be compelled to be present.

I have successfully trademarked several names for products over the past 10 years in the US, EU, and MERCOSUR. I am not a patent and trademark lawyer but they would tell you the same.

All the best.
& XY is a fantastic effort.

[Trasd]

(I'm not annoyed or so. Written communication is often ambiguous as to the tone, and you would need too many words to convey your mood while saying/writing something. So please take my short notes in broken English not as offensive, unless I make it clearly offensive by using CAPITALS, bold face, and aggressive emoticons... ).

Oh God Don, I didn't think you were being rude or anything - in no way, shape, or form - sorry I gave that impression.

Drasden has some very good points, this is one of those times I am slapping my forehead and muttering, "why didn't I think of that?"

Also, with the TM, don't forget the (C) on all your documentation.

What did you decide to call "Flat View" anyway, or are you not there quite yet?

[admin]

I hope this helps you. In short, they have no rights in any country or region and you can ignore them.

Thank you for your explanations, it's always nice to learn something new. This is really relaxing news. However, I'm not yet finished with this for two reasons:

1) This website seems to claim that an unregistered trademark *may* have some protection, or isn't it?
http://www.kleinlitigationblog.com/can- ... ringement/
Of course, being not a lawyer, I have no chance to make any wise decisions here. Maybe you can shortly comment on this? Thank you.


2) I think DO's attack comes from somewhere else. It's not about "Flat View", this was just the trigger.

Read the Intellectual Property Rights section here: http://www.gpsoft.com.au/footer/copyrights.html

What's really going on below the surface is that they are getting paranoid, and I can understand this. If I would be in their position, say I would have invented Mini Tree in the 1990s, and now every other file manager comes up with a clone of that idea, and even cold-bloodedly calls it "Mini Tree" and markets it as "Mini Tree", without even mentioning me, -- I wouldn't like it either. I would hate it. I personally have no respect at all for stealing intellectual property; it's bad. And believe me (you have to, because I cannot prove it): I don't go around looking for cool new feature ideas in competing products and copy them. It's not my style. I even have moral problems when I invent something and then find out somebody else has invented it before me. So, I'm annoyed that they accuse me of continuously stealing from them.

I know a bit about the file manager scene. And I think I can tell an original idea from one that's been around forever and nobody really knows anymore who came up with it first. It became common domain. This process happens in technology ever since. It's natural. And if a feature (or a word, like "Flat View") becomes common domain and commonly used, I don't see why I should avoid building it resp. using it. DO themselves have copied the Flat View feature from another file manager. (BTW, the feature is so simple, that historical contingency is quite likely here.)

Anyway, because I understand and respect their feelings (this is about emotions IMO), I would step back and change the feature name to "Flattened View". Not because I'm legally forced, but because I think it's the right thing to do. However, there are two prerequisites for this:
a) I want to be asked politely (which they did in the meantime), not aggressively.
b) I deserve to know why FreeCommander is allowed to use "Flat View" since 2009.

[Drasden]

They are behaving like bullies. The good news is that bullies are not good about using their brains.

GPSoftware will need to spend thousands in legal fees to accomplish nothing. An honest patent and trademark attorney will eventually tell them this. A dishonest attorney will take their money regardless of the merits of their supposed intellectual property claim.

As you have mentioned, 'Flat View' is not a new phrase and has been around for years. A simple google search will show that it is a commonly used term in digital file management. As a commonly used term, a trademark OF ANY TYPE (including a common-law trademark) is not possible. The best they can do is hope that harassment may intimidate you (and I would guess others) to stop using the phrase.

If they were intelligent, they would take a simple alternate path.

It is possible to trademark a commonly used term, phrase, or word BUT only in part. To do this a unique element must be added, like a unique modifier word. For example, IBM refers to a type of Flat View as 'Flat (VDATA) View', 'Flat VDATA View', and 'Flat View'. Should IBM wish, they would probably have success registering 'Flat (VDATA) View' or 'Flat VDATA View' as a trademark. GPSoftware could take this similar ‘add a modifier word’ approach.

Still, this does not grant them, or IBM, an immediate international trademark. That does not exist. The uniqueness of the phrase helps them to distinguish their product and gives them a better claim at a common-law trademark. Still, enforcement of a common-law trademark is very difficult and varies by country and region.

Should GPSoftware decide to issue a trademark infringement notice to IBM for usage of the term 'Flat View' there might be a few laughs in IBM's legal department. Unfortunately for GPSoftware the laughs would likely end with IBM legally pursuing them for issuing that notice.

Bottom line - IBM, XYplorer, and anyone else using 'Flat View' are all on firm ground since it is, and has been, a commonly used term.

Hopefully you will take some pleasure in knowing that GPSoftware may spend time, effort, and money in a pursuit originating in ignorance that will bear no fruit.

I will pm you a free and useful legal alternative to help manage the complaint they have made against XYplorer.

Cheers!
Drasden

[Jibz]

It is a shame you have to use the word flat, because otherwise branch view would have been good. That is used in a number of other file managers, and dates at least back to XTree 20 years ago.

It is also why you cannot successfully receive a trademark on a word, symbol, name, or phrase, that is already in common usage.

I couldn't help but smile at this, since I think a certain company trademarked the word 'word' .

[Drasden]

I couldn't help but smile at this, since I think a certain company trademarked the word 'word'

Microsoft Office Word => Registered Trademark
word => Not a Trademark

See proper trademark usage guidelines for MS products -
http://www.microsoft.com/about/legal/en ... ffice.aspx
http://www.microsoft.com/about/legal/en ... isher.aspx

[Jibz]

Microsoft Office Word => Registered Trademark
word => Not a Trademark

It appears you are right, they do not have 'Word' trademarked. I guess I should have done a trademark search before speculating out loud.

They do however have Access (3238869), Excel (2942050), and a bunch of other English words.

[Zardoz2293]

GPSoftware (Directory Opus) claim ... they have put an unregistered trademark (TM) on the term "Flat View" in 2004

Oh, the fluidity of the art and science called computer software... Breathing air, walking, talking, ... effectively creating a new language to use your product isn't a benefit for anyone. I remember using the term myself, "Flat View" back in 1993 in commercial Windows products, including reaching far back into the DOS-app (character user interface) era. Would have always believed it was a public domain term. Still do. It's interesting how they consider it a 'trademark' as beyond the "TM" the association with the product or the firm, minimal or marginal at best.

It is interesting GPSoftware was unable to put a trademark section in their "Copyright Notice, Disclaimer, License and Warranty" section (since 2004?).

Nice to know you have an avid reader from GPSoftware

I still like "Flattened View" the best. It can be abbreviated to "Flat. View" (not trademarked) if space is a problem.

Frankly, if you are taking the position there is any legal legitimacy to not being able to use "Flat View" then you might have problems with "Flattened View" as well. If 'they' are serious about protecting their claimed trademark usage. The two phrases ("Flattened View" vs. "Flat View") are too similar for expressing something which is almost exactly the same.

Have you considered naming somethings in XY with the prefix of "XYplorer"? Therefore, you have the official name of "XYplorer Flat View" but for support issues and the menus in the XY it is referenced in shorthand as "Flat View" and/or "FV" or "XYFV". Never had any problems with this method of branding the terminology within any of the commercial products I've been involved with for decades.

It's all about time, money and hassle. I would be careful taking the opinion a non-registered trademark cannot be protected -- me think this is bad and expensive advice.
---
Edited After Original Posting.
Business experience not a legal opinion.

[admin]

Thanks for your comment, Zardoz2293. Interesting how many different opinions one can get about the same thing.


I just checked the meaning of "flattened":

1. upset and unhappy about something that someone has said
2. seriously damaged or completely destroyed, for example in a war

Source: http://www.macmillandictionary.com/dict ... /flattened

Well, not was I expected!

[nas8e9]

I just checked the meaning of "flattened":

1. upset and unhappy about something that someone has said
2. seriously damaged or completely destroyed, for example in a war

Source: http://www.macmillandictionary.com/dict ... /flattened

Well, not was I expected!

English isn't my native tongue, but even though I'm aware of at least the second meaning, "flattened" sounds/feels correct for FM's purposes. The several (according to their location field) native speakers haven't objected, which hopefully means "flattened" has sufficient alternative meaning beyond the dictionary ones by now?

[admin]

BTW, although commonly used, "Flat View" always gives me a small logical hickup. Although the metaphor is obvious, I would have called the same thing "Deep View" intuitively. The opposite! Can anybody here relate to this POV?

Anyway, I found some amusement in researching all possible terms for this thing (after all I have an MA in linguistics, hey). And, capricious as I am, I now tend towards Branch View. Isn't this really the better term for it? Sure, Flat View is catchy, but Branch View is more to the point, almost self-explaining. (The issues with breaking user code would be solvable.)

Let me stress once more that legal advice is welcome but not that important to me. I'm operating on a different level in this matter.