Not after this post, they're not. They've already got a US trademark, and if they simply Google it, and find this post, they're going to realize this person is never going to challenge them in a US court over it.
Nobody told you that you can't use the name, right? And you've still got a US mark, don't you? How is any of this harming your project or your career? ... or more importantly, how is this hurting consumers? Consumer protections are the entire legal reason for granting a trademark.
I mean, you can certainly fight their registration. I just don't know what you or your users would actually get out of it?
If setting your usage price to $0 means no trademark, that's a pretty big attack on non-commercial services. Alternatively if it's more about tracking, that's also quite bad in a different way.
I don't know much about this OSS project... but if there's a case that they need this trademark to protect consumers from harm, then that's your winning argument.
> If setting your usage price to $0 means no trademark, that's a pretty big attack on non-commercial services.
If you really are not doing commerce, trademarks are irrelevant. You can't get one, and you don't need one.
If that is the case, ok. It's just that I was naive enough to believe I could protect my little open-source project from this using a trademark. The EUPIO somewhat confirmed in their writing that you don't need commercial activities, but you need "genuine use", which is, again, hard to prove if you don't collect user data.
Trademarks are only the right to use a name commercially for a particular good or service.
Anything outside of that is fair game.
Yes, protecting consumers. And people are equally consumers of something whether they pay $1 or $0.
> but if there's a case that they need this trademark to protect consumers from harm, then that's your winning argument.
Other than the normal argument for trademark and the evidence of use they had? If you have to show a specific argument for harm, that's way too high of a bar.
> If you really are not doing commerce, trademarks are irrelevant. You can't get one, and you don't need one.
Define "commerce" here.
If we count competing in the market but your product happens to be $0 as commerce, then sure I can agree but this project passes the test.
If a price of $0 disqualifies you from "commerce" then no way, trademarks are not irrelevant and you do still need one. Consumers need to be able to find your product and avoid imitators.
I am not asking for the evidence of what that commerce is. I personally do not care nor do I make the judgment of what qualifies.
But, if you want a trademark, you need to show the trademark office what trade you are going to do with the mark you want them to grant you exclusive use of.
And if you're not going to do any trade, then you don't need to worry about it. Because you cannot infringe on a trademark without doing trade.
Okay cool, glad we're on the same page there, but then I don't understand why you even made your initial comment saying "I can understand why you're frustrated if you feel like you've lost something, but trademarks serve a purpose for facilitating commercial trade."
By your definition, they are engaged in commercial trade. And that was well-documented in the initial post.
> But, if you want a trademark, you need to show the trademark office what trade you are going to do with the mark you want them to grant you exclusive use of.
And the issue is the trademark office is not taking their evidence. They're looking at hundreds of thousands of downloads and saying "hmmmm, might be 99% non-EU, we don't care"
That is what fascinates me the most. The basic assumptions of everything I presented was non-EU. Somewhat annoying, but seeing it objectively, I think it was a skill issue on my lawyers side. They should have said to me "Marc, look, we need hard proof. Ask your fucking users on twitter, on github, an discord, we need a list of X users confirming they are from the EU and use this thing". I believe in good-will on the EU side, that they interpret data in a positive way in my favor - but the exact opposite happened.
I mean, there was some documentation. I don't know if it was well documented.
There's like 160 million reasons why the other company has better documentation.
Ultimately, the a point of holding a trademark is to give you some legal firepower. Going up against the company with $160 million, you're pretty much screwed anyway.
Their best bet in this scenario is to just use the name anyway and not piss them off. There are plenty of organizations, even very for-profit companies, that use the same name and don't have any problem with it because it's not confusing anybody or pissing anyone off.
Better documentation of someone else's user count?
I don't think that's happened though.
Of course, if you can't prove to the examiners that you even have a right to the mark, you're probably gonna have one snowball's chance in hell of a time proving that someone else's use of it is invalid in court.