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Comment by laumars | Hacker News Reader

This shouldn't be news to anyone who's old enough to remember the internet in the 90's. Back then Microsoft named their EMCAScript implementation "JScript" to avoid problems with Sun's trademark (I'm sure everyone on here is already aware that Oracle bought Sun a few years back).

However I don't think this trademark is worth anything to Oracle any longer. Trademarks need to be defended or they're lost. This is why Wordpress have strict rules about how themes and related websites cannot contain the name "Wordpress"; and why you often see ridiculous cases about large companies sending scary legal notices to independent enterprises but then quietly settling out of court for token licence fees like £100 a year.

Javascript has long since entered the public domain so I suspect it's too late for Oracle to capitalise on their acquired trademark.

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Let's be careful with terminology here. I'm (also) not an IP lawyer, but as I understand it your use of the term 'public domain' here is inappropriate.

If you're arguing that JavaScript has become genericized - on the basis, presumably, that there are multiple institutions making available various implementations of JavaScript without acknowledging or licensing Oracle's trademark - I'm not sure that's correct, and typically that would only be settled in a legal case. Certainly, Google, for example, publishes V8 and describes it as a "JavaScript Engine" - and makes no trademark acknowledgement toward Oracle that I can see; if Oracle wanted to they could probably attempt to enforce their trademark rights there. Mozilla, who distribute SpiderMonkey as a "JavaScript Engine", acknowledge the trademark (though they still attribute it to Sun). Oracle's failure to continually distribute any product which makes use of their trademark might count against them, but if they wished to argue that Mozilla has continually exercised Netscape's exclusive right to use the trademark, they might be able to get a sympathetic judge to rule Google out of order for claiming V8 is 'JavaScript'. Without a legal ruling, the situation's not clearcut.

You're right, but I believe even Brendan Eich has said (while CTO of Mozila) he thinks the trademark is likely indefensible.

What's inappropriate about saying a term that is in wide, generic usage is in the public domain?

It's technically correct but not idiomatic.

Technically correct because by the definition that Wikipedia gives (http://en.wikipedia.org/wiki/Public_domain), non-enforcement of a trademark could lead to forfeit of the rights on that trademark, and that is one of the options mentioned in the definition.

But not idiomatic because the term is much more commonly used in copyright, rather than trademark, where it has a very specific legal meaning. A copyrighted work enters the public domain when the copyright expires (or in old cases, if the owner failed to renew the copyright).

I would say that it's not in wide, generic usage, but rather in wide, implicitly-specific usage.

That is, "generic usage" refers to things like people using "a kleenex" to refer to any facial tissue or "a xerox" to refer to any mimeograph. However, when people say "JavaScript", they always mean the exact same JavaScript: the one Oracle owns.

(It could be argued that they mean ECMAscript—but that's a bit like saying that people who say "pass me a coke" when what they have available are cans of no-name generic cola (with trade-dress explicitly reminiscent of Coca-Cola's, no less) are actually thinking they want any generic cola, rather than that they want a Coca-Cola and that the can you have to offer is merely an adequate stand-in.

The coke bit has regional variance. In the entire southern US "coke" is a fully generic term for all carbonated beverages: http://laughingsquid.com/soda-pop-or-coke-maps-of-regional-d...

Wikipedia lists "Coke" among marks that, while still protected, are often used generically: http://en.wikipedia.org/wiki/List_of_generic_and_genericized...

I think many marks on that list, including coke, could very well lose their status if someone were to bother to fight the legal battle.

"Public Domain" has a very specific legal meaning -- of which does not apply to this situation.

Are you a lawyer?

You don't need to be a lawyer to understand trademark law. But if you want to dismiss my point then there's plenty of case studies around; pick a few and investigate things yourself. I think you'll end up coming to the same conclusion as myself though.

Agreed that you don't need to be an attorney to understand trademark law. I work with some of the best in the business, and they think my understanding is nearly as good as theirs.

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