[mberlant]

It is very possible that BroadVoice and BroadComm each have an independent trademark on the word "BroadVoice". This is because there is neither prohibition nor protection against two or more organizations trademarking the same word for unrelated products or services. Trademark infringement, or the allegations thereof, only come into play if one organization causes confusion, either intentionally or unintentionally, between their trademark and the trademark of another organization.

A very good example of this is the trademark, "NorStar". Norstar is a registered trademark of quite a few organizations:

- Northern Telecom, for their line of NorStar line of PABX and EKTS systems.
- Cadillac Motor Division of General Motors, for their line of high-end automobile engines.
- University of Calgary, Alberta, for their cluster of optic and radio telescopes designed to remote sense auroral precipitation on a continental scale.
- Norstar Biomagnetics, for their line of homeopathic health products.
- Best Western Hotels, for their hotel property in Cheektowaga, New York.
- Northeast State Community College, Blountville, Tennessee, for their online student assistance service.

It is unlikely that any of these organizations entered into cross-licensing agreements of any kind with each other. They just stay out of each others' way. Likewise, it would not be surprising at all to find that BroadComm and BroadVoice have a similar non-relationship.

[trixter]

Originally Posted by mberlant

It is very possible that BroadVoice and BroadComm each have an independent trademark on the word "BroadVoice". This is because there is neither prohibition nor protection against two or more organizations trademarking the same word for unrelated products or services. Trademark infringement, or the allegations thereof, only come into play if one organization causes confusion, either intentionally or unintentionally, between their trademark and the trademark of another organization.

Highly doubtful since a trademark search doesnt show anyone but broadcom owning that word. broadcom put in their tradmark application they do VoIP stuff, so again highly doubtful. Because in broadcoms application they specifically stated they provided VoIP stuff (ie same industry) and there is no record of broadvoice trademarking the name themselves, and broadvoice has a tm I think its licensed. I just wonder why (broadcom makes hardware, maybe it was part of a hardware license maybe broadcom owns parts of broadvoice, who knows).

[daryll]

Originally Posted by trixter

Highly doubtful since a trademark search doesnt show anyone but broadcom owning that word. broadcom put in their tradmark application they do VoIP stuff, so again highly doubtful. Because in broadcoms application they specifically stated they provided VoIP stuff (ie same industry) and there is no record of broadvoice trademarking the name themselves, and broadvoice has a tm I think its licensed. I just wonder why (broadcom makes hardware, maybe it was part of a hardware license maybe broadcom owns parts of broadvoice, who knows).

That's not exactly how trademarks work. tm implies an item is trademarked. Any word used in commerce can be trademarked simply by adding the those letters. It's sort of like copyright. Anything you write is copyrighted. You can add the copyright symbol to the document to indicate that you hold the copyright. Adding those letters/symbols shows others that you intend to protect the intellectual property.

A registered trademark has a circle r after a name. A trademark can be registered at any time and provides a stronger protection for the trademark. Again, it's just like copyright. A registered copyright gives you stronger legal protection.

If two companies use the same trademark then it is up to the courts to decide if there will be suitable consumer confusion by the dual use of the same trademark. Since BroadVoice sells VOIP service and Broadcom sells VOIP hardware that may or may not be distinct enough.

Tiger Direct, which sells computer hardware and software, recently argued that they held the trademark for Tiger. Apple released a new version of their OS X operating system which they called Tiger. Tiger Direct when to the court to get an injunction to stop Apple from selling OS X. (The goal probably being to get Apple to pay Tiger Direct for the use of the trademark) The courts threw it out saying that it wouldn't cause confusion.

I am not a lawyer, but I've done the trademark homework for my own companies products, so I think I've got the basics straight.

[trixter]

Originally Posted by daryll

Tiger Direct, which sells computer hardware and software, recently argued that they held the trademark for Tiger. Apple released a new version of their OS X operating system which they called Tiger. Tiger Direct when to the court to get an injunction to stop Apple from selling OS X. (The goal probably being to get Apple to pay Tiger Direct for the use of the trademark) The courts threw it out saying that it wouldn't cause confusion.

I am not a lawyer, but I've done the trademark homework for my own companies products, so I think I've got the basics straight.

Those types of cases never work well. A comic book publishing company which has been around for over 15 years was started by a young girl when she was 11, by the time she was 16 Penguin Books sued saying they own all rights to the word penguin. She ended up winning, and to this day still uses penguin in her company name.

It is however slightly different when its a made up word such as 'broadvoice'. However failure to protect their asset can lead to the unenforcibility of their trademark. Far less leway is given on trademarked words that do not appear in a dictionary, or words that are intentionally misspelled.

[trixter]

Originally Posted by daryll

That's not exactly how trademarks work. tm implies an item is trademarked. Any word used in commerce can be trademarked simply by adding the those letters. It's sort of like copyright. Anything you write is copyrighted. You can add the copyright symbol to the document to indicate that you hold the copyright. Adding those letters/symbols shows others that you intend to protect the intellectual property.

Forgot to add this before, I did not realize that with trademarks you could just claim it is and it is (copyright stuff had a special provision because the offices were swamped with applications, but those were originally somewhat limited to specific types of works). For a 'common law trademark' it was my understanding that you had to print a notice in the legal section of a newspaper of 'general circulation' once per week for 4 consecutive weeks. This notice states what you are trademarking as well as any license that may optionally be added, and the like.

Then the notice that the paper sends you saying that they ran it, when, and what, can also be used for a time basis (and they are typically notorized copies returned to you).

What you propose indicates that becuase I have um a handwritten notebook, yeah that is it, from when I was um 5, yeah that is it, claiming tradmark on um hmm 'chatroom' [tm] yeah yeah 'chatroom' [tm] I guess people owe me a lot of money for using my property without consent, the fact that it was just written down in a journal and there is no way possible for anyone to have viewed that or reasonably done a search before using that word doesnt matter, I trademarked it (which has a slighlty different set of rules over a copyright or design patent (the coke 'dynamic ribbon' is protected by a design patent)).

I dont know which is correct, but I had always thought for a trademark you had to do a little more work, and for certain types of works with copyright only you dont have to do anything buy put a circle C, date and to whom it is copyrighted (which changed in the 60s or 70s iirc because everyone and their brother was copyrighting songs and the like).

[daryll]

Originally Posted by trixter

Those types of cases never work well. A comic book publishing company which has been around for over 15 years was started by a young girl when she was 11, by the time she was 16 Penguin Books sued saying they own all rights to the word penguin. She ended up winning, and to this day still uses penguin in her company name.

It is however slightly different when its a made up word such as 'broadvoice'. However failure to protect their asset can lead to the unenforcibility of their trademark. Far less leway is given on trademarked words that do not appear in a dictionary, or words that are intentionally misspelled.

That's absolutely correct. A made up word allows for a stronger trademark than trying to trademark a generic word. It is possible to trademark a generic word, like Apple, but you have to do more.

Realize, I'm not making any claims to the validity of the trademark for either party. It seems to me like there could be an issue, but the works of lawyers and courts is way beyond me.

- |Daryll

[daryll]

Originally Posted by trixter

What you propose indicates that becuase I have um a handwritten notebook, yeah that is it, from when I was um 5, yeah that is it, claiming tradmark on um hmm 'chatroom' [tm] yeah yeah 'chatroom' [tm] I guess people owe me a lot of money for using my property without consent, the fact that it was just written down in a journal and there is no way possible for anyone to have viewed that or reasonably done a search before using that word doesnt matter, I trademarked it (which has a slighlty different set of rules over a copyright or design patent (the coke 'dynamic ribbon' is protected by a design patent)).

Nope, that wouldn't work for several reasons. The biggest problem is that you didn't use it in commerce. Therefore no trademark is established. Second, it isn't applicable to any specific area of commerce. So if you had used chat room in commerce as a trademark for lounge next to your lemonaide stand, it wouldn't apply to chat rooms on the internet. Finally, you didn't use and protect the trademark since you were a kid which means it would lapse.

Trademarks can be lost if the business use of the word becomes common place. Asprin is probably the most well known example. It was a made up word and a strong trademark, but it wasn't protected and moved in to the common venacular. Today it isn't trademarked and gets used on many products.

Like I said, I just went through all this with an IP lawyer, so I think I have the gist correct.

- |Daryll

[zenman]

Like Daryl said, there are two levels of trademark. (tm) and (r). Trademark is all about money - - and brand identification.

Anyone can add a (tm) to a word they use for business. Voxilla can trademark Voxilla (tm). To be respectful of Voxilla (tm) we would always add the (tm) after any mention of Voxilla (tm) and a footnote at the end of the page. "Voxilla (tm) is a trademark of Voxilla Corp."

A Registered Trademark is something you get through the US Patent and Trademark Office. www.upsto.gov. Here is where a company tries to protect any other uses of their trademark. It takes about two years to go through the process and once you are in, you are in. You have to do this before your trademark is dilluted, like Kleenux. The trademark office will grant you a trademark only if previously applied for or granted applications do not get confused with yours. "BroadVoice" a VOIP supplier and "Broadvoice" a VOIP hardware solution from Broadcom would be highly confusing. Idiots.

So now can Broadcom sue. Are there damages? Hmm let's see. "Broadvoice" is a crappy VOIP service that shut down for a week. I would never use it again. And now I am thinking about buying a VOIP chipset solution. I have a product from Cypress Semi or another product called Broadvoice from Broadcom.

Cypress is looking awefully good. Damages can be incurred from this aspect. But will Broadcom be able to collect? Broadvoice VOIP goes into Chapter 9, the shell layer (Eastern Photronics) spins off Convergent Networks and goes down with BroadVoice. GNaps and Convergent are protected. But because all these companies have the same board members - it won't take much for lawyers to find the source of the money (i.e. Enron) Maybe this is the plan as Broadvoice is milking Glogal Crossing out of money, maybe they are pocketing that money, waiting for Global Crossing to sue. Maybe Global Crossing is the "mark" in the shell game.

All Broadcom has to do is say in a certified letter from their counsel's office. "Broadvoice, you are in violation of our registered trademark, your company name dilutes our brand name, change your name or face litigation in the state of California."

Broadvoice has few options in an industry of low barier to entry and high competition. Since brand name is everything to them it either changes its name or liquidates and GNaps forms another VOIP shell company.

If Broadvoice licensed the name from Broadcom, that is a different story. But at the bottom of the web page on the Broadvoice site it should say. "Broadvoice(tm) is a licensed registered trademark of Broadcom Corporation". But why would Broadcom want their name associated with Broadvoice VOIP provider when they already have chips using the Broadvoice name.

Nope - Broadvoice Mgmt are idiots. Do some research, men.

[thinkliberty]

If a company knows that another company is using it's trademark and they do not enforce their right to the mark. They can lose their rights to the trademark.

Wikipedia words it like this:
failure to bring a timely infringement suit or action against a known infringer may give the defendant a defense of implied consent or estoppel when suit is finally brought.

Wikipedia is a really good place to to learn about trademarks if you are interested... Trademark

[zenman]

Is this our David Epstein? A San Francisco VC guy.

http://www.crosslinkcapital.com/bio_epstein.htm

A google on Broadcom and Crosslink Capital yields a whole lot of hits.
Google: broadcom+crosslink+capital

A google on BroadVoice and Crosslink Capital yield a perfect "Google Whack"
http://www.google.com/search?q=broad...n&lr=&c2coff=1

No mention of who this David Epstein is from the BroadVoice website.