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From Shane Curcuru <...@shanecurcuru.org>
Subject Re: legal question
Date Mon, 21 Mar 2011 12:06:34 GMT
Wow, that's an awesome question I never imagined getting!

Yes, Apache JMeter is our common law trademark referring to our load and 
functional testing software.

Please note that trademark law is all about a consumer confusion around 
*specific* goods or services.  I.e. using a trademarked name is only a 
problem if people seeing your name (on a web page, or on a concert 
billboard) would be confused between your J-Meter and our JMeter.  A 
good explanation of this kind of situation is here:

http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#8

"7. What constitutes trademark infringement?

If a party owns the rights to a particular trademark, that party can sue 
subsequent parties for trademark infringement. 15 U.S.C. 1114, 1125. The 
standard is "likelihood of confusion." To be more specific, the use of a 
trademark in connection with the sale of a good constitutes infringement 
if it is likely to cause consumer confusion as to the source of those 
goods or as to the sponsorship or approval of such goods. In deciding 
whether consumers are likely to be confused, the courts will typically 
look to a number of factors, including: (1) the strength of the mark; 
(2) the proximity of the goods; (3) the similarity of the marks; (4) 
evidence of actual confusion; (5) the similarity of marketing channels 
used; (6) the degree of caution exercised by the typical purchaser; (7) 
the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 
492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).

So, for example, the use of an identical mark on the same product would 
clearly constitute infringement. If I manufacture and sell computers 
using the mark "Apple," my use of that mark will likely cause confusion 
among consumers, since they may be misled into thinking that the 
computers are made by Apple Computer, Inc. Using a very similar mark on 
the same product may also give rise to a claim of infringement, if the 
marks are close enough in sound, appearance, or meaning so as to cause 
confusion. So, for example, "Applet" computers may be off-limits; 
perhaps also "Apricot." On the other end of the spectrum, using the same 
term on a completely unrelated product will not likely give rise to an 
infringement claim.

** Thus, Apple Computer and Apple Records can peacefully co-exist, since 
consumers are not likely to think that the computers are being made by 
the record company, or vice versa. **
----

Note that we can't give you specific legal advice; you need your own 
lawyer for that.  But my personal opinion is that it'd be a cool name 
for a future rap star.  Let us know how you do!

- Shane Curcuru
   VP, Brand Management, The Apache Software Foundation

Kevan Miller wrote:
> Hi Omar,
> Forwarding your question to our trademarks mailing list.
> 
> --kevan
> On Mar 18, 2011, at 12:53 PM, OCE wrote:
> 
>> Dear Legal folks:
>>
>> I'm not sure if this is the correct email address for my question, but
>> here goes:
>>
>> I am an aspiring rap artist, and I've been looking for a name.  I came
>> across your product, and I must say, "J-Meter" sounds like a great rap
>> name, does it not?
>>
>> Could I use it or do you have it trademarked?  What if I were to
>> change the spelling of it?  In fact, as you can see, I've already
>> added a dash to it.
>>
>> I would appreciate a response when you have a minute.
>>
>> Thank you for your time.
>>
>> Regards,
>> Omar
>>
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