Posted by thebeardisred 2 days ago
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There is some irony in that Ryan isn’t acknowledging Node.js own trademark in his post, given that he was the person who announced the Node.js trademark.
https://nodejs.org/en/blog/uncategorized/trademark
So he wants Node.js trademark to be acknowledged, but doesn’t acknowledge it himself.
Oracle wants the JavaScript trademark acknowledged, and he doesn’t want to acknowledge that either.
This all seems very silly to me.
Of all places to put trademark acknowledgement, it’d be there - and it’s missing.
It looks like JScript is still trademarked by Microsoft, why not ask them to do whatever the community thinks is right for ECMAScript names and then we can all refer to the language a little faster?
Javascript has become such a ubiquitous term that its copyright status is increasingly tenuous. Node.js by contrast has no such problem, yet. Most of the industry supports this initiative, and dumping on the people willing to invest the time and money to fix it once and for all, over seemingly irrelevant things feels petty.
However, I do believe the word has been diluted and genericized and hope the USPTO chooses to release it.
A good argument to avoid losing a trademark to genericization is to show that there is an actual generic term that overlaps with the trademark, but then the trademark is not the generic term itself.
Examples:
Nintendo → Video Game Console
Post-it → Sticky Note
Xerox → Photocopy
etc ...
In the case of JavaScript, there's no generic term to allude to; JavaScript is the generic term, which might weigh towards the argument of genericization.
Err, that's not a given by any stretch. This is exactly what the suit is trying to prove. They are not a rightful holder of the trademark. They've failed to show use in commerce, and one of their examples of use was someone else's.
And here's one (trivial, but valid) use of it [2].
I'm sure Ellison lawyer's can come up with thousands of examples of JavaScript being used within the context of Oracle's business activities.
The way to go is fight for genericization (or start calling it ECMAScript, lmao).
1: https://tsdr.uspto.gov/#caseNumber=75026640&caseSearchType=U...
2: https://docs.oracle.com/en/database/oracle/oracle-database/2...
Id argue the opposite. The wording makes no reference to oracles ownership of the product or name that is JavaScript. And ECMA is reffered to as the "maker" of the standard.
If anything, this is an example by Oracle themselves using the trademark in a generic context.
Its like cocacola calling themselves "a producer of fanta" and referring to a the food and drug administration to define what that means.
I doubt the writer of that doc was aware that Oracle owns the JavaScript trademark.
Oracle does not control the specification of the language (ECMA does), nor does it own rights to the original implementation (I believe Mozilla does).
Even though one may not like it, the trademark fairly belongs to Oracle.
But for "JavaScript"? What else is there? "JS"?
Edit: I guess there's "ECMAScript", but who actually says that (aside when they legally need to)?
> To plead a claim of fraud, petitioner must plead that: (1) respondent made a false representation to the USPTO; (2) respondent had knowledge of the falsity of the representation; (3) the false representation was material to the continued registration of the mark, and (4) respondent made the representation with the intent to deceive the USPTO.
> A claim of fraud must set forth all elements of the claim with a heightened degree of particularity [...] Indeed, “the pleadings [must] contain explicit rather than implied expressions of the circumstances constituting the fraud.” In addition, intent to deceive the USPTO is a specific element of a fraud claim, and must be sufficiently pleaded
> Essentially, Petitioner’s theory of fraud is based on allegations that the specimen of use submitted with Respondent’s maintenance documents do not show use by the proper party. It is well-settled that the proper ground for cancellation is the underlying question of whether the mark was in use in commerce, not the adequacy of the specimens [...] the insufficiency of the specimens, per se, does not constitute grounds for cancellation; the proper ground for cancellation is that the term has not been used as a mark
To file for a mark or renewal of a mark and claim ownership of something you do not own is insane. It's not like this is a 5 second process or that there isn't a lot of money riding on this-- this sort of thing is super serious and incredibly important! You're telling me no one at Oracle or their counsel was able to catch this in review before filing? As far as I can tell, in the renewal for the mark[1], Node.js was the sole specimen provided as an example of mark use! Come on...
EDIT: Sorry, correction, they have three specimens attached to the renewal, two of which seem to be the same. Clearly an insurmountable amount of work and too complicated to validate.
[0]: https://ttabvue.uspto.gov/ttabvue/v?pno=92086835&pty=CAN&eno...
[1]: https://tsdr.uspto.gov/documentviewer?caseId=sn75026640&docI...
I think the key is
> It is well-settled that the proper ground for cancellation is the underlying question of whether the mark was in use in commerce, not the adequacy of the specimens
If I understand correctly (and I very well might not), that means that it doesn't matter whether some of the provided specimens were fraudulent or not, in order to revoke the trademark the burden of proof is to show the entire trademark claim was fraudulent, and if there was no fraud, then the trademark wouldn't have been granted.
Deno might be able to make a stronger argument of fraud, if they could show without that specimen USPTO would have rejected the application, or that the other specimen was also invalid, but that would delay the proceedings and require more work for them.