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  From: Jason Tan <jason@rebel.rebel.net.au>
  To  : ilox <ilox@telstra.com>
  Date: Thu, 19 Jul 2001 12:37:43 +0930 (CST)

Re: Adobe attack on Open-source

> Hi David,
> 
> Ok, so apart from the name being similar what about the rest of the 
> situation where the lawyer acting for Adobe writes to the Professor 
> telling him to stop development on the Project and then asks for 
> payment for their time to send him the letter? 

Well teh alternative was he coudl ahve gone to court, got an injunctiona
nd thenhad the costt of his services awarded as costs.

This I am sure would have cost the nice professor way more thenna the cost
of having aletter written.

If I were the professor I woudl ahve sent a letter to adobe registered
psot and aksed if they ahd anyobejection to usign the name killustrator,
where I suspect they woudl ahve ignored the letter and never replied, or
not replied in a timely matter.
At that point I think adobe's legal legs would have been quite a bit
shakier.."hey I asked, you didnt reply, so I assumed it was ok with you".

On the issue itself, I can see David's argument, however Illustrator is a
fairly generic name.

If I had a bookstore and called  "bookshop" I am nto sure if I would get
all hot and bothere dif someone else opend a store adn claeed it "the
bookstore" or " a bookstore" or evne "fred's bookstore"(unless their name
wasnt fred of course).

> 
> Many Linux - Open Source programs are similar in look and feel to 
> commercial counterparts. That should not bring out the patent attorneys 
> without seeing if the programs are actually the same or just use 
> similar concepts.

Yah I dont think adovebe woudl ahve a problem with people wrtining similar
softwar, I think they have aproblem with the similarity f the name.

I mean why not call KOffice" "Kmicrosoft Office" or "KMSOffice" (apart
fromteh fact most of teh desired audiecne would nto like it)?

Probably bacause that would be just couritng legal action from MS and nto
worth the trouble.

I am half and half on this one, I cna see the validity of both arguments.

But I thinkthe lawer chargn the money is reaonable,and is probably one of
the nicer approaches he could take, certainly much ncer thangoing straight
ot court and then claiming costs.

> 
> I know that there was trouble in the early days with Lotus and other 
> spreadsheets because of the "look and feel" of the programs. Now there 
> are common ways of building a screen so that elements will be found 
> where users expect to find them. For any program to get away with a 
> claim of "look and feel" they would have to be looking at an almost 
> perfect clone of their program. 
> 
> Adobe, or at least the people who said they were acting for them, 
> appear to have been heavy-handed in their approach to resolving the 
> matter. Just because a name is similar is not enough grounds to jumping 
> to court especially as the program is still in early development.

Um..yes it is I think.

Trademrks and all that.
I dont know the specifics of trademark law, but i do know there is a body
of legal doctrine relating to trademars and that similar names can b
grounds for legal action.

So yes  there may well be grounds(the fact the lawer has acted seems to be
primae facie evidence of gorunds).

> 
> I am also not impressed with the claim from the attorneys for their 
> fees to be paid by the Professor. Paying for the bills for lawyer's 
> time should come from the party requesting them to act on their behalf 
> in this kind of situation. Nothing has been proven. No judge has issued 
> a decision. There is only a statement of claim from one party.

No if you sue soemone and win they get he joy of paying your legal bills
nad other reaosnble costs(unless it is that staer usually).

That is quite normal.

> I don't have a problem with a company protecting rights and trademarks 
> if they can show that they are theirs to protect and that the rights 
> and trademarks are threatened. It is their obligation to accept that 
> there are going to be costs involved in protecting their property.

The way to show it is to take it to court. If the prof lost it woudl cost
him way more than paying for the lawyers letters. 

I reckon that the lawyer was doing it the nice way first.

Off course it coudl go the other way and adobe might have to pay the prof
too, but the only way t find out, wiuld be to take it to court, whereupon
the profesor(who presumably ahds less funds than adaobe0 is taking a big
gamble.

> It is my personal take on reading this report that a threat was made to 
> the concept of Open-Source and it is this threat that needs to be 
> repulsed at every opportunity. Maybe I have read it wrong. Your mileage 
> may vary.

I think your reading is not correct.
The attack was nto an open source thing, there was nothign in the report
to suggest that adaobe objected to open source(unlike MS who ahve vilified
open source silly), they merely objected to twhat they thougt was probably
a tradmeark infringement(I asusme illustrator is a trademark).

Jason

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