Originally Posted by Ash R
You folks couldn't be more wrong. The issue is trademark and that is determined by first use in commerce. By placing a trademarked name on a competing website, the infringer violated the trademark rights of the mark owner. Trademarks do not have to be registered to aquire rights. In fact priority in America is determined by first use.
You should also know that if the trademark owner did not tell the infringer to cease using the mark it would be abandoned. Once the infringer uses the mark (even if by innocent accident) the trademark owner must police the mark or lose it.
You can talk about a trademarked product or service because that's fair use. You just cannot take the name as your own because that causes market confusion.
You say the issue here is trademark and that it's determined by the first use in commerce.......I don't believe Zilch sold any speakers or any audio gear under the Zilch name. Zilch was a screen name. So in reality, Polk Audio could take the speaker design tomorrow and call it The Zilch and no one could ever use it but Polk?
Zilch clearly wanted others to build his speakers. That was the entire goal of the threads. There was no money being made on the one single model I listed and that was clearly shown with a price breakdown. Only a donation to a charity in memory of him.
I had his design on the site for one day. I hadn't even named it yet, but while typing it up, and not knowing what to call it, I simply put it as Zilch-10. I was told that same exact day to remove the name, so I did. Then I was told to remove the statement that said Zilch designed the speaker. I did that too.....even though I didn't have to. I was then told to remove 'Zilch' from the actual website address link that might appear in a web browser. I did that too, even though I didn't have to.
I had something written about donating in memory of Zilch.....I was told to take every mention of Zilch off the page. I did that too......even though I didn't have to. I can talk about a friend on a website....and use their name or nick name. Just because someone says they were given full rights to a name doesn't mean they were. And my guess is that it could be bad if they aren't being truthful about that. But I take them at their word without asking for proof, I doubt a company would.
This has gotten so incredibly stupid at this point when a huge DIY Community can't do something for our friend Zilch in his name without 'getting in trouble'. It's actually quite sad. But it's over and done with. A speaker was listed for 1 day with Zilch in the title because I wasn't sure what to name it yet. No money was going to be made, no one bought it, no money was donated to the cancer fund that helps fight a cancer that took his life. Yeah, someone did a great deed by stopping that.Edited by Erich H - 1/24/13 at 11:41pm