TWiki.NET threatens TWiki spin-off Foswiki

I have reported on the new TWiki project, named Foswiki, before. Yesterday, the floss project Foswiki received a threat-a-gram from the TWiki.NET COO Will Thomas. In a desperate attempt to save their sinking ship, they think it is acceptable to put limits on free speech.

What they ask is “to stop the confusingly similar use of the TWIKI TM in vague statements”. I find that an odd request, as the term ‘vague’ is highly subjective. If we (the Foswiki project) were to bow to their threats, where will it end? Do we have to remove the T-word completely from the Foswiki site? That sounds close to censorship to me, and (IANAL but) I am sure that is not how trademark law (even in the US) was meant.

A trademark can be used to protect your brand from other entrepreneurs setting up a brand identical or similar to yours. It can not and should not be abused to limit free speech. We have seen a lot of that in recent years, and people like EFF have been fighting such practices by huge corporations for aeons.

The Foswiki project should be able to, and will, mention TWiki is the project from which it forked. If we start redacting history, where will it end? Personally, I think that with this message, we see TWiki.NET for its worth: a venture capital corporation with anonymous investors that stop nowhere to trample over the competition.

I think they are underestimating the force of the closely-knit group of volunteers that are determined to make Foswiki a success, despite legal threats and intimidations. In fact, this is just a mere distraction. We know the T-word is trademarked. In fact, on the Foswiki site there is ample mention of the trademark when the T-word is used.

Well, TWiki.NET. Bring it on. I mentioned the T-word in this blog post a couple of times. Am I next? Will you threaten me or my business with law-suits for using the TWIKI TM “in vague statements”? I fear you not!

Here is the threat-o-gram (copied from the mailing list archive):

Sawing at the roots
Image courtesy of Colas Nahaboo

> Von: Will Thomas
> Datum: 13. Januar 2009 03:22:14 MEZ
> An: Martin XYZ , Michael Corbett
> >
> Betreff: confusingly similar use of the term TWiki – time to stop
> the abuse.
>
> Hello Martin and Michael,
>
> Please immediately take action to stop the confusingly similar use
> of the TWIKI TM in vague statements such as “continuing the
> community-led tradition of the TWiki project” on the FOSWiki project.
>
>
>
> > Please see: http://en.wikipedia.org/wiki/Nominative_use
>
> Both your businesses could be construed as directly benefiting from
> this TM use.
>
> The fair use defense in trademark law is not precluded by the
> possibility of confusion, according to the U.S. Supreme Court in
> 2004.[1] However, courts may consider the possibility of confusion
> in analyzing whether a use is fair or not. Intent to sow confusion
> is also relevant; hence, the general rule that no more of the
> trademark should be used than necessary for the legitimate purpose.
> For instance, use of a word mark is preferred to a logo, and a word
> mark in the same style of type as surrounding text is preferred to a
> word mark in its trademarked distinctive type.
>
> As the two individuals primarily responsible for the project
> marketing, you need to very carefully consider the implications of
> your continued abuse of the TWiki TM at the FOSWiki site. Fair use
> is clearly defined.
>
> We wish you the best of luck with the project. We are simply
> requesting that you follow the established norms. I’m sure at some
> point you will ask the same of others regarding the FOSWiki brand
> that you are working so diligently to establish. We are very happy
> the new community is making progress.
>
> Thank you.
>
> Will
> —
> Will Thomas
> Chief Operating Officer
> TWIKI.NET – the Enterprise Wiki
> 440 N. Wolfe Rd. Sunnyvale, CA 94085
>
> (W) http://www.twiki.net
> (E) will.thomas@tw…
> (M) +1.408.571.9021
> (T) +1.408.524.1558
> (F) +1.650.352.9020
>
> This email and any attachments thereto may contain private,
> confidential, and privileged material for the sole use of the
> intended recipient. Any review, copying, or distribution of
> this email (or any attachments thereto) by others is strictly
> prohibited. If you are not the intended recipient, please contact
> the sender immediately and permanently delete the original and any
> copies of this email and any attachments thereto.

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One Response to “TWiki.NET threatens TWiki spin-off Foswiki”

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