Re: Re: Extropian Agroforestry Ventures Ltd.
Sun, 14 Feb 1999 17:33:47 EST

Although I often helped ExI head off possible infringements of its trademarks and service marks back when I was still on the board of directors, please note that I no longer speak for the organization. My comments here merely reflect my continuing abstract interest in trademark law.

Does the use of "Extropian" in "Extropian Agroforestry Ventures, Ltd." (EAV) infringe on ExI's rights? Here, as generally, the question is whether consumers of ExI's services would likely be confused by this new use of "Extropian." Notably, "Extropian" appears here only in connection with "Agroforestry"--a term that helps to distinguish this use of "Extropian" from ExI's use. Compare an on-line magazine called "Extropic Journal." Then, too, the apparent for-profit status of EAV makes its use look less likely to confuse than, say, a think tank called "Extropian Studies Institute."

I set aside the separate question of the possible dilution of ExI's marks. Inquiring minds might want consider the applicability of section 43(c) of the Lanham Act.

den Otter wrote:
>> I would think that the term extropian meaning someone or thing
>> operating in an extrophic manner has been used extensively enough
>> to be a generic public domain term like libertarian, lutheran,
>> egallitarian etc.

That remains a question of fact, resolution of which would rely in part on evidence of ExI's past efforts to prevent others from using its marks in ways that were likely to confuse consumers. I doubt that casual observers would have all the evidence that they need to resolve that question.

Mike Lorrey nicely summarizes some of the considerations of tax-exempt organizations thinking about policing their marks:

>[W]hile promulgation of the use of these terms over as wide an area as
>possible is beneficial to extropy as a whole, there is the risk of dilution
>its meaning, as well as the possible development of negative public opinion
>of it if its use, especially for commercial purposes, if it is not overseen
>licensed by someone at ExI.

I think that Mike speaks a little too broadly, however, in saying that,

>While common use of the word obviously is not restricted under the
>'fair use' clauses of copyright laws (in the US or Canada), use by a
>entity which ExI does not have interest in or some measure of oversight
>or control over is a definite infringement on the copyright and trademark.

Again, the question as regards infringement (though not dilution) is whether or not the use is likely to confuse consumers as to the source, origin, or affiliation of ExI. Some uses of "Extropian"--even by huge, for-profit corporations--may not go that far. Consider, for example, "Not Extropian Cremation, Inc."

None of this is to say, of course, that ExI should passively decline to object to such uses of "Extropian." Game theory, corporate culture, litigation resources, public relations, and so forth might play a role in resolving that difficult question.

T.0. Morrow