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Comment by dsl | Hacker News Reader

The folks who make HyperTerm might have something to say about your product naming...

http://www.hilgraeve.com/hyperterminal/

Edit: I'm surprised more people in the HN crowd aren't familiar with HyperTerm (Yes that is the name and what everyone called it for many many years) It was bundled with Windows up to 7, and is still used heavily in industrial control areas.

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This is definitely a trademark violation: http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4803:prh...

A rename is in order.

This doesn't appear to be a commercial product, so there could be no trademark violation.

That's not how trademarks work.

15 U.S. Code § 1125 [0]:

    ...
    (3) Exclusions The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
    
      (A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person’s own goods or services, including use in connection with    —

        (i) advertising or promotion that permits consumers to compare goods or services; or
        
        (ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

      (B) All forms of news reporting and news commentary.

     *(C) Any noncommercial use of a mark.*
    ...

Do you know of another section, subsection, or other that would validate your claim?

[0] https://www.law.cornell.edu/uscode/text/15/1127

This only covers trademark dilution which is one cause of action for trademark infringement, but not the only possible cause of action. Usually trademark dilution is argued when the products are dissimilar. In this case, they are not dissimilar. And as such, this is the regular definition of infringement and is not covered by 15 U.S.C. § 1125(c)(3). It falls distinctly under § 1125(a).

PS - You linked to 15 U.S.C. § 1127, but quoted 1125.

PPS - An overview of the difference between dilution and infringement: http://www.nolo.com/legal-encyclopedia/what-trademark-diluti...

Unfortunately HN didn't allow me to edit the comment. 1127 however contains the definition of many terms and I believe the same conclusion can be drawn from them (Trademark does not apply to noncommercial use).

Here is 1125(a):

    (1) Any person who, on or in connection with any goods or services, or any container for goods, *uses in commerce any word*, ...

As such, it does not apply in this situation.

Further, 1125(c)(3)(C) is an exclusion across the entire 1125 subsection (and yes, for dilution, which is what has been argued here).

https://www.law.cornell.edu/uscode/text/15/1125

RE: PPS

Your link says that infringement is a type of dilution. Therefore, no dilution means no infringement.

Also note my other response to this comment: 1125(a) explicitly only includes commercial use.

Again, the US government has only the authority to regulate interstate commerce (ie. trade [hence, trademark]).

That's exactly how it ought to work. I hope this gets noticed despite you being so heavily down-voted (and flagged... wtf?). I'd like to see it get properly refuted if it's not true.

Oh wow that's a blast from the past. I don't think I've used that in 15 years.

But yeah, like yourself, the first thing I thought of when I saw this title was that old Windows terminal.

I also thought of hyperterminal.

HyperTerm is what I called it (because I'm old).

That's "HyperTerminal" not "HyperTerm".

A very similar name for a product sitting in the same space (terminal emulator). That's generally an unwise decision as it can create confusion for both projects, and the one with the trademark (especially since this new one's name is a substring of the older project) is in a position to make a valid claim against the new project.

If someone created a new project called Steem to deliver video games to end users[, would you] be surprised if Valve took issue with their choice of name?

EDIT: Left out part of a sentence.

> if Valve took issue

isn't it true that companies have to take issue, otherwise they lose their trademark? I used to be angry when large corporations would sue a little guy or nonprofit over name squabbles, but then I heard that the big company can lose their trademark if they dont.

For an example of this happening, "Aspirin" was originally a Bayer trademark registered in 1897.

I probably heard the same thing as you. With the whole Scrolls fiasco, I think. Someone explained Bethesda had to go after Mojang.

That's my understanding as well, yes.

Anyone remember this?

> On February 20, 2004, the developers of wxWindows announced that the project was changing its name to wxWidgets, as a result of Microsoft requesting Julian Smart to respect Microsoft's United Kingdom trademark of the term Windows. [1]

That being said, I think if MS doesn't ask them to change it, there isn't much to worry about. "wxWindows" was originally started in 1992.

[1]: https://en.wikipedia.org/wiki/WxWidgets

IIRC, Microsoft licensed Hyperterminal from a company called Hilgraeve (sp?). It was never an official part of Windows, although IMHO it should have been.

Regardless of who owns/owned the trademarks in whatever countries, it's not appropriate to reuse the name. It will lead to unnecessary confusion. Bad call, even if no lawyers get involved.

HyperTerminal was commonly referred to as "HyperTerm" in the BBS community, probably because the executable was hypertrm.exe. Also possibly because most other dial-up terminal emulators had names ending in "Term".

The free version was bundled with Windows for 10+ years, and although it wasn't a particularly great terminal, its ubiquity came in handy when trying to bring new people into the bulletin board system world.

Perhaps a rename to "HyperTermiML" is in order.

that probably wouldn't be different enough to satisfy a trademark infringement. you could easily make a case that those are confusable, and obviously similar types of products (both terminal emulators).

I know.

Before UNIX was ported to the PC, I used a DOS program called Crosstalk Communicator.

Today it's so easy to run a small UNIX kernel on a PC.

Why would "industrial control areas" still be using Windows, if what they need is terminal emulation? Tradition? Windows-only software?

Windows on a networked computer sounds like a potential security hazard in such places.

Maybe they can get the domain name through UDRP.

32 bit windows XP was an RTOS. This is one of the reasons so many people where reluctant to leave it.

Windows CE can be a RTOS. XP is not.

https://msdn.microsoft.com/en-us/library/ms838350(v=winembed...

"Is Windows XP Embedded a real-time OS? Windows XP Embedded satisfies the vast majority of performance requirements. However, if you require a more powerful real-time support for your Windows XP Embedded OS, you can utilize one of the real-time extensions that are available through third-party vendors."

There are apparently third-party real-time extensions available, but if that counts then the existence of CONFIG_PREEMPT_RT makes Linux a RTOS and I think that'd be a pretty silly claim too.

not the same name, but close. (I can't find the text "HyperTerm" on that page)

You sure? Because I can. http://i.imgur.com/3WnYw4H.png

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