flashden has to change domain

[mdshare]

FlashDen is Changing its Name to ActiveDen For just over three fantastic years FlashDen has been the jewel in Envato's crown.

Last week Adobe asked them to change their name and URL so that they would no longer contain the term 'Flash', which is a registered trademark of Adobe.

 

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This is really interesting as there are hundreds of sites with the word Flash in it

[Guest georgelink]

Lol so true. I could make a site that involves ONLY the word "flash" and i wouldn't get prosecuted for copyright :P

And besides, Adobe doesn't have ownership over the word flash. Flash can be used in many terms that are not related

to adobe company at all.

[a_bertrand]

Actually I doubt Adobe can sue you for the use of the word flash. Why? Because flash is a common word (like window and apple by the way), and therefore you may continue to use it without troubles. Where they can make problems is if you use their logo or something similar but not for the word itself.

[Arek]

Collis Ta’eed, the CEO of Envato, and he mentioned that Envato received a letter from a law firm representing Adobe asking to change FlashDen’s name. Envato followed through, not wanting more legal problems with Adobe. Ta’eed also mentioned that “FlashDen” was filed as a trademark in Australia in January 2008 and entered on the Australian trademark register in August 2008. Envato is based in Melbourne, Australia.

[a_bertrand]

Well simply they don't even want to start any problem, and therefore they changed the name. However I doubts they can go far with that as Adobe should then go to a court and explain how the flashden would disturb their own trademark. Do a simply research on internet "flashgames" and check how many websites contains the world flash.

Also the rules about domain names are here:

http://www.icann.org/en/udrp/udrp.htm

Really I think they just changed their name to avoid any kind of troubles even if they would not risk much beside money and time.

Edit:

I was just checking something on my own and then though what about checking flash as trademark, and guess what:

http://tess2.uspto.gov/bin/showfield?f=doc&state=4004:j9afq0.3.6

This mean, flashden is a trademark by its onw registered also in the US, so there is CERTAINLY no need to change name. There must be something under we don't know like Adobe paying them to change name otherwise I really don't understand :D

[Croesy]

Usual disclaimer applies about this not being my subject area or jurisdiction (maybe I should add it to my signature!?)

Not siding with Adobe here (as I think it is a mean-spirited and counter-productive) but I can see the potential for a trade mark infringement. It would certainly be an interesting case to go to court, but I am not sure whether ActiveDen would/could have won. It is certainly easier and for them to change their name and gain HUGE publicity from the "look what the big bullies made us do" reaction . I believe this is not the first time for Adobe to try such things and there is a suggestion that perhaps this is also marketing for them (though I fail to see how annoying half of your user base helps).

The essence of a trademark infringement of this type is (normally) that the use of a trademark would confuse a consumer over the origin of the goods. This can affect the reputation of the mark holder. So lots of sites with flash in them will not be affected in the slightest. My feeling is Adobe will be selective as to who receives these "letters".

It isn't nice, it is just big business throwing about their weight, but there is something in their claim. Whether it would stand up in court, we will never know. This is just my view from an initial skim of the facts.

 

EDIT:

In the EU (I assume (but am not sure) something similar in the US) you can prevent the use of a later registered trademark if it dilutes/infringes the earlier one. See Case C-252/07 Intel v CPM...though not so easy to do...

There are of course fair use defences which could (maybe apply here) but would you really want to take on Adobe and risk losing?

[Guest georgelink]

funny

[Toppy]

Its situations like this that drive people like me to dislike companies like Adobe and Microsoft. So typical of these kinds of corporate mentalities. If anything they should be praising FlashDen for drawing attention to them. I can understand asking to place a disclaimer or something but this is just over the top. I wonder if they'll go after DC Comics to change the name of "The Flash". You know how dumb us public is, we may think The Flash has to do with a clunky browser plugin!

I'm finding this so annoying that I think I'll have to write a blog article about it. The 2 or 3 people who've read my blog may not appreciate the rant but it'll at least make me feel better. :)

[a_bertrand]

Actually Apple is one of the worse in those kind of actions.

[Guest georgelink]

I totally agree! Apple is just terrible. I can be selling apples on the internet, and all of a sudden a 5000$ lawsuit comes through my mail.

Like WTF!

[Croesy]

I think I can explain why a simple disclaimer would not have satisfied Adobe. There is also a little known doctrine in US law known as "Initial Interest Confusion" (IIC).

A "normal" trademark infringement would occur where the use of a mark is likely to lead to confusion in the eyes of a consumer about the source of the goods/services in question.

Now the way IIC works is that the use of a trademark causes an initial confusion about the source of the goods, even if this is dispelled before the final transaction (See Dr. Seuss Entrs. v. Penguin Books (1997) 109 F3d 1394). It is a stupid doctrine, but this is what happens in common law countries when judges make decisions based on what it perceives to be "fair" in a particular set of circumstances.

I am in no way saying that 1) Adobe would win on a simple trademark infringement basis 2) Adobe would win on a claim of IIC. As I said before, I just wouldn't want to take the risk over the name of a site. Incidentally it seems "Flash Den" are branching out into Silverlight applications and other products. So, I think maybe they used this letter as an excuse to grab a LOT of publicity and change the name of the site at the same time (something I imagine would have been unpopular with the user base if it had been done independent of an Adobe interference).

I also agree it seems counter-productive for Adobe to do such things. However, if they have a mark (and all the rights that involves), it is perfectly legitimate for them to exercise the mark law.

As there would be (de facto) no confusion with "The Flash" comic book hero, and products from a software company like Adobe, DC Comics has nothing to fear. Anyhow, I think DC Comics could just release Batman and Superman on Adobe if it came to that :thumbsup: