A Trademark Infringement Question

I emigrated here from the AOL version of the SDBM, and have been an AOL user since…oh, perhaps 1992, I guess. But that was not my first online service. I was briefly on CompuServe (until the first bill came in).

Way back in the dim dark reaches of my mind’s junk closet lies the notion that there were TWO software packages that would let you access CompuServe. One, CIM (stood for something, damned if I can recall what, and I could even be wrong about the acronym), was free; then there was a more fluent, powerful, and oh, I don’t know, impressive-in-other-ways software package that you had to PAY for, which of course I didn’t do, and IIRC this CompuServe-on-Steriods software application was called Navigator.

Jump forward a couple years and online services are being challenged by the world wide web and independent email, both courtesy of the suddenly popular and trendy INTERNET. And how do we browse the world wide web? Well, in its primordial stages, some of us used Mosaic, but almost overnight (alongside of the popularity of the WWW) the Browser of Choice that supplanted Mosaic was from Netscape and was called…Navigator.

OK, folks… AOL had yet to acquire CompuServe (whatever happened with that anyway? Does AOL still run CompuServe as its own independent kindgom? They certainly don’t seem to have merged the two!); CompuServe was still in fact, IIRC, the king of online services, AOL having not yet caught up in user count or depth of online resources; and so along comes serious competition from the completely independent internet, via world wide web, and the upstart new browser, using the same name as CompuServe’s premium service browser, manages this HOW, exactly?

I’ve never heard of any deal between Netscape and CompuServe regarding the rights to the name. Nor have I ever heard of Netscape being sued by CompuServe. And under the circumstances, why would CompuServe have been even remotely cooperative in this matter?

Those of us who were once subscribers to CompuServe will attest to the unlikelihood of CS lacking mercenary inclinations here.

In the dim and distant past (we are talking Internet time, after all) I was also a CI$ subscriber. CIM was Compuserve’s own software package. It wasn’t free so much as bundled (Compuserve Information Manager, BTW). Navigator was a third-party software package by some small outfit that faded away because most CI$ subscribers didn’t see the point of paying for it. I have no idea what eventually became of those guys, but I’d guess that by the time Netscape Navigator came along, there was no corporate entity willing to spend the bucks necessary to challenge it. Also, trademarks are not automatic, the way copyright is. IANAL, but trademarks require some action to demonstrate ownership. If no-one did that or tried to assert that in court, Netscape was free to play with the name all they wanted.
Interestingly enough, both Compuserve and Netscape were eventually subsumed into AOL-Time Warner. For a while AOL was running Compuserve as a more “business-oriented” ISP or web service, but I haven’t heard anything from them for quite some time now.

The company I work for still uses compuserve for dial up internet access.

A few thoughts:

First, trademarks run the gamut from generic, to descriptive, to suggestive, to arbitrary, to fanciful.

The amount of protection a mark gets depends where it falls on the scale.

IMHO, “navigator” is at best suggestive, and possibly just descriptive. So it’s not going to get a lot of protection, perhaps not beyond the narrow class of software involved.

Certainly, Compuserve would not have a claim against the folks who make the “Lincoln Navigator.”

Second, trademarks can be abandoned - perhaps that’s what happened here?

Finally, when companies are about to launch a new product, they do a trademark search. If there are marks that they might infringe on, they discretely purchase the rights (on the cheap) from the owners of the other marks. If a seller insists on a high price, the company may just pick a new name for its product before launching it.
(Standard disclaimer about legal advice)

This description fits Microsoft “Windows” to a tee, but I bet if I marketed my own “Windows,” they’d probably win defending their at-best shady trademark. My Commodore 128 had “Windows” before PC’s ever did…

See http://www.cs.com
AOL-TW markets CS as thier “discount brand” and uses it to head off competion of other ISP like MSN. (ie when MSN offers a $400 rebate to if you sign up with them for 3 years, AOL offers the same deal with CS.)

CS currently has about 3 million subscribers, makings it the fourth or so largest ISP (behind AOL (30M subs), MSN (~5M) and Earthlink (~4.8M)

Note that this is more subscribers than CS ever had before if was purchased by AOL in September of 1997. They were also losing 19 cents/share the year before AOL bought them out, they are now a net profit maker for AOL.