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DaveD
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I know little about trademarks.
I suggest you learn about them ASAP.

One reference would be: http://cyber.law.harvard.edu/metaschool ... ain/tm.htm

Especially see #7, "What constitutes trademark infringement"?

The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.

For the record, "Paint.NET" is in the process of being trademarked (that is, to become a registered trademark -- ® instead of "tm").. It's been working its way through the system for about 4-5 months now (government stuff just takes time), and is in the latter stages of approval. Basically right now if you went to your lawyer and said, "If I were sued by Paint.NET regarding my use of Paint.COM ... ?" he would say "You don't have a leg to stand on." and strongly recommend that you change the name.

Though, I know the COM has nothing to do with .com domain as you have implied, the application itself is not web-based and there is no connection to any web stuff or even the paint.com domain. Furthermore, it is capitalized as is usual with an acronym and unusual with an Internet domain. I believe this is the same with Paint.net, where the .net is also not related to Internet domain.

It doesn't matter that the suffix of Paint.NET comes from ".NET Framework", or that yours comes from "COM technology." The general public perceives .net and .com to be top-level Internet domains, and they regularly and casually swap them around. Hence, the confusingly similar trademark. Heck, half the people I've talked to think that my program is called "Get Paint" because of the domain name.

BTW I believe Paint is sufficiently generic word and people can combine it with anything to make it unique. If this were not the case, how would you be able to combine Paint with .net, both being associated with Microsoft? Or does the Paint.net trademark only exist with their silent support? I am really curious.

"Paint" is generic, yes. The combination is what makes the trademark. Paint.NET has no official association with Microsoft, and is irrelevant to this discussion.

Edit: one more thing: the full name is RealWorld Paint.COM 2008.1

Sorry, but it doesn't matter. Especially from your blog post announcing Paint.COM, it is clear that your intent (or at least your perceived intent) is to take advantage of confusion with the Paint.NET name.

But by breaching into the Paint.NET brand so openly, you are offending many Paint.NET users.
And for the record, I'm fine with your software being out there. It's the name that is bad -- legally so, and respectfully so (see Mike Ryan's post-quote). Once you change the name I'm more than happy to compete fairly in terms of features and marketshare. Like I said earlier, this isn't some petty, emotional disapproval on my part -- it's a legal one.

The Paint.NET Blog: https://blog.getpaint.net/

Donations are always appreciated! https://www.getpaint.net/donate.html

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Basically right now if you went to your lawyer and said, "If I were sued by Paint.NET regarding my use of Paint.COM ... ?" he would say "You don't have a leg to stand on." and strongly recommend that you change the name.

I did a small research as you suggested (boring, but a bit useful). As you have mentioned, the key in infringement cases is consumer confusion. Judging from the comments of people on various discussion boards, where Paint.COM was mentioned, there was absolutely no confusion. Everyone perceived it as a competitor to Paint.net, which is a good thing. Also, the more generic a trademark, the less protection it offers. Paint and .net are very common terms these days.

BTW, you have suggested to me to learn about trademarks, so let me return the favor. Learn a bit about psychology and how people spot differences. The more similar things are the more apparent are the differences. This might be an interesting start: http://www.codinghorror.com/blog/archives/000869.html

Coca Cola, Pepsi Cola anyone?

That said, I will actively look for ways to eliminate any chance of customer confusion, not only because of possible legal reasons, but it is in my own interest to emphasize the differences.

And for the record, I'm fine with your software being out there. It's the name that is bad -- legally so, and respectfully so (see Mike Ryan's post-quote). Once you change the name I'm more than happy to compete fairly in terms of features and marketshare. Like I said earlier, this isn't some petty, emotional disapproval on my part -- it's a legal one.

I am also fine with your software being out there, thanks.

Without implying that Paint.net was not good enough on its own when it was released, one of the keys to its relative success was its name. You have successfully combined a generic word with a word Microsoft has invested huge amount of money in. So, let me have similar advantage. I believe, it the end a competition is a good think for the end user. And when two freeware application are competing... the only winner is the end user... Threatening with legal actions belongs to another areas of the industry.

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Although I'm all for Paint.NET in this discussion, I would hesitate to compare Google's confusion with paint.net and paint.com (as shown by Mike Ryan) to any confusion a normal person might have between the names of these two products. Google is not a person, it's just an incredibly dumb search engine.

And are comments like these:

haha Paint.COM :lol:
really helpful to this topic?
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I did a small research as you suggested (boring, but a bit useful). As you have mentioned, the key in infringement cases is consumer confusion. Judging from the comments of people on various discussion boards, where Paint.COM was mentioned, there was absolutely no confusion. Everyone perceived it as a competitor to Paint.net, which is a good thing. Also, the more generic a trademark, the less protection it offers. Paint and .net are very common terms these days.

It dosen't matter how generic a trademark is, it's still a trademark. And, from me first hearing about Paint.COM, my immediate reaction was, "Looks like someone ripped of the source code again :roll:", which is a case in point for confusion. Either you directly told the users it was a competitor, or you implied it somehow.

BTW, you have suggested to me to learn about trademarks, so let me return the favor. Learn a bit about psychology and how people spot differences. The more similar things are the more apparent are the differences. This might be an interesting start: http://www.codinghorror.com/blog/archives/000869.html

Coca Cola, Pepsi Cola anyone?

Without meaning to just ignore your argument, it dosen't matter about how people percieve it if it is trademarked. The fact is, Paint.NET and Paint.COM are similar in both name and type of software, meaning since Rick managed to "beat you to the punch", as you could call it, it would be more wise to change it, because then if you become astablshed (spelling), then people will become less confused between the two pieces of software.

Without implying that Paint.net was not good enough on its own when it was released, one of the keys to its relative success was its name. You have successfully combined a generic word with a word Microsoft has invested huge amount of money in. So, let me have similar advantage. I believe, it the end a competition is a good think for the end user. And when two freeware application are competing... the only winner is the end user... Threatening with legal actions belongs to another areas of the industry.

I don't know how the brand name decides if it will be successful or not. The only reason Paint.NET is called Paint.NET, is because it's based off .NET technology, nothing more, nothing less.

EDIT: And you guys not contributing to the discussion, grow up, if Rick didn't want to hear any of this, he could have easily banned the guy, so, seeing as he is here, and is just another forum member, show him some respect.

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And for the record, I'm fine with your software being out there. It's the name that is bad -- legally so, and respectfully so (see Mike Ryan's post-quote). Once you change the name I'm more than happy to compete fairly in terms of features and marketshare. Like I said earlier, this isn't some petty, emotional disapproval on my part -- it's a legal one.

I am also fine with your software being out there, thanks.

Without implying that Paint.net was not good enough on its own when it was released, one of the keys to its relative success was its name. You have successfully combined a generic word with a word Microsoft has invested huge amount of money in. So, let me have similar advantage. I believe, it the end a competition is a good think for the end user. And when two freeware application are competing... the only winner is the end user... Threatening with legal actions belongs to another areas of the industry.

But see, that's like naming your software Photoshape, or something like that. Capitalizing on name confusion isn't real competition, it's just disrespectful.

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...are comments like these: [...] really helpful to this topic?
...show him some respect.
Agreed. Any more and the offender(s) will be formally warned. What we have here is a discussion, and insensitive quips do not have a place with discussions on this board.

I will also ask that no-one returns with apologies and so forth - we don't want to clog this topic up further. We will accept that you are apologetic. My post is the last of it from everybody.

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I just looked at it. The program is OK. But Rick has got a point. The name is too close. And apart from the legal problems; I don’t think it is god for your program to risk being seen as a Paint.NET clone / rip-off / whatever. You will just end up always being regarded as second rate.

My DA: http://leif-j.deviantart.com/

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I recommend calling your software FotoShoppe.

very funny :lol:

Before posting this comment, I was going to make a topic on this, guess I was a little late to it... I still think Paint.NET rocks compared to this...their interface didn't look that good.

deviantART | Paint.NET Gallery | bennettfrazier.com <-- (My new Website!)

 

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http://www.codeplex.com/WebPaint#CommentsAnchor

I will leave this here.

What Paint on a Palm.

Is it actually RWPaint.com or is it Paint .com....adding two letters to the beginning does that change anything?

I would change the name to lessen the confusion, I have to agree with Rick.

I came here to download Paint.net, got it!

Rick the Painter

Rick the Coder

Rick the Educator

Rick the Lawyer

I prefer just "Rick the Genius" at creating a very nice program.

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Judging from the comments of people on various discussion boards, where Paint.COM was mentioned, there was absolutely no confusion.
There absolutely is confusion in the legal sense; this doesn't necessarily mean that people will be scratching their heads in a visible display of it. People are associating your mark with mine. Your Pepsi vs. Coke analogy is irrelevant because those are two similar products with completely unambiguous marks (names).

Think from the perspective of a "normal" non-technical user/customer who is out web-searching for image editing software, not a forum participant who has a higher-than-average technical understanding of the marketplace. This non-technical persona is the vast majority of my user base (customer base?).

Let's put the two marks next to each other:

Paint.NET

Paint.COM

To the typical user (not the technical forum goers you've already mentioned), these simply look like two top-level domains. Most companies register as many top-level domains with their mark as possible: microsoft.com, microsoft.org, microsoft.net, etc. Thus any term followed by something like .NET or .COM is instantly associated with the same term followed by the other common top-level domains. Thus, Paint.NET and Paint.COM are confusingly similar.

This has nothing to do with .NET or COM technology. To the normal non-technical user/customer, those technologies don't exist, and aren't a relevant part of the trademark discussion. In your blog post introducing Paint.COM, you assert this connection yourself:

Why Paint.COM? A combination of a word with a .xxx tl-domains seems to be trendy in this decade.
You also had some text in there about Paint.NET, but it seems you've since edited that out of the blog post, but I found it via Google Cache:
Why Paint.COM? Hm' date=' Paint.NET is doing pretty well and everybody knows that .com is better than .net :-) …[/quote']

Your intent is pretty clearly derived from that.

That said, I will actively look for ways to eliminate any chance of customer confusion, not only because of possible legal reasons, but it is in my own interest to emphasize the differences.
Then you must change the name. I'm being completely serious here.
So, let me have similar advantage.
You can have whatever advantage you want as long as you don't infringe upon my trademark. Paint.COM is a clear infringement.
Threatening with legal actions belongs to another areas of the industry.
I never threatened legal action. Although, this part is important: as the owner of a trademark, I'm required to defend it, or else I risk losing it. What that means is that if you don't change your name soon, I am required to go to my attorney about it. As I've repeatedly said before, this is not some petty or emotional debate here. You are simply legally required to change the name of your software, or else I'm required to go talk to my attorney about it. By asking you here on the forum to change the name, I'm actually doing the opposite of threatening legal action: I'm actively trying to avoid it in the first place!

The Paint.NET Blog: https://blog.getpaint.net/

Donations are always appreciated! https://www.getpaint.net/donate.html

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I don’t think it is good for your program to risk being seen as a Paint.NET clone / rip-off / whatever. You will just end up always being regarded as second rate.

Could be. On the other hand, this naming could also benefit both Paint.com and Paint.net in the future as it will strengthen the perception that Paint.XXX is good and push the other apps like GIMP behind. Kind of what happened with Coca Cola and Pepsi Cola.

Is it actually RWPaint.com or is it Paint .com....adding two letters to the beginning does that change anything?

Yes, the full name is longer.

There absolutely is confusion in the legal sense; this doesn't necessarily mean that people will be scratching their heads in a visible display of it. People are associating your mark with mine. Your Pepsi vs. Coke analogy is irrelevant because those are two similar products with completely unambiguous marks (names).

Think from the perspective of a "normal" non-technical user/customer who is out web-searching for image editing software, not a forum participant who has a higher-than-average technical understanding of the marketplace. This non-technical persona is the vast majority of my user base (customer base?).

Let's put the two marks next to each other:

Paint.NET

Paint.COM

To the typical user (not the technical forum goers you've already mentioned), these simply look like two top-level domains. Most companies register as many top-level domains with their mark as possible: microsoft.com, microsoft.org, microsoft.net, etc. Thus any term followed by something like .NET or .COM is instantly associated with the same term followed by the other common top-level domains. Thus, Paint.NET and Paint.COM are confusingly similar.

I have to disagree. You may not know it, but people remember "Paint.net" as a whole. They are perceptive to subtle changes and this one induces contrast, not confusion. The Coca Cola and Pepsi Cola analogy is actually pretty good. It has the same level of similarity and difference as Paint.net and Paint.COM have. Photoshop and Paint Shop is another good example mentioned by other posters.

Confusion in legal sense is based on surveys, from what I have learned. The discussion boards are a good indicator of survey results. While it is true that usually more technically savvy people post on boards, it is also true that technically savvy people are using painting software. The survey must take this into account as this is the "customer base".

In your blog post introducing Paint.COM, you assert this connection yourself:
Why Paint.COM? A combination of a word with a .xxx tl-domains seems to be trendy in this decade.
You also had some text in there about Paint.NET, but it seems you've since edited that out of the blog post, but I found it via Google Cache:
Why Paint.COM? Hm' date=' Paint.NET is doing pretty well and everybody knows that .com is better than .net :-) …[/quote']

Your intent is pretty clearly derived from that.

Yes, I have changed it because of your initial posts. But, from what I have learned since then, I should have just left it be. It is about emphasizing differences, not creating confusion. Maybe, I'll just change it back.

Then you must change the name. I'm being completely serious here.

I never threatened legal action. Although, this part is important: as the owner of a trademark, I'm required to defend it, or else I risk losing it. What that means is that if you don't change your name soon, I am required to go to my attorney about it. As I've repeatedly said before, this is not some petty or emotional debate here. You are simply legally required to change the name of your software, or else I'm required to go talk to my attorney about it. By asking you here on the forum to change the name, I'm actually doing the opposite of threatening legal action: I'm actively trying to avoid it in the first place!

Well, I think it is ridiculous. Two freeware tools. Users can easily have both and it cost them nothing. And such a conflict.

You are required to take action if you think the two names are too close. You can also accept they are different enough, which is my true belief, and focus on things that matter to Paint.net users, like features. You can even copy some concepts from me, I am used to people doing it.

(Actually, out of curiosity, I have to ask, if you or have done that in the past? When I saw the first versions of Paint.net, it used a surprisingly large amount of concepts similar to what I had in my released graphics tools. Using terms like "primary" and "secondary" color instead of "foreground" and "background", using right mouse button to draw with swapped colors and the toolbar choices for blending and antialiasing. Was that a coincidence?)

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Well, I think it is ridiculous. Two freeware tools. Users can easily have both and it cost them nothing. And such a conflict.

It's not ridiculous. It's the law. Haven't you been paying attention?

You are required to take action if you think the two names are too close. You can also accept they are different enough, which is my true belief, and focus on things that matter to Paint.net users, like features. You can even copy some concepts from me, I am used to people doing it.

No, he's required to take action if the two names are too close - regardless of whether or not he thinks they are. It's not a matter of opinion, it's a matter of fact.

(Actually, out of curiosity, I have to ask, if you or have done that in the past? When I saw the first versions of Paint.net, it used a surprisingly large amount of concepts similar to what I had in my released graphics tools. Using terms like "primary" and "secondary" color instead of "foreground" and "background", using right mouse button to draw with swapped colors and the toolbar choices for blending and antialiasing. Was that a coincidence?)

You're definitely not going to get far on this forum suggesting that Rick stole Paint.NET concepts from YOU. All of those terms and concepts comes from intended similarities to the MS Paint interface.

How about you just take this as what it is - a plea for a peaceful reconciliation - rather than what it's NOT - an attack?

It's the law. It is just as if you had named your operating system "Windoze." Do you really think you'd survive the legal backlash?

 

The Doctor: There was a goblin, or a trickster, or a warrior... A nameless, terrible thing, soaked in the blood of a billion galaxies. The most feared being in all the cosmos. And nothing could stop it, or hold it, or reason with it. One day it would just drop out of the sky and tear down your world.
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It's the law. It is just as if you had named your operating system "Windoze." Do you really think you'd survive the legal backlash?

Some people once made a Linux distribution they called "Lindows." Microsoft didn’t like the name at all. There were some legal disputes. But in the end the OS was renamed "Linspire."

I don’t remember the entire story, but I bet a web search will bring up loots of information.

My DA: http://leif-j.deviantart.com/

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Some people seek justice so persistent, that they will do great injustice themselves.

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Some people once made a Linux distribution they called "Lindows." Microsoft didn’t like the name at all. There were some legal disputes. But in the end the OS was renamed "Linspire."

I'm suprised the same hasn't happend to Vixta.

Indeed, because until 7 is out, MS will need to promote Vista in any way posssible.

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I have to disagree. You may not know it, but people remember "Paint.net" as a whole. They are perceptive to subtle changes and this one induces contrast, not confusion. The Coca Cola and Pepsi Cola analogy is actually pretty good. It has the same level of similarity and difference as Paint.net and Paint.COM have. Photoshop and Paint Shop is another good example mentioned by other posters.

Well, I don't why your saying Coca Cola and Pepsi Cola, seeing as that I've never seen Pepsi being called that :roll:

Confusion in legal sense is based on surveys, from what I have learned. The discussion boards are a good indicator of survey results. While it is true that usually more technically savvy people post on boards, it is also true that technically savvy people are using painting software. The survey must take this into account as this is the "customer base".

No. No. NO.

Discussion boards on the Internet are probably the worst way to take a survey, especially over copyright matters.

Well, I think it is ridiculous. Two freeware tools. Users can easily have both and it cost them nothing. And such a conflict.

Rick dosen't want a conflict though, he just wants this to be resolved.

You are required to take action if you think the two names are too close. You can also accept they are different enough, which is my true belief, and focus on things that matter to Paint.net users, like features. You can even copy some concepts from me, I am used to people doing it.

Partly. If it's found to be that he isn't taking action despite being aware of it by, say a judge, then his copyright will be revoked. Besides, you can't patent concepts, it's generally for either brand names, or inventions.

(Actually, out of curiosity, I have to ask, if you or have done that in the past? When I saw the first versions of Paint.net, it used a surprisingly large amount of concepts similar to what I had in my released graphics tools. Using terms like "primary" and "secondary" color instead of "foreground" and "background", using right mouse button to draw with swapped colors and the toolbar choices for blending and antialiasing. Was that a coincidence?)

And now your just being completely immature. Which is what I generally call 12 year olds who type in caps, not a software developer. :?

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