Discussion in 'Article Discussion' started by bit-tech, 30 Jan 2019.
There's the old mnemonic from the TRUE days: Thermaltake take their designs from others, Thermalright is the right one to buy. Though I can't think of any prominent Thermalright designs for the last few years, the TRUE probably still works just fine as long as you have room.
Though in this case, Mayhems piques my annoyance at trademarking of single adjectives.
Thermaltake: "Screw you, we're bigger than you."
I am sure Thermaltake is legally in the wrong here, but I have to wonder at being able to trademark something that is just a generic term for a shade of colour. If I make something to do with cooling that happens to have pastel colours can I not use the term "pastel" which is the correct term to describe it? Is only one company allowed to have "pastel" shades of paint?
Here's the fun thing about trademarks: you can trademark anything. Royal Mail, for instance, has trademarked the colour red. No, really: 'Royal Mail, the Cruciform and the colour red are registered trade marks of Royal Mail Group Ltd.'
The way trademark law works in the UK is that you register your trademark for a particular field. Royal Mail, for instance, has registered the colour red in reference to postal services. Doesn't mean that Red Nose Day is passing off; it just means that if you set up a rival postal service you can't spray-paint your vans or pillar boxes red.
So, taking Mayhems' mark: it's "Pastel" in reference to cooling fluids. Selling pastel paints? Not a problem, even if you call 'em Bob's Pastels. Selling pastel shower curtains? Yeah, you're good to go. Running some kind of colour-as-a-service Web 3.0 thing called Pastels.io? Good for you.
Launching a liquid coolant which is called P (for Pastel) 1000 Pastel Coolant? Yeah, Mayhems' trademark applies - and the company has no choice but to take you to task over it, 'cos if it doesn't the trademark is considered undefended and can be invalidated as a result.
Now, you can argue, as Thermaltake has, that "pastel" is a technical term referring to the opacity of the colour. It's an argument that'd be up to the lawyers to decide on, but as a humble wordwrangler it doesn't sit right with me because it's the wrong word. Pastel, as an adjective, means 'of a soft and delicate colour.'
look soft and delicate to anyone? Yeah, didn't think so.
What Mayhems - and Thermaltake - are selling are opaque fluids, not pastel fluids. Which means that, in my opinion only, Mayhems' got Thermaltake bang to rights: the company's trying to associate its new product with established products in the market, and to do so it's leaning on a registered trademark which should never have been associated with the product in the first place 'cos it's the wrong word.
That's my two penn'orth, anyhow.
Similarly UPS has trademarked brown, not a specific shade of brown... brown.
With what I know of the parties involved, this could turn into a John Woo flick.
I hope Mick gives gives them a good smack in the nethers. It's sickening to see thermalfake bullying smaller companies.
To go Full Pedant for a moment: While it is necessary to not ignore 'infringement' of your trademark in order to qualify as being in active use of it, you do not have no choice but to 'take to task' an infringer. This is often brought up in relation to fanworks referring to licensed franchises, and specific avenue to avoid a non-use attack in those cases is to grant a specific license to the 'infringer' (in the case of fan-works, a vary basic "you can use our trademarked name/image in relation to your project, only is this specific capacity as a fangame/book/etc, and only as long as it is not used to make a profit" would satisfy all parties and avoid jumping from zero to cease-and-desist).
For this case specifically, one avenue would be for Mayhems to request Thermal take stick a little asterisk next to the word 'Pastel' and a note at the bottom of their ad copy with "licensed from Mayhems", for example. It may even be that this was the avenue Mayhems initially pursued but Thermaltake rejected.
tl;dr Active use defence of a trademark does not require jumping straight to the nuclear option, much as many trademark holders (or at least, the highly paid lawyers employed thereof) would like you to think otherwise.
What we have offered them is this -
1) Remove our registered trademark.
2) They can use the registered trademark but must donate £100 a year to the Autistic Spectrum Society in the UK every year they use the registered trademark with our express permission.
3) Go down the legal route. (this is were it gets nasty and no one wins) and we do not wish this to happen!, but if forced into a comer are willing to do.
This is not a war, we do not want there money, we would just like for this to be resolved respectfully. We have no issue with Thermaltake, there staff or any thing else and do not wish for any one to use this as a shouting post for other reasons.
We await there replay.
Doesn't come from a much better of a source than that. Thanks for clearing things up. Thank you for attempting to help a great cause.
1. £100 a year to a charity is probably too steep for a group deliberately trying to take over a product you created.
2. Turn off IPhone auto correct. It's killing your vocabulary.
I think the issue with that interpretation of trademarks here is that decorative cooling fluids (like paints, dyes, fabrics and unlike distinctive use of colour in designs) are characterised in their function by their colours. And pastel is a generic term for a group of colours. If a company sold red, yellow and blue coloured fluid and marketed them as "Primary" would it be reasonable to trademark Primary in that context?
I'm not even saying you shouldn't be able to trademark a colour for it's use in and of itself, just that if you do you should use not try to use an existing term for a group of colours
"A soft and delicate shade of a colour." seems pretty broad and could apply to a given dilution of even that pink.
Doesn't matter: red is a generic colour, but Royal Mail still trademarked it. There's absolutely nothing to stop companies trademarking generic words (or images, or colours, or... I dunno, smells, I guess) in a specific enough context.
If Mayhems had applied for a trademark on the word "Pastels" as it applies to colours in general, they'd have been told to naff off. The fact it is restricted to coolant fluids is what made it trademarkable.
The point I'm making is that: "...that decorative cooling fluids (like paints, dyes, fabrics and unlike distinctive use of colour in designs *ie. to represent a business or product*) are characterised in their function by their colours"
There's that, and there's the fact that Royal Mail has an active trademark on the word 'contact'. Also postman, posty, and postbox. Mailman, too, though that one's been removed. Plenty of dead ones along the way, too, including 'postlady.'
I am growing to hate trademarks as I get older. It was a good idea, but then people started registering every word their company uses as a trademark and ruined it.
Sic 'em Mick!, I know you won't go silent.
Well today they posted all about there "Pastel Coolant". seems like they are just infringing and don't care. Some thing is happening at our end and will take time but this hasn't gone unnoticed..
Take the piss out of the absurdity of it all, or support a valid copyright infrigment? I'm seriously torn!
Separate names with a comma.