TIBCO sends threats over use "Rendezvous"
On Wed Oct 1, 2003 8:16:31 AM AEST, TIBCO's lawyers, Fish & Richardson sent me the following letter regarding my use of the word "Rendezvous" in relation to my iChat compatible plugin for Proteus. I have changed email addresses to protect against spam bots, but otherwise this is exactly as received from Fish & Richardson.
From: Anthony Hyde <hyde[at]fr.com>
Date: Wed Oct 1, 2003 8:16:31 AM Australia/Sydney
To: "'proton[at]wiretapped.net'" <proton[at]wiretapped.net>, "'webmaster[at]wiretapped.net'" <webmaster[at]wiretapped.net>
Cc: Lisa Martens <martens[at]fr.com>, Anthony Hyde <hyde[at]fr.com>
Subject: Infringement of TIBCO Software Inc.'s RENDEZVOUS Trademark
Attachments: There is 1 attachment
<<itv54500.PDF>>
- - - - - - - - - - - - - - - - - - -
Anthony D. Hyde
Trademark Paralegal
~ Fish & Richardson P.C.
4350 La Jolla Village Drive, Suite 500
San Diego, CA 92122
E. hyde[at]fr.com
T. (858) 678-4350
F. (858) 678-5099
In return, I responded with the following email:
From: Andrew Wellington <proton[at]wiretapped.net>
To: Anthony Hyde <hyde[at]fr.com>
Subject: Re: Infringement of TIBCO Software Inc.'s RENDEZVOUS Trademark
Date: Wed Oct 1, 2003 11:10:07 PM Australia/Sydney
Dear Mr Hyde,
First, some facts. I am a software developer. I am not a lawyer. I am
located in Australia. The computer on which my software is located is
in Australia. I develop networking software for the Apple Macintosh
range of personal computers. This software is targeted at the Mac OS X
operating system, which contains a facility called Rendezvous, for which
Apple Computer, Inc. holds Australian Trademark #931566 ("RENDEZVOUS",
Class: 9 Computer software for networking of computers, computer peripherals, and
digital devices; computer hardware; computer peripherals). You currently
hold Australian Trademark #925564 ("TIBCO RENDEZVOUS"; Class: 9 Computer
software for use in enterprise application integration, namely a messaging
tool to be used by application developers and network systems managers to
build scalable distributed applications, to enable diverse applications to
share data across local area networks and wide area networks and
facilitate communications between various enterprise applications).
I am using the term "Rendezvous" under the following licensing
instructions from Apple Computer, Inc.:
"Developers may use Apple, Macintosh, iMac, or any other Apple word mark
(but not the Apple Logo or other Apple-owned graphic symbol/logo) in a
referential phrase on packaging, promotional/advertising materials to
describe that the third party product is compatible with the referenced
Apple product or technology, provided they comply with the following
requirements."
Please note the difference in the words being trademarked in Australian
Trademarks #931566 and #925564.
Also note that nowhere on the site apparently referred to in your
correspondence do the words "TIBCO RENDEZVOUS" appear. Although
you claimed to have attached the allegedly infringing pages to your letter,
I did not receive those pages, and hence I am guessing which pages to
which you refer.
Please therefore cease and desist searching Google for instances of
"Rendezvous"; leave me out of your unholy crusade of litigious
invidiousness.
Yours sincerely,
Andrew Wellington
On Wednesday, October 1, 2003, at 08:16 AM, Anthony Hyde wrote:
<<itv54500.PDF>>
- - - - - - - - - - - - - - - - - - -
Anthony D. Hyde
Trademark Paralegal
~ Fish & Richardson P.C.
4350 La Jolla Village Drive, Suite 500
San Diego, CA 92122
E. hyde[at]fr.com
T. (858) 678-4350
F. (858) 678-5099
<itv54500.PDF>
F&R finally contacted me again today, over a month since their initial contact. Their message is posted below:
From: Catherine Miller <cmiller[at]fr.com>
Subject: TIBCO Software Inc.'s RENDEZVOUS trademark
Date: 7 November 2003 11:02:05 AM Australia/Sydney
To: 'Proton@wiretapped.net' <Proton[at]wiretapped.net>
Cc: Lisa Martens <martens@fr.com>
<<k5x58400.PDF>>
In response, I have renamed the plugin to Proton's Proteus Plugin. Here is the letter I wrote to F&R. As indicated, if they do not contact me within 10 days, I will assume the matter is closed.
From: Andrew Wellington <proton[at]wiretapped.net>
To: Catherine Miller <cmiller[at]fr.com>
Cc: Lisa Martens <martens[at]fr.com>
Subject: Re: TIBCO Software Inc.'s RENDEZVOUS trademark
Date: Thu 13 October, 2003 10:30:09 PM Australia/Sydney
Dear Catherine, Lisa, Eileen, et. al,
Your letter began with an incorrect assumption:
"... we assume that you have downloaded Apple's RENDEZVOUS software and are using it pursuant to the Apple Public Source License available at www.opensource.apple.com/apfl/"
Disregarding your apparent mistyping of the URL, which I believe should read <http://www.opensource.apple.com/apsl/>, I can indicate to you that the software uses the Rendezvous software built into Mac OS X, and the standard interfaces provided by the Apple Developer Tools. It does not contain any of the APSL licensed software, but instead communicates with the built-in Rendezvous software in Mac OS X 10.2 or later in order to carry out it's Rendezvous-related functionality. The APSL does not apply in any way to my software.
Additionally, I must point out that once again you did not attach a copy of the website in question, even though you stated: "Your email indicated that you did not receive copies of the web pages at issue, so we attach them here for your convenience". You may wish to verify that you have correctly attached files to your emails in future to avoid any difficulty for the recipient.
You additionally suggest that "[I] have purposefully availed [myself] of the benefits of doing business in the U.S". I find it difficult to believe that I have found any benefits at all:
- The software is being distributed free of charge.
- I am distributing the source code, also free of charge.
Business, at least to my non-legal mind, suggests that I may obtain some form of material benefit from the activity. In this sense, I am not doing business in the U.S., or any other country, as I obtain no material benefits from the use of the software -- it distributed entirely free of charge.
Regardless of the difficulties I have found in reconciling your arguments with reality, I have modified the name of the software to be more clearly within the guidelines for trademark usage that Apple define at <http://www.apple.com/legal/guidelinesfor3rdparties.html>, although Apple have expressed no concerns to me about the use of the trademark in the former manner.
Until such a time as you have any rights to the name "Rendezvous" in Australia, at this stage I will request that you cease from sending claims related to the use of the term. If I have not received a reply to this email within ten (10) days, I will assume that the matter is closed.
Yours sincerely,
Andrew Wellington
On 07/11/2003, at 11:02 AM, Catherine Miller wrote:
<<k5x58400.PDF>>
<k5x58400.PDF>