this post was submitted on 26 Sep 2024
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It's been debated to death in the thread linked below. I tend to fall on the side of the nominative fair use, but that's for lawyer and judge to sort out because I'm neither.
A cursory check of law review tells me the US doesn't have a uniform nominative fair use test applicable to the resell of goods and that the supreme court has refused to endorse a test creating a lot of inconsistency between circuit court. So everyone in that thread probably right in a different circuit court.
There is no debate.
Nominative fair use has no relevance to a separate, competing product. Nominative fair use gives you permission to use the term in the exact manner they do and no more. Their notice that your version is not "WordPress", in and of itself, completely nullifies the argument.
There's always a debate. That why there are court, judges and lawyers. They can sort that out.
There is a debate, and it's in that thread. I have replied to you there, and you have not yet.
No, there isn't. You're just repeating incorrect information.
The second you change how a project works in any way in any context, it is no longer the same product and you are not entitled to use their trademark to reference it.
Functionally, any scenario where there's any room at all for brand confusion or implied endorsement is trademark infringement. But even if you buy the outrageous lie that what they were doing was somehow ambiguous, as soon as they were contacted and told that their use was unacceptable, that ambiguity goes away.
However, it's quite plausible that they did not modify the project at all. Instead, they are providing their own servers and dictate how their servers work while the WordPress source code (& binaries) themselves are isolated from any changes. That's a new service.
There's a past case where "an independent auto repair shop that specialized in repairing Volkswagen cars and mentioned that fact in their advertising was not liable for trademark infringement so long as they did not claim or imply that they had any business relationship with the Volkswagen company", which I think holds just as well here.
Think that over. If that were true, you'd have endless corporate bullying. Every past "nominative use" case has originated from a trademark holder suing a plaintiff.
(IANAL)
No, it's not. They're literally advertising the performance of their altered code.
You keep parroting nominative use and ignoring that your definition of nominative use is "as the trademark owner uses it", and that there's no legitimate reading of any of that material that doesn't very blatantly imply endorsement, which is always trademark infringement.
They're advertising the speed of their cache, which can easily be just a plugin, and the amount of servers, which well of course is external software that requires no changes to WordPress.
As for the endorsement part, I'll just copy what I said above:
See, that's why I don't like talking about the same thing in multiple threads.
A disclaimer absolutely doesn't make it not trademark infringement. It doesn't even make a dent.
Sure, a small disclaimer wouldn't, and a large, prominent, tobacco-style disclaimer wouldn't get rid of everything but will make a dent. Anything else? Where is the endorsement? Where is the modification?