Gem Names

Jewelry Discussion
1

Sharron, if I had a list of such names I wouldn’t be concerned. As
far as I know there isn’t one. I would think gemology organizations
like the GIA and trade groups like the AGTA, which certainly should
be aware of the problem, would be doing something about it. One
factor is that the discipline of gemology has never quite grown up
and left its “home” in the field of mineralogy.

As far as chrome diopside is concerned, several companies have tried
to play off the name “Russian,” and one calls it simply “Russian
diopside.” That still doesn’t tell you it’s a beautiful green gem (a
little on the soft side) but a great pendant or earring stone for
people who want a nearly perfect look-alike for top-end Tsavorite
garnet.

Please understand: there is a need for the scientific classification
of gems and I don’t suggest abandoning mineralogical names. But I
think some trade group should begin studying the problems resulting
from a lack of uniformity – and scientific truth – in trade names
and at least go on record with recommendations of the kind you
suggest. Unfortunately (IMHO) I think they’re heading in the
opposite direction. We’re into the era of gem “branding.” One
company I know of (and there are others doing the same thing) has
trademarked a number of names I won’t repeat in full here. One of
them is Seafoam Tourmaline ™. That means no one else can legally
use those words to describe their product unless it’s purchased from
that particular company, and the ™ symbol is legally required when
using that name. That alarms me. Trademarks don’t mean zip if
they’re not rigorously defended in court, of course, and that can get
awfully expensive. So we’ll just have to see how it all sorts out in
the fullness of time.

Rick Martin
MARTIN DESIGNS

2 
    We're into the era of gem "branding."  One company I know of
(and there are others doing the same thing) has trademarked a
number of names I won't repeat in full here.  One of them is
Seafoam Tourmaline (TM).  That means no one else can legally use
those words to describe their product unless it's purchased from
that particular company, and the (TM) symbol is legally required
when using that name.  That alarms me.

I’m not sure whether we should be alarmed, or just laugh ourselves
silly! Maybe both… :slight_smile: “Seafoam green” is a term which has been
used for decades to describe a particular shade of Tourmaline. That
description is, by definition, a part of the public domain. The fact
that someone managed to trademark such a name demonstrates profound
ignorance on the part of the bureaucrats at the USPTO.

A certain chocolate company (I’m not going to tell you which one)
recently isolated the exact gene sequence responsible for the flavor
of chocolate. They applied for, and received, a patent on that
genetic code. Now they intend to charge a licensing fee to every
Cacao farmer in the world, each time a new Cacao tree is planted. I
am not making this up! Imagine the logical extrapolation, assuming
that any court is foolish enough to uphold this patent. Other
companies are patenting Human genes. Do you want your child to have
brown hair or red hair? Schedule of fees to follow… :wink:

    Trademarks don't mean zip if they're not rigorously defended in
court, of course, and that can get awfully expensive.  So we'll
just have to see how it all sorts out in the fullness of time.

One hopes that all of these patent and trademark issues are sorted
out on the side of common sense. I’m guardedly optimistic. There’s
very little legal precedent for common sense - yet it often prevails.
:slight_smile:

Pete

3

All, In that we are discussing gem names (or misnames) I have one for
you all.

Having cut stones now for nearly 30 years I thought I knew all the
more popular cabbing material quite well and a lot of the not so
popular as well. One of my favorites has always been ‘crazy lace
agate’, though I think much of it should be termed ‘crazy lace
jasper’ cause it tain’t agate. Then I recently began seeing the name
’Rosetta Stone’ in ads as well in lists of material for sale.

Have I been in a fog all these years or is there a difference? I
realize there is a wide variety to this stone…many colors, many
patterns, some agate like, some jasper like. But whats the difference
between the old ‘crazy lace’ and the new ‘Rosetta Stone’?

Cheers from Don at The Charles Belle Studio in SOFL where simple
elegance IS fine jewelry! @coralnut1

4 
     Seafoam Tourmaline (TM).  That means no one else can legally
use those words to describe their product unless it's purchased
from that particular company, and the (TM) symbol is legally
required when using that name.  That alarms me. 

    I'm not sure whether we should be alarmed, or just laugh
ourselves silly!  Maybe both.... :-)  "Seafoam green" is a term
which has been used for decades to describe a particular shade of
Tourmaline.  That description is, by definition, a part of the
public domain. The fact that someone managed to trademark such a
name demonstrates profound ignorance on the part of the bureaucrats
at the USPTO.

To use ™ or just the TM whether as superscript or not does NOT
require registration with the USPTO. TM is merely a common law method
of notifying others of a claim to a trademark and trademarks are only
specific to the general class (or classes–I think there are 42
classes available now) of goods and services the owner USES them
with. Even a registered trademark–which does have to pass USPTO
standards and does give the owner serious teeth in court–loses value
if it is not actually IN USE and it is still class specific.

Many firms use the ™ simply knowing that will confuse the naive.
The fact of the matter is that, if “Seafoam green” has been in common
use in the jewelry class for years someone merely adding a ™ with
it when they use the term gives them absolutely no rights whatever
(assuming anyone they take to court can document the prior use). They
probably know that and won’t go to the expense of court but they may
send a stern (and they’ll be smart enough not to make it
“threatening”) letter which will probably back down all but the most
knowledgeable.

They would NOT be able to register their “Seafoam green” as their
trademark if the USPTO found it was in common use but if the USPTO
didn’t know that then they might succeed in getting the registration.
It takes 5 years after registration before a registered trademark
becomes virtually uncontestable. If registration gets the trademark
on the Primary Register on the first round it can be tough to fight
since the month of public objection time has already passed. But if
the registration is on the Secondary Register the firm would have to,
in 5 years, (lie and) affirm that “Seafoam green” had become
associated “in the public’s mind” with their firm and if no
protesting letters were on file in the USPTO their affirmation would
likely stick. (It’s all a bit more complicated than that but an
industry watch group to keep the USPTO informed on trademark
applications that may not have merit could/would perhaps benefit the
industry if one doesn’t already exist. Trademark registration
applications, unlike patent applications, are publicly available
records as soon as received–in fact they are available on the
internet within a couple of weeks of USPTO receipt.)

As a general rule firms that are smart enough to use the ™ are
smart enough not to spend money going for a USPTO registration when
they lack clear preemptive rights.

    A certain chocolate company (I'm not going to tell you which
one) recently isolated the exact gene sequence responsible for the
flavor of chocolate.  They applied for, and received, a patent on
that genetic code.  Now they intend to charge a licensing fee to
every Cacao farmer in the world, each time a new Cacao tree is
planted.  I

Urban myth. They can CLAIM their process or their method of use or
even a totally new use of the gene sequence but not the actual gene
sequence itself. Patents DO NOT cover whatever happens to be
described in the patent specification as most people falsely believe.
Patents only cover EXACTLY what is CLAIMED in the claims section of
the patent and those claims, to be valid, must have a “created by
man” component (some court decisions are moving this toward a lesser
“accomplished by man” component such that a “purified” chemical or
whatever can be claimed but few believe this bent will go to the
extreme of even giving “ownership” to any of the purified chemical
let alone any in it’s natural state to a patent holder). Extracting
licensing fees from Cacao farmers for the gene sequence’s natural
occurrence would be impossible.

If you actually know of a patent of this sequence then that is
public so cite the patent number (or even just the firm)
for us and we can all find the patent and take a look at the claims.

James E. White
Inventor, Marketer, and Author of “Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)” www.willitsell.com

5

Don & All, I can not see the difference between Rosetta Stone and
crazy lace ether. There are many varieties of crazy lace like
Cathedral Lace, Paisley Lace, Eye Agate, etc. I have heard this
carried to many extremes. One example of extremes is the naming and
trade marking of “Velvet Obsidian”. At a couple of gem shows the
people that trade marked the named were telling everyone that no one
else had the right to market the material without their permission.
A real serious argument erupted. The reason for the argument? The
person with the trade mark was charging $35.00 US per pound for the
material. Another dealer selling the stone as a variety of obsidian
was charging $7.50 US per pound. Real differences erupted when the
person with the trade mark claimed the material they were selling
came from a unique location in the USA and the other dealer claimed
they were lying and all the material came out of Mexico. I did a
little checking with a couple of my suppliers in Mexico and the
people with the trade mark bought their material from one of my
Mexican suppliers. In the opinion of my suppliers the people with
the trade mark were lying. My suppliers also said that the find of
obsidian was not new. They had been mining it for years and put it
to one side because they did not think they could sell it. My
supplier asked me if I could use a truck load of it. He could easily
deliver.

Another case is “Royal Lavulite”. Remember when it was said to be a
very rare gemstone from Africa and only one suitcase full existed in
the whole world. That suitcase must have been awfully big as
sugilite is now available by the 55 gallon drum if you can afford
it.

Trade marks, trade names, “branding” all exist to mislead and create
value where none exists. I do not play these games. When someone
talks to me about names I try to explain to them the basics of the
mineralogy and how the stone they are contemplating will hold up in
normal use. I do not sell investment precious gemstones,
semi precious rare stones, collector stones, etc. In my
business I have got it down to as basic as I can. My slogan “We Cut
Rocks (WCR)”. Every thing from agates and jaspers to the beryl and
chrysoberyls (even an occasional diamond). All are rocks to me.

Gerry Galarneau

6

Don - The “new” Rosetta stone had a previous “incarnation” as
Quetzalcoatl Agate in the 50s and early 60s. The principal
difference between it and crazy lace is one of patterning and color.
As all of these are technically trade names, with no legitimacy,
they mutate over time. Hope this explains a little.

Jim Small
Small Wonders

End of forwarded message

7

i am not familiar with rosetta stone, but sinkankas lists jasper
under quartz, both agate and jasper are cryptocrystaline, jasper as
opaque to ditinguish it from agate. i have crazy lace that has parts
that are semitranslucent, so which would it be? at the price it
sells for, who gives a shist how accurately it is named? i don’t
think jvc has a disclosure policy on this.

8 
I'm not sure whether we should be alarmed, or just laugh ourselves
silly!  Maybe both.... :-)  "Seafoam green" is a term which has
been used for decades to describe a particular shade of Tourmaline.
 That description is, by definition, a part of the public domain.
The fact that someone managed to trademark such a name demonstrates
profound ignorance on the part of the bureaucrats at the USPTO.

That’s exactly why I mentioned that particular name, Peter, and why
I’m a little alarmed. Similar common gem names are being coopted by
trademarks. I’m a whole lot more alarmed by the genetic issues you
raise; I recall reading very interesting and horrifying science
fiction speculations (written by patent lawyers) about that very
thing years ago. Now it’s no longer science fiction and it takes a
very brave and optimistic person to expect the courts to always act
with common sense, at least in the short run.

I recall I once used the term “pancake makeup” in a news story
instead of writing Pankcake(R). It took about 36 hours for me to
receive a registered letter from the cosmetic company’s lawyers
demanding a correction and threatening legal action if I ever
repeated the sin. My newspaper’s legal department received an
identical letter which resulted in a flurry of stern memos to the
editorial staff. The gem companies will have to be willing to spend
the bucks to monitor usage that way, and fight violations in the
courts. That’s why I think their trademarks will probably fail in
the long run. Most gem companies simply don’t have the financial
muscle to do that. But many small gem-sellers will be intimidated
simply on the basis of the horrifying expenses involved in defending
against a potential lawsuit.

Rick Martin

9 
    I'm not sure whether we should be alarmed, or just laugh
ourselves silly!  Maybe both.... :-)  "Seafoam green" is a term
which has been used for decades to describe a particular shade of
Tourmaline.  That description is, by definition, a part of the
public domain. The fact that someone managed to trademark such a
name demonstrates profound ignorance on the part of the bureaucrats
at the USPTO.

FAIR WARNING: This is probably more about trademarks than you want
to know but it isn’t even a gnat on the tip of the iceberg.

Just for sport I looked up Seafoam on the www.uspto.gov trademark
search page and found the following trademark registration in
process. Publication for opposition on SEAFOAM TOURMALINE occurred
just the middle of last month so if anyone feels they want to oppose
it they still can.

Typed Drawing
Word Mark SEAFOAM TOURMALINE
Goods and Services IC 014. US 002 027 028 050. G & S: Precious gemstones,
namely, light mint-green tourmaline. FIRST USE: 19910500. FIRST USE IN
COMMERCE: 19910500
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75637462
Filing Date February 10, 1999
Published for Opposition March 19, 2002
Owner (APPLICANT) COLUMBIA GEM HOUSE, INC./ TRIGEM DESIGNS CORPORATION
WASHINGTON P.O. BOX 3889 VANCOUVER WASHINGTON 98662
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE “TOURMALINE”
APART
FROM THE MARK AS SHOWN
Type of Mark TRADEMARK
Register PRINCIPAL-2(F)
Live/Dead Indicator LIVE

Here’s what they had to do to get that 2(f) designation in which
they claim their exclusive use of SEAFOAM TOURMALINE for at least 5
years:

=A72.41 Proof of distinctiveness under =A72(f).

(a) When registration is sought of a mark which would be
unregistrable by reason of =A72(e) of the Act but which is said by
applicant to have become distinctive in commerce of the goods or
services set forth in the application, applicant may, in support of
registrability, submit with the application, or in response to a
request for evidence or to a refusal to register, affidavits, or
declarations in accordance with =A72.20, depositions, or other
appropriate evidence showing duration, extent and nature of use in
commerce and advertising expenditures in connection therewith
(identifying types of media and attaching typical advertisements),
and affidavits, or declarations in accordance with =A72.20, letters or
statements from the trade or public, or both, or other appropriate
evidence tending to show that the mark distinguishes such goods.

(b) In appropriate cases, ownership of one or more prior
registrations on the Principal Register or under the Act of 1905 of
the same mark may be accepted as prima facie evidence of
distinctiveness. Also, if the mark is said to have become distinctive
of applicant=92s goods by reason of substantially exclusive and
continuous use in commerce thereof by applicant for the five years
before the date on which the claim of distinctiveness is made, a
showing by way of statements which are verified or which include
declarations in accordance with =A72.20, in the application may, in
appropriate cases, be accepted as prima facie evidence of
distinctiveness. In each of these situations, however, further
evidence may be required.

The 2(e) referred to above is: (e) Consists of a mark which (1) when
used on or in connection with the goods of the applicant is merely
descriptive …

To oppose the registration you must do the following before April 19
and apparently file a $300 fee with it.

(a) The opposition must set forth a short and plain statement showing
why the opposer believes it would be damaged by the registration of
the opposed mark and state the grounds for opposition. A duplicate
copy of the opposition, including exhibits, shall be filed with the
opposition. (b) Oppositions to different applications owned by the
same party may be joined in a consolidated opposition when
appropriate, but the required fee must be included for each party
joined as opposer for each class in which registration is opposed in
each application against which the opposition is filed.

I’m getting a couple of trademark questions answered (I hope) on a
different list and will pass them along when I get them.

James E. White