Why we must be careful with the words "Penguin Software"

A few years after the Internet burst onto the scene we discovered that people were posting copies the old Penguin Software disks that could be run using Apple II emulators on newer Macs and PCs. We didn't mind. We checked with most of the authors of the software we had published and they didn't mind either. So we created this site as a reliable place to download original copies of those programs instead of the cracked and sometimes non-working copies found elsewhere.

Then one day we got a "cease and desist" letter from Penguin Books' attorneys. It seems that they weren't happy enough that they forced us to change our name while we were an ongoing business; instead they want to entirely erase the years that Penguin Software existed.

Back in the 1980's they threatened to take us to court after we'd built up a customer base as "Penguin Software" for five years. Apparently they thought they might want to get into software publishing, and we were in their way. Unfortunately, our lawyers advised us that Penguin-Viking was one of the largest book publishers in the world and it didn't matter if we could beat them in court or not. If we attempted to keep our name they could simply bleed us dry with legal fees.

It didn't make sense to throw away money on lawyers back then, and it makes even less sense when we're not even running a business and just trying to make the old stuff available free for nostalgia's sake. So what you'll find on this site is much more limited than it might have been. And while you'll see the words "Penguin Software" here and there, the site has been pretty well scrubbed of the "offending" words.

Following is the last letter in a series that began with a threat of a lawsuit from Penguin Books in October 1998. The entire exchange was rather amusing...


Law Offices of
Olson & Hierl, Ltd.
20 North Wacker Drive
36th Floor
Chicago, Illinois 60606
(312) 580-1180

February 10, 1999

Re: Penguin Books Ltd. v. Penguin Software, Inc.
Opposition No. 67,173 Against PENGUIN SOFTWARE
Breach of 1986 Agreement

Dear Mr. Pelczarski:

We reviewed your previous letter and have considered it thoroughly.

We are not willing to accept the use of "Penguin Software" as a trademark, even if it is on old software programs. In answer to your question, you must remove "Penguin Software" from the old software programs if you want to continue distributing them without being an infringer.

Since you are not willing to stop using "Penguin Software", we are setting a deadline of March 1, 1999 for you to cease all infringements. If you do not confirm to us in writing by March 1, 1999 that you have stopped all infringements, we will proceed with filing a lawsuit in federal court.


Sincerely,

OLSON & HIERL, LTD.

By Arne M. Olson


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