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Re: On the uselessness of Debian trademarks.
Ean Schuessler wrote: I've been having some discussions with Chris Rourk (SPI counsel) lately about Debian trademarks and his points are worth discussing. His opinion is that Debian would be best served by abandoning its marks and purposefully making the term Debian generic. There are some clear benefits. Perhaps. It certainly isn't generic now, though. Kleenex is used as a generic (to mean tissue). Xerox is used as a generic. Debian is used in several different ways, but they aren't generic: * to refer to the Debian Project. This is a very specific use; if someone started a different Debian Project in software, you'd *definitely* want to make a trademark complaint. Even if it wasn't in software, you might want to. Perhaps just Debian Project should be registered as a trademark? * to refer to the software released by it (again, a very specific use). If someone other than the Debian Project declared that they were releasing Debian 4.0, I think the Project would be very unhappy. If they declared that they were doing to release a Debian-based system, on the other hand, the Project probably wouldn't mind at all; but it might be appropriate to require them to ask for permission, even then. Programmers (like myself) try to map our perceptions of systems we know and love onto others that have little to do with computation. Law is probably one of the worst. We like to think of trademark law as something like firewall rules where we can say this is ok, this isn't, except in this situation and so forth. If you look at real trademarks this is not the case. For instance, take Coke or Star Wars or anything of that caliber. Most trademarks are *not* of that caliber. Perhaps Debian would be, some day, but it isn't now. And -- for example -- Star Wars can still be used as a reference to Reagan's SDI system, and Lucasfilm doesn't complain. Coke can be used as a reference to cocaine, and the Coca-Cola Company doesn't complain. You can also use Coke to refer to Coca-Cola in the papers as much as you like and nobody complains. Perhaps text trademarks are treated differently from visual trademarks? (Admittedly, there have been some insane recent trademark cases.) You will see, quite consistently, that the owners of these marks show absolutely no leniency in enforcement. Well, *those* marks. Now, my local restaurant has a trademark in its name, but only tries to shut down people using its name to refer to some *other* restaurant. That would be normal trademark usage. You can be assured that making Coke t-shirts without permission will meet serious legal resistance. This enforcement is the only way that a trademark can truly be held. The owner must be the universal and final arbitrator of use and must show that use is carefully monitored and enforced. With the Debian trademark we want use that is almost entirely unenforced except for a few particular (and somewhat poorly defined) situations. Trademark*s*, I think you mean: The word Debian The swirl The swirl-plus-bottle This policy will put us in a difficult position if we have to litigate. The defendant will put forth the argument that there is no clear definition of proper use The definition is refer to us. If you're referring to anyone else, it's not proper use. How can the defendant seriously claim that that's not clear? and claim that our mark is generic. Wow -- would that really fly? It's generic because you can use it to refer to Debian? Debian's goal here is actually the basic goal of trademark law, rather than the hyperextended things some companies try to use it for. Our only alternative is to religiously shut down everyone who is using the word Debian without our explicit permission. Sounds good. Give explicit permission to everyone to use it to refer to the Debian project or anything distributed by it, and shut down anyone who uses it to refer to something else. That isn't very Debian. Or is it? Unlike copyright law, trademark law *is*, at its heart, about fraud, false attribution, misrepresentation, etc., all things Debian cares strongly about preventing. Why not just cut to the chase? I'm not sure if Chris is right, but I see the logic in his reasoning. If anyone can put this email in front of any attorneys, I would be very curious to hear their thoughts. Particuarly *trademark* attorneys, since I don't think that lawyers without knowledge of the field will really do any better than us laymen. -- There are none so blind as those who will not see.
Re: On the uselessness of Debian trademarks.
Stephen Frost wrote: * Michael Poole ([EMAIL PROTECTED]) wrote: Stephen Frost writes: I don't get it. Doesn't this mean, also, that in the UK people *could* sell shirts with the Coke logo on them? In which case it would seem to me that the reasons above for having a trademark in the UK would be perfectly legit and very reasonable and enforceable, and their intended use? I doubt it -- selling shirts would be a commercial purpose outside identifying goods or services as those of the proprietor or a licensee. Alright, now I think we might be getting somewhere. So the issue here is that, because selling a t-shirt with a trademark on it is outside the scope of identifying goods [...] it must therefore be enforced in order to claim that we're enforcing the trademark and have the right to *keep* the trademark then. A-ha. Given that's the case- do we actually need a *contract* with people using the trademark outside of identifying goods [...]? Attempting to find a more technical solution- would it be possible to notify people we find who use the trademark in a way we approve of outside of identifying goods [...] that we're cool with them using it and to track such uses in a database maintained by SPI? Doesn't seem to me like that'd be too much effort on our part, or onus on their part. Of course, we could say that we'd prefer if they could notify us so that we could review their use and approve it and add them to our database ahead of time. Or indeed, could Debian give everyone a reasonable trademark license, allowing them to have commercial purposes outside identifying goods [...] as long as they never used the trademark to refer to anyone *but* Debian? -- There are none so blind as those who will not see.
Re: On the uselessness of Debian trademarks.
MJ Ray wrote: On 2004-05-07 14:55:36 +0100 Stephen Frost [EMAIL PROTECTED] wrote: * MJ Ray ([EMAIL PROTECTED]) wrote: If it's software, it seems illegal anyway. If it's not software, it's probably outside the scope of debian's registered trademark. Uh, it'd only be illegal if we have a trademark on Debian which made is illegal. If we don't then I don't think we'd have a leg to stand on there. Maybe illegal is the wrong word. I believe we could still prosecute for passing off without a trademark? There is an identifiable group called debian with a presence in the UK, so one arguably cannot produce software called debian ... without their involvement or approval without causing confusion with this prior group. Yes. That's called trademark law. It's part of the common law. Registration is optional. Just in case you were wondering, Debian, the Debian swirl, and the Debian swirl with bottle are trademarks of the Debian Project. Already. This is a matter of fact, and I bet we could prove it in court. It helps to register them if you plan to sue anyone, but it's not obligatory. I'll need to look this up again, as it's common law not legislation, but it's the same reason that you cannot call your product MJ Ray's Moolie Grater The names of individual people often have special rules as well (relating to impersonation), but Debian is not the name of an individual person. if I produce moolie graters and that's not your one. -- There are none so blind as those who will not see.
Re: On the uselessness of Debian trademarks.
MJ Ray wrote: On 2004-05-07 14:20:37 +0100 Stephen Frost [EMAIL PROTECTED] wrote: Uh, or they use the Debian trademark for something that's not Debian at all.. That's not necessairly claiming it as backing or endorsement from Debian. If it's software, it seems illegal anyway. But it's illegal because it's a trademark violation. Not for any other reason! Unless I'm very much mistaken. If I am someone will have to point out the laws under which it's illegal. Note that a trademark doesn't have to be registered to exist. If it's not software, it's probably outside the scope of debian's registered trademark. Right, and we probably don't care. -- There are none so blind as those who will not see.
Re: member access
[EMAIL PROTECTED] writes: I wanted this service the reason I paid for it but has not been able to use it yet how do I get connected to the service that is what I would prefer. so Iif I cannot get connected why should I lose money? do you have a phone # that I may speak to some one? Excuse me, I'm a little confuse because I'm not sure of what service you are speaking about. Debian is Free Software project. The Software we distribute are free as in freedom, but also in the second meaning of free (as free beer). Then there are third party that make money by sealing our softwares so may be it is to them that you have paid something. Debian do accept money only as donation. Then you are speaking about a service, but the only service we give are the archive (ftp.debian.org), the security patch (security.debian.org), several mailing list (including this one), a bug report system (bugs.debian.org) and some others. If you have a problem with one of those, I would be grateful if you tell us which one. If you have a problem with installing/configuring/using our softwares, you can ask the debian-user mailing list ([EMAIL PROTECTED]), ask the [EMAIL PROTECTED] channel, or make a bug report, while stating there more precisely what your problem is. -- Rémi Vanicat
Re: On the uselessness of Debian trademarks.
Nathanael Nerode writes: MJ Ray wrote: On 2004-05-07 14:20:37 +0100 Stephen Frost [EMAIL PROTECTED] wrote: Uh, or they use the Debian trademark for something that's not Debian at all.. That's not necessairly claiming it as backing or endorsement from Debian. If it's software, it seems illegal anyway. But it's illegal because it's a trademark violation. Not for any other reason! Unless I'm very much mistaken. If I am someone will have to point out the laws under which it's illegal. Note that a trademark doesn't have to be registered to exist. Not being a lawyer, I'm not sure how widely you can claim trademark rights on a logo. I know that for plain text, you can safely use words for different companies in different fields (see, e.g. Apple Computer vs Apple Records and their dispute). That is one reason that the USPTO asks for field of use when registering a copyright. A trademark does not have to be registered to get common law protection, but protections for an unregistered trademark are almost useless: You will not get costs and attorney's fees in a suit for common law trademark infringement, only in a suit for Lanham Act (registered) trademark infringement. Michael
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Re: On the uselessness of Debian trademarks.
On 2004-05-09 10:03:26 +0100 Nathanael Nerode [EMAIL PROTECTED] wrote: MJ Ray wrote: The only well-defined situation I can see at the moment is when someone attempts to claim debian association, backing or endorsement fraudulently. How about if someone simply starts their own Debian, perhaps producing proprietary software? I believe that that is exactly the situation trademarks were invented to prevent. This might be an inadvertant attempt to claim assocation, but it is still such an attempt and is covered by common law in the UK. People launching a commercial enterprise in England are expected to check for other similar enterprises already using that trademark and there is little room for argument if you get it wrong, whether or not that trademark was registered. Now, if that person's name was Mr Debian, or lived in a town called Debian, then we would have difficulty enforcing our name against them unless they made a deliberate move to pass themselves off as us, but I think that is also true if we registered a trademark here (a person's name or address does not infringe a registered trademark, s.11(2)(a)). -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
Re: On the uselessness of Debian trademarks.
On 2004-05-09 10:05:51 +0100 Nathanael Nerode [EMAIL PROTECTED] wrote: Note that a trademark doesn't have to be registered to exist. OK, right, file, note the following about the previous emails: generally, my use of trademark was referring to registered trademark giving access to the protections in the Trade Marks Act. The restrictions permitted by a *registered* trademark are oppressive and Debian should not use them. Furthermore, it should not use copyright licences to police its logos because it is then promoting non-free software. -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
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Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: The restrictions permitted by a *registered* trademark are oppressive and Debian should not use them. Furthermore, it should not use copyright licences to police its logos because it is then promoting non-free software. They're not oppressive and Debian certainly *should* use them to avoid dillution of the Debian mark. Provided trademark law handles all the situations we need it to, I agree that we shouldn't need to have a restrictive copyright license. Stephen signature.asc Description: Digital signature
Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: This might be an inadvertant attempt to claim assocation, but it is still such an attempt and is covered by common law in the UK. People launching a commercial enterprise in England are expected to check for other similar enterprises already using that trademark and there is little room for argument if you get it wrong, whether or not that trademark was registered. I seriously doubt this is correct. Get a lawyer to back you up that having the trademark registered doesn't help with enforcing it and doesn't detract from the claims you can make. Additionally, make sure the same is true in other juristictions such as the US and the rest of the EU. Stephen signature.asc Description: Digital signature
Re: On the uselessness of Debian trademarks.
On 2004-05-09 23:59:30 +0100 Stephen Frost [EMAIL PROTECTED] wrote: Get a lawyer to back you up that having the trademark registered doesn't help with enforcing it and doesn't detract from the claims you can make. Additionally, make sure the same is true in other juristictions such as the US and the rest of the EU. I do not wish to prove claims that only you have stated, nor to engage lawyers in every known jurisdiction, and I think it is pompous of you to try to order me around in that way.
Re: On the uselessness of Debian trademarks.
On 2004-05-09 23:57:23 +0100 Stephen Frost [EMAIL PROTECTED] wrote: They're not oppressive and Debian certainly *should* use them to avoid dillution of the Debian mark. They are oppressive. Have you read them? Have you looked at cases in this field? The Debian project is not a traditional software publisher. It is not likely to create a traditional reseller channel, with agreements permitting the use of the trademark and so on, or at least I hope it's not! Provided trademark law handles all the situations we need it to, I agree that we shouldn't need to have a restrictive copyright license. I consider that we do not need trademarks, so we at least agree that the logo licences are buggy. -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: On 2004-05-09 23:57:23 +0100 Stephen Frost [EMAIL PROTECTED] wrote: They're not oppressive and Debian certainly *should* use them to avoid dillution of the Debian mark. They are oppressive. Have you read them? Have you looked at cases in this field? I have a good idea what they do, and I know that we can control how oppressive or not they are by how we enforce them and permit their use. The Debian project is not a traditional software publisher. It is not likely to create a traditional reseller channel, with agreements permitting the use of the trademark and so on, or at least I hope it's not! No, we're not traditional, but that doesn't mean there are no cases where we'd want to enforce our trademark. Certainly there won't be as many cases but that's not the same thing at all. If we don't have our trademark registered I seriously doubt we'll have much room in court to enforce it at all. Provided trademark law handles all the situations we need it to, I agree that we shouldn't need to have a restrictive copyright license. I consider that we do not need trademarks, so we at least agree that the logo licences are buggy. Probably, though I havn't actually read it yet yet. Stephen signature.asc Description: Digital signature
Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: On 2004-05-09 23:59:30 +0100 Stephen Frost [EMAIL PROTECTED] wrote: Get a lawyer to back you up that having the trademark registered doesn't help with enforcing it and doesn't detract from the claims you can make. Additionally, make sure the same is true in other juristictions such as the US and the rest of the EU. I do not wish to prove claims that only you have stated, nor to engage lawyers in every known jurisdiction, and I think it is pompous of you to try to order me around in that way. I'm not ordering you, perhaps it wasn't clear but that's the justification I'd require in order to be able to *believe* you. I'm asking you to back up *your* claims, not mine. If that's not clear, then how about you more clearly state what claims you *are* making. Stephen signature.asc Description: Digital signature
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