Re: Serious trademark trouble.
On Sat, 12 Aug 2000, Ean R . Schuessler wrote: I don't know how many of you are aware of this, but I must have missed any discussion that occured on it. It appears that our lack of action on an Open Source trademark (bickering, bad communication, et. al) has created a serious problem. A commercial organization (Navant Corporation) has filed for a trademark on the "Open Source" term, with the following area of business interest. As I recall, the Open Source trademark was denied to the OSI last year. I don't remember the reason for the denial, but the same reason that OSI didn't get it would also apply to Navant. I suspect that some Navant lawyer did a trademark search, found that Open Source was not trademarked, and filed for it. If some bonehead bureaucrat does assign it, it won't stand because of previous and current usage of the term, and a previous filing. Filing for a trademark or patent is somewhat like a lawsuit. Anyone can sue anyone for any reason, but that doesn't mean the lawsuit will reach a court of law, let alone win. -- David Johnson _ http://www.usermode.org
Re: Serious trademark trouble.
My understanding is that the validity of trademarks stands on an organization's consistent use and regular defense of a term in the course of commerce. The longer this mark stands formally unchallenged, the more difficult it will become to unseat it. If this company develops products, packaging, advertising and other evidence of commerce and can show use in various markets this will also increase the viability of the mark. The failure of SPI and OSI to work out an understanding with the mark will, if anything, work to the disadvantage of an attorney saddled with fixing this situation. Not that I'm a lawyer. E On Sat, Aug 12, 2000 at 01:04:47PM -0700, David Johnson wrote: As I recall, the Open Source trademark was denied to the OSI last year. I don't remember the reason for the denial, but the same reason that OSI didn't get it would also apply to Navant. I suspect that some Navant lawyer did a trademark search, found that Open Source was not trademarked, and filed for it. If some bonehead bureaucrat does assign it, it won't stand because of previous and current usage of the term, and a previous filing. Filing for a trademark or patent is somewhat like a lawsuit. Anyone can sue anyone for any reason, but that doesn't mean the lawsuit will reach a court of law, let alone win. -- ___ Ean SchuesslerFreak Brainfood, Inc. Freak Central *** WARNING: This signature may contain jokes.
Re: Serious trademark trouble.
On Sat, 12 Aug 2000, Ean R . Schuessler wrote: My understanding is that the validity of trademarks stands on an organization's consistent use and regular defense of a term in the course of commerce. The longer this mark stands formally unchallenged, the more difficult it will become to unseat it. If this company develops products, packaging, advertising and other evidence of commerce and can show use in various markets this will also increase the viability of the mark. There is also the principle that if a trademark becomes commonly used to refer to a general class rather than a specific product, the trademark can be lost. Past examples include "aspirin" and "elevator". A corollary to this is that the current use of a term to refer to a general class would serve to deny the grant of a trademark. "Open Source" is commonly used to refer to software that has freely modifiable and redistributable source code, whether or not it uses an approved OSI license. As an example, the Apache license was only recently approved, yet it has been called open source since the day the term was coined. As long as the development community associates "Open Source" with a general class of software, a company would find it extremely difficult to protect their trademark. When the general public also associates the term with a class of software, the trademark would not be viable. But I'm not losing much sleep over this. There is commercial Open Source software right now that advertises the term. This current usage in reference to commercial software is enough to deny the trademark. Lest there be misunderstanding, IANAL. -- David Johnson _ http://www.usermode.org
Re: Serious trademark trouble.
Ean R . Schuessler writes: My understanding is that the validity of trademarks stands on an organization's consistent use and regular defense of a term in the course of commerce. The longer this mark stands formally unchallenged, the more difficult it will become to unseat it. If this company develops products, packaging, advertising and other evidence of commerce and can show use in various markets this will also increase the viability of the mark. That's too bad for them. The Open Source Initiative, a project of Software in the Public Interest, has first use in commerce of any possible Open Source mark. We can show continuous use of the Open Source mark dating from March 1998. We even have a rejected registration attempt under our belt. I'm sure that a letter from our attorney will be sufficient to squash this registration. The failure of SPI and OSI to work out an understanding with the mark will, if anything, work to the disadvantage of an attorney saddled with fixing this situation. Not that I'm a lawyer. Our understanding is that there's almost no way to defend the certification mark "Open Source". Our instructions to SPI regarding the mark are to abandon it. As far as I know, SPI has ignored those instructions, contrary to its resolution 1998-11-16.iwj.1. That resolution seems to have been overridden without exactly saying so, by resolution 1998-11-16.iwj.2, which claims that a consultation is required to decide what happens with Global IPR. Said consultation happened, but its results were never announced by SPI. Looks to me like SPI is not abiding by its own rules. Anyway, it's all a moot point since we've stopped defending "Open Source". As one of the people on the front line of the trademark defense, I can tell you that it was hopeless. If you have a different opinion, I have to wonder what evidence you base it on. For example, we ran into an Australian fellow who was claiming that his proprietary software product was Open Source. How do you stop him? He has no business locus in the US, and yet people in the US -- indeed the world -- were hearing about this proprietary "Open Source" product. -- -russ nelson [EMAIL PROTECTED] http://russnelson.com | If you think Crynwr sells support for free software | PGPok | health care is expensive now 521 Pleasant Valley Rd. | +1 315 268 1925 voice | now, wait until you see Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | what it costs when it's free.
Re: Serious trademark trouble.
On Sat, 12 Aug 2000, Russell Nelson wrote: Anyway, it's all a moot point since we've stopped defending "Open Source". As one of the people on the front line of the trademark defense, I can tell you that it was hopeless. If you have a different opinion, I have to wonder what evidence you base it on. For example, we ran into an Australian fellow who was claiming that his proprietary software product was Open Source. How do you stop him? He has no business locus in the US, and yet people in the US -- indeed the world -- were hearing about this proprietary "Open Source" product. At one time there was talk about Open Source certification. Is this still being considered? A trademark may not be possible, but a certification would be the next best thing. That proprietary product may call itself Open Source, Free Software, or even Fred, but if it isn't certified by those who created the definitions, it's meaningless. However, fraud proceeding against that company may be possible. It is claiming the software to be something that it's not. -- David Johnson _ http://www.usermode.org
Re: Serious trademark trouble.
David Johnson writes: At one time there was talk about Open Source certification. Is this still being considered? A trademark may not be possible, but a certification would be the next best thing. We had always planned on registering Open Source as a certification mark. In fact, such an application was filed, and initially returned for reconsideration. No action was taken on that, and the applicaton timed out. After due consideration and experience, we decided that defending the mark was beyond the means of most ordinary mortals. We have since created the OSI Certified open source certification mark. We've had no trouble defending that mark. -- -russ nelson [EMAIL PROTECTED] http://russnelson.com | If you think Crynwr sells support for free software | PGPok | health care is expensive now 521 Pleasant Valley Rd. | +1 315 268 1925 voice | now, wait until you see Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | what it costs when it's free.
