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Re: Changes in formal naming for NetBSD porting effort(s)



[ If you're being impatient about resolving this, please see the bottom   ]
[ of the email for an imporant bit of information...                      ]

[ snip ]

On Sat, Dec 13, 2003 at 04:27:27PM -0500, Branden Robinson wrote:
> 
> On Fri, Dec 12, 2003 at 10:29:05AM -0700, Joel Baker wrote:
> 
> > On Fri, Dec 12, 2003 at 11:54:09AM -0500, Branden Robinson wrote:
> > > What makes a suitable name?  Please be specific.  If you don't know, I
> > > think you should request this information from the NetBSD Foundation.
> > 
> > As far as I can tell, anything which does not use the bare word 'NetBSD'
> > as part of it's name, but I certainly can request clarification from Mr.
> > Mewburn and The NetBSD Foundation about that.
> 
> As I understand it, TNF's view of what dilutes a trademark is
> considerably narrower than that of U.S. courts.  It may be wise to
> obtain a trademark license explicitly authorizing this usage.

I have sent Mr. Mewburn an email requesting both a clarification of what
The NetBSD Foundation would consider acceptable, in a name, and the
rationale behind it, and questioning the possibly of looking into some
form of trademark agreement, particularly one which would allow us to
use something that might otherwise violate the trademark, but still be a
sufficiently distinct name for TNF to be content.

However, see below.

> > I think that is largely a reflection of "nobody had any disagreement on
> > the principle, or a better suggestion for the formal port name", combined
> > with the fact that it triggered reviewing some of the haphazard naming
> > conventions with a critical eye, and making sure that they were reasonable
> > and rational.
> > 
> > The thread is, indeed, split into two interleaved parts, and the
> > non-technical part is almost empty.
> 
> I don't have a problem with the technical issues being grappled with.
> In fact, I'm glad they are.  But the fact that the technical part got a
> good amount of attention doesn't mean the non-technical aspect has been
> adequately grappled with.  And it was on non-technical grounds that Mr.
> Newburn made his request -- "trademark dilution" is not a technical
> concept, but a legal one.

Indeed; I did not mean to imply that it should have been sufficient, only
summarize what folks would find in the thread if they read it - which is to
say, no objections to renaming, and no real discussion of trademark issues
at all. (Notably, the fact that we had no real discussion is part of why I
posted it to -devel, rather than just sending it to the project officials
as a notification/request.)

> BSD is also still a trademark, but I was unable to find any information
> about its licensing, or even whether it is still actively defended.

Hmmm. A good point, though one might reasonable wonder if 'NetBSD' would
not, itself, infringe on this if it were being actively enforced. My
impression is that it is not being actively enforced, but I make no claim
to having done an exhaustive search, or spoken to the current trademark
holders.

> > > > 4) The Debian port name will become 'Debian GNU/KLNetBSD(i386)'[1].
> > > 
> > > Well, no offense, but that's ugly as hell, and is going to square the
> > > amount of confusion people experience when trying to decode our OS
> > > names.
> > 
> > Agreed, unfortunately - it is, and I suspect it may well. Suggestions for
> > better naming welcome, of course (or even a direction to go in).
> 
> We might use names from Christian demonology (since the BSD mascot
> is the cute and devilish "daemon"), with the first letter shared by the
> demon's name and the corresponding BSD flavor.
> 
> Thus:
> 
> Debian FreeBSD      ->     Debian Forneus (BSD)
> Debian NetBSD       ->     Debian Naberius (BSD)
> Debian OpenBSD      ->     Debian Orobos (BSD)
> 
> I got these names from the Wikipedia <URL:
> http://en2.wikipedia.org/wiki/List_of_specific_demons_and_types_of_demons>.
> 
> Moreover, none of these names are currently registered with the USPTO,
> so we'd be set in that department.

This may well be a solution to many problems in one go; it also happens
to be one I like, but then, I've used that same reference for picking
hostnames on the in-house consulting company's network. So I may be biased.

More on this below.

> > I believe (note: personal view) that the core is a perceived difference
> > between the bare word 'NetBSD', which has, prior to this port, implied a
> > kernel, libc, *and* userland of a specific form, and a variant of that
> > name which is recognizeable, but distinctive enough to not cause confusion
> > between their "product" and what we intend to produce.
> 
> My feeble understanding of U.S. trademark law leads me to believe that
> the *more* similar our product is to theirs, the more grounds they have
> for being able to argue that we're "diluting" the name, because we're
> promoting marketplace confusion.

As far as I understand it, that seems correct. Certainly we're close enough
that it doesn't seem like an unreasonable question to be raising.

> After all, if everybody *knows* that Debian NetBSD is quite different
> from TNF's NetBSD, then it's more difficult to claim that there is
> confusion.

True. Of course, 'quite different' can be in the eye of the beholder;
from a programmers point of view, the two are likely to be nearly
indistinguishable. Which is sort of the intent, at least of my work
(neither the userland tools nor the administrative structure are normally
a major concern for programmers, especially not with the advent of various
automated configuration tools).

> > > Debian either needs a trademark license from the NetBSD Foundation for
> > > use of the "NetBSD" mark, or it does not.  If we do, then our hands are
> > > tied and we might as well ask them to tell us what they want it called,
> > > and what the terms of use are.  Since the Debian Project doesn't legally
> > > exist, this will probably have to go through SPI.  If we don't need a
> > > trademark license, then I don't understand why they've grounded their
> > > request for a name change on a claim to be preserving the mark.
> > 
> > This might well be a reasonable path to take, given that TNF (those making
> > the actual request) are, in many ways, related to The NetBSD Project in the
> > same fashion that SPI and Debian are related; one is a legal entity, the
> > other is a bunch of folks producing an operating system. Certainly, it
> > would make things more explicit and less prone to future problems.
> 
> Yes, if we want to keep using that name.  I kind of like the idea of
> getting the names of specific technologies out of our OS names, though.
> TTBOK, they can't bust us for making factual claims about out OS
> distributions.  E.g.:
> 
> "Debian Naberius is based on the NetBSD(R) kernel and C library."

I can't comment much on the technology bit, other than wonder if we'll end
up with Debian Penguix for the Linux ports. :) However, I believe that
the most we would have to do to protect everyone's interests, in making
a statement such as the one above, would be to put a slug somewhere that
people expect to find it (footer of the webpage, hyperlinked footnote, an
acknowlegements page; I leave this to the www folks, since I think they
have a standard but I don't recall what it is) saying "NetBSD(R) is a
registered trademark of The NetBSD Foundation", or similar. The same thing
you always see in the fine print when places mention sue-happy companies,
I expect it would suffice to protect NetBSD's trademark from any troubles
with dilution.

[ snip ]

> > > No, it's probably antipathy for the Free Software Foundation driving
> > > this more than anything else.
> > 
> > It could well be; I don't think it would be particularly useful for me to
> > speculate on the matter.
> 
> I won't mention him by name, but I once had a long conversation with a
> fairly prominent person in the NetBSD community (still is, AFAICT) and
> he was quite vociferously contemptuous of the Free Software Foundation
> and everything it has touched.

Well, yes. There are NetBSD, FreeBSD, OpenBSD, Linux, FSF/GNU, and all
sorts of other bigots. I make no claim that they're immune, or even that it
might not be part of the motivation - only that I don't feel comfortable
trying to speculate on it. Certainly the email I received mentioned no
project except Debian by name or implication.

> This is another reason I think it would be good to get trademarks out of
> our OS names.  If part of the motivation behind this request is to use
> Debian as a pawn in expressing organizational hostility between the
> NetBSD Foundation and the Free Software Foundation, I think we need to
> remove this means of manipulation from consideration.  If it is true, it
> expresses a real contempt for the Debian project by TNF, not worthy of
> being dealt with on our own merits, but merely as a tool for spiting the
> FSF.  I really don't think we should participate in such petty
> cattiness.  Debian, as I see it, is a big-tent organization that finds
> much of merit, both technologically and in terms of copyright licensing,
> in the works of both the GNU community and the NetBSD community.  I
> don't we should permit partisans of any stripe to permit us, or our
> users, to lose sight of that.
> 
> Before anyone jumps down my throat (too late :) ), I'll reiterate that
> the above is speculative, grounded only on past encounters with what
> might be a minority NetBSD community viewpoint.

All I can say is that this particular communication did not appear to have
any detectable or overt hints at such behavior. However, working to make
it less possible for *anyone* to do such things via Debian is not a bad
thing to work for, since even if one fully believes that TNF is not doing
it today, that doesn't mean someone else might not do it tomorrow.

> > > Maybe they'd prefer Debian GNU/KLMNOPQRSTUVWXYZABCDEFGHIJNetBSD most of
> > > all.  One can't get too far away from those pinkos in Boston!
> > 
> > I think that might be taking things to something of an extreme. They've
> > been polite and reasonable to date, I'd like to think that Debian can
> > provide them the same courtesy - including the benefit of the doubt.
> 
> I was being facetious, there.  :)  Such a name would be worse than
> useless.

Well, yes. I do like the proposal outlined above.

> > I have, and thus, I have Cc'ed this reply to debian-devel. I will also
> > ask Mr. Mewburn to review the web archives (or forward him copies from
> > my own archives, if those aren't up yet), and invite him, or anyone The
> > NetBSD Foundation sees fit, to join the discussion if they think it would
> > be useful.
> 
> Sounds good.  If there is instant froth and venom at the slightest
> mention of GNU or the FSF, we'll see my speculations validated. :)
> Otherwise, if things can stay calm and on-topic, I expect we can rapidly
> reach a mutually satisfactory conclusion.

We'll find out in somewhat under a week from now; I've been informed by a
third party (not authorized, to the best of my knowlege, to speak on behalf
of TNF, and certainly not doing so even if they could) that Mr. Mewburn is
on holiday until the latter part of this coming week.

> > Indeed; my perception of the communications so far would phrase it as "the
> > suggestion that The NetBSD Foundation was concerned that there *might* be
> > infringement of the mark if we don't take action"; the same basic thing,
> > but a (significant) step less confrontational.
> 
> I don't think TNF is acting irrationally.  They have a registered mark, and
> probably put a fair amount of time and energy into obtaining it.  U.S.
> law is such that you have to "use [enforce] it or lose it" when it comes
> to trademarks.
> 
> The solution that appeals most to me is rendering the trademark
> irrelevant for our purposes.  Again, as I understand it, trademark law
> cannot prevent us from making factual assertions about the nature of our
> goods and services -- it only prevents us from using the mark for
> branding purposes.

As far as I understand it, that is true. Failing 'render it irrelevant', I
do think that it might be possible to negotiate a trademark license that
protects it fully, while allowing Debian to use a name that would otherwise
infringe, but still be distinct enough that TNF does not consider it to be
confusing to their target audience.

> > It is my personal experience, in dealing with TNF, that they tend to be
> > somewhat more conservative about gray areas than even Debian is, in many
> > cases. For example, Debian will generally accept an email (prefferably
> > signed) from an upstream author, in combination with a Developer's
> > assertion of validity, designating a license change or special permissions
> > to Debian (for some things in non-free), while TNF strongly desires having
> > a signed paper statement on file, whenever possible.
> 
> Sure.  As we've seen with the stupid SCO debacle, a lack of bureaucracy
> can sometimes have its downsides.  It's the responsibility of each
> organization to strike a balance between paperwork and other
> considerations.  I don't know much about how TNF works, so I wouldn't
> presume to tell them how to handle their operational challenges.  (I
> reserve the right to criticize tactical and strategic decisions, though.
> :) )

*chuckle* Indeed; it was mostly a note born of experience in dealing with
both Debian and NetBSD administrative details, to give others some context.

> > Issue #2 is, indeed, an issue. There may be solutions that can work in
> > multiple directions, of course; for example (and please understand, this
> > is a suggestion of my own, not something that has been advanced to me by
> > The NetBSD Foundation or anyone speaking for it), it might be possible
> > to come to an agreement for a trademark license, with the stipulation
> > that Debian's information on the port in question always clarify, with
> > reasonable precision, just what portions of NetBSD were used in creating
> > it.
> 
> Yup.  It's not the solution that will save us the most headaches, IMO,
> but it's a valid one.  And there are downsides to my proposal -- there
> is a loss of immediate recognition of what the OS "must" be just by
> reading its name.  That's part and parcel of TNF's concern, though.

Indeed it is; I don't, personally, think that most people who would have
the desire to actually install and use a Debian/*BSD hybrid of any sort
(which more or less guarantees that only Debian will be willing to provide
any significant level of support for users, for example) will have trouble
managing to find out which Debian port they want. After all, Googling for
'Debian NetBSD' is liable to come up with something useful fairly quickly.
It certainly does today. :)

> > In any case, I will ask Mr. Mewburn to review the messages, and to consider
> > participating in the disussion directly, or at the very least clarify
> > precisely what The NetBSD Foundation feels would be sufficient protection
> > of their trademark, and why.
> 
> Thank you very much!

As noted above, I have sent an email to him about a variety of things
around this topic, but he is not expected to be anywhere he can read it
until at least the end of this coming week. I will, however, forward him
a copy of the naming you proposed (since it was only posted after I sent
the first email), and see if he or TNF have any particular opinion on it,
versus the trademark issue.
-- 
Joel Baker <fenton@debian.org>                                        ,''`.
Debian GNU/TBD**BSD(i386) porter                                     : :' :
                                                                     `. `'
				                                       `-

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