Re: Naming questions, to the BSD list only
>>>>> "Joel" == Joel Baker <fenton@debian.org> writes:
Joel> On Fri, Dec 19, 2003 at 07:02:20PM +0200, Momchil Velikov wrote:
>> >>>>> "Joel" == Joel Baker <fenton@debian.org> writes:
>>
Joel> We have been asked, by the folks who own the name, that we do
Joel> *something* to avoid using it in this context. Therefore, 'not
Joel> changing' (from the old usage) is not a viable option. It would
Joel> be extremely rude, and it could potentially force them to take
Joel> legal action or risk losing their trademark.
>>
>> a) owning the name is not a sufficient reason (even legally)
Joel> Huhwhat? What sort of crack are you on? That's exactly what
Joel> a trademark is about - controlling who can use the name, and
Joel> how, at least in the context you've registered the trademark
Joel> in.
US Code, Title 1, Chapter 22, Subchapter III, Sec. 1125.
(c) Remedies for dilution of famous marks
(1) The owner of a famous mark shall be entitled, subject to the
principles of equity and upon such terms as the court deems
reasonable, to an injunction against another person's
commercial use in commerce of a mark or trade name, if such
use begins after the mark has become famous and causes
dilution of the distinctive quality of the mark, and to obtain
such other relief as is provided in this subsection. In
determining whether a mark is distinctive and famous, a court
may consider factors such as, but not limited to -
Note that the remedies are NOT unconditional. IOW, the ownership of
the trademark is NOT sufficient.
>> b) the context of the usage of their trademark is unambiguous in
>> that it does NOT denote the NetBSD operating system.
Joel> Trademarks are in a much broader context than that. And
Joel> their desired usage of the bare word 'NetBSD' is to refer
Joel> only to the complete OS. They've asked us nicely; they do
Joel> have the power to back it up with force if we get pushy
Joel> about the issue.
I strongly suspect that the trademarks cannot be used if such use
is:
"(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities by
another person, or
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or
her or another person's goods, services, or commercial activities"
IMHO, "Debian GNU/NetBSD" is not likely to cause confusion, to cause
mistake, blah-blah, etc.
>> c) whether it is a viable option is certainly not yours to decide;
>> that's why I ask to include the option in the balot
Joel> No, it's debian-legal's to decide. To date, they have considered some
Joel> form of renaming to be the only feasible option.
I mean, of course, the lack of choices in your proposed balot.
>> d) what is rude is the FUD spreading from their side
Joel> What FUD? They *asked* us to please change it to avoid confusion or
Joel> potential problems with trademark dilution.
Refering to a trademark in a way, which does not pay attention to
the lawful uses of somebody else's trademark is spreading FUD in my
book, by suggesting that there are not lawful uses of the said
trademark.
Heck, event remotely refering to the US legal system is spreading
FUD, if you ask me !
>> e) I'd suggest (if possible) to avoiding decisions based on certain
>> country's flawed legal system
Joel> It happens to be the country in which both Software in the
Joel> Public Interest, and The NetBSD Foundation, are
Joel> registered. We don't really have a choice of venue.
Is Debian Project equivalent to SPI, Inc ? Is SPI, Inc. responsible
for actions of an arbitrary Debian (or non-Debian) developer ? Isn't
is possible, e.g. to host Debian GNU/NetBSD outside the US ?
Of course, granted that the use of NetBSD(tm) is not protected by
the following:
"(4) The following shall not be actionable under this section:
(A) Fair use of a famous mark by another person in comparative
commercial advertising or promotion to identify the competing
goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary."
IANAL though.
~velco
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