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

[I am not subscribed to debian-bsd.]

On Fri, Dec 12, 2003 at 10:29:05AM -0700, Joel Baker wrote:
> [ Adding -legal to the Cc; it may become inappropriate for -devel, at     ]
> [ some point, in which case folks should remove the -devel Cc. The -bsd   ]
> [ Cc should probably remain no matter what, as this could potentially     ]
> [ affect any of the BSD ports.                                            ]

I've still got some -devel-relevant stuff here, so I'm preserving that
list in the headers for the moment.

> On Fri, Dec 12, 2003 at 11:54:09AM -0500, Branden Robinson wrote:
> > I checked, and I don't see the *specific* grounds for the request
> > explicated anywhere.
> I guess it depends on precisely what you mean by specific grounds, in this
> case. If you mean 'specific accusations of dilution of trademark', then I
> don't believe there have been any.

No, I mean a specific description of how "Debian GNU/NetBSD" dilutes, or
risks diluting, the trademark but "Debian GNU/KNetBSD" does not.

I can expect a phone call (or worse) from a certain very large company
if I go into soft drink business with a product called "Branden's
KCoca-Cola" just as easily as I can if I call it "Branden's Coca-Cola".

FYI, the serial number of the "NetBSD" mark according to the U.S. PTO
(Patent and Trademark Office) is 78025507.

> > 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 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.

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.

> > > 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.


Debian FreeBSD      ->     Debian Forneus (BSD)
Debian NetBSD       ->     Debian Naberius (BSD)
Debian OpenBSD      ->     Debian Orobos (BSD)

I got these names from the Wikipedia <URL:

Moreover, none of these names are currently registered with the USPTO,
so we'd be set in that department.

> 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.

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

> > 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."

> > It might be best to remove "NetBSD" from the name of the OS altogether
> > -- that would the most sure-fire way to mitigate their fears of
> > dilution, and help ensure that the NetBSD Foundation doesn't have to
> > rattle its saber at us again (albeit through a lace curtain, as you
> > say), enabling us to maintain good relations with the NetBSD Project on
> > the technical front.
> I think that might be a bit of an overstatement, to date. So far, it has
> been expressed entirely as a request, and one that was particularly based
> on having seen something that made them think it might be a good idea to
> continue (remember, the origional request had no distinction between Robert
> Millan's 'Debian GNU/KNetBSD' and the other effort(s); it was asking about
> updating the web pages and other resources).

Right.  Well, the fact that the message contained anything *other* than
a polite request, but in fact began to forward a legal theory for taking
us to court, counts as saber-rattling to me.

You can look it in two ways, but both lead to the same result:

1) TNF made a polite request we should honor out of simple courtesy
   because they're swell guys whom we respect;
2) TNF took the trouble to contact us because they're prepared to impose
   their will upon us via the U.S. courts if we don't do as they ask.

As I said before, I haven't seen the mail you received, but it sounds to
me like they took the trouble to make sure you could read it both ways.

If interpretation 2) is at all reasonable, then let's be honest with
each other: we're not dealing with a matter of simple courtesy.  The law
is a blunt instrument.  That the people who deal it wear nice suits (or
uniforms) and speak in cultured, polite tones doesn't change the
fundamentals of the interaction.  The law is coercion -- that's how it

> > 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.

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.

> > 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

> 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.

> 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.

> 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.
:) )

> 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.

> 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!

G. Branden Robinson                |      There's no trick to being a
Debian GNU/Linux                   |      humorist when you have the whole
branden@debian.org                 |      government working for you.
http://people.debian.org/~branden/ |      -- Will Rogers

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