Re: AbiWord, trademarks, and DFSG-freeness
O Venres, 15 de Outubro de 2004 ás 02:12:41 -0500, Branden Robinson escribía:
First of all, I Am Not A Lawyer, so don't sue me if your trial goes bad.
It's all your fault for believing me :-)
And now...
I think that trademarks are irrelevant to DFSG-freeness since if the
copyright license is DFSG-free, we would still be able to distribute the
software even if we were asked by the trademark owner not to use its
upstream name (we'd have to change the name. It would be a hassle, but the
software would still be DFSG-free).
IOW, nowhere in the DFSG says something like "you cannot restrict the
user's right to have their modified copies of the software called in the
same way as the original". In fact, there's one place (DFSG #4) where it
says just the opposite :-)
So take the following only FYI, since I think you'd like to know about it.
Or if there's interest in ever writing a trademark license for the Debian
logos, which allow the maximum admissible freedoms :-)
First, useful URLs:
http://www.oepm.es/internet/legisla/signos/iii21lmar.htm
This is the URL to the Spanish trade mark law. It's in Spanish but it's
there for the record :-)
http://europa.eu.int/eur-lex/en/consleg/main/1989/en_1989L0104_index.html
This is the EU trade mark directive. All EU member states' trade mark laws
have to comply with this.
http://europa.eu.int/eur-lex/en/consleg/main/1994/en_1994R0040_index.html
This is the Council Regulation on the Community trade mark. That is,
EU-level trade marks. Its wording is similar to the Spanish law...
> 1) Do the default protections that attach to trademarks, even when
> unregistered and unmentioned (not even with a "(TM)"), infringe upon the
> freedoms the DFSG purports to defend?
In Spain, trademark owners have no rights until they register them, or
unless the trademark is "notoriously known" in Spain.
After registering a trademark, its owner has the right to prohibit its use,
but these prohibitions are not enabled by default (it's the owner who has to
actively enforce the prohibitions).
So there are no default protections in Spanish trademark law. I think it is
the same for "Community trademarks", that is, EU-level trademarks.
> 3) I don't know if the AbiWord developers are right about meaningful,
> strong, legal protections applying to potential trademarks if no notice
> of trademark status is made. After all, common dictionary words are
> frequently trademarked.
In Spain, notice does not affect (in principle) the outcome of a trademark
suit. Only a cease&desist order, which would earn the trade mark holder
damages in some cases.
> P1) Adopt a kind of don't-ask, don't-tell policy regarding implicit
> trademarks. Many free software developers don't give a whit about
> trademarks, and some don't even care how much their software is patched
> by third parties while retaining the name. So, if you maintain a
> package that doesn't assert any trademarks, don't worry about it.
This is sane; if no TM is asserted, do nothing special.
> P2) If a package does assert a trademark, contact the mark holder and ask
> for a trademark license that permits usage of the marks under the same
> terms as the copyright license that has been attached to the
> corresponding work, wherever applicable.
No; ask for a license that allows usage of the name for packages derived
from the original and whose (behaviour, form, etc) does not deviate
substantially from that of the original software.
Or more than a license: prohibition of using the trade mark for any piece
of software which is not derived from the original one or has had major
modifications.
I don't think more is needed. Look at first paragraphs to see why.
--
Jacobo Tarrío | http://jacobo.tarrio.org/
Reply to: