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Re: On the uselessness of Debian trademarks.

* MJ Ray (mjr@dsl.pipex.com) wrote:
> Maybe illegal is the wrong word. I believe we could still prosecute 
> for "passing off" without a trademark? There is an identifiable group 
> called debian with a presence in the UK, so one arguably cannot 
> produce software called "debian ..." without their involvement or 
> approval without causing confusion with this prior group. I'll need to 
> look this up again, as it's common law not legislation, but it's the 
> same reason that you cannot call your product "MJ Ray's Moolie Grater" 
> if I produce moolie graters and that's not your one.

Erm, I guess I thought this was the specific reason for trademarks.
Perhaps not, IANAL.  If that's not the *reason* for having a trademark
then I don't understand why *anyone* would have one, and clearly that
can't be right because *lots* of people pay a fair bit for them, people
who have really good lawyers.

> There is a popular debian/lesbian shirt in the UK, although I don't 
> know what agreements exist between the seller and SPI. I think it's 
> perfectly fair to have that, although maybe someone can argue this is 
> using the mark to mean something else?

Provided they're either using 'Debian' to mean the Debian software
project we're a part of, or to mean something unrelated to software.  I
think that's right, anyway. :)

> Anyway, trying to stop this probably wouldn't work. If someone 
> produces "debian round silver drinks coasters with a hole" shirts then 
> there's nothing our project's trademark would do about it, so it 
> sounds to me like you're demonstrating exactly why the trademark is 
> useless.

Sorry, I was meaning 'some other software product' which could cause
confusion, which is what the trademark is intended to avoid.  Clearly
non-software "Debian's auto shop" kind of things would be fine, and
wouldn't be avoided by having a trademark anyway.

> >The concern was that we have to enforce our trademark in all cases if 
> >we want 
> >to be able to keep it and enforce it in certain circumstances.
> I believe that you have to defend it from infringing use in the US. I 
> do not remember whether the same is true here. (I am not a lawyer, 
> remember?)

IANAL either, but you were commenting on it and so was I.  Hopefully
someone who *is*, or a paralegal or something, could comment on this and
clear up the confusion.  It's starting to sound like maybe you don't
need trademarks at all in the UK, or that you don't have to defend them
in the UK or something, but that does seem quite odd to me.

> >This doesn't make sense if you can use the Coke trademark without Coke
> >doing something about it if you don't have a contract with them.
> As long as it is not infringing use of their trademark, they cannot 
> touch you. Some debian developers seem ignorant about non-infringing 
> uses of trademarks and some things they wish to prevent seem to be 
> non-infringing uses IMO.

The only way to prevent non-infringing (against the trademark) uses
would be to copyright and restrict the licensing on the logo itself,
AIUI.  I don't think this would be benefitial but I am curious as to
what exactly they're trying to prevent that wouldn't be infringing
trademark law.

> >Alright, that's fine, we can stipulate the license under which the
> >Debian logo is used.
> Yes: I say MIT/X11-style now!

Haha.  Personally, I don't particularly care.  So long as we have it
trademarked so that it can't be used to mean some other software product
I don't see the issue of having someone use the Debian logo, or some
derivative of it, on their car, home, shirt, webpage, whatever.

> >Having a generous license there should *not*
> >detract from our ability to enforce the Debian trademark since 
> >trademark
> >and copyright are seperate and distinct from each other.
> I agree entirely with that. It's the reverse case (where you do write 
> trademark enforcement into copyright licences, or sometimes go further 
> than that and try to prevent non-infringing uses, as in the newer 
> XFree86 licence) which causes "non-free-ness" of the copyright licence 
> IMO.

Well, I want to understand why people (who started this thread, I
believe?) don't think we could enforce the trademark if it's under a
generous copyright license.  That's the base issue here, I think.


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