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Re: On the uselessness of Debian trademarks.

Ean Schuessler wrote:

> I've been having some discussions with Chris Rourk (SPI counsel) lately
> about Debian trademarks and his points are worth discussing. His opinion
> is that Debian would be best served by abandoning its marks and
> purposefully making the term "Debian" generic. There are some clear
> benefits.
Perhaps.  It certainly isn't generic now, though.  "Kleenex" is used as a
generic (to mean "tissue").  "Xerox" is used as a generic.  "Debian" is
used in several different ways, but they aren't generic:
* to refer to the Debian Project.  This is a very specific use; if someone
started a different Debian Project in software, you'd *definitely* want to
make a trademark complaint.  Even if it wasn't in software, you might want
to.  Perhaps just "Debian Project" should be registered as a trademark?
* to refer to the software released by it (again, a very specific use).  If
someone other than the Debian Project declared that they were releasing
Debian 4.0, I think the Project would be very unhappy.  If they declared
that they were doing to release a "Debian-based system", on the other hand,
the Project probably wouldn't mind at all; but it might be appropriate to
require them to ask for permission, even then.

> Programmers (like myself) try to map our perceptions of systems we know
> and love onto others that have little to do with computation. Law is
> probably one of the worst. We like to think of trademark law as something
> like firewall rules where we can say "this is ok, this isn't, except in
> this situation" and so forth. If you look at real trademarks this is not
> the case.
> For instance, take Coke or Star Wars or anything of that caliber.
Most trademarks are *not* of that caliber.  Perhaps Debian would be, some
day, but it isn't now.

And -- for example -- "Star Wars" can still be used as a reference to
Reagan's SDI system, and Lucasfilm doesn't complain.  "Coke" can be used as
a reference to cocaine, and the Coca-Cola Company doesn't complain.

You can also use "Coke" to refer to Coca-Cola in the papers as much as you
like and nobody complains.  Perhaps text trademarks are treated differently
from visual trademarks?

(Admittedly, there have been some insane recent trademark cases.)

> You will
> see, quite consistently, that the owners of these marks show absolutely no
> leniency in enforcement. 
Well, *those* marks.  Now, my local restaurant has a trademark in its name,
but only tries to shut down people using its name to refer to some *other*
restaurant.  That would be normal trademark usage.

> You can be assured that making Coke t-shirts
> without permission will meet serious legal resistance. This enforcement is
> the only way that a trademark can truly be held. The owner must be the
> universal and final arbitrator of use and must show that use is carefully
> monitored and enforced.
> With the Debian trademark we want use that is almost entirely unenforced
> except for a few particular (and somewhat poorly defined) situations.
Trademark*s*, I think you mean:
The word "Debian"
The swirl
The swirl-plus-bottle

> This
> policy will put us in a difficult position if we have to litigate. The
> defendant will put forth the argument that there is no clear definition of
> proper use
The definition is "refer to us".  If you're referring to anyone else, it's
not proper use.  How can the defendant seriously claim that that's not

> and claim that our mark is generic.
Wow -- would that really fly?  "It's generic because you can use it to refer
to Debian?"  Debian's goal here is actually the basic goal of trademark
law, rather than the hyperextended things some companies try to use it for.

> Our only alternative is to
> religiously shut down everyone who is using the word Debian without our
> explicit permission.
Sounds good.  Give explicit permission to everyone to use it to refer to the
Debian project or anything distributed by it, and shut down anyone who uses
it to refer to something else.

> That isn't very Debian.
Or is it?

Unlike copyright law, trademark law *is*, at its heart, about fraud, false
attribution, misrepresentation, etc., all things Debian cares strongly
about preventing.

> Why not just cut to the
> chase?
> I'm not sure if Chris is right, but I see the logic in his reasoning. If
> anyone can put this email in front of any attorneys, I would be very
> curious to hear their thoughts.

Particuarly *trademark* attorneys, since I don't think that lawyers without
knowledge of the field will really do any better than us laymen.

There are none so blind as those who will not see.

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