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Re: trademark policy draft

On Mon, Aug 13, 2012 at 03:30:16PM -0700, Steve Langasek wrote:
> > Down to the specificities of Debian procedures, I consider my duty
> > to take care of Debian assets, including trademarks. I would not
> > take the responsibility of acting in a way that --- according to our
> > legal advisors --- might endanger them..
> Even if there was a clear consensus that endangering the trademark was
> the Right Thing To Do?
> For a free software project like Debian, I believe it's more important
> to uphold the principle of not being jerky to our neighbors than it is
> to have an ironclad assurance that our trademark could never be
> invalidated.  I don't think the argument "we could lose our trademark
> unless we [...]" is complete unless it also includes some examination
> of how likely that outcome really is.

You raised various important points.

According to my reading of the sub-thread started at Thijs' message, we
were discussing giving up the trademarks all together ("just let go of
these trademarks" [1]). As it happens, different participants in the
sub-thread might have head different opinions. But on such an extreme
position, yes, I don't think I would trust apparent consensus on any
mailing list.

For various reasons. One is that many people tend not to care about
"bureaucratic" topics (and I surely won't blame them for that :-)).
Another is that it'd be a typical instance of the age long democracy vs
technocracy debate. Very few of us --- if any --- are experts in
trademark law (as several threads have shown), and I do not consider
myself among them. So the consensus would hardly be well-informed.

The above doesn't imply we could not implement the extreme position of
giving up trademarks. It simply mean that I wouldn't personally do it,
on the sole basis of apparent consensus. There are other ways, such as a
GR, overruling me or not (depending on how it'll be formulated0. It
wouldn't be such a big deal, and I surely would not take it personally.

[1] as I'm not sure if a formal act to do that exists, let's assume for
    the sake of this discussion "give up trademark" ~= "act in a way
    that would be considered, trademark-wise, foolish by any trademark
    expert you could find on the planet"

> I'm hoping to write a longer response to the proposed policy where I
> can do justice to the specifics,

Please do :-)

> but for the moment, suffice it to say that I think that some of the
> recommendations for how to protect our trademark cross the line from
> "things it's reasonable for everyone to do to protect their mark" into
> "jerky things that you do because there's some bit of case law
> somewhere that led to a mark being invalidated and you're paranoid
> that the same thing will happen to you".  Sometimes the right answer
> is that the case law is *bad* and needs to be overturned - which never
> happens if no one is willing to take a stand against it.

I agree with this. In dealing with lawyers on behalf of Debian, I've
quickly learned that there are almost never "100% safe" or "100% risky"
positions. It is *always* a cost/benefit/risk analysis. You ask the
experts to evaluate the risks of the positions you're interested in, and
then you pick a position.

I wouldn't call the position implemented by the first policy I've posted
here "paranoid". But, as I mentioned before, there might be extra
constraints that might be loosened, which have fallen through the
cracks. I do hope that most of the criticism that have been raised in
this thread could be addressed in the second draft --- but as I haven't
yet received it, I'm not sure yet.

If you, or anyone else, have arguments to justify the loosening of
further constraints in the policy, by all means bring them forward. But
please realize that I will likely turn down arguments of the "I think
that..." kind, when they go against the legal advice we've got.

Stefano Zacchiroli  . . . . . . .  zack@upsilon.cc . . . . o . . . o . o
Maître de conférences . . . . . http://upsilon.cc/zack . . . o . . . o o
Debian Project Leader . . . . . . @zack on identi.ca . . o o o . . . o .
« the first rule of tautology club is the first rule of tautology club »

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