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Re: Registering the Debian Logo as our trademark?



On Mon, Apr 22, 2013 at 4:09 PM, Paul Tagliamonte <paultag@debian.org> wrote:
> On Mon, Apr 22, 2013 at 04:04:34PM -0400, Brian Gupta wrote:
>> Hi all,
>>
>> I have been helping to field trademark inquiries for Debian since late
>> February, and the issue of our Logo has come up a number of times.
>>
>> Currently, our logo is not a registered Trademark, but is considered
>> (and treated by our current Trademark policy) as a "common law"
>> trademark, in that we have been using it to represent Debian for many
>> years, and many people see it and recognize it as "Debian's logo".
>>
>> I know there have been discussions in the past about moving forward
>> with officially registering the logo, but these discussions seem to
>> have not ended with a clear decision or agreement one way or another,
>> hence the status quo of unregistered common law trademark.
>>
>> Generally speaking, as a matter of law, it would be better if we
>> registered our logo as our Trademark. We had also gotten advice from
>> our legal counsel (SFLC) encouraging us to do so.
>>
>> I don't believe any changes would be required to our Trademark policy
>> to accomodate the change from "common law" to "registered" trademark,
>> we'd just have the benefit that we'd have an easier time protecting
>> it, if we ever found a need to do so.
>>
>> Here is the Debian Trademark Policy 2.0 [1] guidance on using logos:
>
> Note guidelines. We don't actually restrict use.
>
>>
>> "Guidelines for Using Logos
>>
>> - Any scaling must retain the original proportions of the logo.
>> - Do not use the Debian logos as part of your company logo or product
>> logo or branding itself. They can be used as part of a page describing
>> your products or services.
>> - You need not ask us for permission to use logos on your own website
>> solely as a hyperlink to the Debian project website."
>>
>> Some may wonder if Registering our logo as a trademark is possible
>> with the logo under a fairly liberal Free Software license. The answer
>> is yes, as Copyrights are a different set of rights than Trademark.
>> Bear in mind or Logo is already one of our Trademarks, we just don't
>> have it registered.
>>
>> Another question that one might raise is, "What if the USPTO rejects
>> our logo as too simple, and not creative enough?" In answer, this is
>> not a criteria for acceptance. If the mark is distinctive, and unique,
>> and isn't already registered, it doesn't really matter how simple or
>> complex a design is. e.g. - Think of the "Nike Swoosh".
>>
>> I would like to work to address what I perceive to be a bug, and get
>> our logo official registered. I spoke to leader@ (Lucas) about this,
>> and he said that I should first start a dicussion on -project laying
>> out the pros and cons, with examples of what other similar projects
>> are doing.
>>
>> Pros:
>> -----
>> - Makes it easier, legally speaking, to protect our trademark, if it
>> ever came to it
>
> We really can't. It's now DFSG free. Folks can, legally speaking, do
> anything with it, now. There's still the restricted-use logo, which was
> left as-is, ISTR.
>
>> - When companies are doing trademark searches for logos in the
>> trademark database, they would be discouraged from using our logo, as
>> it is would be in the database.
>> - If a company tries to register a logo trademark that is the same as
>> ours, the USPTO should not allow it, since it is in their database. (I
>> say should, as mistakes can happen)
>>
>> Cons:
>> -----
>> - Filing costs of ~$700
>> - Labor/work required to file (With assistance from SFLC, I am willing
>> to do much of the work required.)
>> - Required extra coordination with SPI
>> - If someone has already filed our logo as a trademark, we will be
>> forced into a situation where we need to deal with that. (I have
>> already done a preliminary search of the USPTO database, and found no
>> such occurrences, so feel this risk is minimal.)
>> - In order to maintain the status of a federally registered trademark,
>> the owner must file a statement of continued use and later, a renewal
>> application. (Again more work, which I am willing to do.)
>>
>> Other projects that have registered their logo:
>> -----------------------------------------------
>> - Apache - Many trademarks, including the feather
>> http://www.apache.org/foundation/marks/list/
>> - OpenOffice - Seagull logo
>> http://www.openoffice.org/marketing/art/galleries/logos/
>> - Gentoo Linux - G logo http://www.gentoo.org/main/en/name-logo.xml
>> - Fedora - Multiple logos http://fedoraproject.org/wiki/Logo/UsageGuidelines
>> - Drupal CMS - Druplicon logo http://drupal.org/node/9068
>> http://drupal.com/trademark
>> - Gnome - Gnome Foot http://www.gnome.org/foundation/legal-and-trademarks/
>> - Mozilla - Multiple logos (Firefox, Thunderbird and Mozilla)
>> http://blog.mozilla.org/press/media-library/
>> - KDE - KDE and the K Desktop Environment logos
>> http://techbase.kde.org/Template:KDE_Trademark_Notice
>
> Do any of these also have a DFSG free logo? I know GNOME at least has
> been pissy about our use of their foot on some bug report / ml post I
> read.

Regarding the logo being licensed (under Copyright law) with a DFSG
approved license, this does not impact our ability to file it as a
registered Trademark.

While this is confusing, and not a universal practice, other projects
have followed this practice of releasing the artwork of their logo
under Free Software copyright licenses, while still managing them as a
Registered Trademark.
1) KDE logo is licensed under LGPL and is a registered Trademark:
http://www.kde.org/stuff/clipart.php
http://techbase.kde.org/Development/Guidelines/CIG/KDE_Logo
1) Gnome foot is licensed under LGPL/GPL and is a registered
Trademark: (Pretty much all artwork including the foot is licensed
under Copyright law under LGPL/GPL).
3) Gentoo - Registered as TM and released under Free Software licenses
here: http://www.gentoo.org/proj/en/desktop/artwork/artwork.xml

Do remember that Copyright law covers the right to copy and modify,
while Trademark law covers the ability to use a word, or graphic to
represent a brand or entity. A particular representation of a
Trademark, can be licensed in a liberal fashion, allowing copying and
modification, but still be managed under Trademark law, when it comes
to representation of a "brand". In all the above cases the project's
TM policy would take precedence over the Copyright policy, when it
comes to the specific case of representation of project/brand. (As it
does with our logo today.)

I know this is a bit confusing, as it certainly made my head hurt when
first learning about these issues, but does this help clarify things?

-Brian

>
>>
>> So far in my search of other large Free Software Projects that have a
>> singular graphical identify, pretty much all have a registered
>> graphical trademark, with the exception of the GNU project's "gnuhead"
>> logo. (However, FSF does still treat it as a trademark
>> http://www.gnu.org/graphics/agnuhead.html)
>>
>> What do people feel about proceeding with this registration?
>>
>> Thanks,
>> Brian
>>
>> [1] - http://www.debian.org/trademark
>>
>>
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>>
>
> Cheers,
>   Paul
>
> --
>  .''`.  Paul Tagliamonte <paultag@debian.org>
> : :'  : Proud Debian Developer
> `. `'`  4096R / 8F04 9AD8 2C92 066C 7352  D28A 7B58 5B30 807C 2A87
>  `-     http://people.debian.org/~paultag


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