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Re: Proposed MBF - mentions of the word "Ubuntu"

On Sat, Nov 09, 2013 at 11:25:03AM -0500, Scott Kitterman wrote:
> On Saturday, November 09, 2013 15:00:24 Colin Watson wrote:
> > On Fri, Nov 08, 2013 at 05:35:36PM +0000, Ian Jackson wrote:
> > > (Posted to -project because I'm writing with my tongue in my cheek.
> > > Actually renaming and rewording things would be making our own life
> > > difficult to spite Canonical.  Much better to stick up two fingers.

> > > But nevertheless, I would like to suggest that the DPL contact Mark
> > > Shuttleworth and tell him that this kind of shit is very damaging to
> > > our good relationship.)

> > I was fairly unhappy too when I heard about this.

> > I happened to notice via Twitter this morning that Mark responded to
> > this, and nobody appears to have linked to it yet in this thread:

> >   https://plus.google.com/116812394236590806058/posts/5jdibY5iR9b

> It appears there's still some misunderstanding there.  Under US law (where
> the site is hosted and the poster is based) it's protected speech.  Full
> stop.  No permission needed.  IANAL, but I have studied this a bit.

Nominative use doesn't require any permission under US law, but US
jurisdiction is not the only one that matters for Canonical, which is not a
US-based company.  So as a US website, fixubuntu.com doesn't need
permission, but it's less clear to me what Canonical's obligations might be
on the policing side.  In Debian we have tended to focus on the US rules for
trademarks because they are more liberal than in other jurisdictions and
because we can rely on this providing sufficient cover for Debian, our users
and our downstreams even when they're based in other jurisdictions with
other rules.  But that doesn't necessarily mean that Canonical, in
*policing* its trademark, should be following the US standards; nor does
trying to follow a different standard imply either that Canonical's legal
team misunderstands the law, or that Canonical is trying to suppress
protected speech.  As I hope Mark's post makes clear, the trademark policy
on the Ubuntu marks is intended to strike that very same balance that we
take for granted on the Internet between freedom of speech and protection of
trademarks, it just arrives at it by a somewhat different route than it
would from a strictly US-centric POV.

FWIW, the site owner also claimed that the use of the Ubuntu logo on the
front page of the site was protected as nominative use.  It's not at all
clear to me that this was the case under US law; there's no obvious need to
make use of the logo mark when referring to Ubuntu instead of just the name,
which is what nominative use is intended to protect.  I think the use of the
logo does introduce confusion, and it was reasonable to ask fixubuntu.com to
discontinue use of it.  So despite the ham-handed approach, I think the
ultimate outcome here is a good one.

Steve Langasek                   Give me a lever long enough and a Free OS
Debian Developer                   to set it on, and I can move the world.
Ubuntu Developer                                    http://www.debian.org/
slangasek@ubuntu.com                                     vorlon@debian.org

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