Subject: RE: OSI enforcement? (Was Re: Microsoft use of the term "Open Source")
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Tue, 8 Jan 2008 02:21:54 +0100

 Tue, 8 Jan 2008 02:21:54 +0100
> De : Rick Moen [mailto:rick@linuxmafia.com]
> Quoting Philippe Verdy (verdy p@wanadoo.fr):
> 
> > Anyway, the subject is already so hot and well known in lots of
> > countries that I have doubt that any country will ever accept now the
> > registration of "open source" as a trademark, due to the huge history
> > of prior use (or prior art)....
> 
> These would be obstacles to patents, not trademarks.
> 
> > ...and really a lot of groups and companies throughout the world that
> are
> > monitoring any attempt by anyone to register it for its exclusive use.
> 
> And, I will reiterate yet again -- as I did when Philippe was attempting
> this same chain of reasoning last year, that trademarks  never  convey
> any right to exclusive use.

I am attempting *what*?

You infer things that I never said. I have NEVER stated that trademarks
"never convey any right to exclusive use". You are inventing !

But you, on the opposite side, are trying to convince everyone that what US
tolerates or legalizes on its soil applies elsewhere without conditions.

No, you're wrong. Internationally, the only things recognized are those
warrantied by international treaties and only in countries that are signing
parties of these treaties. And even in this case, you need to look at the
legal ratification instruments in the respective national laws, that are
implementing the treaty for the country. The fact that some countries
recognize some other rights in their soil is not relevant to determine if
those rights are valid elsewhere.

Those international treaties are those now managed within WIPO. And yes,
WIPO has merged the international competence of various treaties related to
"intellectual property", even if you don't like this term, and even if the
national ratification instruments are still maintaining a distinction
between various rights (copyright, author's right, moral right, trademark,
designs, personal rights and personal statuses, level of protection by
State, and separation of competence of juridic instances and courts, and
applicable legal procedures and due fees for related legal actions, or
classification of the abuses in the criminal or civil systems...)

All "property rights" have their legal protection limited in scope and area.
You cannot imply anything internationally by just looking at the situation
in your own country, outside of the international treaties that are at the
base of the established "equivalences" between various national laws.

So yes, the reference to "prior art" or "prior use" is relevant, even in the
case of trademarks; it is really used in many countries for defining rights
that can be kept or whose tolerance may be cancelled by court order (even if
those rights have been abused in the past, there's a legal notion of amnesty
in many countries, that makes things legal after some time after no legal
action has been taken against those abuses; the same is true also for
crimes, even crimes of war, the only exception admitted being crimes against
humanity for which there's no amnesty under international laws and
international disputes that are judged by some international court).