Subject: Re: APL license - What about the enforced logos?
From: Rick Moen <rick@linuxmafia.com>
Date: Wed, 29 Nov 2006 15:13:32 -0800

Quoting Matthew Flaschen (matthew.flaschen@gatech.edu):

> Russ Nelson wrote:
> > We tried to protect it as a trademark, however it is too
> > descriptive.  
> 
> So, in other words, you tried and failed to trademark it.

More specifically, there was application to USPTO for Federal
_registration_ of such a trademark (technically, service mark), which
was declined because (I gather) the mark was deemed not distinctive
enough, and was deemed "merely descriptive", which is bad, as opposed to
"suggestive", which is good.[1]  (That is why commercial goods tend to
get slightly misshapen names like "Glue Stic", plus distinctive trade
dress, etc.)

Without Federal registration at the US Patent and Trademark Office to
gain the Lanham Act's additional protection (as to enforcement and
geograpical scope), and saving US $330 per decade by that omission, one
_may_ and frequently does nonetheless establish, and gain the ability to
enforce, trademarks (and certification marks, and service marks).  In
the USA, that is an established principle of common law, and is
regulated by the various states' statutes for that purpose.

Basically, under common law, you establish a trademark (for goods; 
if for servicess, they're technically called service marks) by using it
in/for/concerning commerce in a way that establishes it as a distinctive
brand.  How do you know it's distinctive enough to be enforceable?  By 
suing someone for trademark infringement, and getting a judge to agree.

I'd love to be able to refer you to my article in _Linux Gazette_ on
this subject, but I'm still writing it.  ;->

Meanwhile, are you actually interested in trademark law, or just using
it as something to argue about?


> Of course you can point it out, but strongly worded letters only go so
> far.

OSI can point it out, and the rest of us can and will support them
strongly.


> Also, I don't think "open source" is that well-understood after all;
> many people probably couldn't distinguish it from shared source or
> gratisware.

You think they have problems with _that_, you should see how badly they
misunderstand proprietary licences.  However, it's not necessary for
people to understand precisely what (software) open source is for them
to understand that OSI originated and defined the concept, and remains
in charge of it.


> I think most people are unaware of the OSI's role, and would never
> consider the license list a final arbiter (if they even know the
> software's license).

"Most people" have blinking twelves on their VCRs.  Methinks you're just
trying to find something to argue about.

Meanwhile, googling for "open source" brings up OSI as the first hit.

[1] More at:  http://www.bitlaw.com/trademark/degrees.html