Subject: RE: OSI enforcement? (Was Re: Microsoft use of the term "Open Source")
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Wed, 9 Jan 2008 12:44:32 +0100

 Wed, 9 Jan 2008 12:44:32 +0100
Rick Moen [mailto:rick@linuxmafia.com]
> My French is good enough to enjoy old Simenon detective novels, but I
> don't trust it for reading legal/regulatory Web sites. However, at
> first glance, it looks to me as if not one of those 23 is a
> certification mark; they all appear to concern goods and services.

All trademarks registered at INPI are about "products and services" and
their classification into 45 "classes" follows the international
classification of these products and services.

Certification marks are either:
* service marks (If they are create by private organisations), or
* official labels (created by law and managed by governmental organisms)

Certication marks created as service marks in the computing industry are
part of class 42 (there are also some service marks in class 45 that spans
almost all domains, because it covers the security of properties and
individuals), and 35 (advertising, commercial affairs, administration
services).

There's no further subdivision of classes of products of services, once a
trademark is reserved in one class it is assigned and covers the whole
class. Its area of application may be: France only, or European Union (for
communautary marks), or international (the registration fees and procedures
are not the same).

Anyway, the website "societe.com" is probably not the best source for
finding trademarks, it is best used to look for organisations, and their
financial records, not trademarks and service. Why not use the INPI website
itself?

On www.icimarques.com (official trademark database of the French INPI), I
count 29 trademarks: 21 are for France only (10 of them are semi-figurative,
i.e. similar to logos or advertising messages, the others are service
marks), 8 are registered in the European Union; all of them being service
marks. 

The shortest ones are: Expertise Open Source; Open Source Insurance; Open
source Expo; Open Source World; Open Source Creativity; Open Source
Services; Open Source Risk Management; Open Source Magazine; Open Source
Biology (registered twice); Open Source Press; Open Source Akademie... One
of them contains the word "Linux" as well: "Linux Sélection Le meilleur de
l'Open Source". They are all written in all-capitals or with title case (but
registered independently of letter case, except figurative marks (i.e.
logos).

However there may be other trademarks registered separately for other
European Union countries only, that INPI will not look for: INPI considers
only (but all!) those registered trademarks that are applicable to France.
"Open Source Initiative"is not even listed. Technically it is still
assignable for use in France (and may be assignable in other EU countries if
there's no other registration for specific UE countries); it also looks like
there's no trademark "Open Source Initiative" registered at the
international level.

I don't know what you're trying to differenciate with "certification marks",
because there's no difference with other products and service marks (the
only important thing is the domain where the mark is used).

> Anyway, I'm not particularly familiar with French trademark law,
> so I can't say of a certainty that your notion of "distinctiveness" is
> out of step with the Institut National de la Propriété Industrielle's
> criteria, but I rather suspect it is.

Distinctiveness is based on international criteria and classification; INPI
uses the latest international edition of the classification oftrademarks
since 2007 January 1st.