Subject: Re: Serious trademark trouble.
From: Russell Nelson <>
Date: Sat, 12 Aug 2000 21:58:31 -0400 (EDT)

Ean R . Schuessler writes:
 > My understanding is that the validity of trademarks stands on an 
 > organization's consistent use and regular defense of a term in the course
 > of commerce. The longer this mark stands formally unchallenged, the more
 > difficult it will become to unseat it. If this company develops products,
 > packaging, advertising and other evidence of commerce and can show use in
 > various markets this will also increase the viability of the mark.

That's too bad for them.  The Open Source Initiative, a project of
Software in the Public Interest, has first use in commerce of any
possible Open Source mark.  We can show continuous use of the Open
Source mark dating from March 1998.  We even have a rejected
registration attempt under our belt.  I'm sure that a letter from our
attorney will be sufficient to squash this registration.

 > The failure of SPI and OSI to work out an understanding with the mark will,
 > if anything, work to the disadvantage of an attorney saddled with fixing
 > this situation. Not that I'm a lawyer.

Our understanding is that there's almost no way to defend the
certification mark "Open Source".  Our instructions to SPI regarding
the mark are to abandon it.  As far as I know, SPI has ignored those
instructions, contrary to its resolution 1998-11-16.iwj.1.  That
resolution seems to have been overridden without exactly saying so, by
resolution 1998-11-16.iwj.2, which claims that a consultation is
required to decide what happens with Global IPR.  Said consultation
happened, but its results were never announced by SPI.  Looks to me
like SPI is not abiding by its own rules.

Anyway, it's all a moot point since we've stopped defending "Open
Source".  As one of the people on the front line of the trademark
defense, I can tell you that it was hopeless.  If you have a different
opinion, I have to wonder what evidence you base it on.  For example,
we ran into an Australian fellow who was claiming that his proprietary
software product was Open Source.  How do you stop him?  He has no
business locus in the US, and yet people in the US -- indeed the world
-- were hearing about this proprietary "Open Source" product.

-russ nelson <>  | If you think 
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