Suppose I were to espouse the name “Kier Thomas” and start to write articles passing myself off as him. I wonder if he’d have an issue with that?

Of course in the Python world we have had to look at these issues. There was indeed (as Doug possibly knows) a company whose name I won’t publicize further calling itself “The Python Corporation”. Had the PSF not been assiduous in its pursuit of this company it could still be soliciting “donations” and being mistaken for the Python Software Foundation.

Similarly, if Thomas makes liberal use of the Ubuntu trademark then Canonical are perfectly within their rights to decide whether or not the uses of the mark are appropriate. They presumably chose to trademark the name in order to be able to control its use. Otherwise I could register it myself and take action against them.

There are a number of people in the open source world who seem to feel that trademarks and copyright are abominable, but they too easily overlook that fact that these systems are enshrined in the legal systems of most jurisdictions, and simply wishing they didn’t won’t make the laws go away: we have to work in the system we live in until we can change it.

I am very glad that the PSF had to consider whether or not to try to protect its trademarks (registered or otherwise) at its recent members’ meeting, and decided by a large majority to continue to do so. We have now drawn a line in the sand, and can take action to stop people from bringing the name into disrepute or associating it with disreputable products or ideas.

That’s all Canonical were attempting to do with Kier Thomas, and I doubt very much that they would have refused him permission. Thomas appears not to realize that by *not* requiring him to ask permission they would have weakened their ability to protect the mark against abuses from less conscientious users.

PS: Knowing my propensity to commit typos I’d really appreciate a “preview” option in the blog comments!

It is fine to set up a shop which sells “recycled Dell’s” but I think you do need to ask permission to set up a shop named that. (I am not a lawyer and have no at hand example for that specifically.) You do not need to ask for something like “Dell’s Lemonade” (rats. now I want some… ) as that is in a different market. You do need to ask and will be rejected for and could be sued for ‘Dell Used Computers’ (which did happen).

Your FireFox argument is a much better one, and where the waters get muddied. The original purpose of Trademark Law is to allow for preventing exactly that, but that does not mean it needs to be used that way. The Mozilla foundation could have decided to have a policy where people could have ‘Unbuntu FireFox’ for instance and as long as the ‘Unbuntu’ version always had ‘Unbuntu’ as part of the mane, everything would be fine. I have seen Trademark policies with rules for that expressly laid out. Mozilla has decided to take a harder line that I do not agree with, but that is well within the intent of Trademark Law (just not in the spirit of Open Source IMHO.)

On #7, you did not read the opening statement properly. Your example of ‘Time Werner’ is covered under nominative use, which as I explained the author continued to use freely. It was all the non-nominative uses (making his website look almost exactly like the main Unbuntu website) which he stopped doing as he was told it might be in violation as he had not asked for permission for that use.

Actually on point:

Open Source projects need Trademark Law to defend themselves.

If you want that protection, you must actively protect your mark (saying all use is ok causes you to loose any and all protection).

As long as you have a system in place for detailing when one needs to ask for permission, and use it; then you have that protection.

This means that you need people to ask. It’s a hoop, but one that is required to use the Trademark (just like giving back changes if you use the code).

This is not broken. This is not a problem. This is the system working. Just ask for permission.

a very interesting point you bring up… and one definitely needing more discussion.

This reminds me of a related issue with Ubuntu ™ and naming.

How Ubuntu took all of Debians packages, and wrote that the all maintainers were Ubuntu developers.

Unfortunately this is not the case, and Ubuntu took on the reputation of all those hundreds of people without their permission. Many of them were not Ubuntu developers at all, and some were upset about this.

With contribution comes ownership. On one hand Ubuntu wants people to contribute, and take ownership in a way… on the other hand it wants to keep control of that ownership.

It’s a hard balance I think. Definitely something that needs more discussion.

Like with the GPL and other FOSS licences, it would be good if we had some common licences to use for trademarks. They address patents, and copyright.

Ubuntu really should have a policy that covers all authors for books and their websites. Books rarely make very much money… especially technical books.

Many FOSS people want for everyone to be able to take any code they want, fork it and be able to do what ever they want with it – even make money off it, and even start competing projects.

Trademarks are clearly being used to stop this from happening.

Obviously some people don’t want this of course. The advertising clause in some bsd licences is made for this reason. It means the people making changes can not use the reputation of others with their set of changes.

What stops me from setting a shop “recycled Dells”? or “Watter proofed Wiis” and such?

If I make a distro and offer “Firefox[Moddified by CoolDistro]” on what sorts of legal grounds am I going to be sued?

If I can be sued for that then obviously Trademarks are not being used for its original purpose, to identify the source of a product.

On point 7: For the same reason you shouldn’t need Time Warner’s permission to talk about Time Warner.