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Stefano Zacchiroli | 1 Aug 2012 09:13
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Re: trademark policy draft

On Tue, Jul 31, 2012 at 01:37:06PM -0600, Paul Wise wrote:
> > I'm happy to attach a first complete draft of such a policy, and I'm
> > looking for comment on it.
> 
> Some of the things that are explicitly allowed by the policy are
> things that AFAIK are not restricted by trademark law, is the purpose
> of including those to reduce the number of questions from people who
> aren't well informed about the restrictions in trademark law?

Yes, and in my experience that is very much needed. For example, we
already get quite a number of requests at trademark <at> d.o which are, in
fact, fully covered by nominative usage. As such, they are useless
requests but they still come in. Documenting more visibly when they are
not needed will reduce our load in handling them.

> Does the domain name restriction mean that sites like these will have
> to rename themselves?

Peter is right on this: we should give them explicit permission. But
note that this part, in most cases, is a no-op change wrt the current
policy, which already restricts the usage of the debian name in domain
names by others.

Cheers.
--

-- 
Stefano Zacchiroli     zack <at> {upsilon.cc,pps.jussieu.fr,debian.org} . o .
Maître de conférences   ......   http://upsilon.cc/zack   ......   . . o
Debian Project Leader    .......    <at> zack on identi.ca   .......    o o o
« the first rule of tautology club is the first rule of tautology club »
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Stefano Zacchiroli | 1 Aug 2012 09:23
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Re: trademark policy draft

On Wed, Aug 01, 2012 at 07:10:51AM +0900, Charles Plessy wrote:
> I think that we should show the example and remove restrictions on the
> commercial use of our trademark.  We can of course, in a non-normative
> section, keep a recommendation to indicate if a donation will be made
> to Debian.

Thanks for your feedback on this.

> Here are minor comments.
> 
>  - It would be nice to indicate somewhere which restrictions stem from
>    laws, and which restrictions are additions by us.

As a disclaimer, trademark policies are not as binding as other law-ish
stuff we tend to be more familiar with, such as copyright licenses. They
offer the owner own interpretation of what constitute proper usage of
some mark. This is to say that "stem from laws" is less well-defined
than what you might think.

That said, I think I've already commented on this in my premise. We've
asked SPI lawyers for a trademark policy "as free as possible", as long
as it allows us to retain our trademark rights. As long as we trust
their judgements what we've got is, essentially, "stemming from law".

The only addition is the merchandise provision, on which I've explicitly
asked for feedback.

>  - If this policy focuses on trademarks owned by SPI, perhaps it can
>    exhaustively list them ?
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Martin Michlmayr | 1 Aug 2012 12:12

Re: trademark policy draft

* Stefano Zacchiroli <leader <at> debian.org> [2012-07-31 18:07]:
> \subsection{When to Use the DEBIAN Trademarks}

I'd change this to "When You Can Use the DEBIAN Trademarks" or "When
You Can Use the DEBIAN Trademarks Without Permission".

> \item You can make t-shirts, desktop wallpapers, caps, or other merchandise
>  with DEBIAN trademarks for \emph{non-commercial usage}. You can also make
>  merchandise with DEBIAN trademarks for \emph{commercial usage} provided that,

This of course opens the usual can of worms as to what "commercial"
actually means.  Maybe it could be "if you're planning to sell
t-shirts for a profit" instead; but maybe it doesn't matter.

>  in addition to following the guidelines listed below, you truthfully
>  advertise to customers which part of the selling price will be donated to the

How about adding "(if any)" after "selling price" to make it clear
that a donation is optional?

> \item Acknowledge of SPI's ownership of the DEBIAN trademark prominently.
                       ^^^^^
> \item Include a disclaimer of sponsorship, affiliation, or endorsement by
>   DEBIAN on your website and on all related printed materials.
> 
>   EXAMPLES:
> 
>   X PROJECT is not affiliated with DEBIAN. DEBIAN is a registered trademark
>   owned by SPI, INC.
             ^^^^^^^^
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Joey Hess | 1 Aug 2012 16:41
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Re: trademark policy draft

Stefano Zacchiroli wrote:
> \item You can use DEBIAN trademarks to make true factual statements about
>   DEBIAN or communicate compatibility with your product truthfully.

Can I use DEBIAN trademarks to make snarky ill-supported statements?

(Anticipating a decrease in list traffic.)

> \item You cannot use DEBIAN trademarks in a domain name, with or without
>   commercial intent.

So debian.mirror.my.org is illegal?

--

-- 
see shy jo
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Ben Armstrong | 1 Aug 2012 17:26
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Re: trademark policy draft

On 08/01/2012 11:41 AM, Joey Hess wrote:
> Stefano Zacchiroli wrote:
>> \item You cannot use DEBIAN trademarks in a domain name, with or without commercial intent.
> 
> So debian.mirror.my.org is illegal?

Hmm, 'debian' is the default live hostname. That's a lot of potential infringements ...
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Stefano Zacchiroli | 1 Aug 2012 17:50
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Re: trademark policy draft

On Wed, Aug 01, 2012 at 10:41:31AM -0400, Joey Hess wrote:
> Stefano Zacchiroli wrote:
> > \item You can use DEBIAN trademarks to make true factual statements about
> >   DEBIAN or communicate compatibility with your product truthfully.
> 
> Can I use DEBIAN trademarks to make snarky ill-supported statements?
> (Anticipating a decrease in list traffic.)

(Fearing an increase in nitpicking threshold.) Well, you can, people
will, and I'm sure nobody will bother, on average. But I can imagine all
sorts of "journalistic" declarations about Debian that would undermine
the project reputation. If they are factual (or non-disprovable) fine,
if not this gives the project a edge to defend its reputation/identity.
This is what trademarks are about.

> > \item You cannot use DEBIAN trademarks in a domain name, with or without
> >   commercial intent.
> So debian.mirror.my.org is illegal?

I've been correct by Mako on this before. Short answer: hostname !=
domain name, so "debian.mirror.my.org" is perfectly fine.  (No, I don't
have a clear definition for "domain name" to offer, but it is intended
here as "the things that you register via a domain name registrar".)

For the record, this provision is already present in our _current_
trademark policy, quoting: « we insist that no business use the name
‘Debian’ in the name of […] a domain name ».

Cheers.
--

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Lars Wirzenius | 1 Aug 2012 18:10
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Re: trademark policy draft

On Wed, Aug 01, 2012 at 05:50:56PM +0200, Stefano Zacchiroli wrote:
> (Fearing an increase in nitpicking threshold.) Well, you can, people
> will, and I'm sure nobody will bother, on average. But I can imagine all
> sorts of "journalistic" declarations about Debian that would undermine
> the project reputation. If they are factual (or non-disprovable) fine,
> if not this gives the project a edge to defend its reputation/identity.
> This is what trademarks are about.

Do I understand correctly? If a journalist says bad things about Debian,
you want to use trademark law to shut them up? I think this is an abuse
of the trademark system, regardless of whether the journalist is correct
or not, or whether they lie or not.

The purpose of the trademark system is to avoid consumers from being
confused by competitors making products with similar names, but large
differences. Or that's what it used to be, when I was young; these 
days it is a way to excercise control on people you don't like.

The proper way to react to lies told about us is to respond with the
correct information.

Trademarks and software freedom mix badly. If I make a big change to
Debian (replace eglibc with musl, or gcc with llvm), can I still call
it Debian? We've struggled with that issue with Firefox, and we should
not be inflicting the same pain onto others.

> I've been correct by Mako on this before. Short answer: hostname !=
> domain name, so "debian.mirror.my.org" is perfectly fine.  (No, I don't
> have a clear definition for "domain name" to offer, but it is intended
> here as "the things that you register via a domain name registrar".)
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Stefano Zacchiroli | 1 Aug 2012 18:45
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Re: trademark policy draft

On Wed, Aug 01, 2012 at 05:10:41PM +0100, Lars Wirzenius wrote:
> On Wed, Aug 01, 2012 at 05:50:56PM +0200, Stefano Zacchiroli wrote:
> > (Fearing an increase in nitpicking threshold.) Well, you can, people
> > will, and I'm sure nobody will bother, on average. But I can imagine all
> > sorts of "journalistic" declarations about Debian that would undermine
> > the project reputation. If they are factual (or non-disprovable) fine,
> > if not this gives the project a edge to defend its reputation/identity.
> > This is what trademarks are about.
> 
> Do I understand correctly? If a journalist says bad things about Debian,
> you want to use trademark law to shut them up?

No, I'm trying to explain why there are provisions like this one. But
I'm kind of man in the middle here and I can't say I like it. In fact, I
don't like it at all.

We've some trademarks, and that's a fact. We've been advised, via the
legal trademark owners (SPI), to set up a proper trademark policy for
it. Because without it: (1) it might turn out to be useless to have
them, and (2) we hand up over protecting on other sides (e.g. licensing
stuff like our own logo under non-free licensing). I'm trying to solve
this intertwined mess.

Also, I do have an interest in this, because it's ended up also on my
shoulder for the past years to deal with trademark stuff, including when
they're actually useful (e.g. in retrieving squatted domain names).

And the way I've chosen to do it is given a spec to SPI lawyers saying,
"as free as possible" (with only one exception, which I've clearly
marked as such). And I've posted here the result. It is possible that
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Russ Allbery | 1 Aug 2012 18:54
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Re: trademark policy draft

Lars Wirzenius <liw <at> liw.fi> writes:

> I'll leave the discussion with this counter suggestion: change the
> trademark policy to say:

>     We call ourselves the Debian project. You can use our name as long
>     as it doesn't make reasonable people confuse you or your stuff with
>     us or our stuff, or imply that we're affiliated with or endorse you.
>     You can use our logos under the CC-BY-SA 3.0 (US) or later license.

So, again, the reason why it doesn't read like this is because we got
actual legal advice and the lawyers said that we can't make it read like
that.

We can choose to abandon our trademark and make it indefensible, but we
should do that intentionally and not under an illusion that we're just
creating a better usage policy.  If we are going to maintain a defensible
trademark, it's kind of important to listen to the lawyers who are telling
us what kind of policy is required to keep our trademark defensible.

The law is what it is, and if we want to use the law, we have to stay
within the requirements of it, even when those requirements say things we
don't want to say.  The alternative is, effectively, to not have a
trademark.

All of this is well in line with the legal advice I've heard in other
contexts about trademarks.

--

-- 
Russ Allbery (rra <at> debian.org)               <http://www.eyrie.org/~eagle/>
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Stefano Zacchiroli | 1 Aug 2012 23:32
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Re: trademark policy draft

On Wed, Aug 01, 2012 at 10:41:31AM -0400, Joey Hess wrote:
> Stefano Zacchiroli wrote:
> > \item You can use DEBIAN trademarks to make true factual statements about
> >   DEBIAN or communicate compatibility with your product truthfully.
> Can I use DEBIAN trademarks to make snarky ill-supported statements?

Actually, I've realize only later an important overlook in my first
follow-up to this. This provision is positive, in the "you can use our
trademarks to ..." form. As such, it is just a public declaration that
we are with that kind of use. It does *not* follow from it that the
negation of that statement is forbidden.

Trademark law is full of gray areas by default. With trademark policies,
trademark owners provide their own interpretation of what is white, what
is black, and (by exclusion) what remains gray --- on which a judge, if
ever, will have to decide.

The correct answer to Joey is then related to what I've already
mentioned in reply to Paul. That provision, as all "positive"
provisions, simply tries to reduce the number of requests we get, with
which we agree by default.

I don't know why I overlooked this trivial fact at first, given that I
was in fact aware of. I've probably replied too much in a hurry (due to
a dial-up session that was about to end, but that's a different story…).
I'm sorry my reply spawned a slightly heated sub-thread. All in all,
rest assured that, even if future people in charge will want to, this
specific provision can't be used to implement the evil plan that has
been hypothesized.
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