Comments on: Did I miss anything? http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/ Mindblogging the world to itself Mon, 13 Oct 2008 06:12:16 +0000 http://wordpress.org/?v=2.6.2 By: toni http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-32184 toni Sat, 03 Mar 2007 12:12:49 +0000 http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-32184 You missed one important point: If you are holding a trademark, you're in a much strong(er) position in court than if you don't have one. By default, the party having registered the trademark is considered to be "right", and the other party is wrong. So, if eg. M$ would register the Debian trademark, you'll have a hard time proving that they are using it abusively, and that the trademark is, in fact, invalid (it could work that way in Germany, under special circumstances). Otherwise, you can suddenly find yourself forced to relinquish using the name "Debian". You missed one important point: If you are holding a trademark, you’re in a much strong(er) position in court than if you don’t have one. By default, the party having registered the trademark is considered to be “right”, and the other party is wrong. So, if eg. M$ would register the Debian trademark, you’ll have a hard time proving that they are using it abusively, and that the trademark is, in fact, invalid (it could work that way in Germany, under special circumstances). Otherwise, you can suddenly find yourself forced to relinquish using the name “Debian”.

]]> By: aigarius http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1323 aigarius Thu, 19 Oct 2006 15:56:54 +0000 http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1323 Law is not simple - a read of GPL proves that instantly. However an idea can be simple. In this case the idea is freedom - if the code is free then the name should also be free. Registring Debian trademark is like taking ot patents for free software ideas - it is creating a restriction and restricting competition, not via copyright law, but via other laws. If such litigation would come up, it would be very like the SCO case and will have to be handled the same way. Otherwise we are just requesting everyone to take off their jackets and shues for screening - no gain in security, but a delay and humiliation for everyone involved. Law is not simple - a read of GPL proves that instantly. However an idea can be simple. In this case the idea is freedom - if the code is free then the name should also be free.
Registring Debian trademark is like taking ot patents for free software ideas - it is creating a restriction and restricting competition, not via copyright law, but via other laws.
If such litigation would come up, it would be very like the SCO case and will have to be handled the same way. Otherwise we are just requesting everyone to take off their jackets and shues for screening - no gain in security, but a delay and humiliation for everyone involved.

]]> By: David http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1302 David Thu, 19 Oct 2006 07:53:30 +0000 http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1302 It's not that simple (it never is with law). You said "Even holding and enfocing a Debian trademark does not prevent teoretical lawsuits against Debian" - I agree, but it's not a relevant point. *Nothing* can protect against "theoretical" lawsuits against Debian. But the risks can be reduced. "I believe that it would have to be registred before the current Debian trademark was and before the Debian project was founded" - this is not the whole truth. There are many factors which you haven't accounted for, e.g. if someone was to register a trademark which you wanted invalidated due to prior use, the onus of proving the prior use would now be on you (in most jurisdictions). In addition, even "prior use" can be ousted by "later use" if the "later use" becomes popular enough to eclipse the "prior use". This can of course happen with a registered trademark as well, but it would be much harder for the "enemy" to do so (again, in most jurisdictions that I know of). As for the advantages of the "ignore it until you are sued and then strike back with all possible might" approach, I failed to see any statements to back it up. It’s not that simple (it never is with law).

You said “Even holding and enfocing a Debian trademark does not prevent teoretical lawsuits against Debian” - I agree, but it’s not a relevant point. *Nothing* can protect against “theoretical” lawsuits against Debian. But the risks can be reduced.

“I believe that it would have to be registred before the current Debian trademark was and before the Debian project was founded” - this is not the whole truth. There are many factors which you haven’t accounted for, e.g. if someone was to register a trademark which you wanted invalidated due to prior use, the onus of proving the prior use would now be on you (in most jurisdictions).

In addition, even “prior use” can be ousted by “later use” if the “later use” becomes popular enough to eclipse the “prior use”. This can of course happen with a registered trademark as well, but it would be much harder for the “enemy” to do so (again, in most jurisdictions that I know of).

As for the advantages of the “ignore it until you are sued and then strike back with all possible might” approach, I failed to see any statements to back it up.

]]> By: bignose http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1298 bignose Thu, 19 Oct 2006 02:58:10 +0000 http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1298 Your arguments seem to be against all trademarks, held by anyone for any product. If that's not so, can you show a few trademarks that you do not think should be abandoned, and why they're exempt from your reasoning? Your arguments seem to be against all trademarks, held by anyone for any product. If that’s not so, can you show a few trademarks that you do not think should be abandoned, and why they’re exempt from your reasoning?

]]> By: aigarius http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1212 aigarius Wed, 18 Oct 2006 23:21:22 +0000 http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1212 I believe that it would have to be registred before the current Debian trademark was and before the Debian project was founded. However even reading the Wikipedia page on trademarks shows that this system is very complex and twisted. Even holding and enfocing a Debian trademark does not prevent teoretical lawsuits against Debian. That is the thing about "intellectual property" lawsuits - you are never 100% safe. The mere existence is a threat in itself. The best one can do is ignore it until you are sued and then strike back with all possible might if it does happen. Making everyones lives harder just because there is some risk is NOT a solution - it is a problem in itself. I believe that it would have to be registred before the current Debian trademark was and before the Debian project was founded. However even reading the Wikipedia page on trademarks shows that this system is very complex and twisted. Even holding and enfocing a Debian trademark does not prevent teoretical lawsuits against Debian. That is the thing about “intellectual property” lawsuits - you are never 100% safe. The mere existence is a threat in itself. The best one can do is ignore it until you are sued and then strike back with all possible might if it does happen.
Making everyones lives harder just because there is some risk is NOT a solution - it is a problem in itself.

]]> By: David http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1192 David Wed, 18 Oct 2006 22:47:09 +0000 http://www.aigarius.com/blog/2006/10/19/did-i-miss-anything/#comment-1192 Yes, you missed the risk of a hostile entity registering, using and ultimately enforcing the Debian trademark against Debian. Yes, you missed the risk of a hostile entity registering, using and ultimately enforcing the Debian trademark against Debian.

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