On Tue, 2007-11-13 at 23:54 -0800, Ben Rockwood wrote:
> > I would propose that the OGB investigates renaming the existing
> > community with a new trademark, that doesn't utilize any Sun
> > trademarks. (The new trademarks would be held by a small outfit, that
> > only exists to hold and enforce the trademark).
> > Because this project is of vital importance to the identity of the
> > entire community, I would ask that the OGB itself sponsor/lead this
> > project. (Possibly through another "board committee")
> >
> Without a legal entity such as a non-profit foundation, or something,
> this isn't realistic.
Again, I'm not a lawyer but that is inconsistent with my (admittedly
limited) understanding of US law.
1) It appears that it is possible for unincorporated associations to own
things -- see the note I sent to ogb-discuss about a week and change
ago. It seems likely that the OpenSolaris Community is now a "legal
entity" known as an unincorporated association. We have a common
purpose (stated in the charter), we have bylaws, we have an elected
Board.
Were I on the OGB I'd be pushing to incorporate sooner rather than later
in order to limit the personal liability of OGB members and other
officers.
2) According to a FAQ on the US PTO website, under US law it is not
necessary to *register* a trademark in order to *own* it; registration
merely makes it easier to defend the mark.
According to the trademark FAQ published by the USPTO:
Federal registration is not required to establish rights in a
trademark. Common law rights arise from actual use of a mark.
Generally, the first to either use a mark in commerce or file an
intent to use application with the Patent and Trademark Office
has the ultimate right to use and registration.
http://www.uspto.gov/web/offices/tac/tmfaq.htm#Search005
In other words, you pick a new name that nobody else in your line of
business is using and then start using it to refer to your organization
and/or your products. At that point you would have an unregistered
common law trademark.
If we went to the trademark lawyers first we'd have higher assurance
that nobody else was using the name.
- Bill
