Re: Trademark license compatibility with GPL and/or DFSG
On Mon, 23 May 2005, Nathanael Nerode wrote: They want their trademarks stripped from modified code that is essentially different in intent and purpose from the original code. Well, that's fine; we don't want to use their trademarks for things which aren't designed to work with their hardware, now do we? (At least, except in a historical context, which certainly wouldn't be a trademark violation.) What does trademarks stripped mean though? Does it mean they want the product not to be called trademark? Or do they want every single line of code that has the name in it removed, so, for instance, a help box or even code comments that say Based on the driver for trademark must be removed? And what if the trademark is used in a different context; would that be like the Apache license that prohibits you from using it in a program called Apache Helicpoter Simulation? -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Trademark license compatibility with GPL and/or DFSG
[EMAIL PROTECTED] wrote: On the other hand, any trademark license would permit us to use their trademark, which we could not do otherwise. This is a misunderstanding of trademark. It is always legal to describe the driver as being a driver by author intended for use with trademark, because that can't cause confusion about the origin of the driver. You should do this. I think that naming the driver after the trademark might indeed be a trademark violation, because it might theoretically cause confusion about the origin of the driver. Now, Linux drivers often have nonobvious names which don't match the hardware's commercial name. So I think you should go ahead and name the driver with some non-trademarked name, and just describe it as intended for use with trademark everywhere it's mentioned. If it was a debian package, you would unfortunately really want to have the trademark in the package name so that users could find the package using the standrd search facilities in dselect. However, that doesn't seem to be the issue right now, so I won't try to work out a solution for that right now. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Trademark license compatibility with GPL and/or DFSG
[EMAIL PROTECTED] wrote: The company in question is willing to negotiate terms for a trademark license that is agreeable to all parties. Obviously any advertising or guarantee restrictions are unacceptable to us. Well, no; some such restrictions are acceptable. We accept the required NO WARRANTY clauses in lots of licenses. I think that a restriction which required that we note that *they* aren't guaranteeing it would be fine. Unlimited use of the trademark is unacceptable to them. Well, first of all we don't want or need that. We can use the trademark in most of the ways we want to without hitting any trademark restrictions. I don't have the case reference here, but there was a case involving TSR and products labelled Compatible with Dungeons and Dragons, and it was ruled that that was *not* a trademark violation (although TSR kept threatening people who did it with lawsuits for years anyway). Basically, we can't legally use a trademark (without a license) in ways which may cause confusion about the origin of the product; we can use it in all other ways and be on safe legal ground under current law. Putting the trademark in the name of the driver might lead people to think that the driver was from the company which owns the trademark, so that would require a license. How about this license: Anyone may use the trademark trademark as part of the name of a product designed to work with the hardware; provided that the product using the trademark in its name, and any advertising for it using the trademark, prominently mentions that the product is not produced by or supported by the makers of the hardware. Using the trademark in the name is the only thing we want which would actually hit trademark restrictions as far as I can tell, so that's all we need a license for. Disclaimers are required by a lot of licenses and should be acceptable (much like NO WARRANTY requirements). With this license, the disclaimers are the only restriction, and this restriction applies solely to usage of trademarks in an otherwise-maybe-infringing manner, not to anything else. Among other things, I believe this keeps it GPL-compatible, since the product can be distributed without agreeing to the restrictions simply by changing the name (which is not part of the copyright-covered material). They want their trademarks stripped from modified code that is essentially different in intent and purpose from the original code. Well, that's fine; we don't want to use their trademarks for things which aren't designed to work with their hardware, now do we? (At least, except in a historical context, which certainly wouldn't be a trademark violation.) So what do you think they would say about the model trademark license I just proposed? (Don't use it until debian-legal has had a few days to nitpick it, of course.) I think it's a free license, although others may disagree; the key point is that it is not trying to do anything but prevent confusion, and it doesn't overreach. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Trademark license compatibility with GPL and/or DFSG
Hello. Please accept my apologies if I am flogging a dead horse. I have ST*W but I cannot find a definitive solution to this problem. I did find a thread [1] on debian-legal from last year but it had more questions than answers ;-) [1] http://lists.debian.org/debian-legal/2004/10/msg00236.html I have been working on a Linux kernel driver for a certain wireless modem. I think it may be helpful to name the driver after the technology. Unfortunately, the company's trademark guide makes the following restrictions on the use of the trademark: (1) the product (i.e. the Linux kernel) must display the trademark on the splash screen (or in the About... box); (2) the trademark must appear in all documentation, marketing and promotional materials for the product; (3) the product must be guaranteed to be compliant with the wireless protocol; and (4) the uses of the trademark must be approved by the company before (each) distribution. I'd say we can't accept these terms ;-) What terms could we accept? Can we accept the restriction that any modification to the product must, at a minimum, first strip the trademarks from the product (or otherwise seek re-approval for their use from the company)? Can we accept the lesser restriction that any *significant* modification (whatever this means) to the product must, at a minimum, first strip the trademarks from the product (or otherwise seek re-approval for their use from the company)? I'd say the company would not license their trademark for free use without the lesser restriction, at least. It seems that these restrictions are incompatible with the GPL. On the other hand, any trademark license would permit us to use their trademark, which we could not do otherwise. With this understanding these are not restrictions at all but liberations! DFSG #4 permits licences that require derived works to carry a different name or version number but does not permit other minimum modification requirements. What do you think? Are these restrictions compatible with the GPL and/or the DFSG? How about if the trademark license could be revoked arbitrarily instead of imposing a no significant modification restriction (which is also somewhat arbitrary)? Would this fail the Tentacles of Evil test? It's a bit late for don't ask, don't tell as well ;-) Kind regards, Nicholas
Re: Trademark license compatibility with GPL and/or DFSG
[EMAIL PROTECTED] wrote: technology. Unfortunately, the company's trademark guide makes the following restrictions on the use of the trademark: (1) the product (i.e. the Linux kernel) must display the trademark on the splash screen (or in the About... box); (2) the trademark must appear in all documentation, marketing and promotional materials for the product; (3) the product must be guaranteed to be compliant with the wireless protocol; and (4) the uses of the trademark must be approved by the company before (each) distribution. I'd say we can't accept these terms ;-) What terms could we accept? If using that trademark has such restrictive conditions then I think it's obvious that we do not want to use it. It seems that these restrictions are incompatible with the GPL. On the other hand, any trademark license would permit us to use their trademark, which we could not do otherwise. With this understanding these are not restrictions at all but liberations! The trademark license applies to the trademark, not to the code, so this is not relevant. DFSG #4 permits licences that require derived works to carry a The DFSG is about copyright licenses, not trademarks. I object to using the DFSG to evaluate trademark licenses. -- ciao, Marco -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Trademark license compatibility with GPL and/or DFSG
Nicholas Jefferson [EMAIL PROTECTED] wrote: What terms could we accept? Who cares? Why not rename it and avoid the whole debate, if the maintainer thinks their terms might be unacceptable? Can we accept the restriction that any modification to the product must, at a minimum, first strip the trademarks from the product (or otherwise seek re-approval for their use from the company)? Name changes seem fine to me, as long as it can be redistributed by others without changes without a name change (so the trademark licence is not specific to debian). Can we accept the lesser restriction that any *significant* modification (whatever this means) to the product must, at a minimum, first strip the trademarks from the product (or otherwise seek re-approval for their use from the company)? [...] That's a lawyerbomb. I wouldn't want to accept it. It seems that these restrictions are incompatible with the GPL. I agree. On the other hand, any trademark license would permit us to use their trademark, which we could not do otherwise. With this understanding these are not restrictions at all but liberations! [...] I think that's like arguing that any copyright licence is a liberation from the default no-copying-allowed, so is compatible with GPL. I don't agree. I think it is right and proper to apply DFSG to trademarks, patents and trade secrets, by the way. -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Please follow http://www.uk.debian.org/MailingLists/#codeofconduct -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Trademark license compatibility with GPL and/or DFSG
MJ Ray wrote: Who cares? Why not rename it and avoid the whole debate, if the maintainer thinks their terms might be unacceptable? I think it would be helpful if the driver was named after the technology. If the bluetooth driver was named harold and the trident driver named poseidon it would not be obvious that the kernel supports these technologies. It adds a needless layer of abstraction onto the naming of kernel modules. This is part of the more general problem of trademarks in free software. If we don't solve this problem Debian could become a distribution of euphemisms. The company in question is willing to negotiate terms for a trademark license that is agreeable to all parties. Obviously any advertising or guarantee restrictions are unacceptable to us. Unlimited use of the trademark is unacceptable to them. We want unrestricted modification and redistribution. They want their trademarks stripped from modified code that is essentially different in intent and purpose from the original code. Necessarily the point where they want their trademarks stripped from the code is within the frontier of possible modifications under the GPL. However, code that is essentially different in intent and purpose is also likely to be original work in itself and not a derivative of the original code. This original work may not use the trademarks without permission. This restriction is therefore beyond the frontier of possible derivative works and thus is compatible with the GPL. Perhaps this is where we can find agreement with them. What do you think? Kind regards, Nicholas
Re: Trademark license compatibility with GPL and/or DFSG
On 5/19/05, Nicholas Jefferson [EMAIL PROTECTED] wrote: The company in question is willing to negotiate terms for a trademark license that is agreeable to all parties. Obviously any advertising or guarantee restrictions are unacceptable to us. Unlimited use of the trademark is unacceptable to them. We want unrestricted modification and redistribution. They want their trademarks stripped from modified code that is essentially different in intent and purpose from the original code. I'm not at all sure that all advertising or guarantee restrictions are unacceptable to us. We should have no problem, for example, with a restriction that advertising using the mark be truthful. And, anything less than that would probably be invalid under trademark law. We should have no problem, for example, with a no warrantee disclaimer. We don't have that problem with the GPL, so why should we have it with trademarks? Necessarily the point where they want their trademarks stripped from the code is within the frontier of possible modifications under the GPL. However, code that is essentially different in intent and purpose is also likely to be original work in itself and not a derivative of the original code. This original work may not use the trademarks without permission. This restriction is therefore beyond the frontier of possible derivative works and thus is compatible with the GPL. Perhaps this is where we can find agreement with them. What do you think? Asking that we rename the software if and when it's no longer a driver for the trademarked technology seems reasonable, and within the bounds of the DFSG. Since it's not a copyright issue (the copies can still be freely modified and distributed, regardless -- the GPL doesn't require that active fraud be legal), I don't think this would be a GPL issue, either. -- Raul
Re: Trademark license compatibility with GPL and/or DFSG
Isn't it always legal to use a trademark to refer to the product in question? If you have a driver for a piece of hardware that has the trademarked name X, it should be legal to name it driver for X. (Of course, what is legal and what keeps you from getting sued aren't nececssarily the same.) -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Trademark license compatibility with GPL and/or DFSG
On 5/19/05, Ken Arromdee [EMAIL PROTECTED] wrote: Isn't it always legal to use a trademark to refer to the product in question? If you have a driver for a piece of hardware that has the trademarked name X, it should be legal to name it driver for X. (Of course, what is legal and what keeps you from getting sued aren't nececssarily the same.) Sure, the question is what is the product in question? and only the trademark holder gets to define that. If they claim that they have to ship it, or that's not the product, they can do so. Their only limitation is that whatever definition they choose they have to be cnosistent about it. -- Raul
Re: Trademark license compatibility with GPL and/or DFSG
I'm not at all sure that all advertising or guarantee restrictions are unacceptable to us. Yes ;-) It was a poor choice of words on my part. I had intended that to mean any advertising or guarantee restrictions of the kind outlined in my original email (viz. trademarks on the splash screen and all documentation, marketing and promotional materials, and a guarantee of protocol compliance). Asking that we rename the software if and when it's no longer a driver for the trademarked technology seems reasonable, and within the bounds of the DFSG. Since it's not a copyright issue (the copies can still be freely modified and distributed, regardless -- the GPL doesn't require that active fraud be legal), I don't think this would be a GPL issue, either. Okay. I will let them know. Thank you, Nicholas
Re: Trademark license compatibility with GPL and/or DFSG
On Thu, May 19, 2005 at 09:48:25AM -0700, Ken Arromdee wrote: Isn't it always legal to use a trademark to refer to the product in question? If you have a driver for a piece of hardware that has the trademarked name X, it should be legal to name it driver for X. Yes, and there should be no need to use the trademark in any way that requires a license for it. Purely descriptive, accurate use of trademarked terms is always permitted. Just be careful. You can call it driver for bluetooth, since it is. You can't call it bluetooth without permission, since it isn't. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: Trademark license compatibility with GPL and/or DFSG
Nicholas Jefferson [EMAIL PROTECTED] wrote: MJ Ray wrote: Who cares? Why not rename it and avoid the whole debate, if the maintainer thinks their terms might be unacceptable? I think it would be helpful if the driver was named after the technology. If the bluetooth driver was named harold and the trident driver named poseidon it would not be obvious that the kernel supports these technologies. It adds a needless layer of abstraction onto the naming of kernel modules. Of course, the harold bluetooth driver is absurd. As absurd as the Apache HTTP Daemon or the Samba file server, indeed. :-/ [...] They want their trademarks stripped from modified code that is essentially different in intent and purpose from the original code. The licence must not try to forbid all use of the trademark in a way that exceeds what an unconnected person could do. -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Please follow http://www.uk.debian.org/MailingLists/#codeofconduct -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Trademark license compatibility with GPL and/or DFSG
On 5/19/05, Andrew Suffield [EMAIL PROTECTED] wrote: On Thu, May 19, 2005 at 09:48:25AM -0700, Ken Arromdee wrote: Isn't it always legal to use a trademark to refer to the product in question? If you have a driver for a piece of hardware that has the trademarked name X, it should be legal to name it driver for X. Yes, and there should be no need to use the trademark in any way that requires a license for it. Purely descriptive, accurate use of trademarked terms is always permitted. Not necessarily true when used as a name for other things, or in advertising and promotional materials, especially if you have been warned not to do so; see Progress Software v. MySQL and the Red Hat trademark imbroglio. I do not have the knowledge or qualifications to draw the line; do you? Just be careful. You can call it driver for bluetooth, since it is. You can't call it bluetooth without permission, since it isn't. I think (IANAL) that you are safe in going as far as: The author (who is not a vendor of Bluetooth (TM) devices or a licensee of the Bluetooth (TM) trademark) believes this driver to be compatible with certain devices that implement the Bluetooth (TM) interface. The trademark holder has not evaluated this claim. Bluetooth is a registered trademark of whomever. But naming things after a trademarked device, when the trademark holder is iffy about it, is IMHO somewhat risky. Cheers, - Michael
