Re: proposal to change GNOME's trademark guidelines

["Karen Sandler" <karen gnome org>]

>> This section is quite broad, and is only modified by the somewhat vague
>> "Fair Use" section. Unfortunately, if taken literally, it would prevent

On Thu, July 28, 2011 4:24 pm, Alan Cox wrote:

> The "Fair Use" section has another problem btw when someone is looking at
> this. "Fair Use" has no meaning in most legal systems outside the USA.

I wasn't going to get into this level of detail here, but actually Fair
Use doesn't really have any meaning in trademark law the way it does in
copyright law in the United States. There is a concept of nominative use,
which basically gets to what this section is talking about. The policy
does go on to describe what is meant in this context so i don't think it's
too problematic as a term here.

To be honest, I would probably rewrite a bunch of the policy if we were
starting from scratch but I'm trying to make a narrow fix to address a
real problem that has become an obstacle. We may want to rewrite the whole
policy at some point, but I think that's a lot more work.

>
>> I'm proposing this additional language (which is based on text in other
>> free software trademark policies) to be added in the same section, after
>> that paragraph:
>
> And that should be reviewed by someone experienced in trademark
> law. I'm sure some of the corporate members can help. I know how much fun
> Red Hat had trying to get the Fedora mark right.

I'm not the world's foremost expert in trademark law but I am a lawyer and
have worked in this area in my tenure at the Software Freedom Law Center.
The language that I proposed was reviewed in other contexts by other
lawyers at SFLC as well as lawyers at various companies that were involved
in the projects that adopted policies with this language in it. (That
said, I'd be happy to get other lawyers involved if it's not overkill.)

>> > This requirement is waived in all contexts where such marks are not
>> > normally included, such as email, online discussion, package names,
>> > non-graphical advertisements (when permitted), and academic papers.
>> > We encourage the use of the symbol whenever possible, but recognize
>> > that many non-commercial and informal uses will omit it.
>
> This for example allows the use of "gnome" for packages which are not
> gnome packages or to advertise products that are nothing to do with
> Gnome using google adwords (eg buying the Gnome word and pointing it at
> xfce.org 8)). <snip>

Actually, you'd have to cross reference this against the very first  item
in the Prohibited Use section:

>> Do not make reference to GNOME or GNOME Trademarks in a manner
>> that is false or misleading.

The proposed addition is just a waiver from a requirement to add notices.
It relies on the prohibitions elsewhere to make sure that the behavior you
describe can't happen. If it weren't for the prohibition against false or
misleading use, then even without adding the new text, your scenario would
be permitted -- others could use the GNOME name to point to non-GNOME
software-- provided they include the notices. The policy must be taken as
a whole.

However I don't want us to add any confusion so would it make an easier
read to add "Subject to the provisions contained elsewhere in these
guidelines, including those contained in the Prohibited Use section..."?

>> We want to make sure that people can use GNOME software and talk about
>> it
>> freely without unreasonable restrictions. The aim is to adopt this
>> amendment to the policy in two weeks if there are no objections. Public
>> discussion here about it would be great, and folks can contact me
>> privately too if they want to.
>
> This seems the wrong tack to me. Giving clear examples of fair use, and
> clear, tight ones so you don't make the package mistake would sort this
> out. Trademark requirements are quite specific and defining some examples
> would provide clarity and assurance surely ?
>
> It's really essential such changes go through lawyers. Sad the world
> works that way but in the case of trademark that's how it happens to be.

I think you're asking for a major change in the GNOME trademark policy,
which I'm not against, but sounds like a lot of work. I'm really focused
right now on fixing a problem quickly that folks are complaining about. I
agree that the policy as a whole could be improved so we can definitely
start an initiative to review and improve it if you want.

karen