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'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw)
Groklaw looks
at a debate going on at the SugarCRM forum page about the SugarCRM
license and examines trademark law. "I keep reading sentences that
OSI doesn't "own" the trademark to Open Source. I think such a sentence
should be written instead that it doesn't have a *registered* trademark,
but here's the thing: you don't have to register a trademark to have one. I
think it's important to understand that, so let me show you some materials
I've collected for you on this subject."
(Log in to post comments)
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 17, 2007 21:50 UTC (Tue) by PO8 (guest, #41661) [Link] IANAL, but I think it would be difficult for OSI to defend "Open Source" as its trademark in 2007. As I understand the law, it would require them to establish that the widespread use of the term "Open Source" is generally recognized to be synonymous with "released under an OSI-approved license". My experience is that most people talking about open source these days have never even heard of OSI; I think the term has long since entered generic usage. I would love to be wrong on this, but there it is.
I understand the argument about secondary meaning, and certainly can imagine it being made in court. I just can't imagine it winning. My suggestion---and again, I am not a lawyer---is to instead look at Lanham Act "dilution" of the registered trademark "Open Source Initiative Approved License".
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 17, 2007 22:45 UTC (Tue) by dark (subscriber, #8483) [Link] PJ doesn't mention at all that the OSI tried to register "Open Source" as a trademark, and was rejected. That makes all that stuff about common law trademarks rather less convincing.
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 18, 2007 13:50 UTC (Wed) by NigelK (guest, #42083) [Link] Indeed. PJ seems to be now treating the words of self-selected history-revising leaders as the gospel truth.
Here the term open source is used in a Linux context:
http://groups.google.com/group/comp.os.linux/msg/26080ca2...;
And guess who used the term in 1996 in a press release? Caldera - now known as SCO:
http://www.xent.com/FoRK-archive/fall96/0269.html
More details here:
http://www.hyperlogos.org/story/who_invented_the_term_ope...
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 18, 2007 15:31 UTC (Wed) by jamesh (guest, #1159) [Link] Wasn't the main reason for rejection that it was filed for as a trademark when it should have been a certification mark? Doesn't that point more to bad lawyering rather than a faulty claim?
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 18, 2007 15:35 UTC (Wed) by NigelK (guest, #42083) [Link] The legal advice was that "open source" was too descriptive - it was like trying to trademark "milk chocolate" rather than "Hersheys".
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 19, 2007 19:16 UTC (Thu) by MattPerry (guest, #46341) [Link] And that's bad legal advice. It's unfortunate that they did not continue pursuing the mark.
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 20, 2007 8:53 UTC (Fri) by NigelK (guest, #42083) [Link] Maybe so. The best the OSI guys claim is that they have a "moral right" to own and protect the term because they've spent so much time and money promoting it.
Kinda like SCO's involvement with UNIX.
'Owning' a Trademark - The SugarCRM et al License Debate (Groklaw) Posted Jul 19, 2007 19:15 UTC (Thu) by MattPerry (guest, #46341) [Link] Most marks are rejected on the first round. You have to go back and forth with the trademark office and make your case. It takes time, and could take years depending on how quick you are to respond to each request for information. As Bruce Perens has stated in the past, OSI was given poor legal advice. They could have easily registered the mark.
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