[conspire] [Golugtech] Fw: [DNG] granting authorization for Devuan developers to use Debian trademark

[Rick Moen]

Hi, Hendrik.  I have, as previously when I answered Syeed, removed 
the crosspost to Golugtech, which as I pointed out to Syeed is a
deprecated practice that causes numerous problems, particularly to
listadmins.  My reply to Syeed:
http://linuxmafia.com/pipermail/conspire/2022-October/012188.html

In addition to manually approving your non-subscriber post to Conspire, 
I have manually _subscribed_ you to Conspire but with the "nomail" flag
set, so that you can post to the list but won't be bothered by traffic
unless you flip "nomail" off.  That is why I'm CC'ing you, now.

Please feel welcome to toggle "nomail" if you wish to fully participate
in Conspire, the general mailing list of the Menlo Park, California LUG 
named CABAL.  (if you'd rather not, no problem.)


Quoting Hendrik Boom (hendrik at topoi.pooq.com):

> On Mon, Oct 24, 2022 at 08:41:46PM -0700, Syeed Ali wrote:
> > Forwarding for visibility.

De-forwarding for greater sanity.  ;->


> This guy has somehow managed to register Debian as a trademark in some
> foreign country (possibly Switzerland?) and is using that registration
> as a means of getting in the real Debian's way.
> 
> I wouldn't take it seriously.
> 
> I suspect Debian's lawyers might, however, take it seriously.

Software in the Public Interest, Inc.'s (SPI's) lawyers, technically, as
they hold Debian's trademarks.

Switzerland, by the way.  What I take to be Mr. Pocock's personal
sockpuppet, the soi-disant "Software Freedom Institute SA" of Lausanne,
Suisse, was granted trademark #782335 by Swiss Federal Institute for
Intellectual Property on 2022-06-08.

The trademark is over the term "Debian" in the Goods and Services
category « Logiciel et matériel informatique »  (computer software and
hardware).

There are quite a number of trademark registries around the world, the
main ones being USA's (operated by US Patent & Trademark Office), the
EU, China, and Japan.  SPI holds the US trademark.  SPI has a pending
application under the "Madrid protocol"
(https://en.wikipedia.org/wiki/Madrid_system) to extend that trademark
to the other above-named jurisdictions.  SPI used to also hold a
registration in Brazil's system, but it's currently expired.

Honestly, those plus the Canadian Intellectual Property Office are all
the ones that most persons and companies really care about, anyway.

And, at the risk of starting a _long_ discussion, open-source / free
software people tend to very badly misunderstand what can and cannot be
done by a trademark stakeholder using trademark powers.  To shorten the
matter to its essentials, trademark is a limited monopoly over the
_brand impression created in commerce_ by a trademark-styled good or
service within the scope of a particular trade or industry.  And that is
_all_ it is.  A valid trademark has zero enforcement power against
third-party use outside the trade or industry, and has zero enforcement
power against third-party use that doesn't entail commerce.

I went through this matter, over and over and over, with my fellow
open-source enthusiasts during the 2000s, when I and the other editors
of monthly online magazine _Linux Gazette_ got threatened with trademark
legal action by our former host, SSC, Inc., who were then the publisher
of _Linux Journal_.  SSC (falsely) claimed trademark rights over the
name of our magazine after we left their Web hosting, and attempted to
intimidate us into either ceasing publication or renaming our magazine.

We, however, were not intimidated, because:

1.  SSC's claim to ownership was bogus (as I personally proved), and
2.  Even if they owned a valid ownership over our name within the scope
    of some trade or industry, they would not be able to show, as 
    required by trademark law, that our magazine "created likelihood 
    of confusion" among the customers of their trademarked good or 
    service -- because, the moment the dispute arose, I got our 
    editor-in-chief to put a disclaimer on all _Linux Gazette_ issues
    saying we are not produced or endorsed by SSC, and
3.  Our magazine was not an offering in commerce, in any event.

To elaborate on point #2, I blew up SSC's claim of ownership of 
commercial rights by simply writing to Dr. John Fisk, the magazine's
founder, and asked if he had ever assigned any commercial rights to 
SSC when he handed over editorial control, and he said no.  I duly
published Dr. Fisk's resonse in LWN.net, and, as the saying goes, 
that was the end of that.

The _functional_ reason SPI wishes to hold trademark rights over
"Debian" and some related marks and trade dress is so as to deter
hostile and confusing usage by others in commerce.

Like essentially all other trademark stakeholders, SPI publishes a
certain amount of humbug on the matter, trying to suggest its powers are
greater than the law supports (https://www.debian.org/trademark).  
The dynamics of trademark enforcement pretty much make this sort of
blustering necessary.  Cory Doctorow explained why:
https://web.archive.org/web/20171115092225/http://www.openp2p.com/pub/a/p2p/2003/08/14/trademarks.html