[cc trimmed]

On Sun, Feb 13, 2005 at 04:43:13PM -0500, Alexander Chamandy wrote:
> *Non-commercial and personal use of the
> image is permitted, provided that it remains unmodified.*  
> 
> How was BSDFreak's usage commercial?  We were donating *ALL* funds
> back to TNF, not to mention, BSDFreak is not a for-profit site.  All
> funds generated by BSDFreak by advertising or BSDFreak's own
> merchandise sales are used for operational costs, promotions and
> donated back to the community accordingly.

Trademarks remove a certain portion of the trademark owner's free
will.  If anyone uses the NetBSD logo for commercial purposes without
putting up the "Logo Copyright 2005 The NetBSD Foundation, Used With
Permission" message, TNF *must* act.

"Commercial purposes" are defined very loosely by the courts.  Very,
very loosely.  If you take money for it, it's commercial.  Most
trademark owners like it that way, and have fought to get lots of
precedent for that interpretation.  If TNF does not act in the
"reasonable and customary" manner, they will not be treated as
"reasonable and customary" trademark owners.  (That is "reasonable and
customary" as the judicial system sees it, not as the open-source
world sees it.)  Hence, they *will* get the shaft.  

Here's the court scene:

Opposing Attorney: "Mr. NetBSD Foundation President, under oath, were you aware
that BSD Freak was selling NetBSD-branded clothing at Cafepress?"

TNFP (on the stand): "Yes."

OA: "Did you give them prior permission to use your trademark?"

TNFP:  "No."

OA:  "What did you do?"

TNFP:  "They were sending us the profits, so we let them continue."

OA: "So, you did not defend your trademark?  I move to have the
trademark granted to my client, and I also move to have the witness
flogged."

Judge: "So ordered.  Baliff, please bring the cat-o-nine-tails."

I suspect that if someone wanted to sell something with the logo and
donate the proceeds to TNF, and *asked first*, they'd get permission,
no sweat.  But if someone doesn't ask permission first, TNF must act,
period, end, no choice.

And a site like Cafepress is a public record, admissable in court.

Personally, I'm requesting permission to sell NetBSD-branded S&M
paraphenalia to go with my line of Tux-branded drug apparati.  If they
refuse, we'll know that they're not into letting the community use the
logo.  ;-)

==ml

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