On Sun, 13 Feb 2005 17:02:43 -0500, Michael W. Lucas
<mwlucas@blackhelicopters.org> wrote:
> [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.

From uspto.gov's trademark search:

Word Mark  	 NETBSD
Goods and Services 	IC 009. US 021 023 026 036 038. G & S: Computer
operating systems. FIRST USE: 19930421. FIRST USE IN COMMERCE:
19930421
Mark Drawing Code 	(1) TYPED DRAWING
Serial Number 	78025507
Filing Date 	September 12, 2000
Current Filing Basis 	1A
Original Filing Basis 	1B
Published for Opposition 	January 27, 2004
Registration Number 	2834226
Registration Date 	April 20, 2004
Owner 	(REGISTRANT) NetBSD Foundation, The CORPORATION DELAWARE 235 W.
48th St. #22A New York NEW YORK 10036
Attorney of Record 	JAY MICHAELSON
Type of Mark 	TRADEMARK
Register 	PRINCIPAL
Live/Dead Indicator 	LIVE

The new logo was not even thought of in September 2000. It is *NOT*
trademarked. See for yourself:

http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78-025507

> 
> "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.
> 

The logo is not trademarked. The word "NetBSD" is. Hence, by your
logic, NetBSD should be taking me to court, right now, because I
didn't obtain permission to use "NetBSD" in this e-mail. And you'll be
there along with me. Along with a lot of other people, if NetBSD
*must* act.

And speaking of how the open source world sees it... has anyone
stopped to consider the image NetBSD is making for itself by acting
more concerned about an orange flag logo than  the fact that several
key servers that actually get NetBSD out to the users have died
recently, some of them repeatedly, and don't seem to be getting fixed
in anything approaching a timely manner?

> 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."


One problem. NetBSD, the word, has been in use for much longer than
the trademark has existed. Can you provide evidence of one single
instance of TNF taking anyone to court because they wrote NetBSD on
something and sold it? Would I, for example, be subject to litigation
if I were to burn a NetBSD CD, write "NetBSD 2.0" on the case, and
sell it to a friend for the cost of the blank CD?

I am, obviously, not a lawyer, but I fail to see how a trademark that
applies to *ONLY* the word NetBSD magically requires NetBSD to
ruthlessly litigate against any supposed commercial use of it's
non-trademarked logo.

Sure, they own the IP. Sure, they hold the copyright. But, tell me,
please: which helps the NetBSD community and operating system more: a
bunch of users who generally get along and are willing to contribute
back to the project if they have the time, motivation, and ability,
plus a bunch of developers who are easy to get along with and happy to
work with users to help solve problems and improve the system, OR a
bunch of users who now have to be afraid to do so much as post the
NetBSD logo because of the FUD now attached to it, and a bunch of
Foundation members who spend their time tracking down "violators"
instead of working on the project?


> 
> 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.

Looks like TNF has a LOT of lawyers to hire, then.

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

And this thread is public record, admissible in the court of public
opinion, that presents a very compelling case that some people are
taking a drawing of an orange flag WAY too seriously.

Please allow me to make my opinions clear, so that there is no
misunderstanding. I love NetBSD. It is, by far, my favorite operating
system. I've been a huge fan of NetBSD since 2000. I actively promote
NetBSD to my friends and to anyone I talk to who shows an interest in
tinkering with, or switching to, a UNIX-like operating system. I use
NetBSD on every computer I own, and I've been through my fair share of
bugs along the way. The OS has proven itself well worth the occasional
hassle of debugging a new problem or waiting for a fix.

That aside, however, it appears that TNF is now trying to run NetBSD
less like an OS project, and more like a poorly-managed business. The
bickering over whether Alex could be taken to court for allegedly
illegally using the NetBSD logo reeks of the same attitude displayed
by SCO regarding source files in Linux, but with one major difference:
Source code has value to an operating system in terms of
functionality.

All a logo does is provide an image to associate with the name of the
OS, which, in all honesty, means absolutely nothing when it comes down
to actually using it. You (you being TNF) could make the official name
ReallyCrappyOS, and if the code stayed the same, I would still be more
than happy to use it. It's a great operating system. But we need to
put the fun back into it, and kick the politics out.

-- 
Sean