Re: [DRAFT 3]: Charter for the Open Source Committee

In message <14375(dot)40801(dot)724084(dot)293607(at)desk(dot)crynwr(dot)com>, Russell Nelson
writes:
>Lynn Winebarger writes:
> > On Mon, 8 Nov 1999, Russell Nelson wrote:
> > > We're the ones who figured out that "Open Source" isn't protectable.
> > You're the ones who decided "Open Source" isn't protectable. Whether
> > or not it is is another matter.
>
>I don't mean to threaten you (because after all, I don't think "Open
>Source" is a trademark), but if push came to shove, who would a judge
>say owns "Open Source"? The Open Source Initiative, which has been
>certifying licenses as Open Source, or Software in the Public
>Interest? Remember, your registration application expired without
>action on your part. Now you're talking about re-applying for a
>trademark which as far as everyone can tell belongs to someone else.
>This is not rational behavior.
>

As far as I know there has been no talk of SPI reapplying for the mark- can
you please give me a reference for this statement? As for reapplying, isn't
OSI applying for the mark at present in some form or another (OSI certified
OS or something similar)?

As for the registration expiring, it took over a year iirc to get the
materials from Bruce, who was on the OSI board. We never got the chance to
continue the work. This, I would argue, is more irrational (an argument can
be made for it being illegal as well, possibly) than the behavior you accuse
us of above since the USPTO had SPI listed as the registrant.

I don't intend to get into an argument over this since its in the past, but
I just wanted to straighten out a few of the facts that have brought us here.

Regards, Nils

Nils Lohner writes:
> As far as I know there has been no talk of SPI reapplying for the mark- can
> you please give me a reference for this statement?

Your own draft keeps referring to it as a "mark". If you don't think
it's a trademark or service mark or certification mark, then you
shouldn't call it that.

Ean S. just said "If Progressive Networks can trademark the word
"Real" for streaming audio software (which has about 4000 marks
similar to it) I frankly can't see what would stop someone from
trademarking Open Source." In other words, he sees no obstacle to SPI
re-registering for the domain name.

> As for reapplying, isn't OSI applying for the mark at present in
> some form or another (OSI certified OS or something similar)?

You don't "apply" for a mark. You just start using it.

> I don't intend to get into an argument over this since its in the past, but
> I just wanted to straighten out a few of the facts that have brought us here.

If you don't intend to get into an argument, then don't *present*
arguments.

--
-russ nelson <sig(at)russnelson(dot)com> http://russnelson.com
Crynwr sells support for free software | PGPok | Government schools are so
521 Pleasant Valley Rd. | +1 315 268 1925 voice | bad that any rank amateur
Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | can outdo them. Homeschool!

Nils Lohner writes:
> Do you have any other questions or suggestions for this resolution?

Well, yes. It sure looks like you're trying to duplicate our work.
This isn't going to be helpful -- instead it will cause confusion in
the marketplace. It would seem far better for you to work *with* us.
What would it take for us to work together? An SPI-appointed seat on
the board? Two? Because, right now, I don't feel like either
organization is viable. OSI's authority is being challenged by SPI's
ownership of the domain name, and by its threatened entry into the
field. And SPI seems to be fairly ignorant of what is necessary for
advocacy and certification of Open Source.

It seems to me that, like it or not, we have to work together, because
divided we will fall.

> >You don't "apply" for a mark. You just start using it.
> >
> In that case I may be missing something... just using a mark can work like
> this, but its just not a registered mark in that case (until filed with
> USPTO)?

Usage conveys the only legal authority to assert ownership of any type
of trademark. Registration just helps build your case in court if
it's ever challenged. The USPTO explicitly disclaims any grant of
ownership through registration. That's why the Linux trademark
registration got moved to Linus -- because he owned the trademark
before, and it owned it after it was registered by someone else.

--
-russ nelson <sig(at)russnelson(dot)com> http://russnelson.com
Crynwr sells support for free software | PGPok | Government schools are so
521 Pleasant Valley Rd. | +1 315 268 1925 voice | bad that any rank amateur
Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | can outdo them. Homeschool!