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FOSS Community Criticizes SFLC over SFC Trademark War (lunduke.com)
Earlier this month Bruce Perens notified us that "the Software Freedom Law Center, a Linux-Foundation supported organization, has asked USPTO to cancel the trademark of the name of the Software Freedom Conservancy, an organization that assists and represents Free Software/Open Source developers." Now Slashdot reader curcuru -- director of the Apache Software Foundation -- writes:
No matter how you look at it, this kind of lawsuit is a loss for software freedom and open source in general, since this kind of USPTO trademark petition (like a lawsuit) will tie up both organizations, leaving less time and funds to help FOSS projects. There's clearly more to the issue than the trademark issue; the many community members' blog posts make that clear.
GNOME executive director Neil McGovern
Apache Software Foundation director Shane Curcuru
Google security developer Matthew Garrett
Linux industry journalist Bryan Lunduke
The key point in this USPTO lawsuit is that the legal aspects aren't actually important. What's most important is the community reaction: since SFLC and Conservancy are both non-profits who help serve free software communities, it's the community perception of what organizations to look to for help that matters. SFLC's attempt to take away the Conservancy's very name doesn't look good for them.
Bryan Lunduke's video covers the whole case, including his investigation into the two organizations and their funding.
GNOME executive director Neil McGovern
Apache Software Foundation director Shane Curcuru
Google security developer Matthew Garrett
Linux industry journalist Bryan Lunduke
The key point in this USPTO lawsuit is that the legal aspects aren't actually important. What's most important is the community reaction: since SFLC and Conservancy are both non-profits who help serve free software communities, it's the community perception of what organizations to look to for help that matters. SFLC's attempt to take away the Conservancy's very name doesn't look good for them.
Bryan Lunduke's video covers the whole case, including his investigation into the two organizations and their funding.
In 1970, Dirk sued Stig, Nasty and Barry. Barry sued Dirk, Nasty and Stig. Nasty sued Barry, Dirk and Stig, and Stig sued himself, accidentally. It was the beginning of a golden era for lawyers.
It's interesting to note that the Software Freedom Law Center helped create the Software Freedom Conservancy. SFLC staff probably came up with the name "Software Freedom Conservancy", so they'd have a tough case to make in court now.
In trademark law, one must either defend your name, or lose rights to it to the extent that you didn't defend it. "Defend" could include granting explicit permission for someone else to use it. You can't just ignore someone using a variant of your name for years, then sue them later, after they've already established a reputation under that name.
It seems SFLC has a VERY weak case unless they have a written agreement with SFC tying the use of the name to specific contract terms, such as what activities SFC was created to do. I don't think they have such a contract. Even if they do, their more likely remedy would be suing for breach of contract.
This is oft-quoted but incorrect. You do not lose your trademark by failure to defend it. You lose it if your trademark becomes generic. So, arguably Xerox could have difficulty enforcing their trademark if the defendants can prove that it has become synonymous with photocopying.
You do not have to go after all possible infringers in court. That would make trademarks horribly expensive and impractical to own.
Also, a trademark is for a specific category of products or services. So, Linux is a trademark of Linus Torvalds for compter software, but there is also a Linux Detergent (I kid you not) and it does not infringe on the software Linux because it is in a different trademark category.
Bruce Perens.
Software Freedom Conservancy has at least 46 member projects for whom they hold property as a corporation, provide a corporate veil against liability for the project and its develoers, provide legal advice, and act as a tax-exempt organization on behalf of the projects (a 501(c)3) so that the projects can receive donations which the donors write off of their income to reduce their overall tax load by a portion of the donation.
This is a big deal for the projects concerned.
So, where are those projects? Why do I not yet see the project's official comments on behalf of SFC, but only a few personal comments from projects that are not SFC members? Why haven't they grouped together and all signed a letter to the community in support of SFC?
Please wake up, folks.
Bruce Perens.
Actually, the appeals court in Oracle v. Google ruled that APIs could be copyrighted. We were previously interpreting based mainly by the finding in CAI v. Altai. As a result of the new finding, I do not believe that dynamic linking works as an insulator between GPL and proprietary software. There will be more litigation and maybe this new ruling will be overturned, or maybe not. I always felt that dynamic linking of proprietary and GPL was risky and never advised my customers and their attorneys to do it.
The point about having a build environment is that the AGPL3, which you use, is a sharing license, and if you only share unbuildable software that is in general an attempt to avoid what the license requires. There is not any rule saying you have to provide a Windows build environment, but you are supposed to provide all of the Makefiles, etc., and whatever internal tools you built that are necessary for compiling and installing the software. These are generally things that make a manufacturer-specific installable BLOB file.
Nobody is compelled to use GPL code. If sharing and license compliance is going to be a problem for your business, you are not part of the target user community of the developers, and please don't build it into your proprietary product.
People who have problems understanding this stuff are welcome to contact me privately at bruce at perens dot com. I don't charge and sometimes there is complexity and implication that I can clear up for you.
Bruce Perens.
Please read this:
http://www.rants.org/2017/11/c...
for a possible answer to your question. I'm surprised this isn't linked to from the main article.
Full disclosure, I'm on the Board of Directors of SFC.
Genericide is one of four different ways to lose your trademark rights. The others are laches, abandonment, and excessive licensing. Three of them can result in complete loss of all rights, laches results in loss of rights to the degree that complainant failed to defend them in a timely fashion.
Laches is probably the best fit here. As I said originally, with laches you lose For recent high-profile cases see Fitbug v. Fitbit, No. 13-1418, 2015 U.S. Dist. LEXIS 8775 (N.D. Cal. Jan. 26, 2015) and Eat Right Foods, Ltd v. Whole Foods Mkt., Inc., No. C13-2174, 2015 U.S. Dist. LEXIS 63578 (W.D. Wash. May 14, 2015). In each, the trademark holder failed to file suit quickly after they became aware of infringement, and therefore they were barred from enforcing their rights at all.
Abandonment meant is mainly focused on complainant not using the mark in commerce for a period of time, but use include licensing. Actively requiring other users to enter into a licensing agreement will prevent abandonment.
Excessive licensing occurs when a rightsholder allows too many other people to use the mark, even with a license agreement. If Wendy's allowed just any hamburger joint to use their Wendy's trademark for a fee of $100/month, with no other control of hamburger quality etc, they would lose the mark because the Wendy's would no longer indicate a specific hamburger restaurant concept with a specific menu, specific quality standards, etc.
A few words went missing in my post. That should say:
"As I originally stated, with laches you lose the right to enforce to the degree that you failed to police it."
For example, if a university allows local businesses to print and sell T-shirts using the university logo, and doesn't take any action to stop them over a number of years, they'd lose the right to enforce it on T-shirts printed by the local businesses. They wouldn't lose all trademark rights.
Here SFLC not only ALLOWED the SFC to use the name, officers of SFLC helped *choose* the name for SFC to use and did the trademark registration. This is like if you helped write the Debian Social Contract, borrowing wording from the Open Source Definition, then you turned around and sued Debian for copyright infringement on the Definition - suing them for doing something you helped them do.