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From Robert Burrell Donkin <robertburrelldon...@gmail.com>
Subject Re: [names] Public Review
Date Sun, 29 Jan 2012 22:22:28 GMT
On Sun, Jan 29, 2012 at 9:03 PM, Jukka Zitting <jukka.zitting@gmail.com> wrote:
> Hi,
>
> On Sun, Jan 29, 2012 at 3:50 PM, Robert Burrell Donkin
> <robertburrelldonkin@gmail.com> wrote:
>> The status quo is that podlings must check that their name is suitable
>> before graduation.
>
> The wording of the incubator policy on this is to "check of project
> name for trademark issues" [1], which I think is fine.

AIUI it is essential that the Incubator avoids loaded legal terms.
Consensus was reached to use the neutral term "suitable name search"
for this task to avoid confusion with loaded legal terms (like
"checking for trademark issues").

So a "suitable name search" *must* be performed. Developers may well
colloquially like to think of this as "checking for trademark issues"
but the Incubator needs to avoid this term.

The documentation describes one way it can be done. In any case, the
name needs to be cleared by the brand team. The consensus was reached
that JIRA is the most reliable way to do this (brand has lost track of
emails in the past).

> The exact ways of checking this have so far ranged from "I haven't
> hread of other projects with similar names" to some googling around
> and finally to exhaustive trademark searches,

The term "trademark search" is a loaded legal term. The stuff we ask
podlings to do is better known amongst the legal community as a "kill
search".

Could anyone give an example of a project who has used the trained
legal professionals required to conduct an exhaustive trademark
search?

> all of which I think I
> think are reasonable ways to meet this graduation criteria, depending
> on how prominent or likely to encounter trademark trouble the project
> really is.

This is where I started too.

Branding are very keen to be able to use registration to protect
reputations (when necessary). This goes beyond merely probably
avoiding future trouble.

> Thus rather than presenting the proposed process as a MUST or SHOULD
> for podlings, I'd rather just having it as a guide that podlings MAY
> follow to in case they want to make sure that they'll have a good
> chance to defend their project name as a trademark should the need
> ever arise. Many projects never expect to find themselves in such a
> situation (and can deal with it in case they ever do), so I'd be fine
> with them using a less heavy-weight means to check their name "for
> trademark issues".

I thought along these lines when I set out on this journey. Talking to
our trademark team over a period of six months taught me otherwise.
This sort of judgment is often difficult even for trained trademark
attorneys. I think it unwise to expect developers with no legal
training to do any better.

>> Hopefully the document is reasonably clear that the process described
>> isn't the only way to get this done. Suggestions about clearer
>> phrasing welcomed.
>
> I'll see if I can come up with a patch with edits along the lines
> described above.

Please note that I didn't invent this process. I would have preferred
something much simpler. I just documented the recommendations of the
brand team. I did try to learn enough about US trademark law to
convince myself that the process seemed reasonable. And it is.

The process described isn't exactly fun but only takes four or five
hours. If this seems like an unreasonable burden then I strongly
recommend that the Incubator asks the board to provide professional
legal support.

Robert

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