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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Apache trademarks on OpenJPA web site
Date Tue, 19 May 2009 21:07:33 GMT
Hi Craig,

I took your complaint to be about the complexities of trademark law, not
about me. :-) I'm merely today's messenger with a confusing message.

Here's an example that you may find useful, for a dessert website:

**************

Welcome to the Jello Brand gelatin recipe cookbook, brought to you by the
Kraft Foods Company.

Select among the following:
   * Flavors of Jello gelatin
   * Jello and Fruit: The Perfect Combination
   * Whipped Jello for a Romantic Evening Soiree
   * Feeding a large family with Jello
   * Textbook on the chemistry of Jello and other brands of gelatin

***************

Notice that I slipped casually from strong trademark ("Jello brand gelatin")
to adjective ("Jello gelatin") to noun (just "Jello"), which is unavoidable
in casual speech, and perfectly legal. Trademark law fortunately doesn't
require that we all take a refresher course in English grammar or
continually utter certain magic words!

Here's what I would expect in terms of branding Apache OpenJPA:

1. The OpenJPA website should start with a specific feather logo that
identifies it as a website of the Apache Software Foundation. This logo
should include the words "Apache Software Foundation" and a pointer to our
main website homepage, www.apache.org. In fact, if you click on that logo
you should go to the ASF homepage.

2. Somewhere prominent, the banner on the first page of the OpenJPA website
should identify the "Apache (TM) OpenJPA Project". That "TM" can be fairly
small, but not invisible. Then the body of the page can use the terms
"OpenJPA project" or "OpenJPA team" or even "committers to OpenJPA" when you
mean your ASF project. 

3. Then I expect the first prominent reference to the output of the OpenJPA
project to say that you produce and distribute "Apache OpenJPA (TM) software
that implements Sun's Java Persistence API (JPA) specification for the
transparent persistence of Java objects" (or whatever is appropriate and
true). Again, the "TM" can be fairly small, but not invisible; if you don't
want to bother claiming a trademark on "OpenJPA", simply leave off that TM.

4. From then on, when referring to the software, you can say things like:
   * Unit tests for OpenJPA
   * Downloading OpenJPA software
   * OpenJPA is distributed under Apache License 2.0
   * How is OpenJPA implemented?
   * Apache OpenJPA integrates with Apache Tomcat.
   * The sixth iteration of OpenJPA is complete!

...and lots of other casual uses that engineers should be able to utter with
ease and complete freedom.

5. At the bottom, in small but not invisible letters, include all the
appropriate copyright and trademark and licensing notices to assert that ASF
is the owner of whatever intellectual property we claim. To be polite, you
can identify that "Java is a trademark of Sun Microsystems (or Oracle)."

/Larry



> -----Original Message-----
> From: Craig.Russell@Sun.COM [mailto:Craig.Russell@Sun.COM]
> Sent: Tuesday, May 19, 2009 11:46 AM
> To: lrosen@rosenlaw.com
> Cc: 'ASF PRC Team'; dev@openjpa.apache.org
> Subject: Re: Apache trademarks on OpenJPA web site
> 
> Hi Larry,
> 
> On May 18, 2009, at 9:58 PM, Lawrence Rosen wrote:
> 
> > Craig Russell complained:
> 
> First, let me be clear. I'm not complaining. I'm trying to understand
> just what we need to do in our public face to be compliant with an
> Apache policy that allows Apache to promote and enforce our marks.
> 
> My questions really are just questions. They are not rhetorical or
> argumentative. Please don't read any belligerence into the questions.
> >
> >> You've reminded me of the trademark rules that have given most
> >> engineers angina: that trademarks are not nouns but adjectives. This
> >> little trick is what makes normal text look like legalese once
> >> lawyers
> >> get hold of it.
> >
> > I'm aware of the pain that causes, and I don't want to turn Apache
> > web pages
> > into legalese.
> >
> > The first major use of a trademark on a web page ought to be, in
> > some way, a
> > combination of the trademark as an adjective modifying the
> > "official" noun.
> 
> The trouble for OpenJPA is that there's no "official" noun. "Software"
> is certainly an appropriate noun, as are "program", "library",
> "package", and "implementation". So should we choose for each project
> an official noun and be consistent with its "first use" on each web
> page?
> >
> > That is so you can educate your readers about your trademark and your
> > product. But it needn't be in sentence form, nor even contain words
> > in their
> > normal English usages or sequence. There are lots of creative ways to
> > introduce trademarks to the public.
> >
> > So I totally approve of your "OpenJPA is Apache's implementation of
> > Sun's
> > Java Persistence API (JPA) specification for the transparent
> > persistence of
> > Java objects."
> 
> This confuses me. The use of OpenJPA here seems like a noun.
> >
> >
> > You needn't say "OpenJPA software" since you said "OpenJPA
> > implementation".
> 
> Not exactly. It doesn't say "OpenJPA implementation is Apache's
> implementation". It would actually sound better to me to say "OpenJPA
> software is Apache's implementation."
> 
> So if it's not a noun, it would never be ok to say "OpenJPA is
> <something>". It would have to be "OpenJPA Software is <something>."
> >
> > They sort of mean the same thing, I think. I'd want you to be more
> > precise
> > if I intended to file a trademark registration with the USPTO, but
> > for a
> > common law trademark, I think that works just fine. Maybe I'd ask that
> > somewhere you say "click here to download Apache OpenJPA software."
> 
> That's easy to do once we understand the rules.
> 
> > But otherwise, don't change that website.
> >
> > What I objected to in my previous email was the first sentence on your
> > http://openjpa.apache.org/unit-tests.html page, "OpenJPA's unit
> > tests are
> > written using JUnit." That sentence doesn't give anyone a clue what
> > noun the
> > adjective OpenJPA modifies. Nor have I ever seen an apostrophe-s on an
> > English adjective. :-)
> 
> Right, back to our noun versus adjective. The sentence doesn't make
> sense with OpenJPA as an adjective. As an adjective, it could be
> "OpenJPA unit tests", since part of the OpenJPA implementation
> consists of unit tests. But OpenJPA is not just unit tests. It's also
> a functional piece of software.
> 
> But our official documentation is full of "OpenJPA as noun" and not
> "OpenJPA as adjective". So I'm really struggling with whether it's
> just the "first use" on a page that needs to use OpenJPA Software or
> not.
> >
> >
> > /Larry (with my English teacher hat on that I dug out of the very
> > back of my
> > closet)
> >
> >> -----Original Message-----
> >> From: Craig.Russell@Sun.COM [mailto:Craig.Russell@Sun.COM]
> >> Sent: Monday, May 18, 2009 2:10 PM
> >> To: lrosen@rosenlaw.com
> >> Cc: 'ASF PRC Team'; dev@openjpa.apache.org
> >> Subject: Re: Apache trademarks on OpenJPA web site
> >>
> >> Hi Larry,
> >>
> >> On May 18, 2009, at 10:45 AM, Lawrence Rosen wrote:
> >>
> >>>
> >>> 3. Trademarks should be used as adjectives, not nouns. So the
> >>> following
> >>> sentence is incorrect trademark usage: "OpenJPA's unit tests are
> >>> written
> >>> using JUnit." Consider rewriting as "Unit tests for Apache OpenJPA
> >>> persistence project software are written using the JUnit testing
> >>> framework."
> >>> Always assume that customers have to be taught to associate the
> >>> trademark
> >>> with the noun in modifies. Once they've done that in their minds,
> >>> then you
> >>> have a very valuable trademark.
> >>>
> >>> /Larry
> >>>
> >>
> >> You've reminded me of the trademark rules that have given most
> >> engineers angina: that trademarks are not nouns but adjectives. This
> >> little trick is what makes normal text look like legalese once
> >> lawyers
> >> get hold of it.
> >>
> >> Where we say "OpenJPA is Apache's implementation of Sun's Java
> >> Persistence API (JPA) specification for the transparent persistence
> >> of
> >> Java objects. This document provides an overview of the JPA standard
> >> and technical details on the use of OpenJPA." we would have to say,
> >> instead, "OpenJPA software is Apache's implementation of Sun's Java
> >> Persistence API (JPA) specification for the transparent persistence
> >> of
> >> Java objects. This document provides an overview of the JPA standard
> >> and technical details on the use of OpenJPA software."
> >>
> >> Did I get this right?
> >>
> >> Thanks,
> >>
> >> Craig
> >>>
> >>>
> >>>
> >>>> -----Original Message-----
> >>>> From: Craig.Russell@Sun.COM [mailto:Craig.Russell@Sun.COM]
> >>>> Sent: Monday, May 18, 2009 8:49 AM
> >>>> To: ASF PRC Team
> >>>> Cc: dev@openjpa.apache.org
> >>>> Subject: Apache trademarks on OpenJPA web site
> >>>>
> >>>> Hi PRC,
> >>>>
> >>>> We've finished updating the OpenJPA web site master pages to
> >>>> include
> >>>> Apache trademarks in an obvious but not obtrusive way.
> >>>>
> >>>> http://openjpa.apache.org/unit-tests.html is an example.
> >>>>
> >>>> Please let us know if this is in accordance with the current
> >>>> trademark
> >>>> notice policy.
> >>>>
> >>>> Thanks,
> >>>>
> >>>> Craig
> >>>>
> >>>> Craig L Russell
> >>>> Architect, Sun Java Enterprise System http://db.apache.org/jdo
> >>>> 408 276-5638 mailto:Craig.Russell@sun.com
> >>>> P.S. A good JDO? O, Gasp!
> >>>
> >>>
> >>
> >> Craig L Russell
> >> Architect, Sun Java Enterprise System http://db.apache.org/jdo
> >> 408 276-5638 mailto:Craig.Russell@sun.com
> >> P.S. A good JDO? O, Gasp!
> >
> >
> 
> Craig L Russell
> Architect, Sun Java Enterprise System http://db.apache.org/jdo
> 408 276-5638 mailto:Craig.Russell@sun.com
> P.S. A good JDO? O, Gasp!



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