[Fwd: FW: For Approval: Generic Attribution Provision]

[Arnoud Engelfriet]

Peter Kloprogge wrote:
> I have some experience in trademarks and they specifically should not be
> descriptive. Personally I agree that trademarking "open source" wouldn't
> have been accepted.

A trademark should not be "merely descriptive". You can however have
a (weak) trademark on a suggestive mark, that adds a little to the
mere description.

In addition, a descriptive mark can become distinctive by achieving
secondary meaning. If today customers associated the phrase "open
source" with OSI's definition, then the phrase would have secondary
meaning and can be registered as a trademark today. 

(Trademarking isn't a one-time thing like patents; you can use a
mark in commerce for years and only then register it as a trademark)

One example on Bitlaw is the mark "SHARP" for televisions. Although
most televisions produce sharp images, the mark has secondary meaning.
http://www.bitlaw.com/trademark/degrees.html#descriptive

Arnoud
(trademark attorney but IANYL, TINLA)
-- 
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/