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

[kloprogge at pointlogic.com]

Thanks Arnoud,

I guess "open source" does have a strong secondary meaning but not only referring to OSI's definition (that's the reason to want to trademark in the first place). So the question remains, if "open source" is used, misused and abused all over the place with OSI as the leading and authorative organisation trying to avoid the misuse, would trademarking stand a chance? A trademark, as mentioned on the OSI website, has their preference and personally I think it would strongly help the community.

Peter

Sent via BlackBerry from T-Mobile  

-----Original Message-----
From: Arnoud Engelfriet <arnoud at engelfriet.net>
Date: Fri, 5 Jan 2007 11:21:10 
To:license-discuss at opensource.org
Subject: Re: [Fwd: FW: For Approval: Generic Attribution Provision]

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/