BSD-like licenses and the OSI approval process

[Arnoud Engelfriet]

Matthew Flaschen wrote:
> Arnoud Engelfriet wrote:
> > Of course the risk is with the user: if he is not in compliance
> > with the rules, he violates trademark law. And usually the user
> > has to draw up some statement spelling out how his use complies
> > with the certification criteria.
> 
> Doesn't that risk the eventual possibility of a court having to decide
> whether something is OSD-compliant (to settle a trademark lawsuit)?...

OSI would in that scenario complain to someone who uses the mark
in an incorrect way. If the person in question refuses to come into
compliance (or believes he already is), you'd have to go to court
for trademark infringement.

You can make life slightly easier (although more of a burden) by
providing license agreements that allow licensees to use the mark
when in their judgment the use meets the OSI criteria, and forces
them to comply with OSI's instructions, if any, regarding correct use.
Then the lawsuit is "only" a contract suit.

> they're not approved and thus it's unlikely to get to court.  I suppose
> self-certification is an option, but OSI would need to rename the
> trademark.  "OSI-Certified" doesn't work when it's not OSI doing the
> certification (at least not directly).

OSI may by now be able to reclaim "open source" as a trademark,
assuming there's now enough secondary meaning associated with
that phrase. 

The term "open source" would then be ideally suited for a
self-certification program. Honest companies already more or less
self-certify in this manner.

Arnoud

-- 
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/