OSI enforcement? (Was Re: Microsoft use of the term "Open Source")

Romain Berrendonner romain at berrendonner.org
Wed Jan 9 09:20:51 UTC 2008

Matthew Flaschen wrote:
>  "I have doubt that any country will ever accept now the registration of
> "open source" as a trademark, due to the huge history of prior use (or
> prior art), and really a lot of groups and companies throughout the
> world that are monitoring any attempt by anyone to register it for its
> exclusive use."
> I'm still waiting for proof of that bald-face claim.

I don't know who monitoring what, but if you want to have a look at the 
trademarks registered in France and containing the words "Open Source" 
in class 42, have a look at the site below:


As far as I can see, there are 23 trademarks *containing* "Open Source".
This would probably mean that the sole "Open Source" words would not be 
distinctive enough to make a valid registered trademark of their own. 
But it leaves space for specific trademarks like "OSI-approved Open 
Source software" or whatever.

In addition, I would like to point out that the Paris convention about 
intellectual property fosters protection against unfair competition.

Under French law, which is the only one I am sufficiently familiar with, 
this has been implemented through tort law. If you prove that a 
competitor uses your unregistered trademark in a fashion that can lead 
customers to confusion, *and* if you suffer a prejudice from that, this 
is unfair competition and can lead to damages and injunction to stop. 
This is less convenient than registered trademark infringement, because 
you have more to prove, but this is a way to enforce unregistered 

Back to Paris convention, it may mean (confirmation required) that other 
countries implement similar mechanisms to protect unregistered rights.


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