On Sun, 13 Feb 2005 17:02:43 -0500, Michael W. Lucas
<mwlucas@blackhelicopters.org> wrote:
> [cc trimmed]
> 
> On Sun, Feb 13, 2005 at 04:43:13PM -0500, Alexander Chamandy wrote:
> > *Non-commercial and personal use of the
> > image is permitted, provided that it remains unmodified.*
> >
> > How was BSDFreak's usage commercial?  We were donating *ALL* funds
> > back to TNF, not to mention, BSDFreak is not a for-profit site.  All
> > funds generated by BSDFreak by advertising or BSDFreak's own
> > merchandise sales are used for operational costs, promotions and
> > donated back to the community accordingly.
> 
> Trademarks remove a certain portion of the trademark owner's free
> will.  If anyone uses the NetBSD logo for commercial purposes without
> putting up the "Logo Copyright 2005 The NetBSD Foundation, Used With
> Permission" message, TNF *must* act.
> 
> "Commercial purposes" are defined very loosely by the courts.  Very,
> very loosely.  If you take money for it, it's commercial.  Most
> trademark owners like it that way, and have fought to get lots of
> precedent for that interpretation.  If TNF does not act in the
> "reasonable and customary" manner, they will not be treated as
> "reasonable and customary" trademark owners.  (That is "reasonable and
> customary" as the judicial system sees it, not as the open-source
> world sees it.)  Hence, they *will* get the shaft.
> 
> Here's the court scene:
> 
> Opposing Attorney: "Mr. NetBSD Foundation President, under oath, were you aware
> that BSD Freak was selling NetBSD-branded clothing at Cafepress?"
> 
> TNFP (on the stand): "Yes."
> 
> OA: "Did you give them prior permission to use your trademark?"
> 
> TNFP:  "No."
> 
> OA:  "What did you do?"
> 
> TNFP:  "They were sending us the profits, so we let them continue."
> 
> OA: "So, you did not defend your trademark?  I move to have the
> trademark granted to my client, and I also move to have the witness
> flogged."
> 
> Judge: "So ordered.  Baliff, please bring the cat-o-nine-tails."
> 
> I suspect that if someone wanted to sell something with the logo and
> donate the proceeds to TNF, and *asked first*, they'd get permission,
> no sweat.  But if someone doesn't ask permission first, TNF must act,
> period, end, no choice.
> 
> And a site like Cafepress is a public record, admissable in court.
> 
> Personally, I'm requesting permission to sell NetBSD-branded S&M
> paraphenalia to go with my line of Tux-branded drug apparati.  If they
> refuse, we'll know that they're not into letting the community use the
> logo.  ;-)
> 

I think I'll skip those products, but when your NetBSD book comes out
I'll probably buy 2.

I was just about to buy some stuff on that site. It would be really
nice if something could be worked out so that I can do that. I think
this is a good idea.

Just stating this for the record, I want to buy that stuff. It would
be better if I was buying it knowing that there are no legal wrangles.

Andy