WEBVTT 00:00.000 --> 00:20.240 Many, many years ago in this bedroom, I believe it was the third edition, some 2012-13 timeframe. 00:20.240 --> 00:25.680 A talk was given that has been widely considered the seminal most important and best talk 00:25.680 --> 00:29.280 ever given on trademarks and foss. 00:29.280 --> 00:34.160 It is referenced everywhere because it is the best explanation of how trademarks and foss 00:34.160 --> 00:35.160 interact. 00:35.160 --> 00:40.120 So what we are about to learn from our speaker, Pam Chestick, is will today now be the best 00:40.120 --> 00:46.000 most important talk on trademarks and foss or will be the second best talk. 00:46.000 --> 00:47.200 Pam, can you out to yourself? 00:47.200 --> 00:48.200 Give it a try. 00:48.200 --> 00:56.200 Wow, could you set the bar a little higher for me on that? 00:56.200 --> 00:57.200 Please, Louise. 00:57.200 --> 00:59.200 To be one, two, three, four, four, five. 00:59.200 --> 01:00.200 All right. 01:00.200 --> 01:04.760 So here, so here I am, how does hindsight have 80% of a commodity market leveraging trademarks 01:04.760 --> 01:05.760 and free software? 01:05.760 --> 01:09.800 So this is kind of, it is a great introduction because this is kind of a continuation 01:09.800 --> 01:15.200 where we are, you know, 12 years, 10, 12 years later from that sort of trademarks 101 01:15.200 --> 01:16.880 introduction that I first gave. 01:16.880 --> 01:22.120 So just about myself, I have been, I have been practicing trademarks law for about, let me 01:22.120 --> 01:28.800 just do my, for about 25 years and I have been working in free software for about 15 years. 01:28.800 --> 01:32.120 So I know where I am coming from on this. 01:32.120 --> 01:37.040 So just kind of a background are here. 01:37.040 --> 01:38.600 What is a trademark? 01:38.600 --> 01:43.040 Now what I want everyone to do, everybody has these preconceived notions, trademarks are 01:43.080 --> 01:44.360 territorial. 01:44.360 --> 01:48.600 So depending on what country you come from, you have maybe a preconceived notion about 01:48.600 --> 01:54.680 what a trademark is and you probably are thinking about registration and rights and all sorts 01:54.680 --> 01:55.680 of things like that. 01:55.680 --> 01:59.760 I want you to put that aside because what we are drilling down to is fundamentally what 01:59.760 --> 02:02.360 is a trademark and what does it mean? 02:02.360 --> 02:07.360 The trademarks have existed long since laws existed for trademarks and there is a reason 02:07.360 --> 02:08.360 for that. 02:08.360 --> 02:15.520 So this is the premise that I want you to think about. 02:15.520 --> 02:20.320 So a trademark is a word plus the concept of goodwill. 02:20.320 --> 02:25.320 So if I say to you, master done, you're going to think one thing you might think is it's 02:25.320 --> 02:31.240 a prehistoric, prehistoric mammal that is now extinct, right? 02:31.240 --> 02:33.080 That's one meaning of master done. 02:33.080 --> 02:36.720 Given this audience, I suspect that a lot of you jumped to a different conclusion when I 02:36.720 --> 02:41.760 said master done, which was a social media website. 02:41.760 --> 02:47.720 So the difference between the animal and the concept and this concept of social media, 02:47.720 --> 02:50.320 website is the difference between just a word and a trademark. 02:50.320 --> 02:55.360 It is a trademark as a word could be a logo too, but I'm just focusing on words here 02:55.360 --> 03:01.280 that has this additional information that you have a mental association with. 03:01.280 --> 03:06.640 And so that mental association is what's tied to it is reputation. 03:06.640 --> 03:09.880 So it's not just you're sitting here saying, well, I also know that the word master 03:09.880 --> 03:11.960 done means a social media network. 03:11.960 --> 03:15.080 You also may have an emotional response to that word. 03:15.080 --> 03:18.680 You may have positive feelings, so you may have negative feelings about that. 03:18.680 --> 03:21.520 So you may, for example, say, great, it's federated. 03:21.520 --> 03:26.120 I have a positive value for that, or you can say it's really hard to find people to follow 03:26.120 --> 03:28.720 on it, which may be as a negative connotation. 03:28.720 --> 03:35.360 But all brands have, that's what makes it a brand versus a word is this additional association 03:35.360 --> 03:36.360 you have with it. 03:36.360 --> 03:41.440 So that's what I want you to think about is trademarks as having this additional value. 03:41.440 --> 03:46.460 It's not just a word, registration, that's a legal system that's overlaid on top of what 03:46.460 --> 03:47.460 trademarks are. 03:47.460 --> 03:48.960 We're not worried about that right now. 03:48.960 --> 03:53.240 We're just thinking about this fundamental value of a trademark. 03:53.240 --> 03:58.680 So, oh, actually, let me just back up to the second part of that slide. 03:58.920 --> 04:03.760 Which is, see, you've got to go back up there. 04:03.760 --> 04:07.480 So the goodwill is, so that's your reputation. 04:07.480 --> 04:12.360 And when you let someone else your trademark, you are letting them benefit from your reputation. 04:12.360 --> 04:16.360 I think of that about it is if I give my driver's license to someone else and let them 04:16.360 --> 04:19.320 go in the bank, like, would I do that? 04:19.320 --> 04:24.240 No, I don't do that because they're relying on my identity for something and do I trust 04:24.240 --> 04:25.240 them with that? 04:25.240 --> 04:27.800 Yeah, maybe I let a spouse do that, right? 04:27.800 --> 04:31.280 But I'm not going to let a stranger on the street do that, no, I'm not going to. 04:31.280 --> 04:36.480 So that's what this trademark is, is it your reputation? 04:36.480 --> 04:43.160 So just very fundamentally, on a very fundamental, again, sort of, you know, normative basis, 04:43.160 --> 04:45.160 what does trademark law do? 04:45.160 --> 04:48.040 It just protects consumers from confusion. 04:48.040 --> 04:53.000 The focus here is consumers, are they confused about what is what? 04:53.000 --> 04:58.160 That is, essentially, the sole measure of the legal wrong is, is their confusion. 04:58.160 --> 05:03.200 Now, they're all sorts of doctrines around it, there's nominative fair use and there's, you 05:03.200 --> 05:08.120 know, just all these things going on that are ways that the law has distilled out to reach, 05:08.120 --> 05:10.600 to get an answer to this fundamental question. 05:10.600 --> 05:13.960 But really it just boils down to, is, is their confusion or not? 05:13.960 --> 05:22.000 Are the consumers confused with a consumer protection motive behind what's going on? 05:22.000 --> 05:28.000 And so, as a consequence of that, if your trademark practices don't protect consumers from 05:28.000 --> 05:32.840 confusion, that you may lose your trademark rights because it's not performing, it's, it's 05:32.840 --> 05:34.840 not performing, it's function. 05:34.840 --> 05:40.100 And when I talk about confusion, it's not just, there can be, there are several kinds of 05:40.100 --> 05:42.760 confusion, several kinds of relationships. 05:42.760 --> 05:46.280 So it can be confusion about source. 05:46.280 --> 05:48.040 Did the same person make this? 05:48.080 --> 05:49.840 Is this the same item? 05:49.840 --> 05:54.560 When I go to the grocery store and I take a can off the shelf, is this the same manufacturer? 05:54.560 --> 05:58.360 Is the last time I came into the grocery store and took that can off the shelf? 05:58.360 --> 05:59.600 That's source confusion. 05:59.600 --> 06:04.440 I could have confusion about whether or not there is a sponsorship relationship. 06:04.440 --> 06:10.360 So if someone says, if someone endorses, endorsement or sponsorship, so if I stand behind 06:10.360 --> 06:15.680 it, if I say, you know, you see it all the time on websites where these are our customers, 06:15.680 --> 06:18.960 and they have this, what I call a wall of logos. 06:18.960 --> 06:23.400 And that is what they're trying to convey is that these people haven't endorsed us. 06:23.400 --> 06:26.800 They don't, we're not, we're not saying that they made the same product, we're saying 06:26.800 --> 06:31.360 they endorsed us, and we're getting value from that endorsement from them. 06:31.360 --> 06:35.880 So, so, trademark law is not just, you know, you have a lot of people say, well, you 06:35.880 --> 06:41.360 know, only an idiot can be confused, but it's about a larger type of relationship, not 06:41.360 --> 06:44.280 just the manufacturer and relationship. 06:44.280 --> 06:48.560 And the way that it's characterized under European law is to people think that there's 06:48.560 --> 06:54.080 a financial link between these two, and that's the way, I find that very helpful is 06:54.080 --> 06:58.200 that it will people not perceive that someone made it, but are they perceiving that there's 06:58.200 --> 07:03.360 some kind of financial link between these two entities when they see the trademark being 07:03.360 --> 07:04.760 used. 07:04.760 --> 07:14.240 So, next, this is, it's happening less and less, you know, ten years ago, there, I 07:14.240 --> 07:19.800 heard a lot of, so I was doing trademark law on this field, and there was a lot of sort 07:19.800 --> 07:22.800 of like, well, we can solve the trademark problem, we'll just license it the same way 07:22.800 --> 07:24.640 that we license the copyrights. 07:24.640 --> 07:29.440 Like, and there are all these grand schemes on how to do copy, copy, left, trademarks. 07:29.440 --> 07:31.560 That's not, that's not the point. 07:31.560 --> 07:38.240 So trademarks are not just this sort of other pesky IP that's hanging on copyright and 07:38.240 --> 07:45.960 patent that we're trying to figure out how to override or how to release from those 07:45.960 --> 07:51.400 barriers, trademark has an entirely different purpose, which is consumer protection. 07:51.400 --> 07:56.240 So copyright and patents, the laws behind copyright and patents are designed to incentivize 07:56.240 --> 08:00.960 the producer to produce those, that's why those laws exist. 08:00.960 --> 08:06.240 But trademarks, as I said before, trademarks to protect the consumer, so the policy basis 08:06.240 --> 08:13.040 behind the trademarks is entirely different from the policy basis behind, but behind patents 08:13.040 --> 08:14.520 and copyright. 08:14.520 --> 08:18.560 So just, so we need to keep that in mind. 08:18.560 --> 08:25.800 So, yeah, so instead, the user, the intent of the trademark is to protect the users 08:25.800 --> 08:31.240 so that they know what they're getting. 08:31.240 --> 08:35.240 And this is, I'm quoting myself here on this one. 08:35.240 --> 08:39.240 Someone else quoted in a paper and I was like, boy, did I say that, that's not bad. 08:39.240 --> 08:44.000 So trademarks are the only proprietary right that can be fully exercised by open source 08:44.000 --> 08:45.960 products or projects. 08:45.960 --> 08:52.760 You have given a copyright license, you've given patent license, you can't exploit those 08:52.760 --> 09:01.640 for purposes of advantage, the one you can exploit is trademark. 09:01.640 --> 09:05.880 And then this, as an example of this, of sort of the use of a trademark and an open source 09:05.880 --> 09:10.600 project, this, I didn't see a whole lot of press around this, but I thought this was interesting. 09:10.600 --> 09:17.640 So Mike Dolan at the Linux Foundation, testified in court because someone was using the Linux 09:17.640 --> 09:22.080 Foundation Project on X, trademark for phishing. 09:22.080 --> 09:31.360 And so the Linux Foundation cooperated with the US government in order to stop this phishing 09:31.360 --> 09:38.160 program and did it through trademark a lot because consumers were confused, consumers were 09:38.160 --> 09:41.920 being misled by this improper use of the trademark. 09:41.920 --> 09:46.800 So that's, that's sort of the paradigm use of trademarks and we've seen this in, you know, 09:46.800 --> 09:50.880 as Firefox many years ago, also had the same problem. 09:50.880 --> 09:55.720 But it's still alive and still happening is the value of the trademarks to protect the 09:55.720 --> 09:56.720 consumers. 09:56.720 --> 10:01.680 Did it have to be registered for them to be able to exploit this costability? 10:01.680 --> 10:06.400 In the US, no, that's one of the differences that will cross jurisdictions is whether or 10:06.400 --> 10:10.160 not has to be registered in the US, no, and this was a US, but it is registered, I believe 10:10.160 --> 10:16.080 it was a registration, that adds a lot of valuable benefits and this would, you know, this 10:16.080 --> 10:18.680 would be one of them. 10:18.680 --> 10:24.040 So, all right, now that we kind of have, I have you in my universe of what trademarks mean, 10:24.040 --> 10:26.040 we're moving on, all right, great. 10:26.040 --> 10:32.160 So you have a software, you have a free software project and what have you done? 10:32.160 --> 10:34.360 You've created a commodity. 10:34.360 --> 10:36.800 So what do I mean by a commodity? 10:36.800 --> 10:41.200 So a commodity is a basic good and material interchangeable with other goods of the same 10:41.200 --> 10:44.120 type regardless of who produced it. 10:44.120 --> 10:50.120 So free software is a commodity because the copyright license lets anyone copy it. 10:50.120 --> 10:54.720 So, you know, that's kind of the point, that's why we're here, is that anybody gets 10:54.720 --> 10:56.920 to reuse your software. 10:56.920 --> 11:04.760 But what is, so how do you, how do you make money off of something that's a commodity? 11:04.760 --> 11:06.920 What happens all the time? 11:06.920 --> 11:12.920 And this is taken from Robert Young, who was one of the founders of Red Hat and it's a 11:12.920 --> 11:17.880 really interesting chapter in voices from the revolution, if anybody was familiar with 11:17.880 --> 11:18.880 that book. 11:18.880 --> 11:22.640 And in which he said, and they were trying to explore, Red Hat was trying to explore 11:22.640 --> 11:27.680 how do we make money off of software that everybody else in the world can also create 11:27.680 --> 11:29.320 identically. 11:29.320 --> 11:32.520 And he said, and they thought about it and one of the things they thought about, they 11:32.520 --> 11:39.200 said, Heinz owns 80% of the market, not because Heinz tastes better, he said, ketchup 11:39.200 --> 11:40.600 tastes the same. 11:40.600 --> 11:45.160 People don't even like, people in cultures without ketchup don't like ketchup. 11:45.160 --> 11:49.080 But Heinz has 80% of the ketchup market because they have been able to define the taste 11:49.080 --> 11:51.480 of ketchup in the mind of ketchup consumers. 11:51.480 --> 11:56.560 And he goes on to say, like, now we think of ketchup coming slowly out of the bottle as 11:56.560 --> 12:01.480 being a good quality in ketchup, as we can't get it out of the bottle, right? 12:01.480 --> 12:04.680 Because they did a lot of marketing about that, about how thick it was in rich, because 12:04.680 --> 12:06.720 it doesn't come out of the bottle. 12:06.720 --> 12:10.480 Another commodity that I think had a brilliant advertising campaign is Morton Salt. 12:10.480 --> 12:14.800 I don't know outside the US, I don't know if they had the same campaign, but it was the 12:14.800 --> 12:20.360 young girl who had a, she was carrying on umbrella, and she had a canister of salt into 12:20.360 --> 12:24.240 her arm, and it was upside down, so it was pouring out. 12:24.240 --> 12:29.280 And the point being is that the salt doesn't clump up in humidity. 12:29.280 --> 12:37.000 When it rains, it pours, was the tagline for it, but again, Morton Salt captured a huge 12:37.000 --> 12:42.520 amount of the market for a commodity product salt, because they were able to convince consumers 12:42.520 --> 12:49.080 that what they had was the other producers' benefit, and that value is manifested in the 12:49.080 --> 12:50.080 trademark. 12:50.080 --> 12:55.720 So when I go in the store, I buy Morton Salt, because for I've been convinced, you know, 12:55.720 --> 12:59.360 from years, from advertising since I was a little child, that Morton Salt is better than 12:59.360 --> 13:05.600 any other salt, and the reality is it's identical to every other salt, but I buy it. 13:05.600 --> 13:13.720 So now let's bring it back to open source software. 13:13.720 --> 13:16.960 What makes your catch up the one consumer's customers want to buy? 13:16.960 --> 13:21.400 So it's not the software, we've just said it's not that, it's commodity, everybody can 13:21.400 --> 13:22.400 make it. 13:22.400 --> 13:24.640 What are those values? 13:24.640 --> 13:32.760 So, and I do wonder, when we see a lot of, when we see open source software projects who 13:32.760 --> 13:40.960 transition to a proprietary license, or a non-free license, source available, maybe or something, 13:40.960 --> 13:44.640 and maybe I'm wrong about this, this is just my personal thought on it, is that these 13:44.640 --> 13:52.640 are people without imagination, because copyright has been used, because copyright law has 13:52.640 --> 14:00.360 been used as the way to monetize software, the exclusivity, you know, the infringing, if 14:00.360 --> 14:04.400 you don't have a license there, where you have to pay for the license for it, that that 14:04.400 --> 14:09.600 is so baked into our software industry, that when you get venture capital involved or 14:09.600 --> 14:16.400 you get competition involved, people just can't think beyond, I lost my exclusivity, 14:16.400 --> 14:21.360 I need to regain that again, and so they then will switch a license to one that allows them 14:21.360 --> 14:26.320 to do that straight financial transaction of, you pay me money in order to get a license 14:26.320 --> 14:31.600 to use the copyright, like you have to pay for the privilege of that license of that document 14:31.600 --> 14:33.240 that allows me to use it. 14:33.240 --> 14:41.280 So, and to me, that's an absence of creativity, that Red Hat was forced into, because it was, 14:41.280 --> 14:45.760 you know, it was a company that started on an existing software project, had they invented 14:45.760 --> 14:50.000 the software, had they written the code, would they have picked a GPL for it, maybe not, 14:50.000 --> 14:54.080 because maybe they wouldn't have had the vision either, but they sat there with this 14:54.080 --> 14:58.560 product and said, how do we have to, how do we gotta figure out a way to make money from it? 14:58.560 --> 15:04.960 So, this is, I think this is an analogy, so this is about the music industry, and this 15:04.960 --> 15:11.560 is Mick Jagger said in, oh, in 12, oh, one, oh, I'm supposed to be 2010 on the footnote 15:11.560 --> 15:12.560 there. 15:12.560 --> 15:16.280 So, Mick Jagger said, when the stone started out, they didn't make any money out of 15:16.280 --> 15:18.880 records, because record companies didn't pay you. 15:18.880 --> 15:25.280 There was a small period from 1970 to 1997, where people did get paid, and they got paid very 15:25.280 --> 15:29.520 handsomely, they did make money, but now that period is done. 15:29.520 --> 15:37.800 Now, the 1997 there is referring to music fall sharing, and so that was a well, though, that 15:37.800 --> 15:40.920 was very disruptive in the music industry. 15:41.000 --> 15:51.800 I think that he pegs 1970, so recorded music started, what late, late 1800s, early 1900s, 15:51.800 --> 15:57.400 but think about the centuries that there was no recorded music, and music existed, the 15:57.400 --> 16:03.880 musicians made a living, but they didn't make that living off of distributing copies of their 16:03.880 --> 16:04.880 music. 16:04.880 --> 16:10.160 They had other business models that allowed them to monetize their ability to make music. 16:10.160 --> 16:18.280 So I'd just like to think about this, there's a short period of time, from our microscopic 16:18.280 --> 16:24.480 perspective on history, we're familiar with the recorded industry, the recorded music industry, 16:24.480 --> 16:27.720 and that's how they monetize this by selling copies of the music. 16:27.720 --> 16:30.840 But that has not been true for most of the history of music. 16:30.840 --> 16:36.520 So I'd just like to keep that in mind as an analogy to think about. 16:36.560 --> 16:45.680 So now you have your software project, you can't monetize the copyright, because it's free 16:45.680 --> 16:49.640 for everybody to take, everybody gets to copy this software, but you want to make money. 16:49.640 --> 16:57.040 Or you have some other motive that you want to, doesn't necessarily have to be money. 16:57.040 --> 17:02.400 But these are some of the value propositions that you may be able to convey that are going 17:02.400 --> 17:08.280 to be manifested in your brand, or the things that you can sort of sell as what value 17:08.280 --> 17:15.120 you add, what is your value adds to the commodity that other people don't have. 17:15.120 --> 17:19.040 And it's all marketing, this is all 100% marketing, or true, I mean, hopefully, truthful 17:19.040 --> 17:20.040 marketing. 17:20.040 --> 17:26.600 But so you may have greater familiarity with the software, you may have early knowledge 17:26.600 --> 17:32.200 in the mode, the roadmap, you may be able to direct, you may be able to influence the roadmap. 17:32.200 --> 17:36.680 Because of your knowledge, you may be able to customize it more quickly, you can manage 17:36.680 --> 17:42.320 the complexity of it more quickly, particularly for like a distribution of full distribution 17:42.320 --> 17:48.280 rather than a single product, that you can manage it, you may have more accurate, more 17:48.280 --> 17:49.280 reliable builds. 17:49.280 --> 17:55.160 It's your familiarity with the product that is a piece of, that can be a piece of your value 17:55.160 --> 17:56.160 proposition. 17:56.160 --> 18:00.720 Now, this is going to be very specific to the software. 18:00.720 --> 18:09.760 I think if you were thinking of monetizing open source software, the first thing you do 18:09.760 --> 18:16.680 is you sit down and figure, and do the red hat exercise red hat was forced to do, which 18:16.680 --> 18:26.320 is what am I bringing into this, what is my value add, I can't just sell licenses, which 18:26.320 --> 18:31.600 is the easy way out, what is my value add to it that I can bring, and really think 18:31.600 --> 18:36.000 long and hard about what it is that you're going to be bringing to the table, that you 18:36.000 --> 18:41.200 will then market, that will then become associated with the brand. 18:41.200 --> 18:49.360 Another classic statement, no one gets fired for using IBM, you want to be the IBM 18:49.360 --> 18:50.360 that people have. 18:50.360 --> 18:54.960 So even though someone else is offering a better, not a better, I should say, an equivalent 18:54.960 --> 18:59.640 product, because they have exactly the same source code, you have proven that you have 18:59.640 --> 19:04.080 some value that is worth some positive value that is worth having so that people will 19:04.080 --> 19:10.680 be a return buyer, a return user of your product. 19:10.680 --> 19:17.520 I do also want to talk about here, and this is kind of a topic for a second session that 19:17.520 --> 19:24.600 I'm not giving, which is what trademark, so I do want to put in the air, you don't necessarily 19:24.600 --> 19:28.840 have to use the same name as the software project. 19:28.840 --> 19:32.400 There's a desire and a tendency to do that, because you have goodwill that's already been 19:32.400 --> 19:37.560 built up in that software project name, so you want to take that software, you want to take 19:37.560 --> 19:41.880 that and leverage that into your business, so people may be familiar with the software 19:41.880 --> 19:45.840 project, and this is great, I already have brand awareness, I'm going to take this, and 19:45.840 --> 19:50.720 I'm going to use this for the benefit of my commercial business. 19:50.720 --> 19:56.200 I think about that, because once you've done that, what you've done is you have tied 19:56.200 --> 20:02.600 your brand value to the project itself, so when the two diverge, you are kind of stuck 20:02.600 --> 20:09.160 with each other, you're kind of stuck like glue, so I've say the project, and this 20:09.160 --> 20:14.720 applies even if you're both the founder of the project and the founder of the company, 20:14.760 --> 20:21.040 still think about it, because, say for example, there's a catastrophic failure in the software 20:21.040 --> 20:27.080 that causes billions of dollars of harm, and you have your little company over here doing, 20:27.080 --> 20:31.760 do you want to be associated with that, or maybe you want to be able to put some distance 20:31.760 --> 20:39.160 between the two, so just think about what happens if something goes wrong with one of 20:39.240 --> 20:46.480 the other, and what might that do to one or the other, just something, again, another 20:46.480 --> 20:50.280 topic altogether, but just something to think about. 20:50.280 --> 20:54.200 So great, we're going to use trademarks, it's great, we're going to have a brand, we're 20:54.200 --> 20:58.760 going to leverage it, okay, when will you have gone too far? 20:58.760 --> 21:06.000 These are the things that you, as the trademark owner, have to worry about, one is an uncontrolled 21:06.080 --> 21:10.800 licensee who's misleading users, so if you just say, like, everybody gets to use the trademark, 21:10.800 --> 21:15.680 that's called a naked license, and what has happened in all these, these scenarios on this 21:15.680 --> 21:21.080 slide is your trademark has lost its source identification value, if everybody is, if everybody 21:21.080 --> 21:25.480 is using a trademark and claiming to be that thing, then it's lost its value of this 21:25.480 --> 21:29.760 sole source identifier, which is what a trademark is. 21:29.840 --> 21:37.000 I want my name to be on everybody's lips, which we call, once it becomes the generic name 21:37.000 --> 21:43.080 for the product itself, then it's not, again, it's not a source identifier, it's become 21:43.080 --> 21:49.840 the generic name, the ethernet was a trademark, it was a registered trademark, it's not a trademark, 21:49.840 --> 21:53.680 right, ethernet is ethernet, we know what that is, you don't want that to happen, and 21:53.680 --> 21:58.840 then giving permission for something that causes confusion, where you tacitly approve 21:58.920 --> 22:04.640 of someone creating confusion, and that also will be, as a matter of equity, as a matter 22:04.640 --> 22:10.800 of fairness, to someone who relied on your say so that it was fine, you may lose your 22:10.800 --> 22:14.840 trademark rights, and you certainly will not certainly, but you probably lose them against 22:14.840 --> 22:17.840 as to that person, if not altogether. 22:17.840 --> 22:23.880 Just an example of very recent news in the news recently, the original, the terms and conditions 22:23.880 --> 22:29.040 for WordPress said the abbreviation WP is not covered by the WordPress trademarks, and 22:29.040 --> 22:33.180 you are free to use it in any way you see fit, right, right there, anybody gets to use 22:33.180 --> 22:38.620 WP, only now they have changed to say the abbreviation WP is not covered by the WordPress 22:38.620 --> 22:43.420 trademarks, but please don't use it in a way that confuses people, right, they change 22:43.420 --> 22:45.420 that. 22:45.420 --> 22:51.260 So that's a situation of a license, that's a license that was, we can argue it's a license, 22:51.300 --> 22:57.180 it was granted to the WP trademark, did I go, let's see. 22:57.180 --> 23:02.300 And this one slide about WordPress, I don't know if it's on your mind or not, I'm riveted 23:02.300 --> 23:07.740 to it, automatic is trying to leverage its trademark for reasons other than a concern about 23:07.740 --> 23:09.820 trademark infringement. 23:09.820 --> 23:15.180 There was recently a preliminary junction against automatic issued by a US court, because 23:15.180 --> 23:19.100 if it's other behavior, it's sort of like remember they had the checkbox and the log-in, 23:19.100 --> 23:24.860 and they blocked it all, but anybody from WP engine, the court ordered them to reverse 23:24.860 --> 23:31.100 that, to restore it to what it was before, and nothing was said about the trademark in any 23:31.100 --> 23:34.980 of this preliminary junction, and any of the proceedings thus far. 23:34.980 --> 23:40.100 So I think WordPress was just using its trademark, going back to what I say is the only leverage 23:40.100 --> 23:44.620 you have is the trademark, and they tried to leverage that, but maybe in a way that's not 23:44.620 --> 23:46.620 quite right. 23:46.620 --> 23:47.620 Questions? 23:47.860 --> 23:51.060 One question, no, I'm so sorry, tonight. 23:51.060 --> 23:52.060 One question. 23:52.060 --> 23:53.060 Okay, that's difficult. 23:53.060 --> 23:55.180 I go enough time on your slides to leave plenty. 23:55.180 --> 23:58.660 Like, you picture you're going to go through them in 15 minutes, isn't it? 23:58.660 --> 24:00.180 Lazy option, first rule? 24:00.180 --> 24:01.180 Yeah. 24:01.180 --> 24:05.560 So Pam, you said something about trademarks can also be used for controls while 24:05.560 --> 24:06.560 it's branding. 24:06.560 --> 24:11.140 Most famously in the Missile of Versus, Debbie, and I suesle Firefox, but early on in 24:11.140 --> 24:17.940 your talk, you said, Europe regards financial tie as being key to the definition of using 24:17.940 --> 24:22.180 a trademark in the market, and the US is going that way. 24:22.180 --> 24:26.180 In the spat-worth, Missile of Versus, Debbie, and to change the name, there was no financial 24:26.180 --> 24:27.180 tie. 24:27.180 --> 24:31.780 Does that mean the ability of open source to use trademarks to control how their software 24:31.780 --> 24:36.620 is used is going to die in the marketplace in the future, first in Europe, and then possibly 24:36.620 --> 24:37.620 later in the US? 24:37.860 --> 24:43.660 So no, actually, I was using that example as sort of it doesn't have to be source 24:43.660 --> 24:44.660 confusion. 24:44.660 --> 24:48.140 It can be other kinds of confusion, and that other kind of confusion, if you think about 24:48.140 --> 24:53.060 it as a financial link, the Debbie and Versus, Missile was a source confusion situation 24:53.060 --> 24:59.980 because what was in Debbie in Missile's viewpoint was not authentic software. 24:59.980 --> 25:02.260 It was because it had been modified. 25:02.260 --> 25:07.580 So there is a principle of law, like when you modify, it's not the same thing 25:07.580 --> 25:08.580 anymore. 25:08.580 --> 25:10.940 Do you still get to call it the original thing or not? 25:10.940 --> 25:16.500 If I take a Rolex, if I take a time-ex watch, and I put diamonds around the bezel to make 25:16.500 --> 25:19.940 it look like a Rolex, can I call it a Rolex? 25:19.940 --> 25:20.940 Can I call it a Rolex? 25:20.940 --> 25:27.820 No, that's a source confusion problem is what you are saying people are getting is not authentic. 25:27.820 --> 25:33.620 It's basically, what you're saying is it can be a counterfeit, can be considered a counterfeit. 25:33.620 --> 25:34.620 They didn't go that far. 25:34.620 --> 25:36.340 Missile didn't go that far. 25:36.340 --> 25:40.060 So unfortunately, we don't have time for not a question, so thank you very much. 25:40.060 --> 25:41.060 Pam? 25:41.060 --> 25:42.060 Thank you.