My questions about the new Trademark Guideline draft

[Christoph Wickert]

Am Mittwoch, den 22.02.2012, 18:21 -0500 schrieb Paul W. Frields:
> On Wed, Feb 22, 2012 at 10:55:57PM +0100, Christoph Wickert wrote:
> > In the Board meeting today we agreed to collect all remaining questions
> > about the Trademark guidelines draft from
> > https://fedoraproject.org/wiki/User:Pchestek/TMGuidelinesDraft
> > and send them to Pam or Fedora Legal.
> > 
> > While I agree to most of what is written or at least understand why it's
> > necessary to follow a clearly defined procedure, I am having serious
> > problems with the 'Ambassador giveaways' section. It reads:
> > 
> > > If the design is simply an unmodified Fedora logo, word-mark, or
> > > previously approved design, with nothing else, the merchandise is
> > > appropriate, and the material type/quality is acceptable, the request
> > > will be granted, and the Fedora Ambassador will be given a one-time
> > > permission to produce the specified non-software promotional goods in
> > > the amount requested. Any other request must have Board approval, and
> > > may require that the Ambassador produce a two item proof batch of the
> > > proposed non-software promotional goods. Please note that designs must
> > > be in compliance with the Fedora Logo Usage Guidelines, and all
> > > requests must be made at least one month before expected production of
> > > the non-software promotional goods. Trademark approval, if granted,
> > > does not constitute any budgetary or financial agreement to produce
> > > non-software promotional goods.
> > 
> > AFAICS this means
> >      1. Pre-approved design will be approved more or less automatically,
> >         nevertheless the permission is only for one time and we need to
> >         run in circles for every new batch even if absolutely nothing
> >         has changed. Is that true? We are using the same Ambassador polo
> >         shirts for ages now and neither the design not the quality has
> >         changed. It's still produced by the same vendor from the same
> >         master with the same material.
> 
> As always IANAL.  Having said that...
> 
> The way I read the above, the Board isn't prohibited from granting a
> long-term or continuing approval based on using the same vendor,
> materials, etc.  The way I read it, the provision prevents the
> *assumption* that there is an automatic or long-term approval, unless
> the Board says otherwise.

long-term approvals are not mentioned anywhere, and if a guidelines only
mentions one-time approvals, my understanding is that the board can only
give one-time permissions.

> >      2. In most cases it is not possible to produce two item proof, say
> >         two pens or shirts. What to do?
> >      3. What do we actually do with the two proof items? Do we send them
> >         to Raleigh where they will be archived?
> 
> This provision states "may require," not "will require."  Should be no
> problem in theory or practice, since the Board should not be requiring
> the impossible.

I'm afraid we are having a different perspective. While you seem to be
more optimistic, I am very careful. If something is unclear I always try
to prepare for the worst - especially when it has to do with lawyers.
The EMEA community had some bad experiences in the past.

> >      4. Would photos be sufficient?
> >      5. Would similar items by the same vendor be sufficient as
> >      proof?
> 
> See above, but I believe the Board has latitude to say "yes" to
> specific cases here.

see above :)

> >      6. If it is possible, who will pay for the two item proof batch? 2
> >         polo shirts are over 50 EUR, with shipping to the US this is ~
> >         60 EUR. Or what about goodies that don't get approved? Will the
> >         community members have to take over the costs?
> 
> IMHO no community member should have to front money for proofs or
> other Fedora costs.  Sometimes people do this voluntarily but there's
> no reason the Fedora budget can't reimburse.  If the money is needed
> up front, it should be no problem, as long as it's discussed in
> advance with the budgetholder.  I imagine no one would be happy if 2
> proofs of a Fedora Ferrari were charged to our budget.  (I didn't say
> no one would be happy if they *showed up*, it's just paying for them
> that would be sticky!) ;-)

I like that idea of a Fedora Ferrari. ;) Jokes aside: We agree that
contributors should not pay, but what if? This may be a corner case of
the new TLA but I want to be prepared.

> >      7. Can we get rid of the one month clause? Last year we did polo
> >         shirts 5 days before Linux-Tag and they were delivered directly
> >         to the event. There was no time for an approval and even if we
> >         are not in a hurry "at least one month" seems way too long for
> >         me.
> 
> My question here is, if that clause is eliminated, would there need to
> be some provision for quality checking in urgent situations?  In other
> words, if making an order for next-day shipping eliminates the need to
> check quality, would that undercut the entire section?  I don't think
> you're suggesting that, Christoph, I'm just pointing out the follow-on
> question that occurred to me.

I'm afraid only legal can answer that question. Theoretically this can
be used to bypass the requirement, but - just like you do with the board
- I like to trust in our contributors and their common sense.

What I have in mind is something like: If pre-approved material is
produced again without changes in design or quality, there should be no
further requirements: No proof items, no time limits and all that. We
should just update the old ticket that was used for approval with a note
"On {date} the {region} ambassadors ordered another {quantity} of
{item}." for tracking purposes.

I'm not even sure this is needed, as think we are basically dealing with
a question of prior-art, so only the first appearance of an item should
really matter. On the other hand: If we can do approved swag without new
approval, basically all approvals are permanent unless explicitly
withdrawn. I think this should be the default, but I'm not sure if it
causes a problem for legal.

> >      8. Is legal really to decide what "acceptable quality" is?
> 
> I don't think the intention is for Legal to examine all swag by
> default, but rather that the Board and Legal reserve the *right* to
> look at granting or not granting swag production based on quality.
> AIUI this is something a trademark owner's obliged to do.  In practice
> I expect the Board would be comfortable with an Ambassador
> representing the quality of the goods as being sufficient.
> Ambassadors have always done an excellent job at judging this IMHO.

I agree, the ambassadors have done a good job here and we should trust
them. And IHMO we should trust them more than the board or legal. I
generally do not trust lawyers (unless I pay them) and I recall some
board members picked on some swag for reasons no ambassadors and very
few people in the community could understand. It's not that I like bad
design and poor quality, but in the end the decision should be up to the
people who hand out the swag on events.

Regards,
Christoph