Fedora Trademark Guidelines Revised Draft Comments

[Pam Chestek]

David Nalley wrote:
> What that really gets interpreted as is: RHT thinks that Fedora
> contributors a) don't care about, and can't be trusted with the Fedora
> brand and would engage in activities that would sully it's reputation.
> b) RHT thinks that there are currently problems that are so egregious
> with what we are doing now that they must be fixed despite the fact
> that it's been going on with few complaints for many years.
As Red Hat Legal, I would like to address this point.  I think that 
Fedora does a fabulous job managing its brand, better than many 
companies do.  The problem is that, as you mentioned in a different part 
of your email, trademark law is ill-equipped to deal with the 
organizational and management structure of an open source project.  
Trademark law is used to traditional companies, where you have 
employees, subsidiaries, licenses, etc.

It is well-established that the trademark owner has to control the 
quality of goods and services with which its trademark is used, and that 
not exercising adequate control can potentially result (as Tom 
mentioned) in a finding of "naked licensing," which means that the 
trademark is invalidated.  This is clearly not an outcome that the 
Fedora community can allow to happen.  The elephant in the room is the 
Freecycle case, which you can read here: 
http://www.ca9.uscourts.gov/datastore/opinions/2010/11/24/08-16382.pdf.  
In my personal opinion it's a horrible, wrong decision, and I've railed 
against it personally 
(http://www.propertyintangible.com/2010/11/ninth-circuit-ignores-law-again.html), 
but it is the current state of the law.

So I'm left with having to do some line-drawing.  I have to be able, if 
in court, to say "these people have a special relationship with Fedora 
that we believe gives us a basis for entrusting to them the judgment on 
whether a product is of sufficient quality that it can be called 
'Fedora,'" along with being able to demonstrate that they have, indeed, 
exercised good judgment. I believe I can defend Ambassadors in that role 
- they have had a long-standing relationship with Fedora and have 
demonstrated their understanding of brand values.  I am stuck at where 
else I can draw that line (other than more protectionist).  The 
Freecycle case demonstrates that just being a participant in a loose 
common-interest community isn't good enough, so allowing any community 
member to do as he or she pleases is not a position I can defend in court.

So the decision making has nothing whatsoever to do with a lack of trust 
in the Fedora community. I think the Fedora Community does an awesome 
job, but I have to also be able to defend the Fedora trademark if 
challenged under a very unforgiving legal standard.

Pam

Pamela S. Chestek
Sr. IP Attorney
Red Hat, Inc.