My questions about the new Trademark Guideline draft

[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.

>      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.

>      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.

>      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!) ;-)

>      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.

>      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'm afraid that this section will make swag production much more
> complicated and I therefor ask Pam and/or Fedora legal if we can make it
> shorter/easier or remove it completely.

Thanks for looking at this thoughtfully and raising some good
questions.  I know I can't give you official answers, just giving my
understanding from my experience with the TM guidelines.

-- 
Paul W. Frields                                http://paul.frields.org/
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