Hello community, this is to inform you that in response to the trademarking of the Wikimedia community logo[1], created in 2006 by Artur “WarX” Fijałkowski, which was discussed on this mailing list[2] as well as on Meta[3] back in March, a small group of community members—Artur, myself, Federico Leva (Nemo) and John Vandenberg—have initiated a formal process of opposition against the registration of the trademark by the Foundation in order to *reclaim the logo* for unrestricted use by the community.
We appreciate the Foundation’s protection of the other trademarks they have registered so far, including the logos of Wikipedia, Wikisource and some other sister projects. In the case of the community logo, however, it is our belief that the Foundation’s actions are exactly opposite to what the community logo stands for and contradict the purpose behind its very existence.
We would like to make it clear that it is not our intention to damage anyone; our actions are a challenge against what we perceive as unilateral declaration of ownership of an asset that has always belonged to the wider community, and not to one or another organisation that is part of the movement. By formally opposing the registration of the trademark we hope to ensure the history of this logo is not disregarded, and we wish to protect the community against unnecessary bureaucracy and, to use another quote, let “groups who do not purport to represent the WMF”[4] to continue to be able to freely associate with a logo that has been part of their identity for so long.
We also want to note that this is in no way a legal action against the Foundation, but a simple notice of opposition against the registration of the logo in the European Union. If we assume good faith, we can only be confident that the WMF, having now a formal occasion, will withdraw its registration of the logo rather than continue using movement resources to force the community into lengthy, expensive proceedings.
We invite all community members interested in this issue to express their opinions at:
https://meta.wikimedia.org/wiki/Talk:Community_Logo/Reclaim_the_Logo
If any of you would like to help us in any way (covering the costs of the opposition, promoting the discussion, etc.), please feel free to contact us off–list.
Artur Fijalkowski (WarX) Tomasz Kozlowski (odder) Federico Leva (Nemo) John Vandenberg (jayvdb)
== References == * [1] https://meta.wikimedia.org/wiki/File:Wikimedia_Community_Logo.svg * [2] https://lists.wikimedia.org/pipermail/wikimedia-l/2013-March/124715.html * [3] https://meta.wikimedia.org/wiki/Talk:Community_Logo * [4] http://lists.wikimedia.org/pipermail/wikimedia-l/2013-March/124730.html
I'm very sorry to see that it had to come to this (imho) radical step. I however can agree with your analysis - I have always felt very uncomfortable since I found out (after the fact of course) that the legal department had made the decision to register this as a trademark. This went against the very spirit of this logo (I indeed remember the discussions which lead to the very creation of it) and was even more disappointed that the WMF did not change its mind when the community explained the intentions, situation and consequences to them.
I sincerely hope that the Board (yes, I think this should be a board level decision - legal proceedings between a group of community members and the WMF, even in a procedure like this, is an unprecedented situation and imho highly undesirable) or otherwise the staff will seriously reconsider their earlier decision to register this as a trademark, and re-apply the logo to its original use.
Tomasz, I hope you will keep the wider community updated on progress being made in this case.
Best, Lodewijk
2013/9/21 Tomasz W. Kozlowski tomasz@twkozlowski.net
Hello community, this is to inform you that in response to the trademarking of the Wikimedia community logo[1], created in 2006 by Artur “WarX” Fijałkowski, which was discussed on this mailing list[2] as well as on Meta[3] back in March, a small group of community members—Artur, myself, Federico Leva (Nemo) and John Vandenberg—have initiated a formal process of opposition against the registration of the trademark by the Foundation in order to *reclaim the logo* for unrestricted use by the community.
We appreciate the Foundation’s protection of the other trademarks they have registered so far, including the logos of Wikipedia, Wikisource and some other sister projects. In the case of the community logo, however, it is our belief that the Foundation’s actions are exactly opposite to what the community logo stands for and contradict the purpose behind its very existence.
We would like to make it clear that it is not our intention to damage anyone; our actions are a challenge against what we perceive as unilateral declaration of ownership of an asset that has always belonged to the wider community, and not to one or another organisation that is part of the movement. By formally opposing the registration of the trademark we hope to ensure the history of this logo is not disregarded, and we wish to protect the community against unnecessary bureaucracy and, to use another quote, let “groups who do not purport to represent the WMF”[4] to continue to be able to freely associate with a logo that has been part of their identity for so long.
We also want to note that this is in no way a legal action against the Foundation, but a simple notice of opposition against the registration of the logo in the European Union. If we assume good faith, we can only be confident that the WMF, having now a formal occasion, will withdraw its registration of the logo rather than continue using movement resources to force the community into lengthy, expensive proceedings.
We invite all community members interested in this issue to express their opinions at:
https://meta.wikimedia.org/**wiki/Talk:Community_Logo/**Reclaim_the_Logohttps://meta.wikimedia.org/wiki/Talk:Community_Logo/Reclaim_the_Logo
If any of you would like to help us in any way (covering the costs of the opposition, promoting the discussion, etc.), please feel free to contact us off–list.
Artur Fijalkowski (WarX) Tomasz Kozlowski (odder) Federico Leva (Nemo) John Vandenberg (jayvdb)
== References ==
Logo.svghttps://meta.wikimedia.org/wiki/File:Wikimedia_Community_Logo.svg
- [2]
https://lists.wikimedia.org/**pipermail/wikimedia-l/2013-** March/124715.htmlhttps://lists.wikimedia.org/pipermail/wikimedia-l/2013-March/124715.html
- [3] https://meta.wikimedia.org/**wiki/Talk:Community_Logohttps://meta.wikimedia.org/wiki/Talk:Community_Logo
- [4]
http://lists.wikimedia.org/**pipermail/wikimedia-l/2013-** March/124730.htmlhttp://lists.wikimedia.org/pipermail/wikimedia-l/2013-March/124730.html
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Tomasz W. Kozlowski wrote:
We also want to note that this is in no way a legal action against the Foundation, but a simple notice of opposition against the registration of the logo in the European Union.
Hi.
Thanks for writing this up. I have a few questions.
Was the logo trademarked only in the European Union?
How is it possible to trademark a public domain image?
Who at the Wikimedia Foundation worked to trademark this logo?
What's meant by the "opposition end date" listed at wipo.net?
MZMcBride
Hi all,
We have posted our response to this on the trademark policy discussion page and with a request to hold off opposition. We welcome your comments there: https://meta.wikimedia.org/wiki/Talk:Trademark_practices_discussion#Response...
Best, Geoff & Yana
On Sat, Sep 21, 2013 at 7:50 AM, MZMcBride z@mzmcbride.com wrote:
Tomasz W. Kozlowski wrote:
We also want to note that this is in no way a legal action against the Foundation, but a simple notice of opposition against the registration of the logo in the European Union.
Hi.
Thanks for writing this up. I have a few questions.
Was the logo trademarked only in the European Union?
How is it possible to trademark a public domain image?
Who at the Wikimedia Foundation worked to trademark this logo?
What's meant by the "opposition end date" listed at wipo.net?
MZMcBride
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Yana Welinder, 21/09/2013 21:12:
Hi all,
We have posted our response to this on the trademark policy discussion page and with a request to hold off opposition. We welcome your comments there: https://meta.wikimedia.org/wiki/Talk:Trademark_practices_discussion#Response...
We have answered, by the way. https://meta.wikimedia.org/wiki/Talk:Community_Logo/Reclaim_the_Logo#Response_of_the_WMF_legal_team_and_request_to_hold_off_opposition
Nemo
Doesn't it seem a little unnecessarily confusing to have the same discussion copied, piece by piece, on to two separate talk pages?
Thanks Nemo! We have also posted two additional responses on the talk page: https://meta.wikimedia.org/wiki/Talk:Community_Logo/Reclaim_the_Logo#Respons... .
Best, Yana
On Sat, Sep 21, 2013 at 3:34 PM, Federico Leva (Nemo) nemowiki@gmail.comwrote:
Yana Welinder, 21/09/2013 21:12:
Hi all,
We have posted our response to this on the trademark policy discussion page and with a request to hold off opposition. We welcome your comments there: https://meta.wikimedia.org/**wiki/Talk:Trademark_practices_** discussion#Response_from_the_**WMF_legal_department_and_** request_to_hold_off_oppositionhttps://meta.wikimedia.org/wiki/Talk:Trademark_practices_discussion#Response_from_the_WMF_legal_department_and_request_to_hold_off_opposition
We have answered, by the way. <https://meta.wikimedia.org/**wiki/Talk:Community_Logo/** Reclaim_the_Logo#Response_of_**the_WMF_legal_team_and_** request_to_hold_off_oppositionhttps://meta.wikimedia.org/wiki/Talk:Community_Logo/Reclaim_the_Logo#Response_of_the_WMF_legal_team_and_request_to_hold_off_opposition **>
Nemo
Yana Welinder, 23/09/2013 08:38:
Thanks Nemo! We have also posted two additional responses on the talk page: https://meta.wikimedia.org/wiki/Talk:Community_Logo/Reclaim_the_Logo#Respons....
Thanks. I've no idea how the last answer relates to that talk page, but it seems you answered one of MZ's questions on this list.
Nemo
Hi,
Further to our announcement on September 21, the opposition has been formally filed before the European Union’s Office of Harmonization for the Internal Market (OHIM) on September 25. You can read the opposition filing in the documents section of the EU trademark application[1].
Additionally, an opposition observation has been filed but it is not yet available to the public at the URL mentioned above; our limited understanding is that it will be published there in the coming days. We’ll keep everyone informed on this aspect.
So what is next?
The OHIM will now review the Notice of Opposition to determine that the opposition is admissible. This takes a few weeks. If the notice of opposition is found to be admissible, the 'cooling-off period' commences.[2]
The 'cooling-off period' allows the parties can either negotiate an agreement, and either party may withdraw their claim to the mark without incurring additional costs. This period lasts between two months and two years. It is important that everyone understands that there is no need to act hastily. If the WMF and community need time to find the right solution, we will have two years.
The WMF set the timetable by applying for this trademark, and they have not withdrawn that application or responded appropriately to community calls for this to be re-evaluated. The WMF was informed in March that we viewed the trademark registration as unacceptable. Even after our announcement on September 21, the WMF has not addressed the heart of the issue; they have chosen to focus the community attention on a new approach, a collective trademark, rather than consider the erosion of the Commons by their trademarking of a public domain logo against the intentions of the author of the logo.
Contrary to the WMF’s claims on their ‘Request for consultation’[3], we have never said that the opposition needed to be filed on September 23. We are aware that we could have delayed the opposition until December. As the opposition process is able to proceed through the non-adversarial phase for two years, we believe it is appropriate that a properly focused formal process should commence now.
During the first two months of the cooling-off period, we request that the WMF provides a brief to the community explaining why they believe they have a legal claim to the community logo, given that the board knew it was selected in order that the community did not need to request authorisation.[4]
We also encourage the WMF to publish their research on collective trademarks, so that the community can make an informed decision about the utility of this approach. It is our understanding that, in the EU at least, the WMF will need to abandon their current trademark registration if they are to apply for a collective trademark.
Regards, John Vandenberg
== References == * [1] http://oami.europa.eu/CTMOnline/RequestManager/en_Detail_NoReg?deno=&ida... * [2] http://oami.europa.eu/ows/rw/pages/CTM/regProcess/opposition.en.do * [3] https://meta.wikimedia.org/wiki/Community_Logo/Request_for_consultation#Note... * [4] https://lists.wikimedia.org/pipermail/foundation-l/2008-September/045702.htm...
Hi,
Can the WMF still enforce the trademark during the cool-off period?
Thanks, Strainu
2013/9/26 John Vandenberg jayvdb@gmail.com:
Hi,
Further to our announcement on September 21, the opposition has been formally filed before the European Union’s Office of Harmonization for the Internal Market (OHIM) on September 25. You can read the opposition filing in the documents section of the EU trademark application[1].
Additionally, an opposition observation has been filed but it is not yet available to the public at the URL mentioned above; our limited understanding is that it will be published there in the coming days. We’ll keep everyone informed on this aspect.
So what is next?
The OHIM will now review the Notice of Opposition to determine that the opposition is admissible. This takes a few weeks. If the notice of opposition is found to be admissible, the 'cooling-off period' commences.[2]
The 'cooling-off period' allows the parties can either negotiate an agreement, and either party may withdraw their claim to the mark without incurring additional costs. This period lasts between two months and two years. It is important that everyone understands that there is no need to act hastily. If the WMF and community need time to find the right solution, we will have two years.
The WMF set the timetable by applying for this trademark, and they have not withdrawn that application or responded appropriately to community calls for this to be re-evaluated. The WMF was informed in March that we viewed the trademark registration as unacceptable. Even after our announcement on September 21, the WMF has not addressed the heart of the issue; they have chosen to focus the community attention on a new approach, a collective trademark, rather than consider the erosion of the Commons by their trademarking of a public domain logo against the intentions of the author of the logo.
Contrary to the WMF’s claims on their ‘Request for consultation’[3], we have never said that the opposition needed to be filed on September 23. We are aware that we could have delayed the opposition until December. As the opposition process is able to proceed through the non-adversarial phase for two years, we believe it is appropriate that a properly focused formal process should commence now.
During the first two months of the cooling-off period, we request that the WMF provides a brief to the community explaining why they believe they have a legal claim to the community logo, given that the board knew it was selected in order that the community did not need to request authorisation.[4]
We also encourage the WMF to publish their research on collective trademarks, so that the community can make an informed decision about the utility of this approach. It is our understanding that, in the EU at least, the WMF will need to abandon their current trademark registration if they are to apply for a collective trademark.
Regards, John Vandenberg
== References ==
- [1] http://oami.europa.eu/CTMOnline/RequestManager/en_Detail_NoReg?deno=&ida...
- [2] http://oami.europa.eu/ows/rw/pages/CTM/regProcess/opposition.en.do
- [3] https://meta.wikimedia.org/wiki/Community_Logo/Request_for_consultation#Note...
- [4] https://lists.wikimedia.org/pipermail/foundation-l/2008-September/045702.htm...
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Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone believes to you when you use them as threat tools. So yes, I suppose they might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by their own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read http://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-settlement and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new entry in the contest for grossest abuse of trademark law to suppress speech the plaintiff doesn’t like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark abusers in history", as their representative in this case.
Tomasz
The legal team have provided some background on the hiring on Jones Day in this action. Here is their comment: https://meta.wikimedia.org/wiki/Talk:Community_Logo/Request_for_consultation...
James Alexander Legal and Community Advocacy Wikimedia Foundation (415) 839-6885 x6716 @jamesofur
On Tue, Oct 8, 2013 at 3:56 PM, tomasz@twkozlowski.net wrote:
Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone
believes to you when you use them as threat tools. So yes, I suppose they might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by their own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read < http://www.dmlp.org/blog/**2009/sam-bayard/thoughts-** jones-day-blockshopper-**settlementhttp://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-settlement> and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new entry in the contest for grossest abuse of trademark law to suppress speech the plaintiff doesn’t like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark abusers in history", as their representative in this case.
Tomasz______________________________**_________________ Wikimedia-l mailing list Wikimedia-l@lists.wikimedia.**org Wikimedia-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/**mailman/listinfo/wikimedia-lhttps://lists.wikimedia.org/mailman/listinfo/wikimedia-l, <mailto:wikimedia-l-request@**lists.wikimedia.orgwikimedia-l-request@lists.wikimedia.org ?subject=**unsubscribe>
Referring to John and Federico as "these two individuals" comes across as attempting to depersonalise and deprecate your opposition. Are you quite sure this is the effect you're after?
On 9 October 2013 07:13, James Alexander jalexander@wikimedia.org wrote:
The legal team have provided some background on the hiring on Jones Day in this action. Here is their comment: https://meta.wikimedia.org/wiki/Talk:Community_Logo/Request_for_consultation...
James Alexander Legal and Community Advocacy Wikimedia Foundation (415) 839-6885 x6716 @jamesofur
On Tue, Oct 8, 2013 at 3:56 PM, tomasz@twkozlowski.net wrote:
Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone
believes to you when you use them as threat tools. So yes, I suppose they might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by their own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read < http://www.dmlp.org/blog/**2009/sam-bayard/thoughts-** jones-day-blockshopper-**settlementhttp://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-settlement> and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new entry in the contest for grossest abuse of trademark law to suppress speech the plaintiff doesn’t like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark abusers in history", as their representative in this case.
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On 10/09/2013 03:09 AM, David Gerard wrote:
Referring to John and Federico as "these two individuals" comes across as attempting to depersonalise and deprecate your opposition.
I should expect the intent (and this is how it came across to me) is to not *personalize* the dispute by naming them.
-- Marc
hi,
while writing about "two individuals" was probably well-meant (so as not to point fingers), to my non-native ear it sounds unfortunately close to police reports lingo :) Also, while I perfectly understand why WMF needs external representation, and why Jones Day's in-kind donated support is used, it is also clear to me that the "two individuals" may feel cornered and perceive it as an move to resolve the issue by force (in the face of obvious disparity of legal brainpower and resources).
I may be wrong, but my own and personal view is 100% in line with what Craig wrote: irrespective of the result, taking this dispute to court will be a failure on both sides.
Ideally, if both sides could agree on a mediation by one or more parties acceptable to them, this could wind things down a bit and perhaps lead to a better understanding of the views (as well as of the legal mechanics and consequences of the choices). Also, since both sides act with a strong perception of protecting the community's interest in the way they see fit best, the community's wider feedback may help in resolving the issue.
Just my two-cents.
best,
pundit
On Wed, Oct 9, 2013 at 9:09 AM, David Gerard dgerard@gmail.com wrote:
Referring to John and Federico as "these two individuals" comes across as attempting to depersonalise and deprecate your opposition. Are you quite sure this is the effect you're after?
On 9 October 2013 07:13, James Alexander jalexander@wikimedia.org wrote:
The legal team have provided some background on the hiring on Jones Day
in
this action. Here is their comment:
https://meta.wikimedia.org/wiki/Talk:Community_Logo/Request_for_consultation...
James Alexander Legal and Community Advocacy Wikimedia Foundation (415) 839-6885 x6716 @jamesofur
On Tue, Oct 8, 2013 at 3:56 PM, tomasz@twkozlowski.net wrote:
Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone
believes to you when you use them as threat tools. So yes, I suppose
they
might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by
their
own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read < http://www.dmlp.org/blog/**2009/sam-bayard/thoughts-** jones-day-blockshopper-**settlement<
http://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-set...
and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new
entry
in the contest for grossest abuse of trademark law to suppress speech
the
plaintiff doesn't like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark
abusers
in history", as their representative in this case.
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https://lists.wikimedia.org/mailman/listinfo/wikimedia-l,
<mailto:wikimedia-l-request@**lists.wikimedia.org<
wikimedia-l-request@lists.wikimedia.org>
?subject=**unsubscribe>
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Thanks Dariusz for your wise words which I fully agree upon.
I my understanding this issue has three underlaying aspects: *A legal technical one. What is the real meaning and implication of a "collective membership mark". A straight forward issue *The spread among us community members between idealists and pragmatics. I see this difference being most manifested when we discuss protection of articles often being vandalized. And here I believe it is a strength for the totality that we have both group among ourselves - it leads to more balanced decisions (but also often after heated debates) * An old latent suspicion between "WMF/Board" and community member/Chapters. This is an old story and where we have lately seen some signs his "tension" was decreasing, our interaction and trust in each other becoming better. And sometimes this tension is seen to be between Order and Anarchy, but I do not buy this interpretation. We should all in the movement actively try to live up to our motto "Assume good faith" at the same time as we of course should continue to discuss constructive our complex intraorganizational issues that turns up
I feel real, real sad when I perceive this issue, which is only an internal issue with all competence and input being within the movement, is turned into being handled outside the movement, inside a official legal framework. Even more sad knowing all key persons involved in this issue to be competent, very important to the movement and equally dedicated to our common vision/mission.
I have no advice to give how to get the issue resolved or how to proceed or how to act, but urge all involve all involved parts and other actors within the movement to act so this issue can be taken back from "the outside world" and be bought back to the movement to be resolved among ourselves.
Anders
Dariusz Jemielniak skrev 2013-10-10 09:05:
hi,
while writing about "two individuals" was probably well-meant (so as not to point fingers), to my non-native ear it sounds unfortunately close to police reports lingo :) Also, while I perfectly understand why WMF needs external representation, and why Jones Day's in-kind donated support is used, it is also clear to me that the "two individuals" may feel cornered and perceive it as an move to resolve the issue by force (in the face of obvious disparity of legal brainpower and resources).
I may be wrong, but my own and personal view is 100% in line with what Craig wrote: irrespective of the result, taking this dispute to court will be a failure on both sides.
Ideally, if both sides could agree on a mediation by one or more parties acceptable to them, this could wind things down a bit and perhaps lead to a better understanding of the views (as well as of the legal mechanics and consequences of the choices). Also, since both sides act with a strong perception of protecting the community's interest in the way they see fit best, the community's wider feedback may help in resolving the issue.
Just my two-cents.
best,
pundit
On Wed, Oct 9, 2013 at 9:09 AM, David Gerard dgerard@gmail.com wrote:
Referring to John and Federico as "these two individuals" comes across as attempting to depersonalise and deprecate your opposition. Are you quite sure this is the effect you're after?
On 9 October 2013 07:13, James Alexander jalexander@wikimedia.org wrote:
The legal team have provided some background on the hiring on Jones Day
in
this action. Here is their comment:
https://meta.wikimedia.org/wiki/Talk:Community_Logo/Request_for_consultation...
James Alexander Legal and Community Advocacy Wikimedia Foundation (415) 839-6885 x6716 @jamesofur
On Tue, Oct 8, 2013 at 3:56 PM, tomasz@twkozlowski.net wrote:
Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone
believes to you when you use them as threat tools. So yes, I suppose
they
might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by
their
own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read < http://www.dmlp.org/blog/**2009/sam-bayard/thoughts-** jones-day-blockshopper-**settlement<
http://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-set...
and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new
entry
in the contest for grossest abuse of trademark law to suppress speech
the
plaintiff doesn't like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark
abusers
in history", as their representative in this case.
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Hi,
let me start by saying that I agree with Dariusz's opinion that we should discuss this as a community, and perhaps move on from 'debate by press release' into more focused formats like Google Hangout or IRC office hours in order to find common ground, share our research, and highlight the many outstanding questions that need to be addressed before we can make an informed decision about the right path forward.
On that topic, 'debate via press release' is an unfortunate side effect of multilingualism and our translation software; it is more efficient (for both sides) to have published 'statements' that are static so that the translators have been able to effectively communicate the facts about the community logo, the trademark opposition, and the WMF position, into 20 languages already.
As far as David's point is concerned, the focus should shift away from the 'two individuals' whose names appear on the forms, to the 30 people who have publicly supported the abandonment of the community logo trademark; and there are many more unofficially or non-publicly supporting, or are concerned but not able to make an informed decision yet. All these people should be able to participate in a discussion such as the above-mentioned Google Hangout or IRC.
As far as the WMF's argument of us filling the opposition after community consultation had already started, the opposition needed to be formally filed in order to be taken seriously, as all previous discussions had been marginalised.
The prior users of this logo, including people who have created derivatives, deserve to know the legal basis on which the WMF believes that this logo can be legally trademarked by the WMF, which would effectively make the existing users give up the rights they have had and exercised unimpeded since 2006. It is our hope that the WMF will be able to provide a legal basis for their action that the Board of Trustees and community consider acceptable and ethical, as the Foundation's actions are done in our name.
If it is legal, let us see the rationale and evaluate it. This doesn't need to progress to a court, nor are we likely to win in a court against Jones Day, to be honest. We are funding this opposition 'cheaply', which means we are doing a lot of the legal research and drafting of briefs ourselves, to reduce how much of our legal counsel's time we are billed for, and we have limited funds. A few people have offered to help with the costs, but we're hoping to keep this low key in the hope a solution can be found by a well informed community during a good faith mediation process. If we all lawyer up, drowning the real issue of this dispute in legal paperwork, it will only prove once more that legal muscle wins, and do nothing to solve the underlying problem.
While legality and ethics of the trademark registration are important, there are other options that we should explore. For example the Debian project only has a trademark on their logo combined with stylised 'Debian'. The logo without stylised 'Debian' is not trademarked. The same principle could be applied to the community logo, leaving it not trademarked, and the WMF trademarking the community logo combined with stylised 'Wikimedia' or 'Meta-Wiki'. It is an approach that has worked for Debian. They even had someone outside their community reuse their free logo, and Debian survived uninjured and with zero legal expenses. :-) (http://sanacl.wordpress.com/2010/12/06/inappropriate-use-of-the-debian-logo/)
-- John
On Thu, Oct 10, 2013 at 2:05 PM, Dariusz Jemielniak darekj@alk.edu.pl wrote:
hi,
while writing about "two individuals" was probably well-meant (so as not to point fingers), to my non-native ear it sounds unfortunately close to police reports lingo :) Also, while I perfectly understand why WMF needs external representation, and why Jones Day's in-kind donated support is used, it is also clear to me that the "two individuals" may feel cornered and perceive it as an move to resolve the issue by force (in the face of obvious disparity of legal brainpower and resources).
I may be wrong, but my own and personal view is 100% in line with what Craig wrote: irrespective of the result, taking this dispute to court will be a failure on both sides.
Ideally, if both sides could agree on a mediation by one or more parties acceptable to them, this could wind things down a bit and perhaps lead to a better understanding of the views (as well as of the legal mechanics and consequences of the choices). Also, since both sides act with a strong perception of protecting the community's interest in the way they see fit best, the community's wider feedback may help in resolving the issue.
Just my two-cents.
best,
pundit
On Wed, Oct 9, 2013 at 9:09 AM, David Gerard dgerard@gmail.com wrote:
Referring to John and Federico as "these two individuals" comes across as attempting to depersonalise and deprecate your opposition. Are you quite sure this is the effect you're after?
On 9 October 2013 07:13, James Alexander jalexander@wikimedia.org wrote:
The legal team have provided some background on the hiring on Jones Day
in
this action. Here is their comment:
https://meta.wikimedia.org/wiki/Talk:Community_Logo/Request_for_consultation...
James Alexander Legal and Community Advocacy Wikimedia Foundation (415) 839-6885 x6716 @jamesofur
On Tue, Oct 8, 2013 at 3:56 PM, tomasz@twkozlowski.net wrote:
Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone
believes to you when you use them as threat tools. So yes, I suppose
they
might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by
their
own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read < http://www.dmlp.org/blog/**2009/sam-bayard/thoughts-** jones-day-blockshopper-**settlement<
http://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-set...
and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new
entry
in the contest for grossest abuse of trademark law to suppress speech
the
plaintiff doesn't like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark
abusers
in history", as their representative in this case.
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--
dr hab. Dariusz Jemielniak profesor zarządzania kierownik katedry Zarządzania Międzynarodowego i centrum badawczego CROW Akademia Leona Koźmińskiego http://www.crow.alk.edu.pl _______________________________________________ Wikimedia-l mailing list Wikimedia-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l, mailto:wikimedia-l-request@lists.wikimedia.org?subject=unsubscribe
On Thu, Oct 10, 2013 at 4:47 PM, John Vandenberg jayvdb@gmail.com wrote:
Hi,
let me start by saying that I agree with Dariusz's opinion that we should discuss this as a community, and perhaps move on from 'debate by press release' into more focused formats like Google Hangout or IRC office hours in order to find common ground, share our research, and highlight the many outstanding questions that need to be addressed before we can make an informed decision about the right path forward.
I've just seen that on Monday Philippe indicated that the consultation will be closed today, Saturday 7 December.
https://meta.wikimedia.org/w/index.php?title=Community_Logo/Request_for_cons...
I didnt see any notice to this list.
There has been no response from the WMF regarding the request to have an interactive dialog to sort out the remaining unanswered questions regarding the collective trademark.
In the last office hours held by LCA, back in January, Phillipe indicated there would be more IRC office hours this year.[1]
https://meta.wikimedia.org/wiki/IRC_office_hours/Office_hours_2013-01-22
I know the LCA team is very busy with many proposals in community consultation phase. With that in mind, I think the community logo should remain open until the LCA team has had time to hold an IRC office hours (or similar) to discuss it. Hopefully before this year closes...? Or if it is distracting staff from other projects, maybe close it temporarily and reopen it after an IRC office hours has been held.
-- John Vandenberg
Hi All,
Just a quick thought: I'm disappointed by the way that both sides in this dispute seem to have resorted to conducting a "debate via press release". I think the community expectation would be that rather than this weird passive-aggressive way of communicating, that all parties would arrange a phone hookup, and sit down to work out any common ground, and go forward from there.
I think the community's clear expectation is that this should be settled if possible without the assistance of lawyers, and all that requires is for everyone to step back, be reasonable, and consider that the other side might just have a legitimate reason for what they're doing beyond causing trouble for the other.
Cheers, Craig (personal opinion only)
On 9 October 2013 16:13, James Alexander jalexander@wikimedia.org wrote:
The legal team have provided some background on the hiring on Jones Day in this action. Here is their comment:
https://meta.wikimedia.org/wiki/Talk:Community_Logo/Request_for_consultation...
James Alexander Legal and Community Advocacy Wikimedia Foundation (415) 839-6885 x6716 @jamesofur
On Tue, Oct 8, 2013 at 3:56 PM, tomasz@twkozlowski.net wrote:
Federico Leva (Nemo) wrote on September 26, 2013, 15:22 UTC:
Trademark don't self-enforce, they are "enforceable" as long as someone
believes to you when you use them as threat tools. So yes, I suppose
they
might.
... and given that the WMF just hired the infamous Jones Day bullies as their representative before the OHIM to fight an opposition filled by
their
own volunteers (me and Federico), I don't think it's an unfair view.
I suggest that everyone interested in the subject read < http://www.dmlp.org/blog/**2009/sam-bayard/thoughts-** jones-day-blockshopper-**settlement<
http://www.dmlp.org/blog/2009/sam-bayard/thoughts-jones-day-blockshopper-set...
and related links for an overview of a 2009 Jones Day lawsuit against a start-up company Blockshopper.com which Paul Levy called "a new a new
entry
in the contest for grossest abuse of trademark law to suppress speech the plaintiff doesn’t like".
I'm aware that, being a party of the opposition, I shouldn't really comment on the WMF's litigation tactics, but it still leaves me wonder about the point of hiring, as some say, "one of the worst trademark
abusers
in history", as their representative in this case.
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Tomasz Kozlowski writes:
the WMF just hired the infamous Jones Day bullies
Talk about 'undue weight'... Jones Day is just a large, competent global legal firm, with 2500 lawyers. Neither saintly nor infamous. Some of their lawyers supported Lessig in the Eldred case, others are working right now with the EFF to help him fight bogus takedown requests. Others intimidated a controversial website four years ago, as you noted.[1] They are a reasonable group to have working for the WMF; but also large enough to have made the occasional mistake.
Craig Franklin writes:
consider that the other side might just have a legitimate reason for what they're doing beyond causing trouble for the other.
It is clear that everyone who cares deeply about this has a legitimate concern.
John Vandenberg writes:
we're hoping to keep this low key in the hope a solution can be found by a well informed community during a good faith mediation process.
+1 I would hope we can resolve this within our community.
[T]here are other options that we should explore. For example the Debian project only has a trademark on their logo combined with stylised 'Debian'. The logo without stylised 'Debian' is not trademarked.
That's not quite accurate. They have trademarked the wordmark. They have sporadically discussed trademarking the logo, but most community discussion was around the copyright of the logo. The logos are now freely licensed. The latest Debian community discussion around trademark resulted in a plan to register the logo in the US this year. [2]
I would love to see a detailed discussion about principle and desired outcomes - TM is only a means to an end. Let's figure out what we want the end result to be; then we can use the best social tools (norms, wiki policies, laws-if-needed) to make sure that happens.
Sam.
[1] http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.ms... https://www.eff.org/cases/lawrence-lessig-v-liberation-music
[2] http://lists.debian.org/debian-project/2013/04/msg00082.html http://lists.debian.org/debian-project/2013/06/msg00022.html
hi,
I'm only wondering whether the group filing for the opposition will be willing to agree with the community at large, if a consensus supporting WMF filing for a collective trademark is established (and as a result, drop the case) or whether the community's view is not going to be considered (I'm not judging, just asking)
best,
pundit
On Thu, Sep 26, 2013 at 4:23 PM, John Vandenberg jayvdb@gmail.com wrote:
Hi,
Further to our announcement on September 21, the opposition has been formally filed before the European Union's Office of Harmonization for the Internal Market (OHIM) on September 25. You can read the opposition filing in the documents section of the EU trademark application[1].
Additionally, an opposition observation has been filed but it is not yet available to the public at the URL mentioned above; our limited understanding is that it will be published there in the coming days. We'll keep everyone informed on this aspect.
So what is next?
The OHIM will now review the Notice of Opposition to determine that the opposition is admissible. This takes a few weeks. If the notice of opposition is found to be admissible, the 'cooling-off period' commences.[2]
The 'cooling-off period' allows the parties can either negotiate an agreement, and either party may withdraw their claim to the mark without incurring additional costs. This period lasts between two months and two years. It is important that everyone understands that there is no need to act hastily. If the WMF and community need time to find the right solution, we will have two years.
The WMF set the timetable by applying for this trademark, and they have not withdrawn that application or responded appropriately to community calls for this to be re-evaluated. The WMF was informed in March that we viewed the trademark registration as unacceptable. Even after our announcement on September 21, the WMF has not addressed the heart of the issue; they have chosen to focus the community attention on a new approach, a collective trademark, rather than consider the erosion of the Commons by their trademarking of a public domain logo against the intentions of the author of the logo.
Contrary to the WMF's claims on their 'Request for consultation'[3], we have never said that the opposition needed to be filed on September 23. We are aware that we could have delayed the opposition until December. As the opposition process is able to proceed through the non-adversarial phase for two years, we believe it is appropriate that a properly focused formal process should commence now.
During the first two months of the cooling-off period, we request that the WMF provides a brief to the community explaining why they believe they have a legal claim to the community logo, given that the board knew it was selected in order that the community did not need to request authorisation.[4]
We also encourage the WMF to publish their research on collective trademarks, so that the community can make an informed decision about the utility of this approach. It is our understanding that, in the EU at least, the WMF will need to abandon their current trademark registration if they are to apply for a collective trademark.
Regards, John Vandenberg
== References ==
- [1]
http://oami.europa.eu/CTMOnline/RequestManager/en_Detail_NoReg?deno=&ida...
https://meta.wikimedia.org/wiki/Community_Logo/Request_for_consultation#Note...
- [4]
https://lists.wikimedia.org/pipermail/foundation-l/2008-September/045702.htm...
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Dariusz Jemielniak, 26/09/2013 18:38:
I'm only wondering whether the group filing for the opposition will be willing to agree with the community at large, if a consensus supporting WMF filing for a collective trademark is established (and as a result, drop the case) or whether the community's view is not going to be considered (I'm not judging, just asking)
Thanks for the question. I believe it's already answered in our message: «If *the WMF and community* need time to find the right solution [...]» etc. (bold added).
Nemo
On Thu, Sep 26, 2013 at 6:52 PM, Federico Leva (Nemo) nemowiki@gmail.comwrote:
Thanks for the question. I believe it's already answered in our message: «If *the WMF and community* need time to find the right solution [...]» etc. (bold added).
thank you for the answer! It was not entirely clear to me - and now it is my understanding that you agree that the community's decision is crucial (in my own view, definitely more important than the one of WMF and its officers, but you probably mean also our Board).
best,
pundit
For those who missed them, the files were published at the announced URL: http://oami.europa.eu/CTMOnline/RequestManager/en_Detail_NoReg?deno=&idappli=1152038&transition=ResultsDetailed I'm attaching them for your convenience as published on the website.
Nemo
John Vandenberg, 26/09/2013 16:23:
Hi,
Further to our announcement on September 21, the opposition has been formally filed before the European Union’s Office of Harmonization for the Internal Market (OHIM) on September 25. You can read the opposition filing in the documents section of the EU trademark application[1].
Additionally, an opposition observation has been filed but it is not yet available to the public at the URL mentioned above; our limited understanding is that it will be published there in the coming days. We’ll keep everyone informed on this aspect.
So what is next?
The OHIM will now review the Notice of Opposition to determine that the opposition is admissible. This takes a few weeks. If the notice of opposition is found to be admissible, the 'cooling-off period' commences.[2]
The 'cooling-off period' allows the parties can either negotiate an agreement, and either party may withdraw their claim to the mark without incurring additional costs. This period lasts between two months and two years. It is important that everyone understands that there is no need to act hastily. If the WMF and community need time to find the right solution, we will have two years.
The WMF set the timetable by applying for this trademark, and they have not withdrawn that application or responded appropriately to community calls for this to be re-evaluated. The WMF was informed in March that we viewed the trademark registration as unacceptable. Even after our announcement on September 21, the WMF has not addressed the heart of the issue; they have chosen to focus the community attention on a new approach, a collective trademark, rather than consider the erosion of the Commons by their trademarking of a public domain logo against the intentions of the author of the logo.
Contrary to the WMF’s claims on their ‘Request for consultation’[3], we have never said that the opposition needed to be filed on September 23. We are aware that we could have delayed the opposition until December. As the opposition process is able to proceed through the non-adversarial phase for two years, we believe it is appropriate that a properly focused formal process should commence now.
During the first two months of the cooling-off period, we request that the WMF provides a brief to the community explaining why they believe they have a legal claim to the community logo, given that the board knew it was selected in order that the community did not need to request authorisation.[4]
We also encourage the WMF to publish their research on collective trademarks, so that the community can make an informed decision about the utility of this approach. It is our understanding that, in the EU at least, the WMF will need to abandon their current trademark registration if they are to apply for a collective trademark.
Regards, John Vandenberg
== References ==
- [1] http://oami.europa.eu/CTMOnline/RequestManager/en_Detail_NoReg?deno=&ida...
- [2] http://oami.europa.eu/ows/rw/pages/CTM/regProcess/opposition.en.do
- [3] https://meta.wikimedia.org/wiki/Community_Logo/Request_for_consultation#Note...
- [4] https://lists.wikimedia.org/pipermail/foundation-l/2008-September/045702.htm...
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