[Foundation-l] Foundation logo : pain and suffering

[ATR]

After thinking about it and reading the comments of
the two individuals (who just happen both to be WMF
board members) whose alleged PD content makes
up the logo and reconsidering what I posted before
I have several comments/clarifications:

First, if something is so generic that it has no real content,
i.e. a closeup of a sunflower and a set of brackets, it cannot
be "released into the public domain" because it is already
uncopyrightable; IMHO any such "license" is irrelevant as a
matter of law. How is anyone going to know if one photo of a
sunflower close up is the same as another? Can someone
copyright a set of brackets? I don't think so, that seems silly
to me, there is no real creativity there. Not everthing we do
is protected by copyright law, so you cannot PD something
that can't be PD, or if you want to suggest that it is PD
that does not mean that trademark law cannot superseded
by copyright law and people can use it in violation of trademark
law just because someone said, "hey I released this into the
public domain because I was just a volunteer for the
organization that is now using it."

Putting together those two elements creates a logo, and
a logo is covered by statutory & common trademark law.
The basis principle of trademark law is that the trademark
belongs to whomever uses it, here it has been in use by the
Wikimedia Foundation, it was created on its servers and it
belongs to it, anyone, even board members of the WMF
cannot suggest that it belongs to them or can be transfered to
some kind of "public ownership" because they are not
using it "in commerce" and never did. Correct me if I am
wrong.  Otherwise it is Wikimedia Foundation that "owns"
the logo, and all the underlying intellectual property rights
to said logo, whatever such rights may be notwithstanding
whatever anyone says or whatever they might have did,
i..e., declaring such logo as being "public domain."

Creating a logo for "public domain use" is an absurdity,
it is like mixing apples with oranges.There is no such thing as
releasing a logo into the public domain, once logos fall into
disuse they are no longer logos, just graphics; as Eric
points out people can certainly create graphics that use
parts of other graphics that are generic, that happens all
the time and does not depend on the "public domain" just
as no one "owns" words, no one owns basic symbols or
reproductions of images that are so generic that no one
can really tell who made those images. However if someone
creates a "logo" that causes confusion with another logo,
especially one that is protected by statutory trademark law
the question is, does the owner care if the mark is diluted by
such wrongful infringement? If the owner does nothing and/or
its board members condone such action eventually that
trademark will be worthless, but I would like to point out
that board members owe a fiduciary duty to the organization(s)
on which they sit.

I would like to note that I am discussing this issue publicly as
volunteer not in any "official" or "unofficial" capacity. I am
not disclosing anything here that is not a matter of public record.

 Alex T Roshuk
Attorney at law

----- Original Message ----- 
From: "Erik Moeller" <erik at wikimedia.org>
To: "ATR" <alex756 at nyc.rr.com>; "Wikimedia Foundation Mailing List" 
<foundation-l at wikimedia.org>
Sent: Thursday, November 16, 2006 3:44 PM
Subject: Re: [Foundation-l] Foundation logo : pain and suffering


| The MW logo is PD content and Anthere and I explicitly designated it
| as such. I'm not even going to get into any discussion about whether
| we could retroactively "un-PD" it, as I find such attempts to put
| content that has been explicitly released to the public under a
| proprietary license unethical.
|
| Is it valuable for the MW logo to be copyrighted by the WMF? Maybe it
| is, maybe it isn't. I'm skeptical. I've seen dozens of wikis which
| have "remixed" the MW logo to make their own (put something else
| between the double square brackets etc.). I think that's pretty cool
| and has not created any confusion as far as I know, since MediaWiki is
| primarily a product rather than a community website of its own.
|
| I suggest distinguishing strongly between the brand name MediaWiki and
| the picture used to represent it. One can be protected while the other
| is not.
| -- 
| Peace & Love,
| Erik
|
| Member, Wikimedia Foundation Board of Trustees
|
| DISCLAIMER: Unless otherwise stated, all views or opinions expressed
| in this message are solely my own and do not represent an official
| position of the Wikimedia Foundation or its Board of Trustees.