[Foundation-l] Foundation logo : pain and suffering

[ATR]

The fact of the matter was that Jimbo applied for the MediaWiki
trademark and then I fixed the application afterwards. The term "MEDIAWIKI"
is a registered trademark of the Wikimedia Foundation, Inc..  This was done
after the foundation was created, not before. This was not hidden from 
anyone
it is a matter of public record:

http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78507335

http://tess2.uspto.gov/bin/showfield?f=doc&state=6lvb7s.3.1

As you can see from the database TESS record it clearly states that the 
trademark
was: "FIRST USE: 20030808. FIRST USE IN COMMERCE: 20030809" The
foundation was incorporated on June 20, 2003, August 8-9, 2003 is subsequent
to that date. Thus, this is after the Foundation was created, not before. It 
was first
posted on Wikimedia project web pages and it was proposed to be used in that
context, no other. The logo was not create before that date, but afterwards. 
How can
you say you own something when a part of it belongs to someone else?

Also Brion was aware of the trademark application and knows that the 
trademark has been
registered by the foundation:
http://mail.wikipedia.org/mailman/htdig/foundation-l/2005-November/004774.html
|"5) The Foundation may own the trademark on the name MediaWiki, which
|postdates the creation of the software itself.
|
|6) A trademark registration for the mark was filed last year on behalf
|of the foundation, though it hasn't totally gone through yet. (I'm not
|the person to ask for details on that.)
|
|-- brion vibber (brion @ pobox.com)"

Brion acknowledges that the foundation was getting a registration for the 
trademark,
he or other developers never opposed this registration. They probably would 
find it
very difficult to overturn that registratino now if they tried.

There is also a discussion about the creation & licensing of WMF trademarks 
and
ownership by the foundation. I have not been able to find it, but when I do 
I will post it;
this was the allusion I made to Jimbo being able to back up the fact that 
the Foundation
expected people to grant the ownership of any logos to the foundation and 
not release
them through some other license (why else would you create a logo for a 
brand, it makes
no sense otherwise?)

The fact of a logo being made up of PD images, does not mean that someone 
can
cannot recognize that MEDIAWIKI links back to WMF. It is up to the
foundation to police that. If any people think they own it they can hire 
lawyers and
bring the appropriate legal action to get the trademark invalided and then 
the foundation
can either fight that or give it up. That seems really silly to me because 
the foundation is
not making money out of this, (any suggestion is ridiculous because it is 
released under
the GPL which allows free copying and alteration). This is just there to try 
and prevent
people from stripping off the information about the contributors to the 
project, there is
really not much else that the foundation can do because the software is 
released under
the GPL anyway. It just keeps the WMF flavor of MediaWiki distinct from all 
others.
Is that really something anyone needs to fight about or that we want to deny 
because
individuals want everything in the public domain and do not care about the 
moral
rights of authors, such as the right of attribution (which is still 
rightfully protected by
most so called "copyleft" licenses because it is not an economic right but a 
right
normally considered part of the "droit d'auteur" bundle of rights associated 
with
intellectual work that countries like France and Canada recognize as being 
as important
or even more important than the economic rights (unfortunately the USA has 
very limited
moral rights protections for creators).

As far as the ownership of these things are concerned, if you do not have
the right to release something into the public domain because it does not 
belong
to you then you cannot later release it into the public domain as an 
afterthought
and I would suggest that creating a logo that uses the trademarked term 
MediaWiki
cannot be copyrighted by anyone other than the foundationno matter what the 
other
people say, even if it is made up of a composite of public domain images 
(which
do not have the licensing limitations of the GFDL or CC licenses).

The only record of owning the trademark MEDIAWIKI is with the WMF, anyone 
else
using it is a trademark infringement. Does it matter who owns the copyright 
or even if it is copyrightable because it may just be so generic as not to 
be subject to copyright, i.e. the brackets and the sunflower show no 
inherent creativity as elements, they are just standard symbols. This 
reminds me of the dispute with that Neo-Nazi group that tried to claim it 
owned copyright in some symbol that was clearly not subject to copyright: 
http://en.wikipedia.org/wiki/Talk:Arrow_Cross but of course the consensus on 
this issue seemed to be that they actually owned the copyright and the 
images were taken off Wikipedia because no one really seemed to want to 
fight these fascists.

We should be congnizant of the need to only fight  battles that are 
important, not
every fact dispute that exists because the reality is that there are a lot 
of these
disputes and the resources to fight them are limited.

There is clearly a policy about Wikimedia logos being an exception to the 
content
on Commons: http://commons.wikimedia.org/wiki/Commons:Licensing
"Use by Wikimedia only (the only non-free-licensed exceptions hosted here as 
well are Wikimedia logos and other designs copyrighted by the Wikimedia 
Foundation that are the trademarks, service marks or other design elements 
that identify the sites of the various projects of the Wikimedia 
Foundation)"

If the Foundation board thinks this is incorrect they should have their 
General Counsel
correct it or put people on Notice that anyone can use these logos for 
anything they want
because they are on Commons and thus, according to the logic of some 
Wikipedians,
must be released under the GFDL (even if they were never so released before 
being posted
on Commons).

Alex T. Roshuk, Attorney

----- Original Message ----- 
From: "Anthere" <Anthere9 at yahoo.com>
To: <foundation-l at wikimedia.org>
Sent: Thursday, November 16, 2006 12:25 PM
Subject: Re: [Foundation-l] Foundation logo : pain and suffering


| ATR wrote:
| >
| > |> > I don't think the foundation owns the mediawiki logo. Copyright 
wise
| > |> > it is in the public domain.
| > |> Hoi,
| > |> Given the age of the thing it cannot be PD yet. They are part of a
| > |> trademark and as such they are owned by the Foundation. They can if 
they
| > |> so choose license the logos. This is problematic because the rights 
that
| > |> are usual for other WMF content contrasts with the requirement of
| > |> maintaining the trademark.
| > |
| > |No, the MediaWiki one really is public domain.
| > |http://commons.wikimedia.org/wiki/Image:MediaWiki-smaller-logo.png
| > |
| > |Whether or not it is also a trademark of the Foundation doesn't affect
| > |its copyright status.
| > |
| > |Angela.
| >
| > Someone cannot declare a work PD just by copying it. It seems the
| > actual logo was created by Eric Moller, and it has always been the
| > understanding with all logos that they were "works made for hire" for
| > the foundation. This has been discussed previously and Jimbo can
| > back this up. Just because someone put a PD tag on the page at
| > Commons does not invalidate the Foundation's claim to this logo.
| >
| > As far as the "trademark" status of the logo, the word MEDIAWIKI is
| > a registered mark of the Wikimedia Foundation, Inc.. I know this because
| > I am the attorney of record on the USPTO file that granted this mark to
| > the foundation. Also the actual logo is also a mark of the Wikimedia
| > Foundation Inc., and is used to identify the MediaWiki software which
| > is released by the Foundation and is a foundation project.
| >
| > Of course all trademarks can also be used based upon principles of
| > fair use that apply to trademarks in a similiar way as copyrights. The
| > important issue is that the mark is not used in a way to confuse the
| > public or dilute the brand which the mark represents as this is the kind
| > of protection that the law affords mark holders.
| >
| > Alex T Roshuk
| > Attorney at law
|
|
| Can I put my feet in the mud here ?
|
| The logo was a creation of Erik. The flower is from me (see here:
| http://en.wikipedia.org/wiki/Image:Tournesol%28L%29.jpg)
|
| After the end of the contest, Erik decided to use that logo for
| mediawiki. At this time, it was not clear at all the logos would be
| trademarked by the Foundation. The truth is we had no idea at that time
| how important trademarks would be in the future. Well, the Foundation
| was created only a couple of months before the international contest for
| logos. There was no set up board. There were no board decision. There
| were no resolution. In short, there is absolutely no trackable way to
| prove there was an understanding the Foundation would own the trademark.
| This is just bullshit. There was no clear understanding. We were young,
| we did not know. Period.
|
| My memory is also very clear that developers did not want the mediawiki
| logo and name to be owned by the Foundation. Of course, in real life,
| anyone can claim to own a trademark on something that nobody else claim.
| So, the Foundation asked to own the trademark of this, and now does. And
| with most developers now making a living thanks to the Foundation, I
| doubt very much any of them would ever make a complain over this. There
| is now a history.
|
| Several months after the logo started being used for mediawiki, Erik
| asked me if I would put the flower image under public domain. Again, I
| did not know much about copyright and author rights at that time. At
| this point, the image was under GFDL, which made no sense for a logo,
| and no sense for what we wanted it to be used for. It may be that
| another licence would have been better.
|
| The mediawiki software is very arguably a Foundation project as you
| claim. For a long time, it was not. And the developers did not want it
| to be. It seems the Foundation just decided at some point that it was.
| Apparently.
| The problem I have with this statement, is that I far as I know, I have
| been on the board of trustees since june 2004, and I have NO memory we
| ever decided that mediawiki was a wikimedia project. For all I know, it
| is not. And for now, the Foundation website does not claim it is :
| http://wikimediafoundation.org/wiki/Our_projects.
|
| It is definitly a software we are using. Developers are largely
| improving it for our projects. But others are improving it as well. The
| main *ownership* of mediawiki is related to the main developers being
| now paid by the Foundation. It may be a wikimedia project in this that
| we largely support its development. But it is not officially a wikimedia
| project. Period.
|
| Now, understand it well. I *prefer* that the Foundation owns the logo
| and name trademarks, because as you say, it means the logo and name can
| not be misused to confuse public.
|
| However, contrariwise to Wikipedia, the mediawiki software is not only
| used by the Foundation, but by also thousands of projects around the
| world. The worse thing that could happen is that people deciding to use
| the mediawiki find themselves obliged to ask permission or even worse to
| pay the Foundation to use the software, use the name, use the little
| logo, powered by Mediawiki. If something like this ever occurs in the
| future, I hope developers will consider changing the name, changing the
| logo and make it possible for the software to spread freely. This is
| what is important, and as long as the Foundation respects this spirit,
| and only defend the logo and name against bad uses, I am fine with the
| current situation.
|
| In the end, I am only pissed of to see claims about what the Foundation
| owns, said, agreed to, blahblahblah, provided with the stamp "Jimbo can
| back this up". The Foundation is governed by a board. And as Angela will
| probably agree to, there are some decisions which were never made by the
| board. Which makes their validity questionnable.
|
| Ant
|
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