Nils Faerber is throwing mudballs in his blog entry entitled Trademark issue.... First, we need to be clear here that trademarks are not the problem. Trademarks are intended to be the solution. The problem is that both LinuxToGo (in the person of Nils) and Handhelds.org (in the person of George) think they have exclusive rights to the project named "GPE". Not the code, of course, because open source code can always be forked. This is a fight over the name. Nils puts forth his own case. I'll put forth the Handhelds.org case here:
The case for Handhelds.org ownership
Yes, Nils chose the name GPE, and yes, he contributed the first stubs of code to Handhelds.org. Yet he clearly handed the project over to Handhelds.org in his introductory email. He even called it a "community project". He was eager to have it based at handhelds.org. Why? Because he wanted handhelds.org to own it. Why else would he have behaved that way? He already had kernelconcepts.de. He could have hosted it there, except ... he wanted it to be owned by the community.
If he owned GPE, then he would simply have moved it without bothering to ask if anyone objected to moving it. Yet he did ask. That says that he thinks it's a community project. A handhelds.org project. And people objected to him moving it, but he moved it anyway.
Handhelds.org was never a hosting site ala Sourceforge, Savannah (nongnu), or Berlios. All of the projects there were started by members of the handhelds.org community to be owned by the handhelds.org community, more like Savannah (gnu). There are no projects there unrelated to Linux on handheld computers. Nils seems to believe that he can convince people (he has already convinced himself) that hh.org was just a hosting site, so moving a project was not forking. Unsurprisingly, the people at hh.org disagree and think he should fork and rename.
The Conundrum
The problem is that both parties believe that they own the name, and can put forth a reasonable argument by community norms. For better or worse, Handhelds.org was the first to use the name in trade, which in the U.S. gives it the trademark. George is only seeking a trademark (which he plans to assign to Handhelds.org, Inc.) to enforce a claim on the project that he believes, by community norms, is legitimate. For his part, Nils is trying to sway public opinion against George by making his actions seem illegitimate, as if Nils owned the project without dispute, and as if George was trying to steal it.
In other words, neither party can resolve their claims by community norms and both are seeking other means of enforcing their claim to GPE.
So what are we, as a community, to do? Who owns the project named 'GPE'? It's not clear, by the rules we've always followed. We need to make new rules.
There's a hint, in trademark law. If two parties are using the same name in conflict (e.g. Snyder's of Hanover, and Snyder's of Berlin, both of whom make pretzels in Pennsylvania), then both must take steps to ensure that they are not confused with the other. We may choose to accept or reject that hint. If we choose to accept it, then I propose settlement terms as follows:
A GPE Settlement
Whereas:
- Both parties act as if they own exclusive rights to the name "GPE".
- Both parties can put up a reasonable case for ownership.
- Both parties have offended against the other.
- Both sets of offenses can be forgiven in the light of protecting exclusive ownership.
Be it resolved that:
- Neither party gets exclusive ownership.
- Both parties have to qualify "GPE" with their own name: Handhelds-GPE and LinuxToGo-GPE.
- Neither party can use GPE alone. Not on a good day. Not on a bad day. Not at all.
- George has to license GPE(tm) to Nils under the preceding terms, who will acknowledge "GPE(tm) is a trademark of Handhelds.org, Inc., used by permission."
- Nils agrees only to use the GPE trademark on the body of code once based at handhelds.org.
- The GPE trademark and goodwill may be assigned only with agreement to these terms.
- Nils and any LinuxToGo associates have to respect the GPE trademark.
- The GPE trademark holder can only initiate trademark infringement proceedings with the assent of Nils (Nils has to comply with this agreement or lose his license to use GPE -- but that was obvious, right?).
- Both parties stop maligning each other.
- Both parties apologize to each other for specific acts ($LIST here).
- Both parties forgive each other.
Obviously this settlement goes nowhere unless both Nils and George agree to it. But having it written out is better than the mudballs that Nils and LinuxToGo associates are throwing at George.
UPDATE 6/16: Nil refuses to even consider the settlement as the least bad solution. He doesn't think the hh.org community has any ownership stake. He doesn't think he's done George any wrong. He continues to maintain that he didn't fork GPE. Nil believes that he would prevail in a trademark infringement suit and sees no reason to settle. Nil refuses even to spel my name correctly. Consequently, I have put his email address back on my "do not mail" list. Call it petty if you want, but I insist upon a minimum of respect.
