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From Rob Weir <robw...@apache.org>
Subject Re: Openoffice is being sold on ebay
Date Mon, 02 Dec 2013 02:48:38 GMT
On Fri, Nov 29, 2013 at 1:51 PM, Donald Whytock <dwhytock@gmail.com> wrote:
> On Fri, Nov 29, 2013 at 12:32 PM, Regina Henschel
> <rb.henschel@t-online.de>wrote:
>
>> But I'm concerned about the way the product is shown. For example in
>> http://www.ebay.com/itm/Microsoft-Office-Word-Excel-
>> Compatible-Open-Office-Professional-Edition-2013/281137965681
>> Either it is not our OpenOffice, then it may not named so, or it is our
>> OpenOffice, then "Apache" and trade mark is missing.
>>
>> Or this http://www.ebay.com/itm/Open-Office-Microsoft-Word-Excel-
>> 2007-2010-Compatible-Pro-Professional-Software/150935048983
>> From content is is likely an OpenOffice.org 3.4.1, but the box says "MT
>> Software Solutions OpenOffice Suite". It gives the impression, that the
>> application is developed by MT Software Solution.
>>
>>
> I seem to recall from the handoff from Oracle that "OpenOffice" isn't an
> Apache trademark...that we have "Apache OpenOffice" now, and that
> "OpenOffice.org" came with the license, but we didn't receive "OpenOffice"
> because it was being used in too many different countries by too many
> different people.
>
> So as long as they're not actually using Apache trademarks (including the
> gulls, the feather, etc.) I suppose they can call it whatever they want,
> even if it's just a "hello world" VBscript inside.
>

No one can use a a name that confusingly similar to our trademarks.
Confusion is not limited to literal identity with our trademark.  For
example, "Apache Open Office" (with a space) or "OpenOffice" (without
the Apache part),  if used in the context of office productivity
software, could be a problem.  So our claiming of "Apache OpenOffice"
essentially subsumes "OpenOffice" and similar variants.

As far as eBay goes, if they are selling Apache OpenOffice and calling
it OpenOffice then this might be covered under the doctrine of
"nominative use" [1].

I think it is useful to consider these cases:

1) Someone sells OpenOffice and calls it OpenOffice.  This is probably
covered by nominative use

2) Someone sells something other than OpenOffice but calls it
OpenOffice.  This could be trademark abuse

3) Someone sells OpenOffice but calls it something else.  For example,
NeoOffice, BrOffice, Symphony, LibreOffice, etc., did this.

Note that there are other possible issues, unrelated to trademarks.
For example, if someone takes OpenOffice and loads it up with malware
and offers it for download, then this might run afoul of consumer
protection laws.  And if someone takes OpenOffice and claims that it
is Microsoft Office then this may violate Microsoft's trademarks and
also constitute consumer fraud.   I've seen both of these kinds of
things happen.  They are very annoying, but if they are not misuses of
our trademarks then there is little we can do on our side.

One solution here is to develop a redistributors "code of conduct" and
feature on our website such distributors that agree to these terms.
The idea would be to change the dynamic a bit by actively encouraging
legitimate distributors.  This has been discussed on the list before
but never was brought to completion.

[1] http://en.wikipedia.org/wiki/Nominative_use

Regards,

-Rob

> Don <- not a lawyer

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