| //Licensed under the Apache License, Version 2.0 (the "License"); |
| //you may not use this file except in compliance with the License. |
| //You may obtain a copy of the License at |
| // |
| //http://www.apache.org/licenses/LICENSE-2.0 |
| // |
| //Unless required by applicable law or agreed to in writing, software |
| //distributed under the License is distributed on an "AS IS" BASIS, |
| //WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. |
| //See the License for the specific language governing permissions and |
| //limitations under the License. |
| = Podling Name Search Guide |
| Apache Incubator PMC |
| 2002-10-16 |
| :jbake-type: guide |
| :jbake-status: published |
| :idprefix: |
| :toc: |
| :imagesdir: ../images/ |
| == Introduction |
| |
| This guide is *not* _legal advice_ or _legal opinion_: |
| *do not* use it as a substitute. |
| Its aims are education and information *only*. |
| |
| This process filters out unsuitable names early, |
| reducing the legal resources required and |
| limiting the potential disruption to a community of a forced name change |
| later. A smooth path, but not the only one. If there are reasons |
| why this road isn't right for your podling, |
| consult link:http://mail-archives.apache.org/mod_mbox/incubator-general/[incubator general]. |
| |
| === Meet The Apache Branding Team |
| |
| Names link:http://www.apache.org/foundation/marks/#whoweare[fall] within the responsibilities of the |
| link:http://www.apache.org/foundation/[V.P., Brand Management] (and |
| link:http://www.apache.org/foundation/marks/#whoweare[team]). Please start by reading: |
| |
| - the link:http://www.apache.org/foundation/marks/[Apache Trademark Policy] (which introduces trademarks and outlines our policy); |
| - the link:http://www.apache.org/foundation/marks/faq/[Apache Trademark FAQs] (which answers questions asked by downstream consumers); and |
| - the link:http://www.apache.org/foundation/marks/pmcs.html[Apache Project Branding Requirements] (which guides PMCs). |
| |
| For podlings in the Incubator, naming issues are managed co-operatively by the Brand and Incubator communities. |
| Rules for podlings include all branding requirements for PMCs, plus a few extras. |
| |
| === Trademarks |
| |
| Trademark law is a complex subject. |
| Distinctive differences from other intellectual property laws (such as patent or copyright) mean that |
| intuition or knowledge gained from other areas may not be applicable. |
| The link:http://www.apache.org/foundation[Apache Software Foundation] is |
| a link:http://www.apache.org/foundation/faq.html#is-ASF-a-corporation[US corporation]. |
| Developing some understanding of the basic principles of US trademark law is therefore important. |
| |
| Please read: |
| |
| - link:http://www.apache.org/foundation/marks/#principles[Description of key trademark principles] for Apache projects; |
| - USPTO trademark |
| - link:http://www.uspto.gov/trademarks/index.jsp[home] page |
| - link:http://www.uspto.gov/trademarks/basics/index.jsp[basics], and follow the links for materials; |
| - link:http://en.wikibooks.org/wiki/US_Trademark_Law[US Trademark Law] WikiBook; and |
| - link:http://www.ifosslr.org/ifosslr/article/view/11/37[Passport Without A Visa: Open Source Software Licensing and Trademarks] by Tiki Dare and Harvey Anderson in the link:http://www.ifosslr.org/[International Free and Open Source Software Law Review]. |
| |
| ==== Trademarks And The Apache License |
| |
| Like link:http://www.ifosslr.org/ifosslr/article/view/11/37[many] |
| link:http://www.opensource.org[open source] licenses, the |
| link:http://www.apache.org/licenses/LICENSE-2.0.html[Apache License, Version 2.0] |
| focuses on granting copyright and patent rights to the public. |
| The _trademark_ section permits only very limited trademark rights. |
| |
| [quote] |
| "" |
| *6. Trademarks.* |
| This License does not grant permission to use the trade names, trademarks, |
| service marks, or product names of the Licensor, except as required for |
| reasonable and customary use in describing the origin of the Work and |
| reproducing the content of the NOTICE file." |
| "" |
| -- link:http://www.apache.org/licenses/LICENSE-2.0.html#trademarks[Apache License, Version 2.0] |
| |
| All Apache projects share the Apache License. This issues standard *copy* |
| and *patent* rights to |
| downstream consumers. *Trademark* rights for Apache products are issued and managed independently, |
| beyond the Apache License. This allows Apache communities to use trademark law to protect their reputation and that of the |
| link:http://www.apache.org/foundation/[Foundation], within the broader |
| framework provided by the Brand team. |
| |
| === What Makes A Name Good |
| Good names for commercial products or _UNIX_ utilities have tended to work less well here at Apache. |
| Many successful Apache project names are memorable, unusual and a little |
| link:http://www.sdtimes.com/TOP_FIVE_HEAD_SCRATCHINGEST_NAMES_FOR_APACHE_PROJECTS/By_Victoria_Reitano/About_APACHE_and_HADOOP_and_HARMONY_and_MYSQL_and_OODT_and_YAY/35959[whimsical]. |
| These qualities also happen to be useful when it comes to securing trademark protection. |
| Have fun. Be creative. |
| |
| === Podling Suitable Name Search |
| |
| The initial link:http://incubator.apache.org/guides/proposal.html[proposal] |
| establishes a working name for the new podling. |
| Often some discussion and filtering of suitable names happens during the election |
| process but this proposed name is *not* final, only _provisional_. |
| The community may choose to change it. Or the community may discover that the name is unsuitable: |
| in which case a suitable new name must be found. |
| |
| A podling needs to discover whether a name is suitable. |
| The Incubator community calls this process the _suitable name search_. |
| This avoids any potential confusion with phrases like |
| _trademark search_ with technical meanings in the trademark community. |
| Please be careful with language. In particular: |
| |
| - avoid using loaded technical legal terms; |
| - use plain, simple English to describe what you did and what you found; |
| - avoid speculation; and |
| - don't offer _advice_ or _opinions_. |
| |
| A suitable name search must be successfully completed before a podling can graduate. |
| This isn't the only way one might be done, just a smooth path. |
| |
| Names are an essential part of building a brand and community. |
| Switching names wastes the efforts put into establishing the original name. |
| Therefore complete this task as soon as possible. |
| |
| == Conducting A Suitable Name Search |
| |
| The aim - to find a name that is acceptable to the community and is not unsuitable. |
| |
| A suitable name search has public and private elements. |
| The link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[tracker] provides the public record. |
| Incubator best practice evolves over time, documentation lags. |
| The public records of past searches are a primary source of guidance. |
| Review now the records of previous searches, beginning with the most recent then working back. |
| |
| The public record consists of _actions_ (how you searched) and _facts_ (what your search found). In particular, |
| in *all* public forums (mailing lists, issue trackers and so on): |
| |
| |
| -*Do not* speculate. |
| -*Do not* use loaded technical legal language. |
| -*Do not* offer |
| -opinions, |
| -advice, |
| -interpretation, or |
| -analysis. |
| |
| Use the public lists in the Incubator to ask questions about _how_ the search should be conducted. |
| Once the information is collected and collated, then ask the trademark team to help interpret and analyse these results |
| on the private lists, copying in the PPMC. Finally discuss the results of your investigation on the private PPMC list. |
| Whether a name is suitable or unsuitable (or somewhere in between) should be recorded when the issue is closed. |
| |
| === Eliminate Unsuitable Names |
| To be suitable, a name needs to be |
| |
| - judged _appropriate_ by the wider community; and |
| - _unique enough_ to avoid confusion |
| |
| Facts and activities performed are link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[recorded] for the public. |
| Interpretation and analysis of these facts happens on private mailing lists, the PPMC private in the first instance. |
| Whether the name proved suitable or unsuitable should be entered into the public record |
| but take care to use our language (_ethically unsuitable_ or |
| _not unique enough_) and to avoid loaded legal terms. |
| |
| |
| ==== The Main Sequence |
| |
| Every podling is unique, but using a link:http://outreach.atnf.csiro.au/education/senior/astrophysics/stellarevolution_mainsequence.html[cosmic] |
| metaphor, most fit into a main sequence. For podlings on the main sequence, |
| most of the bugs should have been squashed and rough edges documented away, so expect a smooth journey. |
| Away from the main sequence, process may need to be grown, documentation is likely be sparse |
| and progress less smooth. |
| |
| The main sequence is described here. This well known path is |
| appropriate for almost all podlings. |
| If there are good reasons to think that your podling is a special case, discuss this with the |
| link:http://mail-archives.apache.org/mod_mbox/incubator-general/[Incubator community] |
| and reach consensus on the way forward. |
| |
| ==== Appropriateness |
| |
| Some names are not appropriate for open source projects. |
| Acceptability under |
| link:http://www.law.cornell.edu/uscode/15/1052.shtml[US Trademark Law] is a good base line. |
| This excludes marks that |
| |
| [quote] |
| ____ |
| Consists of or comprises immoral, deceptive, or scandalous matter; |
| or matter which may disparage or falsely suggest a connection with persons, |
| living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; |
| ____ |
| -- link:http://www.law.cornell.edu/uscode/15/1052.shtml[US Code 15:1052] |
| |
| Proposals with inappropriate names are unlikely to pass the initial hustings but spend a few moments considering |
| whether anything has been missed. Check for alternative meanings, perhaps in foreign languages. |
| |
| ==== Unique Enough Names |
| |
| The name needs be unique enough to avoid confusion with software that already exists. |
| For the community to be able to protect its reputation for quality and openness, |
| its name needs to unique enough to have potential as a trademark. |
| |
| But this isn't only about being able to register trademark protection. |
| Ethics also plays a role. Even where a name may offer enough protection, existing adoption |
| of the name by an active community may mean that the choice needs to be eliminated on ethical grounds. |
| There is some judgment involved in this decision. So, involve the wider Incubator community if a name is already |
| used. |
| |
| ==== How To Collect Evidence Of Uniqueness |
| |
| To decide whether a potential name is _unique enough_ to be suitable |
| |
| - Collect evidence about current name usage. |
| - link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[Record] the facts. |
| - Analyse and interpret these facts; in private with help from the brand team. |
| - Reach consensus about whether the name is unique enough. |
| - link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[Record] whether the name is suitable. |
| - If unsuitable then the community should pick a more unique name and repeat this process. |
| |
| ==== Evidence Of Open Source Adoption |
| |
| Existing adoption amongst another active open source community may give ethical |
| reasons for eliminating a name. This is an example of a condition with a fractal |
| boundary. Not every name which has been used before need be eliminated as unsuitable |
| but this is an issue which needs to be discussed more widely and |
| a consensus reached with the broad |
| link:http://mail-archives.apache.org/mod_mbox/incubator-general/[Incubator community]. |
| |
| Look for evidence of existing adoption amongst open source communities by searching well known |
| foundries (for example link:http://www.github.com[GitHub] and |
| link:http://www.sourceforge.net[Sourceforge]) |
| and the web (use several search engines for example link:http://www.bing.com[Bing], |
| link:http://www.google.com[Google] and link:http://www.yahoo.com[Yahoo]). |
| Review recent link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[records] |
| for contemporary details about where to search. |
| link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[Record] each search and describe the results. |
| |
| If the name been used by the same community before it arrived at Apache, that's fine but should be noted in the |
| link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[record]. |
| |
| === Evidence Of Registration |
| |
| A number of online resources exist which may help to discover evidence of |
| competing registered trademarks. |
| Not every trademark is registered. Not every registered trademark is listed in these resources. |
| Even if evidence is found of existing registrations, |
| this does not necessary eliminate the proposed name. Just |
| link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[record] the facts. |
| Leave analysis and interpretation to private lists. |
| When a search returns a large number of hits, focus on live registrations related to software. |
| |
| The foremost online resource is TESS run by USPTO. Before using |
| TESS, please browse the documentation links from |
| link:http://www.uspto.gov/trademarks/index.jsp[USPTO trademark home]. |
| |
| Other resources which allow cheap searches of their databases exist but are often |
| ephemeral. Review the link:https://issues.apache.org/jira/browse/PODLINGNAMESEARCH[records] |
| for the state of this art. |
| |
| ==== Evidence Of Use On The World Wide Web |
| |
| Registration of trademark is not required. Rights may also be obtained by use of a mark in commerce. |
| |
| Use a variety of web search engines (for example, link:http://www.bing.com[bing], link:http://www.google.com[google] |
| and link:http://search.yahoo.com[yahoo]) to survey usage on the world wide web. |
| |
| - The results returned by a search for the name itself may provide evidence of well known usages of the term. |
| - The results returned by searching for the name and _software_ may provide evidence of existing use in trade. You may also want to search for the name and key functionality the software provides |
| and name and _open source_ |