9 ms·

Ubuntu shouldn't abuse trademark law to silence critics of its privacy decisions

43 points by micahflee 13y ago

alextingle 13y ago
None of these settings are relevant to 12.04, are they?
- micahflee 13y ago
  Is 12.04 pre-Unity and Amazon ads? These start when the ads started.
  - alextingle 13y ago
    Hmmm. There are music & video search tabs in my (12.04) dock that do seem to search out online. The music purchase links go to http://one.ubuntu.com http://one.ubuntu.com though. The video searches seem to go to BBC iPlayer & YouTube. Your settings tweaks don't work on 12.04 - any idea how I would go about disabling this? (The settings schema "com.canonical.Unity.Lenses" doesn't exist on my system.)
- ewzimm 13y ago
  That is correct.
kcorbitt 13y ago
While I sympathize with your situation my understanding of trademark law is that it's a sort of "use it or lose it" proposition. If they can't demonstrate that they're making an effort to police their trademark then it can become generic and they lose all exclusive rights to it. I think the best solution here would be for you to choose another domain name. http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#genericity http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm...
- moocowduckquack 13y ago
  It is commentary though, not imitation. You are allowed to comment on things by name. If Shell, for instance sued shelloutsounds.org for the domain, I do not think they would have much of a case and the same applies here. If fixubuntu is using the word 'ubuntu' to mean the company Ubuntu, then the other word is obviously 'fix' and you would be hard pressed to argue that it isn't simply a critical statement rather than an infringing brand.
  - ewzimm 13y ago
    They say they are happy to have the commentary, but their policy states that you cannot use ubuntu in a domain name or the ubuntu logo without permission. This applies to everyone.
    - benologist 13y ago
      Ubuntu may not have the right to dictate usage of their name in a domain - see: paypalsucks.org, microsoftsucks.org, ebaysucks.com, etc.
      - ewzimm 13y ago
        I've checked the requirements for dictating name usage: https://en.wikipedia.org/wiki/Uniform_Domain-Name_Dispute-Resolution_Policy https://en.wikipedia.org/wiki/Uniform_Domain-Name_Dispute-Re... A complainant in a UDRP proceeding must establish three elements to succeed: The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; The registrant does not have any rights or legitimate interests in the domain name; and The registrant registered the domain name and is using it in "bad faith". In a UDRP proceeding, a panel will consider several non-exclusive factors to assess bad faith, such as: Whether the registrant registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark; Whether the registrant registered the domain name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, if the domain name owner has engaged in a pattern of such conduct; and Whether the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or Whether by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, internet users to the registrant's website, by creating a likelihood of confusion with the complainant's mark. In this case, I don't think that bad faith could be established, so Canonical may have to adjust their policy to reflect certain use cases in domain names to be completely accurate.
aragot 13y ago
I sympathize with better default privacy settings too, however you must note that they didn't ask you to remove all references to Ubuntu: They only ask you to remove the logo and the domain name. You can understand they need to make it clear in the cinsumer's mind what belongs to the official sphere of Ubuntu and what doesn't. Also, before saying they're using it against privacy, we should check whether they've asked to take down similar domains with no correlation to criticism or privacy, and they answer is probably yes. As kcorbitt says, the trademark law requires ongoing enforcement or the owner will lose the legitimity. Have you checked whether they'd let you keep talking about Ubuntu? IANAL, but wouldn't it be correct to keep a website named "Fix Ubuntu" in a domain name such as privacywatch.com? This way they keep the integrity of the brand for the consumers and you stay in the ecosystem.
chc 13y ago
It isn't clear to me that they are using trademark law to silence critics. IANAL, but based on my understanding of nominative use, I do not see how this use of the logo qualifies. Let's look at the list of general criteria for nominative use in the Wikipedia article linked in the OP: 1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). 2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol). 3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags. The use of the logo in this case is not necessary to identify Ubuntu. If the site in question had just used the name "FixUbuntu", it is doubtful Ubuntu would have cared. But not only do they have this vaguely official-sounding domain name, they also had the Ubuntu logo as the most prominent art on the page and did nothing to disclaim the association. In response to the complaint, the site has dropped the logo and has also added a disclaimer. I'm betting Ubuntu will be OK with this.
- aktiur 13y ago
  You are right this particular case would not necessary pass the test for nominative use. But there are other legal protections available, especially in the case of commentaries or criticisms, that could protect even in the case where the logo was used. See section "Commentary and criticism" on the page below http://www.dmlp.org/legal-guide/using-trademarks-others http://www.dmlp.org/legal-guide/using-trademarks-others
  - chc 13y ago
    Yes, but I don't see how you'd think any of that would apply here. Right from that page: "you should never festoon your website with a company's logo". The fact that you are engaged in commentary or criticism does not automatically protect you from claims of infringement. If this had just been an entry on a blog, that would be one thing, but instead it was a standalone website where the only branding was the name "Fix Ubuntu" and the Ubuntu logo, and no attempt was made to disclaim the association. Surely you can see why Canonical might be concerned. (Again, none of this is meant to constitute legal advice — I'm just explaining why I don't think Canonical was being unreasonable.)
NateDad 13y ago
Sensationalist BS. Canonical isn't trying to silence anyone. They have _the same information_ on AskUbuntu.com, a site directly supported by paid Canonical employees. http://askubuntu.com/questions/192269/how-can-i-remove-amazon-search-results-from-the-dash-or-disable-the-feature http://askubuntu.com/questions/192269/how-can-i-remove-amazo...

43 points by micahflee 13y ago

alextingle 13y ago

None of these settings are relevant to 12.04, are they?

micahflee 13y ago
Is 12.04 pre-Unity and Amazon ads? These start when the ads started.
- alextingle 13y ago
  Hmmm. There are music & video search tabs in my (12.04) dock that do seem to search out online. The music purchase links go to http://one.ubuntu.com http://one.ubuntu.com though. The video searches seem to go to BBC iPlayer & YouTube. Your settings tweaks don't work on 12.04 - any idea how I would go about disabling this? (The settings schema "com.canonical.Unity.Lenses" doesn't exist on my system.)
ewzimm 13y ago
That is correct.

kcorbitt 13y ago

While I sympathize with your situation my understanding of trademark law is that it's a sort of "use it or lose it" proposition. If they can't demonstrate that they're making an effort to police their trademark then it can become generic and they lose all exclusive rights to it. I think the best solution here would be for you to choose another domain name. http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#genericity http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm...

moocowduckquack 13y ago
It is commentary though, not imitation. You are allowed to comment on things by name. If Shell, for instance sued shelloutsounds.org for the domain, I do not think they would have much of a case and the same applies here. If fixubuntu is using the word 'ubuntu' to mean the company Ubuntu, then the other word is obviously 'fix' and you would be hard pressed to argue that it isn't simply a critical statement rather than an infringing brand.
- ewzimm 13y ago
  They say they are happy to have the commentary, but their policy states that you cannot use ubuntu in a domain name or the ubuntu logo without permission. This applies to everyone.
  - benologist 13y ago
    Ubuntu may not have the right to dictate usage of their name in a domain - see: paypalsucks.org, microsoftsucks.org, ebaysucks.com, etc.
    - ewzimm 13y ago
      I've checked the requirements for dictating name usage: https://en.wikipedia.org/wiki/Uniform_Domain-Name_Dispute-Resolution_Policy https://en.wikipedia.org/wiki/Uniform_Domain-Name_Dispute-Re... A complainant in a UDRP proceeding must establish three elements to succeed: The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; The registrant does not have any rights or legitimate interests in the domain name; and The registrant registered the domain name and is using it in "bad faith". In a UDRP proceeding, a panel will consider several non-exclusive factors to assess bad faith, such as: Whether the registrant registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark; Whether the registrant registered the domain name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, if the domain name owner has engaged in a pattern of such conduct; and Whether the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or Whether by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, internet users to the registrant's website, by creating a likelihood of confusion with the complainant's mark. In this case, I don't think that bad faith could be established, so Canonical may have to adjust their policy to reflect certain use cases in domain names to be completely accurate.

aragot 13y ago

I sympathize with better default privacy settings too, however you must note that they didn't ask you to remove all references to Ubuntu: They only ask you to remove the logo and the domain name. You can understand they need to make it clear in the cinsumer's mind what belongs to the official sphere of Ubuntu and what doesn't. Also, before saying they're using it against privacy, we should check whether they've asked to take down similar domains with no correlation to criticism or privacy, and they answer is probably yes. As kcorbitt says, the trademark law requires ongoing enforcement or the owner will lose the legitimity. Have you checked whether they'd let you keep talking about Ubuntu? IANAL, but wouldn't it be correct to keep a website named "Fix Ubuntu" in a domain name such as privacywatch.com? This way they keep the integrity of the brand for the consumers and you stay in the ecosystem.

chc 13y ago

It isn't clear to me that they are using trademark law to silence critics. IANAL, but based on my understanding of nominative use, I do not see how this use of the logo qualifies. Let's look at the list of general criteria for nominative use in the Wikipedia article linked in the OP: 1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). 2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol). 3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags. The use of the logo in this case is not necessary to identify Ubuntu. If the site in question had just used the name "FixUbuntu", it is doubtful Ubuntu would have cared. But not only do they have this vaguely official-sounding domain name, they also had the Ubuntu logo as the most prominent art on the page and did nothing to disclaim the association. In response to the complaint, the site has dropped the logo and has also added a disclaimer. I'm betting Ubuntu will be OK with this.

aktiur 13y ago
You are right this particular case would not necessary pass the test for nominative use. But there are other legal protections available, especially in the case of commentaries or criticisms, that could protect even in the case where the logo was used. See section "Commentary and criticism" on the page below http://www.dmlp.org/legal-guide/using-trademarks-others http://www.dmlp.org/legal-guide/using-trademarks-others
- chc 13y ago
  Yes, but I don't see how you'd think any of that would apply here. Right from that page: "you should never festoon your website with a company's logo". The fact that you are engaged in commentary or criticism does not automatically protect you from claims of infringement. If this had just been an entry on a blog, that would be one thing, but instead it was a standalone website where the only branding was the name "Fix Ubuntu" and the Ubuntu logo, and no attempt was made to disclaim the association. Surely you can see why Canonical might be concerned. (Again, none of this is meant to constitute legal advice — I'm just explaining why I don't think Canonical was being unreasonable.)

NateDad 13y ago

Sensationalist BS. Canonical isn't trying to silence anyone. They have _the same information_ on AskUbuntu.com, a site directly supported by paid Canonical employees. http://askubuntu.com/questions/192269/how-can-i-remove-amazon-search-results-from-the-dash-or-disable-the-feature http://askubuntu.com/questions/192269/how-can-i-remove-amazo...