An Important Question on the Open Source Hardware Mark

An open letter to the open source hardware community from OSHWA, the Open Source Hardware Association, oshwa.org

The current leadership of the Open Source Initiative (OSI, opensource.org) has brought to our attention that they feel the Open Source Hardware ‘gear’ logo infringes on their trademark.

The open source hardware logo was chosen by the community and has become a de facto standard over the past year and a half. As the founding board members of OSHWA, we feel that it is not our right nor our place to decide this issue for the community without further input. This “founding” OSHWA board was elected by the OSHWA organizers simply to do the hard work of the bootstrapping the organization: to get a bank account, to fill out IRS paperwork, to clear other organizing hurdles, and (finally) to establish membership so that we can legally vote in board members by future membership. We had hoped and envisioned that any real business to serve the open source hardware community could wait after our organization was more firmly established.

We would like to work on behalf of the community. We have before us several options, and we are interested in your feedback:

1) License the open source hardware ‘gear’ logo from OSI.
US Trademark law requires OSI to protect their mark and to notify potential infringers when they become aware of them. OSI has indicated that they would grant a trademark license to OSHWA. This would give OSI the means to protect their trademark. However, accepting such a license would establish OSI as the owner of the crowdsourced ‘gear’ logo. It would make OSI responsible for deciding where and when the logo can be used, effectively giving OSI control of defining what can and cannot be labeled as open source hardware. It could also place OSHWA in the uncomfortable position of needing to enforce OSI trademarks. We are further concerned that future OSI boards may have different opinions concerning the use of their logo and license agreements.

2) Continue to recommend the use of the ‘gear’ logo against OSI’s wishes.
This may lead OSHWA to a legal battle before we even get off the ground. While it is theoretically possible that we could successfully argue against this in court, we do feel it would be wasteful to spend our limited resources and time “infighting” with one of the few other organizations that exists to serve the open source community. Nor do we wish to drive a wedge between ourselves and the OSI, who may be important allies in battles ahead.

3) Crowdsource a new logo to represent Open Source Hardware.
A change to our current logo must include removing the keyhole shape inside the gear as this is the problematic feature according to OSI’s lawyer.  But a new logo need not be similar at all.  In any case, OSHWA would begin to recommend the new logo in its list of best practices for labeling Open Source Hardware. The myriad products and projects with the original ‘gear’ marks could be revised over time.

 

We encourage you to leave your comments at the bottom of this post.


Update 1: 
Per request, here is the license from OSI, which has been brought up in the comments.

Update 2: Please voice your opinion by Aug. 16. OSHWA will reconvene to discuss these issues after that date.

Update 3: Thanks to everyone for their comments and especially to OSI for engaging with the open source hardware community. We are encouraged by the renewed dialog with OSI and we are going to take the conversation with them offline for the moment. We’re hopeful that the outcome will be an agreement that benefits the whole OSHW community. Thank you again for your help!     (Note Added Wednesday August 8)

Update 4: OSHWA and OSI are currently working together on a co-existence agreement. In the mean time, continue to build cool stuff and share it! Thanks to Jim Jagielski for sharing this link about co-existence agreements: http://www.wipo.int/wipo_magazine/en/2006/06/article_0007.html

171 thoughts on “An Important Question on the Open Source Hardware Mark

  1. Wow! I recall there being some concerns about this happening, but I had really hoped that the gear was different enough from the plain keyhole to avoid this. I personally feel the open gear logo was the best fit for the community (it is industry neutral unlike the various circuit-based logos), and was a nice homage to the OSI (who if you ask me should be looked at as blazing the trail for the OSHWA).

    I hope that we can find an alternate solution to the current ones being considered that allows both groups to keep control of their logos as they are today.

    • j.simmons-

      when there was some concerns about this from bruce perens who started his own open hardware efforts, i contacted the OSI directly last year and have an email from a lawyer who was on the board – the president at the time was cc’ed. here is what was said:

      ================
      “In my personal view, there is not enough similarity between the Open Source Hardware logo and the OSI logo to raise any copyright issues.

      With regard to our trademark registrations, all four of them specify and are limited to “software.” A substantially different logo like yours, used in the context of promoting open hardware or open-source hardware, doesn’t strike me as raising significant trademark issues.”
      ================

      they also said they’d get back to me if there were any issues, they never did. since then, thousands of makers around the world have used the community-made OSHW logo on hundreds of thousands of circuit boards. from 10 year old kids to professions.

      i’ve emailed the new president of the OSI simon phipps, he promised he would call me later today. i will report back on anything discussed.

      the OSI’s mission is “to build bridges among different constituencies in the open source community” – so i don’t think it would be in their best interest to burn bridges at all.

      • I think it would be great to work out a way both logos can stay – think of it this way, they fit inside each other, now imagine how you’d logo open source software on open source hardware.

        The logos really are two sides of the same coin.

      • Argh. I told Simon that OSI should declare that your logo was not infringing because 1) it used a different color and 2) a different border. Same thing for the Open Robotics folks. And that the model going forward would be: Open Keyhole great. Green and round OSI trademark. Not green and not perfectly round not infringing.

        Sadly, my suggestion fell on deaf ears.

    • We did ask for a co-existence agreement, which would be a contract that would allow us to continue using the logo with absolutely no changes to what we’re doing right now. But OSI reported that they didn’t feel a co-existence agreement would aptly protect their mark.

      • Actually Alicia, the extremely broad, no-fee trademark license OSI offered to OSHWA on June 29th is the perfect kind of “co-existence agreement” that allows OSI and OSHWA to “live and let live”; it is not correct to imply OSI is opposed to “co-existence” like that.

        What you’ve not told readers here is that the OSHWA Board had a call with me on June 29 at which I explained OSI has no wish to stop the open source hardware community doing anything – we very much support its objectives. We just want to urgently normalise the trademark usage so that when, in the future, OSI or OSHWA are challenged on how well they have handled their respective community’s marks within the frame of US trademark law, we can demonstrate both good stewardship and community co-operation.

        Also on that call I sent you a draft of a very broad trademark license with spaces for OSHWA to insert whatever it needed, and asked you to get it back to me in time for the August 1st OSI Board meeting so we could resolve the situation as soon as possible. I am still waiting for your reply and was a bit surprised to instead see this blog post, but I remain extremely available for discussion as well as very eager to create a “win” for the overall Free Culture community of which both OSI and OSHWA are a part. If for some reason you find that working with me is a problem, the OSI Board has agreed that Jim Jagielski (of Apache) will handle the matter on it’s behalf if you prefer.

        So before folk assume there’s an attack in progress, there’s not;
        OSI is amazingly keen to invent a way for both communities here to live-and-let-live and carry on doing the good stuff they are already doing in a mutually helpful way.

  2. I have the OSHW logo on six different boards and am about to take delivery on a batch of 1000 PCBs with the logo. Unlike software producers, it’s not so simple for us to change a logo.

    Based on the concerns you’ve expressed above, I recommend a two-fold strategy:

    1. License the OSHW gear logo from the OSI.
    2. Crowdsource another OSHW logo and recommend it for all new OSHW projects.

    Item #1 will keep current OSHW projects from infringing the OSI trademark. Item #2 will allow us to migrate to our own trademark. Then if the OSI ever does become restrictive in the terms for using the gear logo, all the active OSHW projects will have already stopped using it.

    • I completely understand – hardware is hard. The ‘gear’ logo was actually the second open source hardware logo we had to change all our designs to use. We really don’t want to have to do it again, but SparkFun also doesn’t want to be a part of OSI. We share many similar ideals (OSI and OSHWA) but there are some specifics (namely, I have no want or need to enforce the OSHWA trademark let alone the OSI trademark) that make me very hesitant to sign any license.

      But what I think doesn’t speak for the whole OSHWA community. Hence the want to ask the community their thoughts. Thank you for yours Dave!

    • I agree on these proposed steps. Think it sounds like a really good plan. When crowdsourcing a new logo we can ask for something very similar but just trying to replace the key hole. Can we find anything else that’s not a key hole but has the same symbolic value?

  3. The OSI is a non-profit organization just like the OSHWA. I’m sure neither OSI nor OSHWA wants to take this to court and I think it’s a fair assessment that the OSHWA logo resembles the OSI logo a lot.

    How about a contract between the OSI and the OSHWA that says:
    - OSHWA acknowledges that the logos look similar and will pay for a license fee.
    - In return, OSI grants a permanent license (not breakable by future boards of directors of either party) for OSHWA to use the gear logo, in the way that they are currently using it.
    - Both parties agree that they will not misrepresent themselves as the other by using each other’s logos.
    - Third parties (i.e. open hardware producers) are automatically licensed to use the gear logo if and only if they use it for open-source hardware.

    Surely it must be possible to come to some sort of agreement without having to go to court, without the need for OSHWA to design a new logo and without OSI losing their trademark.

  4. hi folks!

    i had a great call with simon and i don’t see any reason that everyone will not be able to continue to use the OSHW gear logo. perhaps i am optimistic, but here are some notes—

    -simon is now aware of the email from the OSI board member last year (below) and the former OSI president. he did not know about this and will send it to the OSI board. he also saw the logo i designed in 1999 and they may update the history of the OSI logo now that he’s seen this (my logo, which appears to be what the OSI logo is based on, weird right?): http://adafruit.com/pt/ptosi.jpg

    -the OSI wants a “live and let live” agreement, they recently sent over one to the OSHWA that he said they had wanted returned before the OSI meeting but that did not happen in time. that can still happen now.

    -simon says there does not need to be any money exchanged at all.

    -i said i would help encourage the OSHWA (with your help) to create a “co-existence agreement” that’s reasonable so everyone can just keep doing what they’re doing. i think posting this publicly is the way to go that way everyone on the OSHW community can see what it is.

    -another random coincidence simon was part of the the SPARKFUN vs SPARC trademark issue in 2009, and that all worked out it seems – so perhaps this will all be fine too – https://blogs.oracle.com/webmink/entry/links_for_2009_10_22

    i’m sure simon will see this and he can add anything i missed.

    here is that OSI email from last year that says the OSHW gear logo is not an issue.

    Begin forwarded message:
    > Subject: Re: OSI logo question and working with opensource.org
    > On Sep 26, 2011, at 1:16 AM
    >> In my personal view, there is not enough similarity between the Open
    >> Source Hardware logo and the OSI logo to raise any copyright issues.
    >>
    >> With regard to our trademark registrations, all four of them specify
    >> and are limited to “software.” A substantially different logo like
    >> yours, used in the context of promoting open hardware or open-source
    >> hardware, doesn’t strike me as raising significant trademark issues.

    • Thanks Phillip. As I mentioned on the call, I can understand why folk would feel they can rely on that e-mail; however, as far as I am aware it was not sent as a result of a Board resolution and so is simply (as it says) a personal opinion. Since then, there’s been something of a comedy of errors trying to get OSI & OSHWA together to discuss the subject, with meetings invited from both sides but delayed for a variety of reasons.

      One of the problems with this situation is it’s full of history of various kinds. While it’s good to respect that history, we need to start from where we are and invent a mutually respectful win-win that brings credit to the Free Culture community as a whole. Doing that requires an agent to act on everyone’s behalf in each part of the community; thank goodness one exists!

  5. Hey! Thanks for joining us Simon! (In above comment) This will be a great way to engage both the OSHW community and OSI transparently. We are really trying to make sure our community is aware of the issues surrounding the logo as the logo predates OSHWA and we don’t technically own it, but it’s used by many people and companies. We will do what the community wishes, but could not forego decisions without their input.

    That’s great to hear you’d like a co-existence license too.

    I’ll post up the license you suggested in a moment so people can take a look, but I think something much simpler like Jac replied with is something most folks could live with (although we both agreed fees were never a part of the license) – just an easy contract such as this:
    - In return, OSI grants a permanent license (not breakable by future boards of directors of either party) for OSHWA to use the gear logo, in the way that they are currently using it.
    - Both parties agree that they will not misrepresent themselves as the other by using each other’s logos.
    - Third parties (i.e. open hardware producers) are automatically licensed to use the gear logo if and only if they use it for open-source hardware.

    Does that sound agreeable to most people?

    • Hi Alicia. One thing we all have to keep in mind is that whatever we agree also has to pass muster with US Trademark law to the satisfaction of each of our Boards. For example, I have no idea whether a “permanent, irrevocable license” like you’re describing is actually possible in US law.

      While all those things you’re listing sound like what we agreed on our phone call in June, the reason it’s in the context of a rather formal-looking legal agreement is that OSI has a PTO-registered trademark to look after and very little latitude in setting the rules about how that’s done.

      So while we can likely agree the /shape/ of a mutual agreement here, the /final form/ will involve lawyers advising OSI & OSHWA whether what we’re proposing is actually allowable in US law. At some point we will have to get on the phone again!

          • simon, wow! that is not something you mentioned on the call, that seems very relevant.

            1) it sounds like they also did not get the template back to you in time (or have issues with the agreement?).

            2) did the open robotics foundation agree to license the logo?

            3) i should ask this now it seems, is there anyone else you are asking to license the logo? if so who?

          • No, they missed the date too; I was about to write to both OSRF and OSHWA tonight when this situation arose and diverted me. No-one else with a related trademark has been brought to our attention.

          • simon, i think i have one last question that would be good to hear a response publicly about – last a year a board member of the OSI (who is a lawyer said this):

            “With regard to our trademark registrations, all four of them specify
            >> and are limited to “software.” A substantially different logo like
            >> yours, used in the context of promoting open hardware or open-source
            >> hardware, doesn’t strike me as raising significant trademark issues.”

            you said you would send this to the OSI board on the call today – can you find out if they agree/disagree with the previous OSI board member and lawyer?

            i realize not all lawyers think alike :) but if one lawyer thought this and sent it via email, who was also on the board of the OSI, i’m tempted to say there might be some others that feel this way too.

          • hi everybody,

            Alicia Gibb pointed me to this discussion, which I’ve read with interest.

            Indeed, Simon and I talked a few weeks back about OSRF’s logo and he offered a license from OSI. I realize now that we haven’t responded as desired in time for OSI’s early August board meeting (sorry about that, Simon).

            We’re reviewing the license now (it’s been a busy several weeks setting up the new office) and will decide a course of action soon. I don’t know which way we’ll end up going but I can say that I’ve benefited a lot from reading the opinions voiced in this thread.

            brian.

      • Hi Simon – A comment is a horrible place to try to correspond tone, but I do genuinely want to work with the OSI. This post was intended to get community feedback. I do feel however that there are some significant differences of opinion that is forcing us (the OSHWA board) to go back to the logo drawing table. OSI seems to be very concerned with their trademark and is driven to protect it. What you mentioned earlier:

        “We just want to urgently normalise the trademark usage so that when, in the future, OSI or OSHWA are challenged on how well they have handled their respective community’s marks within the frame of US trademark law, we can demonstrate both good stewardship and community co-operation.”

        OSHWA is not concerned with trademark disputes. We will never send a cease and desist. We will never take a company or person to court because they are using the OSHWA logo or mark on the hardware incorrectly. So I urge the OSI to think differently about how they want to handle the open source hardware community using a gear on products and projects. The license as presented was not a co-existence agreement, it was a license forever linking OSHWA to OSI. We’re not comfortable with the way OSI approaches trademark protection so we were not comfortable with that link. Ideally, we would get the OSI whatever you need so that you feel ok with the USPTO but the license made us want to get community feedback before forming that link.

        • I think we’re already thinking differently :-)

          The document is a draft. Hack it any way that works and we can iterate. Just remember that, no matter how hard we or you wish it would, US trademark law won’t go away, so the things OSI can’t vary are the things the law requires us to do in respect of a (R) registered trademark.

          • Here’s the license we’re referring to: http://bit.ly/NWJQRB

            I am a very simple person and it’s complete legalese. Perhaps we could start with requirements before starting a new document and iterate on that? What does OSI need to feel ok with the USPTO?

          • Well, what OSI needs is “a proposal that makes things work for OSHWA but doesn’t result in OSI having an indefensible trademark in the future.” That document was what we were given by pro-bono counsel in response to a prior request for “what OSI needs”… I’d hoped OSHWA would be able to get together with its lawyer and hack the agreement into shape, that OSI & OSHWA could then mutually iterate & agree it, then show it to this community, tweak and conclude.

            This sort of work is best done initially by a very small group of people working 1:1 and I still think that would be the best path forward here, rather than a massive public discussion about why US trademark law is (a) difficult and (b) out-of-date.

            [Now at MAX_NEST on WordPress so commenting on MAX_NEST - 1
            Also, is there any way to get notifications? Pressing refresh on here is a poor way to spend my night...]

        • I feel the need to reply to this post. First of all, the comment:

          “””OSHWA is not concerned with trademark disputes. We will never send a cease and desist. We will never take a company or person to court because they are using the OSHWA logo or mark on the hardware incorrectly.”””

          Are you really serious about that? Then what value, if any, does the OSHWA mark have? You are basically saying you have a trademark that promises/guarantees nothing. Are you sure that consumers and producers of OSHW products feel the same way? What if someone uses the mark to produce baby formulae? Or produce? Or software? Certainly you must have some criteria.

          Also, ANY agreement makes the assumption that the marks/logos have some “value” to the owner, and that the owner will protect its mark, such that it doesn’t dilute the brand of the other mark…

          So I’m sure you misspoke when you said you are not concerned w/ trademark disputes, because the use of a mark implies something of value, to you and your ecosystem, that will be protected from misuse. Otherwise your logo “means” nothing…

          • Jim, I believe Nathan was not saying that we will not defend the mark at all. The OSHW community has other means at their disposal to address misuses: private communication, public shaming, etc. (same ones OSI uses)

            What we’re saying is that OSHWA is an organization with educational purposes, so we’re not equipped to resort to the legal system to defend the mark. You can read about OSHWA’s purposes here: http://www.oshwa.org/about/

    • <>

      You could make the fee symbolic, let’s say one dollar. I’m not a lawyer but I think that should be enough to hold up a statement of “we defended our trade mark before and got others to pay a license fee” in any future court situations, although it may cause a judge or jury to determine that $1 is regarded as a reasonable fee. Alternatively, you could make it a cross-licensing deal of let’s say 1 million dollars and agree that those fees cancel each other out between OSI and OSHWA.

      A permanent irrevocable license should hold up in court as a valid agreed item in a contract but again, IANAL.

      ===Jac

      • Fee: Interesting idea.

        Permanent license: The problem is likely to be that, to be considered to be maintaining the trademark, OSI would need to have some recourse in the event OSHWA abandoned it. We’ll need to phrase something that leaves that option open while indicating the license is perpetual all the time OSHWA is using it.

        • I have to say that I started out “on Nate’s side” but ended up “on Simon’s side”. OSHW has publicly declared that they have a trademark that they are committed to taking no steps to defend. And then Nate insists on preserving his layman’s view of the “legalese”. Both of these are very dangerous position given current US trademark law. I think Nate needs to accept that he needs to get someone involved who actually understands how trademarks work, and I understand how Simon/OSI are nervous about licensing their mark to someone who has already “abandoned” it.

          I think OSHW needs to grow up and take some lessons from other successful open source groups with trademarks — like Linus/Linux, Mozilla/Firefox, etc. See http://www.mozilla.org/foundation/trademarks/policy.html. You can write a policy like the Mozilla “Community Edition” with broad permissions relying on the good faith of the users to comply with the spirit of the license, but US trademark law simply does not permit you to abandon the mark entirely. You should be able to formuate a responsible policy document (use a lawyer, that’s what they’re for!) which doesn’t chill all the makers who want to slap a gear on their hardware without abandoning the mark or leaving yourself with no recourse if some commercial entity starts abusing the mark.

  6. Actually, USPTO does *not* require licensees to enforce or uphold the mark, that would be a provision that OSI restricts OSHWA to do.

    In addition, the contract between OSI and OSHWA does not need to be stated in legalese or written by a lawyer as per US law. It’s just generally a good idea to use them, but a contract can be written and signed on a napkin.

    (also not a lawyer, but I have good sources.)

    • USPTO requires the trademark owner to ensure that all use of the trademark maintains a consistent meaning and quality. Consequently, the owner is compelled to seek the same from licensees. So while you’re strictly correct, in practice a trademark owner is forced to require licensees to maintain quality.

      The agreement can be anything you like, as long as it doesn’t result in OSI being unable to defend the (R) trademark in the event that becomes necessary, in the opinion of OSI’s general counsel. I hate legalese as much as the next person…

    • Alicia, while you are technically correct, you are practically very wrong.

      While you don’t need a lawyer, if you don’t have a lawyer who knows what problems you might inadvertently include in your contract. It’s like saying, “I turn off all compiler warnings when I write code because you don’t need them to get something working.” Sure you can — but you can always end up with buggy and broken code that way and never know it.

      And Simon points out below the subtle distinction between “enforcement” and “ensuring that use maintains quality and meaning”. You can indeed write generous and friendly license and use terms, but you can’t abandon the mark. You must have a consistent policy that ensures your mark’s quality and meaning, which includes some thought about what happens if someone is doing something which degrades your mark’s quality and meaning.

      A lawyer is the best person to draw this fine distinction.

      (And no, I am not a lawyer myself — I’m just a programmer who’s tired of programmers thinking that they are legal experts. Real lawyers, feel free to correct anything above. And I’ll return the favor by correcting your code if you need it… ;-)

  7. Hi all,

    This is Catarina, one of members of OSHWA’s board. Let me start by saying how glad I am that this discussion is happening publicly. This situation has had us worried lately and it’s great to see so many people joining the discussion. I can’t speak for the other members of the board, but I’ll try to explain why I don’t feel we (OSHWA) could sign the agreement OSI proposed (see link above), even though, as far as I know, this is a perfectly standard trademark agreement.

    First of all, there’s the matter that OSHWA is not the only stakeholder here. The gear logo precedes the organization and there are many other organizations and companies using it. In this sense, we could only license the logo to use it ourselves, since article 1 of the proposed agreement precludes us from sublicensing it to others. So in order for this agreement to work for all current and future stakeholders, each organization and company would have to either sign a similar agreement with OSI, or the current agreement would have to allow OSHWA to sublicense the logo in an easy and quick way, which it doesn’t in its current form. This is the principal reason why we haven’t agreed to license the logo from OSI: we can’t do it on behalf of others.

    Let’s say we would be able to do this (sublicense the logo), we’d still have serious practical difficulties with points a) and b) of article 2. A) would require us to assess and police the quality of open source hardware products and projects. Not only do we not want to do this, but I also believe that goes against what this community stands for: all projects are welcome to bear the open source hardware mark as long as they abide by the definition, not just the ‘good’ ones. B) states that the Licensor would have to approve any other markings used in conjunction with the logo: does this mean we would have to get approval to print anything else on PCBs for example? Another issue is that there are currently a few organizations using derivatives of the gear logo (slightly modified versions) which, under trademark law, would be infringing on someone’s trademark.

    I’m not an attorney but I believe all these things are actually limitations of trademark law which is not community-mark-friendly: it has strict rules requiring that each organization and company wanting to use the logo must sign an agreement to that effect, and it doesn’t allow derivatives. This is why we suggested a co-existence agreement instead of a license. OSI pointed out that such agreement would not protect their trademark and that a license would be required, which we understand of course.

    We know that OSI does not wish to hinder us, just as we do not wish to hinder OSI in any way. We’re allies, we’re on the same side. The real issue here is trademark law which has served companies well as far as their trademarks are concerned, but appears to not be flexible enough to accomodate a community mark like the OSHW gear logo.

    We did not imply that OSI is opposed to “co-existence” in general, we don’t think that at all. We went out of our way to explain OSI’s position on the blog post above. And we did this because we felt that closed door meetings with OSI made no sense in a situation that goes well beyond our young organization – hence this open letter to the community today.

    We didn’t get back to OSI on Monday as we meant to because we couldn’t hold our own meeting until this morning and we have apologized for the delay in emails to Simon – and I apologize here again. But we did email Simon this morning before posting this and explained that we couldn’t draft nor sign an agreement on behalf of the community without consulting everyone. We also informed OSI, several weeks ago, of the email sent to Phil by a member of the previous OSI board, so this was not the first time that matter was brought to OSI’s attention – though I agree that the personal opinion expressed by that board member is just that: a personal opinion.

    Simon also pointed out several times that we don’t understand trademark law. As far as I’m concerned, that is absolutely true. What I do understand, however, is that the provisions on a standard agreement, and what OSI understandably requires to protect its trademark, would prevent us from doing what we’ve been doing so far. And I still don’t understand how an agreement signed by OSHWA would apply to the other stakeholders, but hopefully someone here can clarify? If we can replace the proposed license with some kind of “live and let live” agreement that would be perfect! Otherwise, I agree with Nathan that we would be better off adopting a mark that is not subject to these legal limitations.

    • Thanks Caterina.

      Sublicense: You could propose it…

      Co-opt: I do understand the concerns about appearing to “co-opt” the gear mark. The situation for OSI at the start of the last decade was similar. As the new focal point for the community, you could take the role of helping community members remain consistent about its usage, but I’m sensing you’re not comfortable with that. All the same, it would be a shame if the gear mark showed up on closed stuff, and having a community non-profit to step in and assert that it’s not the done thing sounds like an obvious job for OSHWA to me…

      Trademark law: I don’t understand it either – I’m a deskilled programmer who’s spent so much time moderating the excesses of legal and marketing departments that some of the concepts have become familiar, but I remain just another geek.

      • Great! If we can find a way to sublicense the mark along the lines of “anyone producing and releasing physical artefacts in abidance by the Open Source Hardware Definition is free to apply the OSHW community mark to their products and projects” that would probably make everyone happy.

        I understand what you’re saying, but the situation is a bit more nuanced than that. OSHWA does hope to help guide and advice the OSHW community regarding best practices (which would include use of the logo), specially in regards to newcomers who may not be familiar with them. But we will do this the same way this community does almost everything: through public discussion and promotion of best practices, not legal prosecution (you’re right when you say we’re not comfortable with that).

        And while we’re extremely tolerant of all forms of open source, we are strict when it comes to ‘open-washing’ and abuses of what the open source community stands for. So far our strategy has been to publicly shame infringers and that has worked well for us (the infringers usually hasten to publish the plans for their hardware and comply with the definition).

        • Sublicense: I expect what you want to ask OSI for is just the right to sublicense within the same scope as the license (“designs and implementations conforming with the Open Source Hardware Definition”). We’d then leave it up to you how that worked…

          TM abusers: OSI takes the same path you’re describing, of private discussion, then a public comment, then a media statement, then more of the same until resolved. I’m not aware we’ve even had to progress beyond that even to a C&D, least of all initiate legal action or (perish the thought) go to court. But that sanction has to be kept in reserve “in case it’s ever needed”, otherwise in the undesirable and unlikely event of ending up in court with $ABUSIVE_CORPORATION, they could just say “look, OSI said it would never litigate so therefore has never been serious about maintaining the trademark as the law requires so they have no case”.

          In other words, this is a situation where leaving the last few steps of the process essentially undocumented works in everyone’s favour :-)

  8. Damn lawyers!
    IMO:
    #1 is not that desirable
    #2 is not acceptable at all. Not one red cent or effort should be spent on legal rubbish.
    #3 is the most sensible choice, as much as I don’t like changing the logo.

    If the logo is to be changed, then the solution is obvious. Keep the current cog shape exactly as it is, so it’s still instantly recognisable, but change the keyhole to something else. It would be confusing and unnecessary to change it to something completely different.

    Dave Jones
    http://www.eevblog.com
    http://www.theamphour.com

    • Id have to agree with Dave (both of them:), this just muddles the water and creates problems that may or may not crop up down the road.
      While its a tough pill to swallow it would be better for OSHW in the long run to distinguish ourselves with a new revision of the logo. As Dave V pointed out many of us have previous batches of hardware that use this design which is a problem which still must be sorted out.

      Glad to see the discussion as it shows a healthy and aware community!

  9. It looks like the two main point coming out of the Google Doc are:
    –OSI grants to OSHWA the right to use the gear mark on hardware projects that conform to the OSHWD
    –OSHWA in turn agrees to require its members to only use the ‘gear’ logo on hardware projects and products conforming to the OSHWD
    If I could edit the Google Doc I could make some inline suggestions, but it sounds like if this can be put into some legalese (IANAL either) to satisfy the lawyers, if necessary, the bulk of the issues would be covered.

    Great discussion!

  10. There is a fourth option.

    Trademarks only cover things of very very close markets. However, Software and hardware are very different. As such, if OSI agress that OSHWA are targeting different markets, then there is no trademark issue.

    This is similar to two, but not very. As its fighting out of court. Which is free.

  11. I think two ways would be ideal:
    1) OSI revoke their claim, as it’s stupid and harassing both FOSS and OSHW communities. But keeping in mind that they’re US guys, I don’t think it’s a realistic way.
    2) Get a “blanket license” from OSI, i.e. the one which is world-wide, irrevocable and transferable. This would basically say “do what you want, we’re fine with it”. U believe this is a more realistic way, but it will require a lot of pushing.

    Should we start a movement to force OSI to behave more reasonable? This is so embarrassing to read about all this.

  12. I feel like OSI has tossed us in to a game that no one can win. At least I can’t think of an action that makes me happy.

    I’m not a lawyer. I have occasionally paid for the time of an IP lawyer, so that’s where the following thoughts come from. I think that if it came down to it (it = court) the OSHW logo would be allowed to stand because software ≠ hardware. But I’d hate for it to come to court. OSI and OSHA are on the same team and neither should be sending money on lawyers to talk to the other.

    The OSHA has an IP lawyer on the board, what does she say? It’s unfortunate, but this is only the first legal thistle patch that the OSHA has to walk through, but it won’t be the last. As much as I wish it were otherwise, part of OSHA’s activities in assisting its members will involve legal battles. I have to agree with Simon up-thread that it’s important to have the legal stick in the back pocket. While public shaming may have worked with improper use of the logo in the past, I know plenty of hardware companies that have no shame, and I think it would be in the best interest of Open Hardware to have a legal remedy available.

    Even if the action is taken to change the logo I think the effort should be made to trademark it. Without that there’s very little to say we won’t be right back here in 6 months, but this time with someone a lot less friendly than OSI to deal with. I’m also a little leery of choosing a different logo. Most of the contenders last time were very PCB/electronics oriented and I feel very strongly that the logo should encompass other kinds of physical things. I was very happy when the gear won out.

    I think we’re all in agreement on what we want: An easily identifiable mark that, when found on a physical device, means it meets the requirements of Open Source Hardware. And while soliciting feedback from the community is valuable and welcome, I think we’re at the point where we need listen very closely to the advice of lawyers who can make what we want happen. Or should at least have a good long talk with them about what the options really mean.

    • Certainly one of the most “striking” aspects of the OSI logo, visually, is the opening at the bottom, and it is also the most obvious aspects of the similarity between two logos. Rotation of the OSHWA logo 90degrees would be a change that would make a significant difference in the visual similarity between the 2.

    • The OSHW logo can be used without the “open source hardware” text. In that case, it’s not clear where the “bottom” is. So I think that rotating the logo is insufficient.

    • One of the original concerns I heard regarding the current logo back during its selection was that, depending on the angle of view / if there is no reference text around, it could look like a CopyLeft or a CopyRight symbol.

  13. Let’s all take a breather… At present OSI and OSHWA are working out an “agreement” to resolve this “issue.” OSI has just created a new cmmt (Trademarks and Brands) and has appointed me as chair of the cmmt, so I’m getting up to speed, quickly, on the ins and outs of what’s going on. But my promise is that whatever resolution we come up with will be easy and amenable to all parties but also to the larger community as well.

    • Hi, Jim. I’m just an OSHW manufacturer, but I appreciate your promise to come up with an easy and amenable resolution for all of us. I understand the hoops that trademark law makes you jump through and I’m sure the OSI is only taking this action because of that and not from malice.

      Good luck!

    • Hi Jim! Welcome! Sounds like you’re just the committee to get involved in this discussion! Thank you for joining us. I would like to note that what we’re trying to do right now is get community input about what direction they would like OSHWA to go in. While I’m sure we’ll work it out if the community chooses the license option, let’s not put the cart before the horse, give folks a chance to voice their opinion. We want to hear from as many people as we can.

      We understand this is probably not a normal method of working, but thus far the open hardware community is very bottom up / crowd sourcey / and public with big decisions. As an example the definition we created was written collectively by about 40 people with no need for lawyers or legalese: http://www.oshwa.org/definition/ The definition has been signed by many and is, in a sense, a contract. That is pretty much our normal workflow as a community. We absolutely encourage all of OSI to take part in the communal process happening with the logo and we’re glad you’re here.

  14. A little gasoline for the fire…

    What a colossal waste of time and effort. New logo now. NOW. So we can all get back to what we’re here for. Don’t put a yoke on the freedom movement (at the very beginning, no less).

    • I do not believe the OSI or the OSHWA owns the community-made OSHW gear logo. This was the same opinion of someone on the OSI board last year who is also a lawyer (see my previous posts). This open source hardware train left the station folks.

      The OSHW logo and the open robotics logo are both substantially different for different uses. The logos are all also in different tech spaces (hardware vs software) and the risk of consumer confusion is nonexistent, that’s a big part of trademark law.

      There’s no reason to make a new logo. I encourage the OSI / OSHWA (and anyone else) to work towards a solution that simply says:

      “By following Open Source Hardware Definition you are free to apply the OSHW community mark to your products and projects” – the end.

      Let’s get back to making hardware and sharing. When open source organizations and advocates spend time on non-issues with each other it means they’re not working on the important stuff.

      • Hello Phil,
        I agree with the idea that there is no need to replace the logo, and with the desire to work out between OSI and OSHWA how to handle this.

        You indicated that you do not believe there is a clear owner of the OSHW “cog” logo. That is an issue, even if there are no plans for strong enforcement: the history of the Linux trademark teaches us that a trusted organization has to be holding it and defending it to rectify misuse of the mark, at least in egregiously offensive cases (like a BSD distribution being called Linux :). That is done by the Linux Foundation for Linux, and OSI does for Open Source.

        Perhaps that trademark oversight is something that OSHWA can rely on OSI to do, as they are already set up to do this for the Open Source mark itself.

        We should not delude ourselves that putting a logo out there, with no organization at least potentially protecting it, will not be subject to egregious misuses. Open Source Hardware is not the first CC community out there… we should learn our lessons from past experience.

        Just my 2c – Best -F2

    • I couldn’t disagree more strongly, Pete. The issue raised is a legitimate issue, and OSHW’s response so far as (to my maker’s mind) just revealed that they have never thought about the issues nor understand them. The time is now to wrap OSHW’s head around the issues and come up with a actual solution. Creating a new logo would not solve the problem, it would just leave the community with a useless meaningless new mark and confusion.

      Time to put the thinking cap on and write up a proper Trademark Use document for the OSHW mark. That’s the essential task which the maker community has delegated to the OSHW board. They should get on it and get it done.

  15. Looking at the available options I designed a new logo for OSHWA with help from Carl, which might save us from the trademark issue while still retaining the concept propagated by the existing logo. Kindly find the logo designs (2 alternates, with slight modifications…) as follows!:

    version 1: http://www.sparklingscience.com/oshwa.jpg
    version 2: http://www.sparklingscience.com/oshwa2.jpg

    I like to think of the central key as the hardware ‘skeleton key’ to unlock all innovative ideas! Would love to know everyone’s views on these…

  16. I would recommend making a simple change to the logo that gets it all sorted out… to everyone’s satisfaction. Turn the gear upside down.

  17. I think this is likely to blow over so OSHWA can use the same logo
    as they started with for a good while. License it for a dollar and then start a slow back burner low effort process to morph or from scratch change the logo so it is a non-issue. The way open source hardware almost always runs FOSS keeps them in the same market usually and so probably US trademark law applies. OSI statements of intent above seem to boil down to, “We must be able to use legal threats to do our policing business on the FOSS community”. OSI seems to desire to police people with peer pressure and legal threat. If this does not blow over, start implementing some of the adopted new logos, see how they go, and phase out the old one that OSI has problems with. The new logo process need not start right away, need not be fast, and should not take up much of OSHWA’s time as they set up shop.

  18. Alexander’s rotated gear logo suggests copyleft, which is consistent with OSHW
    that I plan. How many of us prefer non-viral license style for OSHW and its documentation? Or will there be more than one style?

    That could be a first alternate version to consider already done! Very low effort by OSHWA, and if it’s optional, very low effort demanded of the community.

  19. From reading the discussion, it looks like OSI and OSHWA are working things out.

    Nevertheless: I realized when I saw that the Gear logo predates the OSHWA as an organization, neither OSHWA nor OSI can claim to have any power over those who are using it. If OSHWA would try to take someone to court for using the Gear logo and not making their sources available, they could simply say: “Hey I started using the logo before the rules were in place until you prove otherwise”.

    So I think it’s inevitable that the OSHWA will have to come up with a new logo that can be used to designate products that comply with the Statement Of Principles, and it will have to include a version number, currently 1.0.

    Until that happens, we should probably regard the Gear logo as an “interim” logo that might be deprecated soon.

    • I would like to note that what we’re trying to do right now is get community input about which direction the community would like OSHWA to go in. Our intention is to hear from as many people as possible effected by the OSHW logo. I don’t want to put the cart before the horse, and begin moving one direction before folks are given ample time to voice their opinion. We figured we will give people until Aug. 16th to give us their input.

      Please help spread the word so that no one feels left out of this decision. I’m going to sit on my hands now and just listen :)

  20. License the logo, I have no doubt OSI has the best of intentions, and only wants to do what is necessary to protect the Open Source trademark under US law.

    There are a lot of people claiming not to be lawyers expressing legal opinions. Perhaps two principals (Simon and Catarina?) could get together with respective lawyers and hash this out.

    The Open Hardware “cog” logo should not be replaced. It would be a failure of the Creative Commons community at large if it turned out that creative people are also hotheads who cannot come to terms with each other *even* when they clearly have the same intent, and no core conflict is in place.

    So get a license (of whichever format is legally necessary) in place, and let’s get back to working on what we really care about – our projects.

    -F2

    • We definitely want to find a solution that works for everyone! However, there is a problem with the notion of principals. OSHWA wants to serve this community, but it’s very important to understand that we are not the organization with the biggest practical stake in this issue. Many companies have had thousands of boards and other products manufactured with the OSHW mark and those are not as easily replaced as a digital logo on a website. So while we want to find a solution that works for current and future organizations, businesses and individuals, we can’t represent our community’s best interests without first hearing what they need and want.

      That is why 2 principals and 2 attorneys in a room won’t do, not yet. At the base of every legal contract is an agreement that can be expressed in everyday language. So this thread is about hearing people out and understanding what their practical needs are before we turn them into a legal document. And until the OSHW community tells us to act on their behalf, we have no legitimacy to do anything.

      We all wish we could be doing something else instead, but it appears we are caught in this situation and must address it one way or another.

  21. It’s not just boards; I have a book in publication right now with the OSI mark in the preface and the OSHW mark in chapters where hardware designs are CC licensed. Changing the mark would mean delaying or reprinting the book, and would be, as Federico Lucifredi implies, a black mark against openness and CC.

  22. If we could just write “By following the Open Source Hardware Definition you are free to apply the OSHW community mark to your products and projects” on a napkin and sign it, we’d be done :)

    However, things are not as simple. Let me just point out a couple parts of a possible trademark license that may be problematic:

    - OSI indicated that under US trademark law they are required to enforce standards of quality and, if we license the logo from them, so will we. I’m unsure what this quality metric would be. But assessing and requiring that OSHW projects maintain a certain ‘quality’ is not something OSHWA is prepared to do. We want to see the OSHW community mark on school projects and we don’t care whether they are ‘good’ or not.

    - While OSHWA strongly encourages everyone to use the OSHW community mark only on products and projects that comply with the OSHW Definition, we’re not prepared to legally prosecute those who misuse it. We simply don’t have the means nor the will to get involved in court battles. But if we license the logo from OSI, we may be required to do so and that is something we’re very hesitant to agree to.

    Thank you to all who have been providing feedback on this matter, and please keep it coming!

    • catarina, as more information came in and i’ve looked at the OSI template for licensing – i do not think the OSHWA can license a logo they do not own from the OSI. the OSI does not own the community-made geared OSHW logo. i don’t think they will, or will want to test their trademark on this.

      that’s the most important thing to consider, the OSHW logo differs enough, for different uses that i do not think the OSI can claim ownership over it. the OSI board member(s) and president also thought this last year when i emailed them directly and ask (their response is above). there is not any confusion in the market place. hundreds of thousands of boards are out there with the OSHW logo now. when i talked with an outside lawyer for friendly advice, they also said the same thing. the OSHWA lawyer, or a trademark lawyer should quickly review this, i’m sure they’ll say the same thing.

      from a practical point of view, the OSWHA will never go to court over someone abusing the OSHW logo, it doesn’t make sense to sign anything you don’t own and will not enforce. i will be donating to the OSHWA – i do not want to see any funds devoted to that :)

      the simple solution is just for everyone to use the logo as they have been and for the OSHWA and OSI to issue a joint statement on best practices for this community mark.

      “By following the Open Source Hardware Definition you are free to apply the OSHW community mark to your products and projects”

      i will talk about this on ask an engineer tonight with limor fried, including showing my logo i designed, had at OSCON before the OSI had a logo of their own, that appears to be the logo the OSI later used (odd coincidence, i know, but here i am)
      http://adafruit.com/pt/ptosi.jpg

      • Thanks Phil, I’m really glad you came to understand why we didn’t enter into a licensing agreement with OSI before and decided to bring this to the community’s attention: 1) OSHWA does not own the logo and therefore can’t license it unless the community specifically asks us to do so; 2) we do not want to do any quality control nor take legal action against anyone; 3) we just want everyone to continue to do what they’ve been doing. OSHWA is an educational organization created to inform the public about OSHW and serve this community by providing it with information and resources (not enter legal battles). So this is definitely not what we envisioned as our first action…

        If OSI is willing to accept a joint statement as you describe, I personally agree that that’s the best solution for everyone. But matters appear to be much more complicated than that. What you say above is also what we’ve been trying to explain to OSI but, even though we’re on the same side and both organizations really want to make this work, our approaches are so different that it has been difficult to reach an agreement that makes everyone happy.

        Thank you also for bringing the discussion to Ask an Engineer (I’ll watch tonight). We do need to hear as many voices as possible to make sure whatever action we take represents the will of the community.

      • Since your logo is essentially identical to OSI, couldn’t YOU grant oshwa permission to use YOUR logo. Since your logo is earlier, wouldn’t that supersede the osi claims.

        I have no legal knowledge, so this is probably rubbish, but nobody seems to have mentioned it here.

  23. Hey OSI – please (a) abide by your original agreements, (b) look at Philip Toronne’s original logo (hmm looks you you copied HIS original desin, (c) lean to play nice in the sand box of OPEN source.

  24. I can’t agree more with Catarina and Phil, I think the joint agreement will be the best demonstration of maturity from the OSI and OSHWA.
    To be honest all this issue is a little bit disturbing to me as an openness advocate. A logo doesn’t bring any value on the table, while changing it (I’m really not considering licensing as an option) will be a significant hassle for the community.

    I think that once the definition of OSHW is clear enough to be verified, it will be easy to understand if an HW is open or not so the logo itself is not that important to me.

    JM2C

  25. There is no solution to this other than $$$$. You are competing with a subjective legal interpretation, based on system that is designed to make $$$$ not help business or innovation. Good Luck! You are now in the shark tank!

  26. There are a lot of misinformed opinions in this discussion. OSHWA do not please try to decide anything when you are taking the statements of Simon Phipps as to “US Trademark Law” as gospel. They are wrong in several respects that are disadvantageous to you. Any license acknowledges OSI as “owner” of the mark. You may not want to sit down with lawyers yet, but you need to understand the law before making any far reaching decisions.

    • “understand the law”: please lawyer, explain the law. Explain what is right and wrong. I am sure you have all of the answers.

      Is there a explicit solution to this problem in your law books? Or is the infringement open for interpretation? Or is this just a way for your cronies to pad their wallets at the expense of a movement that has no want for legal action? Lawyers can and will bury movements/businesses like this in their tracks, all because someone COULD be confused over the logos? Yea right, you are making business for your f’d up system.

      • No, I’m an OSHW maker as well as a lawyer, and I hate this kind of nonsense as much as you. But don’t let me stand in the way of your uninformed vitriol. I also believe the system is f’d up, but it’s the system we have to work with.

      • Gentlemen, ladies, let’s please keep this civil. This is a forum for mature discussion, not for attacks on other people’s positions, professions or opinions. We appreciate everyone’s input, regardless of where they are coming from, but please be nice to each other and don’t go off on tangents that are not likely to help anyone sort the matter at hand.

        Keep in mind that no one is on trial here. We’re discussing a complex situation and trying to find the best solution for it. So let’s show the world that we are a mature community that can discuss and resolve matters politely.

      • My personal opinion is that OSHWA should not agree to license anything, nor should we change the OSHW mark. In all honesty, I think we can safely ignore this. Here’s why:

        1. Licensing from the OSI effectively states outright that the OSHW mark is a derivative work, and that the OSI owns the rights to the original.

        2. I do not think such an agreement would be even be valid, as the OSI would be licensing a mark which itself is derivative of prior art that it does not own or control (Phil’s “flashenabled” logo).

        3. As Catarina said, licensing may place a burden on OSHWA to police designs which use the mark — I could not think of a worse use of resources for a nascent (or even a mature) organization.

  27. The OSI Mark appears to be taken from an earlier work of a gentleman now employed by Adafruit Industries dating back in the 1990s.

    I think it highly inappropriate for the Open Hardware “Gear” to be licensed from OSI when they appear so different and that the OSI mark is an unlicensed reuse of earlier work.

    The thought of having to license because someone thinks they are similar is very against the ideals of open culture. Just drop it.

  28. (repost because I replied to the wrong thread :\)

    My personal opinion is that OSHWA should not agree to license anything, nor should we change the OSHW mark. In all honesty, I think we can safely ignore this. Here’s why:

    1. Licensing from the OSI effectively states outright that the OSHW mark is a derivative work, and that the OSI owns the rights to the original.

    2. I do not think such an agreement would be even be valid, as the OSI would be licensing a mark which itself is derivative of prior art that it does not own or control (Phil’s “flashenabled” logo).

    3. As Catarina said, licensing may place a burden on OSHWA to police designs which use the mark — I could not think of a worse use of resources for a nascent (or even a mature) organization.

  29. It’s a shame that OSI is doing this, but the PSHW is an obvious derivative of thier trademarked logo. I’m not surprised that the winner of the logo contest didn’t do enough research about the logo he/she was remixing. Remixing is awesome, but obviously OSI doesn’t think so.

    I recommend reviewing the ideas brought up during the first logo push, soliciting new inspirations, and then tasking a talented logo designer to make 3 different design sketches. Choose one and finish it.

    OSHW is the product of multitudes, but behind each project, there is a dedicated and talented project leader who sometimes makes most of the design. The same should apply to the logo.

    • “I’m not surprised that the winner of the logo contest didn’t do enough research about the logo he/she was remixing”

      There is a chronology here that you appear to be unaware of. After this logo was first proposed for OSHW, it _was_ vetted by (the organization that would become) OSHWA, and the OSI was consulted. It was determined that the OSHW logo was acceptable and non-infringing, and so it was adopted.

      All of this is moot, however, because the provenance of the OSI logo is now in question:

      http://adafruit.com/pt/ptosi.jpg

  30. I find all this argument about logos and branding pretty tedious. I started writing software before most of you were born. Back in those days OSI was universally understood to mean Open Systems Interconnection (see http://en.wikipedia.org/wiki/OSI_model), and still is in professional computing circles.

    So i think it is a bit cheeky for a set of people to hijack a well understood TLA, brand it, and pass it off as their own. In many ways it reminds me of the current London Olympics where branding has taken over to such an extent that only one brand of cola is allowed into the venues.

    I thought that the “open” movement was about sharing, co-operation, collaboration and in no way corporate. But then again I am a child of the 1960s when our ideals were somewhat different.

    I guess if you must have a logo, three meshed gears together would be fine, in a triangle…. Back to the workshop to melt some solder, then to write some code for my AVR project. I hate this corporate stuff.

  31. Isn’t discouraging trademark and copyright issues a part of being “open?” I mean it’s so that people can learn from and improve on each other too but a big part of it is the “I made this product. Go ahead and improve it. I won’t be suing you if you sell it. Just give me some credit even if it’s just a few lines in a random readme.” Such a silly squabble is a waste of time; OSI shouldn’t have started it.

    Plus, how does a gear have anything to do with open source-ness unless you add “hardware.”

  32. This is an interesting problem as many of the challenges faced by OSH from the beginning. The biggest issue I see is that as far as I am aware the OSH logo was crowd sourced before the formation of the OSHWA and by extension the OSHWA does not own the trademark or IP of the OSH mark. Is this correct? (I am aware the fledging foundation was responsible for cleaning it up but that doesnt mean the organization owns the mark.)

    If so, then the actual logo mark is in essence public domain even though in good conscience its use is limited to projects that voluntarily conform to an arbitrary definition for fear of public derision. Further, assuming this is the case, the OSI would have to pursue legal action against all individuals on a case by case basis – including Nate’s hypothetical grade school engineers – for using the logo on their projects. In this way, OSHWA would be held as accountable as the rest of us for the use of the logo rather than be the singular target of legal action. In fact, it might be disingenuous to expect the OSHWA to enter into a legal agreement with another entity over a mark they do not own.

    Now wether or not the OSHWA should use the OSH mark is an entirely different issue. The association may choose to use a logo of their own but I don’t see how at this point with the amount of hardware designs currently sporting this very logo OSI has any grounds to stop the use of this logo or expect a license to be entered into whether pursuing legal action against a multitude of individual groups for “misuse” of the mark.

    • Thanks Brian, that was very well put. All your assumptions are correct and this is an accurate summary of the situation.

      Just to further clarify: the group who founded the Open Hardware Summit, and later went on to found OSHWA, was responsible for starting and hosting the contest that led to the crowdsourced ‘gear’ mark. The same group cleaned up the selected logo and suggested that the community use it to indicate projects that are open source hardware (which many have been doing since). The Open Hardware Summit was not tied to one specific organization during its first two years. It was an event Alicia Gibb and Ayah Bdeir put on with the support of several other people and organizations. So there was no formal organization behind the crowdsourcing of the gear mark, just a group of OSHW enthusiasts.

      As part of the terms of that contest, the ‘gear’ mark was released by its designer under a creative commons license. So it doesn’t belong to anyone, not to OSHWA (which didn’t exist at the time) nor anyone else.

      OSHWA itself hasn’t yet adopted a logo to represent the organization, so this issue does not concern the organization’s own logo.

  33. Hi all,

    I don’t want to dilute the lively conversion happening here, I just want to step back for a moment and note that this comment section is living evidence of how strong the Open Source Hardware community has become in recent years. Merely the fact that so many people feel so strongly about this issue shows how the community has grown. OSI filing the complaint in the first place shows that OSH is starting to becoming just as relevant as OSS. I’m sure a reasonable solution will be worked out between OSHWA and OSI; in the meanwhile, I’m appreciative of the fact that the open gear logo has gained enough notoriety to be worth “fighting for”.

    My personal preference would be to try to preserve the current logo, due to the large number of boards on which it can already be found. But, I understand that this issue is complex (as Phillip, Catarina, and others have already explained), and I’ll be happy with any solution that ensures both OSI and the OSHWA can continue to operate and promote open source solutions to problems in the both the hardware and software worlds.

    • Yes, these are exciting times and it’s wonderful to see the OSHW community grow!

      I just want to point out that this is not a matter between OSI and OSHWA. OSHWA does not own the gear mark and the organization’s own logo is not at stake here. This is a matter that pertains directly to every single person and organization that uses the gear mark. OSHWA is merely acting as an intermediary since it’s easier for an organization to do that than dozens of companies and thousands of individuals. So this is about all of you, not OSHWA :)

  34. The proposed license says “in exchange for good and valuable consideration” which may not be money. If so, then this is simply a friendly bit of trademark protection. They need to protect it or lose it, as will OSHWA, if you chose to ™. If they are asking for money then, poo on them for not being friendly open initiative people.

    Any license by OSHWA needs to cover use by others (a sublicense). The current document does not provide this. The document also requires OSHWA do quality checking of the products that sport the logo. This is impossible for OSHWA to enforce, especially given the nature of the OSHW world — heck I dont see how OSI can enforce a similar restriction on any Open Source Software – much of which is pure crap and really bad code.

    I like the OSHWA logo although I can see where the derivative interpretation may come from … theirs is a cam, yours is a gear, both using the same ‘standard’ shaft key. Open logic says using the same standard is good and shows community sourcing and sharing.

    The logos are both obviously derivative of the mark Phil designed and used last century.

    However, if they dont want to be open and share, then perhaps rotating the gear 180deg so the keyway opens up would work. Perhaps indicating more open to enhancement and growth vs open at the roots. Or rotate it 90deg and be derivative of CopyLeft.

    (cant wait to see what happens when this hits /.)

  35. In consideration of solidarity between communities with similar goals, I wouldn’t think something like a trademark would be a problem. But in light of this I can see where there might be some issues. It’s hard enough to stand out in the world of walled gardens and crazy advertising budgets of mainstream software and hardware and it takes some effort to carve your place. I suppose for the uninitiated, having two logos that look similar might be confusing on a ‘get the message out’ level.

    As I see it the argument basically is, it’s hard enough to get people interested in OpenSource whether it’s software or hardware. Throwing in similar logos for two arguably very different things could simply compound the problem of getting people to take the effort to educate themselves and adopt.

    My two cents.

  36. I read the short form of this over on Sparkfun, and then realised that you were asking for input here. Alas, I have not read very far into the comment thread above so I may be repeating others.That said, this is my opinion. Again, this is not legal advice, but merely my opinion.

    Do #1 twice – that is, cross-license with OSI.

    This acknowledges that the breadth of the field of application of the two trademarks does in fact overlap (firmware), and sets a precedent regarding such breadth.

    This may enable either group to go after improperly marked “firmware”, possibly including the sources used to program programmable logic devices.

    This sets a precedent of co-operation between the two groups.

    It could acknowledged a visual similarity between the two in a way that reinforces the actual similarity in goals between the two.

    By cross-licensing, it also respects the community view of a separate origin of the OSHW logo.

    As strange as it may sound, this is probably a good opportunity for both groups. Use it to insure that there is no gap between them that can be “closed”.

    Tl;dr? Ya’ll are similar. Embrace it! Embrace it in writing!

  37. I just did a trademark search on the USPTO site (results: http://tinyurl.com/dxbsyws) and the trademark in question specifically states that it applies to SOFTWARE. Seeing that the OSHWA is an organization that promotes open source HARDWARE I don’t feel that there should be a trademark conflict as long as it’s not used for software but I could be wrong.

    On an unrelated note I also believe that a branch of the USPTO should be created to protect the open source community from the wrath of corporate lawyers and to enforce open source guidelines. But that is a discussion for another time.

  38. Possibly the approach of B Botany above (particularly re the H/W S/W interface level), baring that, IGNORE them, if they then take legal action they will risk their own trademark, as the first argument will be that their logo is based on previous art.

    As has been said the OSHWA does not own the logo, it is open licensed, hence OSHWA cannot make any agreement with OSI about it. So Ignore them.

    As the logo is used in many jurisdictions, including China, it will be awfully expensive to pursue.

  39. I feel that this gear logo is perfect for its use.

    You should seek a *partnership* with the OSI. We all have the same goals with the same vision. A little similarity in the logo reflects that.

    Talk to the OSI. Make them understand that. The logo shows unity. Find an amicable agreement and get a license. Use it as a badge of unity and of Freedom and partner with the OSI to acknowledge that.

  40. I’m sorry, but this is just silly.

    First off, OSI is clearly well respected by the open source community, including people here. I don’t think anyone would argue with that. And also, your logo is clearly based on OSI’s. Regardless of your feeling’s about what would make open source better, that fact is undeniable.
    So did you ever even mention to them that you were going with a logo designed after theirs? The proper thing would do would have been to ask them if it was okay to do so. The next best thing would have been to merely inform them that you were going with it. But did you? Clearly not if it took them a year and a half to notice it.

    Next, why did you bring this to public right now? Have you tried having an honest, in person, face to face meeting with them to try and discuss this? Maybe you have, but it sounds to me like you haven’t. But there is no reason to bring to the public’s attention until you have tried such simple steps. Whether intentional or unintenional, you are merely painting them as the enemy when they have brought a completely legal and completely justified complaint to your doorstep. They haven’t even given you a cease and desist order yet for crying out loud!

    I’m not saying by any means that you guys are the villains in this story. But mistakes have been made: actions that should have been taken were not.

    But before you look at any legal thing such as a Trademark license or fighting them in court:
    : Go talk to them in person. They’re Human Being’s for God’s sake: treat them as such!
    : Apologize to them for not notifying them or asking their permission. Whether your intention is good or bad, you are infringing on their trademark.
    : Explain your situation to them. Tell them that you want to be a separate entity from them and not having them decide when and where you can use the logo. They might not agree with you in this situation, but they have to deal with this legal crap too, so at least they’ll understand you.

    If there is no acceptable compromise, then decide whether or not you can live with a Trademark license. If not, then change your logo, but you have no right to try and
    justify yourself in open court. You would deserve all the crap that OSI and the Courts hurtled at you, not to mention completely ruin the reputation of the OSHWA all because you wanted to be the rebellious little child.

    Just to be clear, I am not furious with the OSHWA by any means. I am merely trying to wake everyone up to the reality of this situation:
    They are in the right, not us.

    • Really? You make the flawed assumption that the OSHWA existed prior to the creation of a logo mark which in fact is the other way around. As one organization does not own the mark then you are incorrect in placing blame on one organization. This is a community driven effort spearheaded by a few individuals but it is not as simple as placing blame on one corporation or entity. I think that if you actually read the above posts you would find that given this unusual set of circumstances, the OSHWA has gone to great lengths to facilitate all of your comments already.

      Quite simply though, the OSHWA would be wrong for trying to enter into a trademark agreement with another entity over a mark/IP that it does not own. The OSHWA is in the right for opening this to the community because it affects all of us that have used said mark on our own designs.

      Really, is OSI going to enter some sort of reverse class action against the entire maker movement for using a circular logo that has a keyhole? I find this absurd.

    • Jacob, I’m sorry to say this, but all your assumptions are incorrect and you would have known that if you had taken the trouble of reading this thread before making unfounded accusations.

      A year ago Phil Torrone contacted OSI, showed them the gear logo and asked if they had any problem with it. He did not receive an official response from the OSI board or president, but he did receive a response from one of the board members whose opinion was that the OSHW community was free to use it. Lacking any other feedback from OSI, the community went ahead and continued to use the logo. So you are incorrect when you say “Clearly not if it took them a year and a half to notice it.” OSI was notified a year ago and did nothing. See Phil Torrone’s comments above for the full explanation and copy of the email he received.

      We brought this to public because it’s not our logo, therefore we have no legitimacy to license it nor to make any decisions about it. Note that this issue relates to the OSHW community mark, not OSHWA’s own logo.

      An in person conversation is not possible since we’re spread across several countries and cities. But we did have a phone conversation with OSI and many emails were exchanged. Both organizations did what they could to make this a non-issue. But since OSHWA doesn’t have the legitimacy to license something we don’t own, we had no choice but to bring the matter to the real stakeholders: those who actually use the logo on their hardware. It’s up to them, not OSHWA.

      I’m pretty sure no one at OSI will claim that we treated them as anything less than human. You’re the one putting an ugly twist on this. There are no hard feelings on the part of either organization and we’ve been working together to sort this out.

      We do not have to apologize for not notifying OSI since Phil did exactly that a year ago. Also, OSHWA was created a couple months ago and cannot be held responsible for events that took place long before that.

      We have been talking to OSI for several weeks now and did all we could to explain this situation. You’re assuming, incorrectly, that this was a hot head decision. It was not. Also, I’m not sure I understand what exactly is your problem with a public debate and solving things out in the open.

      Next time please check your facts before saying things like “You would deserve all the crap that OSI and the Courts hurtled at you” and making false accusations at people who have been working hard for months, as volunteers, sacrificing what free time we have to serve the open source community.

      You are “trying to wake everyone to a reality” you don’t understand yourself and doing so based on wrong assumptions that you didn’t even bother to check.

      Catarina

      • I’m very sorry. You are correct; I did make many assumptions as to how events progressed to our current situations without bothering to check them. My apologies. I’m sorry if anyone felt offended, as again, that was not my goal.

        And yes, I do recognize the hypocrisy and sarcasm in “waking up to reality.”

        Now that I have had a chance to read everything, I would like to offer a second opinion, if I may.

        One difference that I see between OSHWA and OSI is that of physical hazards. While there is very little physical danger from maliciously written programs, (i.e. it’s really hard to write a program that would cause a computer to catch on fire and hurt someone) with hardware that opens up a whole new level of liability. Don’t get me wrong, having a virus steal your passwords or delete your data is terrible, but I would rather have someone in my family download a virus that wipes their hard drive than buy a laptop whose battery catches on fire.

        I do think this is something that people need to consider. It would be terrible for a person to get injured and OSHWA be blamed in any way for it, but it would be even worse if OSI would blamed in anyway as well simply because our logos look alike and we have similar goals.

        I think this issue is a little more indirect than what we need to be considering right now, but it does need to be considered.

        Again, I’m sorry for having offended anyone, and I admit fully to acting out of ignorance when I knew I shouldn’t have. My apologies to everyone.

        Catarina, Brian Evans, thank you two for waking me up to reality,
        Jacob

  41. If OSHWA went the logo redesign route what about the outline of a QFP style SMT with part of the wafer showing representing the openness of open source hardware.

    • This looks like what owners of dubious patents do: They find an easy target and convince/coerce them to sign a licensing agreement (often at very low or no cost) just to set a precedent and give credibility to their claims.
      Then, the patent owner sends cease & desist letters to everyone else and collects the big bucks.

      The OSI is trying to get OSHWA to admit the gears logo belong to them (it does not, both logos are derivatives of the original 1999 work by Phil Torrone), promising the OSHWA can use it without fees, but if OSHWA signs such an agreement, everyone else making OSHW products and using the logo will be coerced into signing a licensing agreement with OSI, and as the gears logo gains recognition, something tells me it won’t be cheap !

      The gears logo is really good, Phil Torrone did the right thing by asking the OSI 1 year ago, and the OSI trademark is in the field of software. If the words “Open Source Hardware” were removed from the logo itself, it would reduce similarity. As the logo gains recognition, the meaning will be self evident.

      BTW, there might be another problem with a company named Fuhu Inc (California) who is trying to register “open source hardware” as a trademark : http://trademarks.justia.com/853/26/open-source-hardware-85326591.html

      Sharks are circling …

  42. I would prefer a slight tweak as opposed to a complete re-disign. Something like inverting the gear design and putting the name above it. This will give the OSI an opportunity to meet you half way. Take input from us and try to meet OSI desires without changing it too much. This will help leave currently produced boards and other hardware identified similarly to new hardware. I believe OSI is using the similarity as a grab to extract license monies from OSHA, right or wrong (the two logos do look similar). If they are unwilling to meet you half/part way then that exposes them as they are and gives you the ethical right to make a bigger issue out of this (copyright?).

  43. It is my opinion that OSHWA should not enter into a license agreement with OSI, and further, should continue using the gear logo.

    Who defines the criteria for comparing the two logos? Could OSI just simply say they don’t find the OSHWA associated logo to be similar enough to reasonably cause confusion?

    • Upside to a new logo is that rev 1 boards already printed with the old logo would be kind of rare collectors items, assuming OSI are ok with that.

  44. Thank you everyone for your input. I know this is a long thread and it’s hard to read everything, but I just wanted to point out a few things so you have all the facts before telling us what you think:

    - This is not a conflict between OSHWA and OSI. In fact, this is not a conflict at all, just a matter that we’re trying to resolve together.

    - The logo we’re discussing here is the OSHW community mark (the gear logo), not OSHWA’s own logo.

    - OSHWA does not own the gear logo and therefore doesn’t have the legitimacy to license it unless the OSHW community expressly asks the organization to do so on its behalf and defines what licensing terms would be acceptable. This is why we’re asking for your input.

    - OSI has not asked OSHWA for money in exchange for a license nor indicated in any way that they intended to do that.

    - A year ago Phil Torrone contacted OSI, showed them the gear logo and asked if they had any problem with it. He did not receive an official response from the OSI board or president, but he did receive a response from one of the board members whose opinion was that the OSHW community was free to use it. Lacking any other feedback from OSI, the community went ahead and continued to use the logo. See Phil Torrone’s comments above for the full explanation and copy of the email he received.

    • Caterina: for my part, I think the OSHW should take ownership of the logo and the responsibility for licensing/policing it—in a laid-back community-acceptable way, of course… but if some miscreant is going to abuse the mark I’m certainly not going to be able to go after them. I’d gladly support OSHW (including financially) in order to allow them to protect the mark on behalf of all of us. (I’m an EFF member and supporter for similar reasons.)

      If not OSHW, then (IMO) *someone* has to step up and take ownership of the mark and outline an acceptable use policy. That’s just how trademark law works here. Maybe OSHW would rather “subcontract” out the responsibility to OSI or SPI or some such, but someone needs to take on the task for the common good.

  45. +1 vote for a co-existence agreement/license.

    Originally I wanted to ask why is the OSI logo trademarked in the first place, and not released under GPL or CC as is the open source way. However, after reading this thread, I guess there is some sense to it.

    I think the current OSHW logo is brilliant, and I would not want to change a thing about it. Its similarity to the OSI logo is also a plus, not a minus. The goals of OSI and OSHWA and their respective communities are very similar and closely related. Furthermore, software and hardware are mutually-dependent, as one cannot work without the other. So IMO it makes perfect sense for the OSI and OSHW logos to be similar.

    Therefore, I place my vote for a co-existence agreement/license. I will go further and suggest that the OSI and OSHWA should also consider an affiliation agreement (although this may require some revision of OSI’s affiliate program definition, and a definition of an OSHWA affiliate program).

  46. Hi all,

    From my point of view, it’s clear that the OSHWA logo can be seen as infringing on the OSI one, so it’s absolutely right for them to protect their mark. I think a statement of co-existence is the best bet, including a set of joint logo guidelines, stating specifically what differences need to be met for OSHWA to use the logo.

    For example, what would happen if someone used the logo in OSI green, or reduced the size of the cog teeth to make them less prominent? One the leeway is clear it should be possible for OSI to say that the OSHWA is allowed to use the logo on condition that it protects it against misuse.

    Licensing the logo directly isn’t the way to go, as we aren’t using the OSI logo, we’re similar to it, and our desired sublicence terms are incompatible. Changing the logo would be very bad, as this is a more recognisable logo than the OSI’s one (imho) and we already have tens (hundreds?) of thousands of boards.

    There is another option, which is potentially wacky, but would it be possible for the OSI, OSHWA, and anyone else involved to form a conservancy for protecting the keyhole logo device? That way, both organisations can continue to use their current logos without being subordinate to the other.

    As a member of the Plone Foundation ( http://plone.org ) I have written to the board to ask if we can use our position as an OSI Community Affiliate (we were invited to become part of their new governance structure at the end of last year) to encourage the board of the OSI to allow the use of the OSHWA logo under the current terms.

    Matt Wilkes

  47. Wouldn’t a “Mexican Standoff” be enough? The OSI logo is clearly a direct copy (with color change) of prior art by PT from the last century. The OSHW logo appears to be a derivation of the OSI logo (with color change and added gear teeth). Therefore, it appears that both OSHW and OSI are equally vulnerable to legal attack by the other. It is clearly in no one’s interest to bring lawyers into the situation, and this has been expressed openly by both parties. Obviously, OSI did not foresee the brouhaha it caused by legal saber rattling. Might they simply avoid repeating that unfortunate action? Couldn’t things simply be left as “You attack our trademark, we’ll attack yours!” Now, can we both just get back to promoting openness?”

  48. While I cannot comment on the legal details, as a visual designer with experience in the symbology of logos and icons, the details are not similar enough to merit the argument. Duplicate images are everywhere in logos and products. There are obvious ones to stay away from (an apple with a bit out of it for example), but the gear image is ubiquitous, and has a variety of meanings in different contexts.

    In my view, the OSI image is not a gear at all. That being said, visually, the precedent is already set for open-ness.

  49. I wanted to add my voice to the conversation. I am not a lawyer, but as an engineer, I see a flaw in what is going on. It seems that OSI is trying to ask OSHWA to get a license agreement on a logo, but this logo is not the official logo that is used for the OSHWA organization itself, only advocated by that organization. Because of this, how would this agreement be enforceable? This would be like me trying to rent or sell a house that I was house sitting. Just because I am physically in the house does not mean that I can represent the owners. In this case the “owners” are a loose knit group of individuals represented by the OSH movement.

    Because of this issue, I see that the OSI are trying to force (albeit in good faith) a solution that really has no teeth, and only clouds the issue further. As I see it, the mark is being used by many individual groups, and the OSI needs to license with each of these groups (this is if they really want to pursue this further). This would be a long a complex process, but perhaps the solution is for OSHWA to have a form that is a blank form where you just fill out your information and then submit it to OSI. This would allow OSI to have some enforcement, and limit them from having to try and find each individual user. The users in this case would self identify. I can understand why OSI does not want to do this as it requires them to have a lot of paperwork, but it is really their problem. Is this a technical view of it, yes, but they are taking an overly technical view of their tm.

    A way to possibly circumvent this would be for OSHWA to adopt the current OSH mark as their representative logo and then the “enforcement” effort would transfer to them per whatever could be agreed to between OSI and OSHWA. This could happen because the community would not protest OSHWA from adopting the logo (unlike OSI) and would then allow OSHWA to be able to represent the interests of the logo.

    Me personally, I think that this is a case similar to what was seen with SRD# and is just creating bad press for OSI. I am not to say that it is deserved or not (despite what actually seems as a good faith, but misguided effort). Someone is deciding to be too literal and overprotective and because it is not before a judge, so that they could decisively decide the merits of the issue, OSHWA will end up making some change. Sadly, I feel that OSI in this case truly has gone a bit overboard.

    I personally advocate that because of the legal problems with the current design, that the logo should be changed to a logo that does not have any trademark issues. I would imagine that there could be a minor revision on the logo that would keep it close to the original so as to not create too much confusion or rework of artwork, but would have a good genealogy to the original logo. This logo should then be adopted by OSHWA for them to distribute to the community. It might be good to actually do some research with a lawyer once the potential designs are up for consideration. This research would not be so that one could go and take someone to court for a small “apparent” violation, but to be able to protect yourself from a similar situation but with a less friendly adversary.

    Adam

  50. This is Gus Issa from GHI electronics. We have been using the open source logo on about 50 different circuit boards that we produce and sell. We even encouraged our community to add the logo to their design. I do not have exact figures but we have sold thousands of boards with OSHW logo and we have thousands in stock as well. Also, there are numerous boards made by the community that have the OSHW logo.

    What I am trying to say is that, for us, changing the logo will be impossible at this point. Not only will cause us huge losses but also discourage us, other companies and community members from using any new OSHW logo.

    For us and our community, the answer is defiantly “License the open source hardware ‘gear’ logo from OSI”. Of course, we expect OSI to *really* simplify this process. All we want, OSHW and us followers, is to share our work with the world in good faith.

    Gus Issa, CEO
    GHI Electronics

    • If OSHWA licenses the logo, they would set a precedent by admitting it belongs to OSI, and that would cover their use of it, not yours !

      Learning you have that many boards in production, as soon as OSHWA sign with them, they’ll probably send you a licensee contract, and you might not like the cost.

  51. Folks, make sure you read the OSI license agreement link at the top of the comments. It’s clear the agreement is written heavily in favor of OSI.

    For the hardware manufacturers out there, OSI still reserves the right to cancel the agreement at ANY time if they determine a breach. If OSI is trying to strong arm the community before the agreement, imagine the leverage they would have after the agreement were signed!

    Let’s recap: Phil Torrone has email proof that OSI leadership did not have an issue early on with the OSHWA logo. Open source hardware is catching on like wild fire. Manufacturers are putting the OSHWA community logo on their high production boards. OSI now decides to do an about-face and say the OSHWA logo infringes on their logo. Where’s the trust now?

    OSHWA should not sign the agreement and they should consult with lawyers for alternative actions.

  52. (sorry, I posted in the wrong place)

    This looks like what owners of dubious patents do: They find an easy target and convince/coerce them to sign a licensing agreement (often at very low or no cost) just to set a precedent and give credibility to their claims.
    Then, the patent owner sends cease & desist letters to everyone else and collects the big bucks.

    The OSI is trying to get OSHWA to admit the gears logo belong to them (it does not, both logos are derivatives of the original 1999 work by Phil Torrone), promising the OSHWA can use it without fees, but if OSHWA signs such an agreement, everyone else making OSHW products and using the logo will be coerced into signing a licensing agreement with OSI, and as the gears logo gains recognition, something tells me it won’t be cheap !

    The gears logo is really good, Phil Torrone did the right thing by asking the OSI 1 year ago, and the OSI trademark is in the field of software. If the words “Open Source Hardware” were removed from the logo itself, it would reduce similarity. As the logo gains recognition, the meaning will be self evident.

    BTW, there might be another problem with a company named Fuhu Inc (California) who is trying to register “open source hardware” as a trademark : http://trademarks.justia.com/853/26/open-source-hardware-85326591.html

    Sharks are circling …

  53. Based on the history of various logos described above, it seems it’s the OSI who should license its logo from Phil (no, I’m not serious).

    I don’t see any licensing or change of logo being necessary. Can we now go back to hacking?

  54. I have an Open Source Everything Logo and I have been trying to collect eight open something logos. In my view, there is ZERO conflict between OSI (which has been sitting on its ass for too long) and OSH. Indeed I would love to see variations on a theme–OpenBTS, Open Spectrum, Open Standards, etcetera.

    I urge OSH to stick to its guns and tell OSI they are dishonoring the whole concept of open. Shine light on their pettiness and see if you can impact on their sponsors. A cut in their funding will be their wake up call.

    Am also interested in an annual Open Source Everything Summit, OSCON is not it, Tim O’Reilly has not been in receive mode on this the several years I have urged him to embrace OSE.

  55. I think I found a win-win for everyone.
    I read all the posts then did a lot of research, and found information on USPTO.gov and Harvard.edu
    I am an engineer (and huge open source software and hardware fan), not a lawyer, but I hope this information helps. Thank you to OSI and OSHWA for being so open and willing to work together with each other and the community!

    If the OSI logo is for software, then there is no infringement by the hardware logo. No infingement = no danger from not enforcing their trademark. Unless it was specifically stated in the trademark claim that the OSI logo was for “open source hardware”, the open source hardware community could actually use the exact same OSI logo for hardware (but not software!). No one should even think of doing this, but it looks like it would be legal.

    Unless I am mistaken (please correct me if I am wrong):
    1) The OSHW logo is in the public domain (free for every one to use).
    2) The OSHWA cannot legally sign any license agreement on something in the public domain.
    3) Software does not equal hardware. Software is protected by copyright, hardware by patents.
    4) The exact same logo can be used by different companies if the goods or services are completely different.
    5) The only similarity between OS hardware and software is the “openness.” If this constitutes “similar products” then everything that is not “open source” is a similar product.

    Here is what I found on the USPTO and Harvard websites. Everything below is from their information.

    From http://www.uspto.gov/trademarks/index.jsp
    (it’s the PDF on the left side: “FACTS Basic facts about trademarks”)

    “Do trademarks, copyrights, and patents protect the same things?
    No. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product. “

    “May I change the goods/services after filing my application?
    You may clarify or limit the goods/services but you may not expand or broaden the goods/services. For example, if you filed for “shirts,” you may limit the goods to specific types of shirts such as “t-shirts and sweatshirts.” However, you may not change the goods to “pants.” Likewise, if you file for “jewelry,” you may change the goods to specific types of jewelry such as “jewelry, namely, earrings.” However, you may not change the goods to a service such as “jewelry stores.””
    From http://www.uspto.gov/trademarks/process/search/
    “Although not required prior to filing an application, you are encouraged to search the USPTO’s trademark database to see if any mark has already been registered or applied for that is similar to your mark and used on related products or for related services. “

    From http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm
    “7. What constitutes trademark infringement?
    If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. �� 1114, 1125. The standard is “likelihood of confusion.” To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant’s intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).
    So, for example, the use of an identical mark on the same product would clearly constitute infringement. If I manufacture and sell computers using the mark “Apple,” my use of that mark will likely cause confusion among consumers, since they may be misled into thinking that the computers are made by Apple Computer, Inc. Using a very similar mark on the same product may also give rise to a claim of infringement, if the marks are close enough in sound, appearance, or meaning so as to cause confusion. So, for example, “Applet” computers may be off-limits; perhaps also “Apricot.” On the other end of the spectrum, using the same term on a completely unrelated product will not likely give rise to an infringement claim. Thus, Apple Computer and Apple Records can peacefully co-exist, since consumers are not likely to think that the computers are being made by the record company, or vice versa.
    Between the two ends of the spectrum lie many close cases, in which the courts will apply the factors listed above. So, for example, where the marks are similar and the products are also similar, it will be difficult to determine whether consumer confusion is likely. In one case, the owners of the mark “Slickcraft” used the mark in connection with the sale of boats used for general family recreation. They brought an infringement action against a company that used the mark “Sleekcraft” in connection with the sale of high-speed performance boats. Because the two types of boats served substantially different markets, the court concluded that the products were related but not identical. However, after examining many of the factors listed above, the court concluded that the use of Sleekcraft was likely to cause confusion among consumers. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).”

    • I’m not 100% sure about being able to use the exact same logo for something different. I got that impression from reading, but I’m not sure. It’s really irrelevant to this conversation. Even if it is legal to copy exactly, I would consider it unethical. In this case of a small amount of similarity on dissimilar products, the OSHW logo should be fine based on the above research. (my opinion)

      If it’s OK for me to make a suggestion, how about a joint statement by OSHWA and OSI stating that due diligence has been done to investigate the potential infringement, but that none exists? State the facts, close the case, then in the words of the open source 3D animation program, Blender (blender.org), everyone’s status can be: No unintentional infringement found “continuing happily.”

  56. OSI’s mission statement says it is for software. I should have checked their page sooner as part of the research. Shame on me for not being thorough. Unless I am missing something else, it looks like this means the OSHW community and logo can continue as they are and OSI’s logo should still be protected.

    Great mission statement, by the way!

    From http://opensource.org/

    “Mission

    The Open Source Initiative (OSI) is a non-profit corporation with global scope formed to educate about and advocate for the benefits of open source and to build bridges among different constituencies in the open source community.

    Open source is a development method for software that harnesses the power of distributed peer review and transparency of process. The promise of open source is better quality, higher reliability, more flexibility, lower cost, and an end to predatory vendor lock-in.

    One of our most important activities is as a standards body, maintaining the Open Source Definition for the good of the community. The Open Source Initiative Approved License trademark and program creates a nexus of trust around which developers, users, corporations and governments can organize open source cooperation.”

  57. After having read all the comments up until now, I find myself on the fence between the “It shouldn’t need licensing” subgroup that has appeared in the comments and the “I don’t want to use a logo under license” group.

    If it came down to it, I would not feel bad switching to a new logo, even if current boards were printed with it; it’s a matter of history at that point. So long as current boards (i.e. Sparkfun’s 10,000 board shipment) can be sold/used with the logo, and no new ones be produced, then I would imagine that’d be a win for the OSI.

    On the other side of the fence, if the OSI and OSHWA can agree that the logos are not similar enough / not for the same industry, and is put in writing, I’d imagine that would cover OSI’s assets as far as trademark protection.

    If licensing were required, I’d rather that (as part of the license) the OSHWA be granted the right to sublicense as it sees fit without fear of litigation from OSI. OSHWA would need to set out specific rule(s) on when to use (and not to use) the OSHW symbol (i.e. 1] Being in compliance with the OSHW Statement of Principles, and 2] Gear logo is to be used on circuit boards and PCB designs licensed under Copyleft, Public Domain, CC, etc).

  58. If you felt that the gear was “different enough” then obviously it’s copyright infringement and you knew it was wrong and you did it anyway. That only prove premeditation – intentional or not, it’s obvious infringement. Perhaps OSHWA could join forces with the piracy movement.

    • That accusation has been made and answered 3 or 4 times already. The artist contacted OSI and asked permission before using the gear logo. The “unofficial” response was that OSI was OK with the gear logo because they were different enough. This was a year ago when the gear was first introduced.

      A copy of the email is in several posts above.

  59. Really? “keyhole”?
    I’ve always thought that it was a silhouette of a person…a john/jane doe (much like what gravatar uses, etc.).

    In that spirit…what if the silhouette was “enhanced” to be more than one…aka…have it 2 or 3…much like the community this Open Source Hardware is and the direction that mankind should go…towards unity.

    • MoFoQ, when i designed the logo which appears to be the OSI logo now, my idea was to have a keyhole and a person all in one. i wanted to show how it openness could unlock minds. open source isn’t just code, open source hardware isn’t just atoms – it’s people, our hopes and dreams to make the world a better, more interesting place through sharing information.

      http://adafruit.com/pt/ptosi.jpg

      nothing beats the fedex logo with the embedded arrow or the northwest airlines with the embedded compass pointing northwest, but i thought my logo was clever at the time… seems like someone did later too :)

      any way, as a final follow up on this, i hope… the following is just my opinion about what should happen, and my guess as to what will actually happen shortly — the OSI and OSHWA is going to do a co-existence agreement (and/or consent agreement) there’s not going to be any license or ownership asserted on the community-made OSHW mark by the OSI.

  60. Hey all. I’m an IP attorney who likes open source stuff. I know. Strange.

    What you want here isn’t a license. Licenses require monitoring quality standards of products using the mark. If OSI doesn’t monitor the quality and correct users who don’t meet the standards (i.e. tell them they can’t use the mark any more), OSI would lose rights in their mark. They don’t want that.

    What you want is something called a consent agreement. This agreement basically has both parties agreeing that the two marks aren’t confusingly similar and further agreeing to prevent future confusion. What you get from the consent agreement is a clear boundary between two independent trademarks (the two logos) that can happily coexist.

    I’m not sure why (or if) OSI’s attorney hasn’t suggested this route. I’m only seeing one side of the discussion, but it seems to me like this could be solved quickly and painlessly with (gulp) some good lawyering.

  61. Of course it looks like that–because you guys are on the SAME DAMN TEAM, just working on opposite sides of the spectrum.

    One does software. The other does hardware. You do realize that without one, the other can’t exist right? YOU BOTH NEED ONE ANOTHER.

    This is a bunch of nonsense, and is a case study in why open source things can fail spectacularly. “MEH! I WANT IT THIS WAY” “NUH-UH! MY WAY IS THE SUPERIOR WAY!”

    Just stop. Both sides. Nobody is confused, nobody is not getting the concept of “Open Source” when you tack Hardware, Software, Initiative, Burma Shave, or whatever on the end of it. WE ALL GET IT. Anybody who has an issue should be able to contact any group who is in on the whole Open Source movement and they should be able to explain it.

    END OF STORY. MOVE ON.

  62. Pingback: The two Open Source organizations have argued for a logo that may violate trademark

  63. Sorry, but I’m without any constructive offer:
    Oh, c’mon! You are Open Source. And circle-with-a-span-in-the-bottom is a logo for entire family of Open Source projects. Just look at OpenCV, OpenVPN, Open Source Ecology Germany, etc.
    Stop stupid buzzing around with those “It’s mine!”-kind-of-licenses. In first hand because you’re open source and should be so thoroughly.

  64. I’d choose option 3, and open up the top of the existing gear logo similar to the bottom part, since clearly OSHW is twice as open as OSI. ;-)

    The resulting logo would look more like a screwhead than a keyhole, problem solved.

  65. Pingback: Two Open Source Communities Battle It Out Over Trademarks « waweru.net

  66. Logos posted here are awful…

    So what’s mean open source hardware?
    It can be modified and upgraded to suit specific people needs.
    And this upgrades remains open and free for all.
    It can speed up the evolvement of all hardware industry.

    So as for me, this ideas have to be reflected in logo design.
    So how do O-gears related to making hardware industry better ?

    Sorry for bad english.

  67. Leave it to lawyers to restrict what is an icon of openness and sharing. Talk about missing the point. Going through the options:

    1. The license sounds like a good idea right up to the point I started to read it. In the agreement we start to get into trouble in section 2a. Who is going to do the quality control of the hardware, firmware, and software of an Open Hardware project? Why is this even an issue, given the fact that while open source software attempts and generally succeeds in quality control, there is no real quality control as requested in our agreement. This issue is even touched upon by OSI’s Open Standards Requirement for Software in the first criteria where they acknowledge “As flaws are inevitable…”.

    Further, every section has similar unilateral language. “Mark to be displayed only in such form or manner as may be specifically approved by Licensor”, “Licensor is the sole and exclusive owner of the Licensed Mark”, “Licensor may immediately terminate this Agreement without need of judicial notice or court action”, etc. I grant that this makes sense if we were licensing the OSI logo, but we are not. The logo is not a derivative since it bears no similarity other than showing an incompletely enclosed circle demonstrating openness. Quick! Someone introduce the idiot lawyer to a dictionary so that they can sue for every word with a C in it. Were this my call, I would not license the property, since there is no compelling proof that they own it, and solid evidence that they do not. If we sign the agreement, we are legally handing over our logo to those who did nothing to create it or the brand it represents.

    2. Tell the OSI lawyers to “pound sand”… in the nicest legalese money can buy. This would be my choice, requiring OSI to be the “bad guy”. I would be sure to mention that I’d have every tech blog and news organization on speed dial. Too much bad PR and lawyers are all OSI will have for members, and they will look a lot like SCO. Put bluntly, someday you’ll have to quit handing the bully your lunch money and kick him in the junk.

    3. Find a new logo. Probably the safe path, but how many times are we going to do this? If we flinch every time someone yells “Copyright” in an open source community, we’ll do nothing but start a feeding frenzy for every corporate shark out there. If that is our intention, perhaps we need to step back in the shadows and basements, collaborating by newsgroup and IRC rather than let parasitic elements of society define our path and what it means to be open.

  68. I would recommend keeping the Gear logo if we can. I am not married to it but it sure looks cool and his intrinsic meaning as several people have pointed out.

    I keep trying to put myself in OSI’s shoes and think if some other organization came along and took off the gears and called it their own, would our community get upset? Who knows.

    Personally, I feel like our logo is paying respect to the work that OSI has done in the open source community by maintaining a noticeable resemblance.

    Does any one know if OSI has a parallel thread on their site(s) discussing this issue?

  69. Pingback: Open source, dibattito sul logo per l’hardware | infropy - information entropy

  70. What’s the difference what will be the sign of the trade mark. The main thing that the association has not retreated from the principle and goal.

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  72. Pingback: PCB arena » “I am …” freelectronic (open source hardware logo)

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