[Discuss] discuss Digest, Vol 9, Issue 27

Matt Maier blueback09 at gmail.com
Thu Feb 28 20:27:51 UTC 2013

 The thing about trade dress protection is that it really only exists after
a judge says it exists, and then it's up to the judge whether or not it's
distinctive enough and has been actively marketed to the public long enough.

I have a hard time with the idea that where you put buttons on the front of
an electronics enclosure will rise to enough of a level of "distinctive" to
actually distinguish your product from other products. Seems like you'd
have to put an awful lot of effort into it, like how Apple puts so much
effort into that one-button on the bottom middle layout.

As for protecting yourself from clones by not releasing your front-panel
source files, that only makes sense if the files have some kind of
distinctive decoration embeded in them, like if the CNC machine carves your
logo into the corner. Otherwise you're saving the cloner (a
professional) like an hour of work measuring the holes. An amateur, on the
other hand, will probably have a lot more trouble recreating a source file
for the panel. So you're creating a larger barrier to entry for the people
you want to participate in the open project, without really slowing a
professional cloner down at all.

Besides, you can always release the files under a non-commercial license
(or any license you feel like making up on the spot). The sort of people
who are going to blatantly copy the product aren't going to care about the
license at all anyway. But you can't get support or participation from the
open source community if they don't have the files to work with.

You could also release an inverted file. Instead of handing out the file
that describes the actual enclosure, release a file that describes the
negative space that needs to be carved out of whatever the enclosure is
made out of. That's totally just function, not form, and it would be easy
for amateurs to just subtract that volume from any shape they want to get a
file that will enclose the project.


> ------------------------------
> Message: 4
> Date: Thu, 28 Feb 2013 11:51:13 -0800
> From: "Windell H. Oskay" <windell at oskay.net>
> To: The Open Source Hardware Association Discussion List
>         <discuss at lists.oshwa.org>
> Subject: Re: [Discuss] OSHW Best Practices / Layers of Openness
> Message-ID: <38F79D03-FC12-4D0C-BBE0-061D38629D50 at oskay.net>
> Content-Type: text/plain; charset=us-ascii
> On Feb 28, 2013, at 11:21 AM, Chris Church <thisdroneeatspeople at gmail.com>
> wrote:
> > Hi Windell,
> >
> > This appears to leave my earlier question un-addressed: physical parts
> of our enclosures are part of our trade dress, must I give the full right
> to reproduce our trade dress (which I would be doing if I shared the
> machining files under CC for our enclosures) to claim my electronics are
> open-source?
> Hi Chris,
>   You are explicitly not required to share your trade dress.  OSHW
> community standards are quite clear about this.
> From the introduction to the OSHW definition (
> http://freedomdefined.org/OSHW ):
> "[...]persons or companies producing items ("products") under an OSHW
> license have an obligation to make it clear that such products are not
> manufactured, sold, warrantied, or otherwise sanctioned by the original
> designer and also not to make use of any trademarks owned by the original
> designer."
> Usually, with printed logos and so forth, this is pretty straightforward:
> Just leave those decorative trademark elements out of the design files when
> preparing files for OSHW documentation.
> However, if you are also claiming your functional front panel layout--
> where the holes for components are located, for example --as part of the
> trade dress, that's your choice.  But it is a choice that is incompatible
> with labeling that portion of your product as Open Source Hardware.
> Does putting OSHW inside a proprietary box of your own design make the
> stuff inside non-OSHW?  No, I don't think so.  But I do think that you that
> it prevents you putting an overall label of "OSHW" on the product.
> Cheers,
> -Windell
> Windell H. Oskay, Ph.D.
> Co-Founder and Chief Scientist
> Evil Mad Scientist Laboratories
> 175 San Lazaro Ave, STE 150
> Sunnyvale CA 94086
> http://www.evilmadscientist.com/
> ------------------------------
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> End of discuss Digest, Vol 9, Issue 27
> **************************************
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