Further on Perl Camel

Get enough of Perl logo discussion?

You would well take a little bit more! 😉

(Picture from Askar Abayev)

I know some people think it's not worth the pain discussing again, but I suppose it's because they don't have the same needs than me and some others 😀

What if you want to use a logo to illustrate a Perl blog? What if you want to use an icon to illustrate Perl sources files (Ubuntu)? What if...?
You either have to use a random camel or ignore the law...

And it's in Perl roots and inside us to be good at free software.

If you don't know well the context, please go read my post The complex topic of Perl logos

Later, I posted my Open Letter To Tim O'Reilly To Free The Perl Camel on Hacker News and people mentioned about the fact that Perl Camel was a "trademark" of O'Reilly, not a copyright (license).

It is true and it's a fundamental thing to understand.

What's the difference between trademark and copyright

Trademark vs Patent vs Copyright

How is trademarked Perl Camel?

First, just having used the Perl Camel on a book provided to O'Reilly Media a "public statement", then quickly after (in 1998) they secured the trademark via registering trademarks against organisms like United States Patent and Trademark Office (USPTO).

Public statement?

Once a business begins to use a logo to advertise and sell goods or services, they automatically attain common law ownership and the limited protections associated with it—but only if the business can prove it was the first businesses to use the mark. Common law legal protection for a trademark only applies to the geographic area where the business operates. If nationwide protection is needed, then registering a logo with the USPTO is a wise step.

USPTO / WIPO

United States Patent and Trademark Office (USPTO) and World Intellectual Property Organization (WIPO) are organisms where one can register a trademark.

Trademarks are not "global", they apply only in jurisdictions (countries) who recognize it.

We can find USPTO registrations for Perl Camel, I was not able to find one in WIPO (is there any?).

The actual trademark and service mark

"The bottom line is that a trademark represents a product produced by a business (in this case: The Programming Perl book) while a service mark represents a service offered by the business (in this case: O'Reilly selling books). A single business can register both trademarks and service marks to brand themselves."

Trademark

Serial: 75414570
Reg number: 2262465
2nd renewal: 20190828

Camels, both bactrian and dromedary, including heads and other parts uniquely identifiable with camels, and also including stylized, costumed, and those with human attributes

Service Mark

Serial number: 75414568
Reg number: 2209120
2nd renewal: 20181012

You can search and verify by yourself at USPTO Trademark Search System

Trade dress

More in general, covers of animals (camels but also others) on O'Reilly books seem protected under a Trade dress:

"Trade dress is the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is an aspect of trademark law, which is a form of intellectual property protection law.

In the United States, the Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration."

If copyrights have a duration, how long lasts a trademark?

10 years but you can renew (O'Reilly well renews them when needed).

What is the copyright (license) of O'Reilly Perl camel?

Actually, the design was free when O'Reilly decided to use it.

O'Reilly animal designs are copyright free (public domain). It implies it has no restriction and no license.

Edie Freedman and Hanna Dyers designed the Programming Perl cover based on Animals 1,419 Copyright Free Illustrations of Mammals, Birds, Fish, Insects, etc. by Jim Harter

So it's important to understand that Perl Camel is not protected because of any copyright/license or creator but because of its association with O'Reilly and books publishing.

Using Perl shadow camel?

Yes, what about this guy?

Being a derivative of the Perl Camel does not free us from the trademark. Like using Coca Cola logo just replacing with a "Koka Cola" or changing color from red to blue. No derivative can help, design should not recall in any way the initial trademark/picture and, moreover, the association.

Fair use

The concept of fair use refers to some usages of trademarked logo for some limited usage like representing the brand. For instance, using the Perl Camel to write a blog post about the Perl Camel Book or O'Reilly in general is OK.

Fair use is not well recognized everywhere though.

Blanket license

It exists some solutions to delegate permissions, in the sort of "automatic grant of permissions to use". Somewhat like a blanket license. What was done with The Perl Foundation looks like a bit to a blanket license, but with restrictions. The way it was done makes it still very far from making it "free to use".

Expanding blanket license (remove restrictions and do not attach to TPF) is difficult or impossible without an entity (Perl "community" is not what we can call "an entity").

Logo vs mascot

Using camels to represent Perl has become more like a mascot.

My hypothesis and conclusion

I'm not a lawyer 😉

When we talk about trademarks, we don't talk about something really rigorous. For instance it works on some countries, but not all.
When defending a trademark in court, it's not all black and white, it's more like you build a defense with a maximum of documents and history facts to prove your precedence and that you undoubtly own the trademark (and trade dress).

My hypothesis is that O'Reilly never trademarked other animals with books in his entirety but Perl Camel was the first one (to be trademarked, not the first published). Protecting books covers with animals seems to fall under a "Trade dress" protection, built on top of the Perl camel trademark registration (among maybe other registrations). It means Perl Camel trademark can now be used to protect all others. Sadly for us, it is probably then the cornerstone of the whole protection of "O'Reilly Trademark family" (or more appropriately: "menagerie").

It's why if we dream to have it free, we can't reasonably expect to see it happen. And even if O’Reilly would loose total interest in Perl, it would weaken too much their whole family of books.... And they still remain friends that we don't want to hurt too much.