WEBVTT

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Many, many years ago in this bedroom, I believe it was the third edition, some 2012-13 timeframe.

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A talk was given that has been widely considered the seminal most important and best talk

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ever given on trademarks and foss.

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It is referenced everywhere because it is the best explanation of how trademarks and foss

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interact.

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So what we are about to learn from our speaker, Pam Chestick, is will today now be the best

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most important talk on trademarks and foss or will be the second best talk.

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Pam, can you out to yourself?

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Give it a try.

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Wow, could you set the bar a little higher for me on that?

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Please, Louise.

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To be one, two, three, four, four, five.

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All right.

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So here, so here I am, how does hindsight have 80% of a commodity market leveraging trademarks

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and free software?

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So this is kind of, it is a great introduction because this is kind of a continuation

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where we are, you know, 12 years, 10, 12 years later from that sort of trademarks 101

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introduction that I first gave.

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So just about myself, I have been, I have been practicing trademarks law for about, let me

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just do my, for about 25 years and I have been working in free software for about 15 years.

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So I know where I am coming from on this.

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So just kind of a background are here.

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What is a trademark?

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Now what I want everyone to do, everybody has these preconceived notions, trademarks are

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territorial.

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So depending on what country you come from, you have maybe a preconceived notion about

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what a trademark is and you probably are thinking about registration and rights and all sorts

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of things like that.

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I want you to put that aside because what we are drilling down to is fundamentally what

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is a trademark and what does it mean?

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The trademarks have existed long since laws existed for trademarks and there is a reason

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for that.

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So this is the premise that I want you to think about.

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So a trademark is a word plus the concept of goodwill.

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So if I say to you, master done, you're going to think one thing you might think is it's

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a prehistoric, prehistoric mammal that is now extinct, right?

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That's one meaning of master done.

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Given this audience, I suspect that a lot of you jumped to a different conclusion when I

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said master done, which was a social media website.

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So the difference between the animal and the concept and this concept of social media,

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website is the difference between just a word and a trademark.

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It is a trademark as a word could be a logo too, but I'm just focusing on words here

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that has this additional information that you have a mental association with.

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And so that mental association is what's tied to it is reputation.

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So it's not just you're sitting here saying, well, I also know that the word master

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done means a social media network.

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You also may have an emotional response to that word.

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You may have positive feelings, so you may have negative feelings about that.

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So you may, for example, say, great, it's federated.

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I have a positive value for that, or you can say it's really hard to find people to follow

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on it, which may be as a negative connotation.

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But all brands have, that's what makes it a brand versus a word is this additional association

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you have with it.

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So that's what I want you to think about is trademarks as having this additional value.

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It's not just a word, registration, that's a legal system that's overlaid on top of what

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trademarks are.

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We're not worried about that right now.

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We're just thinking about this fundamental value of a trademark.

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So, oh, actually, let me just back up to the second part of that slide.

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Which is, see, you've got to go back up there.

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So the goodwill is, so that's your reputation.

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And when you let someone else your trademark, you are letting them benefit from your reputation.

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I think of that about it is if I give my driver's license to someone else and let them

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go in the bank, like, would I do that?

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No, I don't do that because they're relying on my identity for something and do I trust

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them with that?

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Yeah, maybe I let a spouse do that, right?

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But I'm not going to let a stranger on the street do that, no, I'm not going to.

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So that's what this trademark is, is it your reputation?

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So just very fundamentally, on a very fundamental, again, sort of, you know, normative basis,

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what does trademark law do?

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It just protects consumers from confusion.

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The focus here is consumers, are they confused about what is what?

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That is, essentially, the sole measure of the legal wrong is, is their confusion.

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Now, they're all sorts of doctrines around it, there's nominative fair use and there's, you

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know, just all these things going on that are ways that the law has distilled out to reach,

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to get an answer to this fundamental question.

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But really it just boils down to, is, is their confusion or not?

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Are the consumers confused with a consumer protection motive behind what's going on?

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And so, as a consequence of that, if your trademark practices don't protect consumers from

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confusion, that you may lose your trademark rights because it's not performing, it's, it's

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not performing, it's function.

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And when I talk about confusion, it's not just, there can be, there are several kinds of

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confusion, several kinds of relationships.

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So it can be confusion about source.

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Did the same person make this?

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Is this the same item?

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When I go to the grocery store and I take a can off the shelf, is this the same manufacturer?

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Is the last time I came into the grocery store and took that can off the shelf?

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That's source confusion.

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I could have confusion about whether or not there is a sponsorship relationship.

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So if someone says, if someone endorses, endorsement or sponsorship, so if I stand behind

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it, if I say, you know, you see it all the time on websites where these are our customers,

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and they have this, what I call a wall of logos.

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And that is what they're trying to convey is that these people haven't endorsed us.

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They don't, we're not, we're not saying that they made the same product, we're saying

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they endorsed us, and we're getting value from that endorsement from them.

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So, so, trademark law is not just, you know, you have a lot of people say, well, you

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know, only an idiot can be confused, but it's about a larger type of relationship, not

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just the manufacturer and relationship.

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And the way that it's characterized under European law is to people think that there's

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a financial link between these two, and that's the way, I find that very helpful is

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that it will people not perceive that someone made it, but are they perceiving that there's

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some kind of financial link between these two entities when they see the trademark being

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used.

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So, next, this is, it's happening less and less, you know, ten years ago, there, I

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heard a lot of, so I was doing trademark law on this field, and there was a lot of sort

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of like, well, we can solve the trademark problem, we'll just license it the same way

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that we license the copyrights.

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Like, and there are all these grand schemes on how to do copy, copy, left, trademarks.

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That's not, that's not the point.

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So trademarks are not just this sort of other pesky IP that's hanging on copyright and

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patent that we're trying to figure out how to override or how to release from those

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barriers, trademark has an entirely different purpose, which is consumer protection.

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So copyright and patents, the laws behind copyright and patents are designed to incentivize

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the producer to produce those, that's why those laws exist.

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But trademarks, as I said before, trademarks to protect the consumer, so the policy basis

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behind the trademarks is entirely different from the policy basis behind, but behind patents

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and copyright.

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So just, so we need to keep that in mind.

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So, yeah, so instead, the user, the intent of the trademark is to protect the users

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so that they know what they're getting.

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And this is, I'm quoting myself here on this one.

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Someone else quoted in a paper and I was like, boy, did I say that, that's not bad.

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So trademarks are the only proprietary right that can be fully exercised by open source

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products or projects.

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You have given a copyright license, you've given patent license, you can't exploit those

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for purposes of advantage, the one you can exploit is trademark.

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And then this, as an example of this, of sort of the use of a trademark and an open source

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project, this, I didn't see a whole lot of press around this, but I thought this was interesting.

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So Mike Dolan at the Linux Foundation, testified in court because someone was using the Linux

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Foundation Project on X, trademark for phishing.

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And so the Linux Foundation cooperated with the US government in order to stop this phishing

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program and did it through trademark a lot because consumers were confused, consumers were

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being misled by this improper use of the trademark.

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So that's, that's sort of the paradigm use of trademarks and we've seen this in, you know,

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as Firefox many years ago, also had the same problem.

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But it's still alive and still happening is the value of the trademarks to protect the

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consumers.

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Did it have to be registered for them to be able to exploit this costability?

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In the US, no, that's one of the differences that will cross jurisdictions is whether or

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not has to be registered in the US, no, and this was a US, but it is registered, I believe

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it was a registration, that adds a lot of valuable benefits and this would, you know, this

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would be one of them.

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So, all right, now that we kind of have, I have you in my universe of what trademarks mean,

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we're moving on, all right, great.

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So you have a software, you have a free software project and what have you done?

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You've created a commodity.

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So what do I mean by a commodity?

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So a commodity is a basic good and material interchangeable with other goods of the same

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type regardless of who produced it.

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So free software is a commodity because the copyright license lets anyone copy it.

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So, you know, that's kind of the point, that's why we're here, is that anybody gets

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to reuse your software.

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But what is, so how do you, how do you make money off of something that's a commodity?

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What happens all the time?

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And this is taken from Robert Young, who was one of the founders of Red Hat and it's a

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really interesting chapter in voices from the revolution, if anybody was familiar with

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that book.

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And in which he said, and they were trying to explore, Red Hat was trying to explore

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how do we make money off of software that everybody else in the world can also create

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identically.

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And he said, and they thought about it and one of the things they thought about, they

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said, Heinz owns 80% of the market, not because Heinz tastes better, he said, ketchup

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tastes the same.

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People don't even like, people in cultures without ketchup don't like ketchup.

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But Heinz has 80% of the ketchup market because they have been able to define the taste

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of ketchup in the mind of ketchup consumers.

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And he goes on to say, like, now we think of ketchup coming slowly out of the bottle as

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being a good quality in ketchup, as we can't get it out of the bottle, right?

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Because they did a lot of marketing about that, about how thick it was in rich, because

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it doesn't come out of the bottle.

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Another commodity that I think had a brilliant advertising campaign is Morton Salt.

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I don't know outside the US, I don't know if they had the same campaign, but it was the

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young girl who had a, she was carrying on umbrella, and she had a canister of salt into

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her arm, and it was upside down, so it was pouring out.

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And the point being is that the salt doesn't clump up in humidity.

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When it rains, it pours, was the tagline for it, but again, Morton Salt captured a huge

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amount of the market for a commodity product salt, because they were able to convince consumers

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that what they had was the other producers' benefit, and that value is manifested in the

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trademark.

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So when I go in the store, I buy Morton Salt, because for I've been convinced, you know,

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from years, from advertising since I was a little child, that Morton Salt is better than

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any other salt, and the reality is it's identical to every other salt, but I buy it.

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So now let's bring it back to open source software.

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What makes your catch up the one consumer's customers want to buy?

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So it's not the software, we've just said it's not that, it's commodity, everybody can

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make it.

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What are those values?

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So, and I do wonder, when we see a lot of, when we see open source software projects who

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transition to a proprietary license, or a non-free license, source available, maybe or something,

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and maybe I'm wrong about this, this is just my personal thought on it, is that these

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are people without imagination, because copyright has been used, because copyright law has

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been used as the way to monetize software, the exclusivity, you know, the infringing, if

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you don't have a license there, where you have to pay for the license for it, that that

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is so baked into our software industry, that when you get venture capital involved or

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you get competition involved, people just can't think beyond, I lost my exclusivity,

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I need to regain that again, and so they then will switch a license to one that allows them

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to do that straight financial transaction of, you pay me money in order to get a license

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to use the copyright, like you have to pay for the privilege of that license of that document

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that allows me to use it.

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So, and to me, that's an absence of creativity, that Red Hat was forced into, because it was,

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you know, it was a company that started on an existing software project, had they invented

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the software, had they written the code, would they have picked a GPL for it, maybe not,

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because maybe they wouldn't have had the vision either, but they sat there with this

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product and said, how do we have to, how do we gotta figure out a way to make money from it?

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So, this is, I think this is an analogy, so this is about the music industry, and this

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is Mick Jagger said in, oh, in 12, oh, one, oh, I'm supposed to be 2010 on the footnote

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there.

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So, Mick Jagger said, when the stone started out, they didn't make any money out of

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records, because record companies didn't pay you.

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There was a small period from 1970 to 1997, where people did get paid, and they got paid very

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handsomely, they did make money, but now that period is done.

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Now, the 1997 there is referring to music fall sharing, and so that was a well, though, that

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was very disruptive in the music industry.

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I think that he pegs 1970, so recorded music started, what late, late 1800s, early 1900s,

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but think about the centuries that there was no recorded music, and music existed, the

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musicians made a living, but they didn't make that living off of distributing copies of their

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music.

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They had other business models that allowed them to monetize their ability to make music.

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So I'd just like to think about this, there's a short period of time, from our microscopic

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perspective on history, we're familiar with the recorded industry, the recorded music industry,

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and that's how they monetize this by selling copies of the music.

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But that has not been true for most of the history of music.

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So I'd just like to keep that in mind as an analogy to think about.

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So now you have your software project, you can't monetize the copyright, because it's free

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for everybody to take, everybody gets to copy this software, but you want to make money.

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Or you have some other motive that you want to, doesn't necessarily have to be money.

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But these are some of the value propositions that you may be able to convey that are going

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to be manifested in your brand, or the things that you can sort of sell as what value

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you add, what is your value adds to the commodity that other people don't have.

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And it's all marketing, this is all 100% marketing, or true, I mean, hopefully, truthful

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marketing.

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But so you may have greater familiarity with the software, you may have early knowledge

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in the mode, the roadmap, you may be able to direct, you may be able to influence the roadmap.

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Because of your knowledge, you may be able to customize it more quickly, you can manage

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the complexity of it more quickly, particularly for like a distribution of full distribution

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rather than a single product, that you can manage it, you may have more accurate, more

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reliable builds.

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It's your familiarity with the product that is a piece of, that can be a piece of your value

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proposition.

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Now, this is going to be very specific to the software.

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I think if you were thinking of monetizing open source software, the first thing you do

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is you sit down and figure, and do the red hat exercise red hat was forced to do, which

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is what am I bringing into this, what is my value add, I can't just sell licenses, which

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is the easy way out, what is my value add to it that I can bring, and really think

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long and hard about what it is that you're going to be bringing to the table, that you

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will then market, that will then become associated with the brand.

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Another classic statement, no one gets fired for using IBM, you want to be the IBM

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that people have.

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So even though someone else is offering a better, not a better, I should say, an equivalent

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product, because they have exactly the same source code, you have proven that you have

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some value that is worth some positive value that is worth having so that people will

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be a return buyer, a return user of your product.

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I do also want to talk about here, and this is kind of a topic for a second session that

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I'm not giving, which is what trademark, so I do want to put in the air, you don't necessarily

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have to use the same name as the software project.

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There's a desire and a tendency to do that, because you have goodwill that's already been

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built up in that software project name, so you want to take that software, you want to take

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that and leverage that into your business, so people may be familiar with the software

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project, and this is great, I already have brand awareness, I'm going to take this, and

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I'm going to use this for the benefit of my commercial business.

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I think about that, because once you've done that, what you've done is you have tied

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your brand value to the project itself, so when the two diverge, you are kind of stuck

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with each other, you're kind of stuck like glue, so I've say the project, and this

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applies even if you're both the founder of the project and the founder of the company,

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still think about it, because, say for example, there's a catastrophic failure in the software

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that causes billions of dollars of harm, and you have your little company over here doing,

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do you want to be associated with that, or maybe you want to be able to put some distance

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between the two, so just think about what happens if something goes wrong with one of

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the other, and what might that do to one or the other, just something, again, another

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topic altogether, but just something to think about.

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So great, we're going to use trademarks, it's great, we're going to have a brand, we're

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going to leverage it, okay, when will you have gone too far?

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These are the things that you, as the trademark owner, have to worry about, one is an uncontrolled

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licensee who's misleading users, so if you just say, like, everybody gets to use the trademark,

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that's called a naked license, and what has happened in all these, these scenarios on this

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slide is your trademark has lost its source identification value, if everybody is, if everybody

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is using a trademark and claiming to be that thing, then it's lost its value of this

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sole source identifier, which is what a trademark is.

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I want my name to be on everybody's lips, which we call, once it becomes the generic name

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for the product itself, then it's not, again, it's not a source identifier, it's become

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the generic name, the ethernet was a trademark, it was a registered trademark, it's not a trademark,

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right, ethernet is ethernet, we know what that is, you don't want that to happen, and

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then giving permission for something that causes confusion, where you tacitly approve

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of someone creating confusion, and that also will be, as a matter of equity, as a matter

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of fairness, to someone who relied on your say so that it was fine, you may lose your

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trademark rights, and you certainly will not certainly, but you probably lose them against

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as to that person, if not altogether.

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Just an example of very recent news in the news recently, the original, the terms and conditions

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for WordPress said the abbreviation WP is not covered by the WordPress trademarks, and

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you are free to use it in any way you see fit, right, right there, anybody gets to use

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WP, only now they have changed to say the abbreviation WP is not covered by the WordPress

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trademarks, but please don't use it in a way that confuses people, right, they change

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that.

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So that's a situation of a license, that's a license that was, we can argue it's a license,

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it was granted to the WP trademark, did I go, let's see.

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And this one slide about WordPress, I don't know if it's on your mind or not, I'm riveted

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to it, automatic is trying to leverage its trademark for reasons other than a concern about

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trademark infringement.

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There was recently a preliminary junction against automatic issued by a US court, because

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if it's other behavior, it's sort of like remember they had the checkbox and the log-in,

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and they blocked it all, but anybody from WP engine, the court ordered them to reverse

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that, to restore it to what it was before, and nothing was said about the trademark in any

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of this preliminary junction, and any of the proceedings thus far.

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So I think WordPress was just using its trademark, going back to what I say is the only leverage

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you have is the trademark, and they tried to leverage that, but maybe in a way that's not

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quite right.

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Questions?

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One question, no, I'm so sorry, tonight.

23:51.060 --> 23:52.060
One question.

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Okay, that's difficult.

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I go enough time on your slides to leave plenty.

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Like, you picture you're going to go through them in 15 minutes, isn't it?

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Lazy option, first rule?

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Yeah.

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So Pam, you said something about trademarks can also be used for controls while

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it's branding.

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Most famously in the Missile of Versus, Debbie, and I suesle Firefox, but early on in

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your talk, you said, Europe regards financial tie as being key to the definition of using

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a trademark in the market, and the US is going that way.

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In the spat-worth, Missile of Versus, Debbie, and to change the name, there was no financial

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tie.

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Does that mean the ability of open source to use trademarks to control how their software

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is used is going to die in the marketplace in the future, first in Europe, and then possibly

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later in the US?

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So no, actually, I was using that example as sort of it doesn't have to be source

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confusion.

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It can be other kinds of confusion, and that other kind of confusion, if you think about

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it as a financial link, the Debbie and Versus, Missile was a source confusion situation

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because what was in Debbie in Missile's viewpoint was not authentic software.

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It was because it had been modified.

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So there is a principle of law, like when you modify, it's not the same thing

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anymore.

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Do you still get to call it the original thing or not?

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If I take a Rolex, if I take a time-ex watch, and I put diamonds around the bezel to make

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it look like a Rolex, can I call it a Rolex?

25:19.940 --> 25:20.940
Can I call it a Rolex?

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No, that's a source confusion problem is what you are saying people are getting is not authentic.

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It's basically, what you're saying is it can be a counterfeit, can be considered a counterfeit.

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They didn't go that far.

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Missile didn't go that far.

25:36.340 --> 25:40.060
So unfortunately, we don't have time for not a question, so thank you very much.

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Pam?

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Thank you.

