Bacula Systems Trademark Guidelines
BACULA SYSTEMS RESERVES THE RIGHT TO CHANGE THESE GUIDELINES AT ANY TIME. YOU SHOULD PERIODICALLY CHECK THESE GUIDELINES TO BE SURE THAT YOU ARE IN COMPLIANCE.
Bacula Systems has been an active contributor to the Bacula open source community. One of the key features of open source software is that anyone has the right to copy, modify and redistribute the software, subject to the terms and conditions of certain license agreements or copyright emissions, such as the GNU General Public License. It is important to understand that, although Bacula Systems allows third parties to replicate its open source software under the GNU GPL, absent a written agreement or other express permission it does not allow third parties to use its trademarks. For example, absent a trademark license from Bacula Systems, a party would have the right to copy, modify and sell Bacula Systems’ opensource software, but they would have to call it by another name.
Bacula Systems has always been fully supportive of open source rights with regard to copyrights and demonstrates that support by releasing the software we develop under open source licenses. This document is designed to provide guidance on how the software developed and marketed by Bacula Systems may be copied, modified and marketed by others, with particular emphasis regarding appropriate use of the Bacula Systems trademarks.
A Brief Introduction To Copyright And Trademark Law As They Relate To Software
The guidelines in this document are based on United States law. Although many countries follow the same principles discussed below, the laws of other countries may also differ on some points.
Copyright
Copyright law protects the expression of an idea. When Bacula Systems develops new software, it owns the copyright in the software. Bacula Enterprise® consists of hundreds of file, some developed by Bacula Systems and many developed by other members of the open source community.
At the same time, the combined body of work that constitutes Bacula Enterprise® is a collective work which has been organized by Bacula Systems, and Bacula Systems holds the copyright in that collective work. Bacula Systems then permits others to copy, modify and redistribute the collective work. To grant this permission Bacula Systems usually uses the GNU General Public License (“GPL”) version 2 and Bacula Systems’ own Support License Agreement.
Although software licensed under the GPL is “open source software,” Bacula Systems retains ownership of the copyright in its collective work. If someone violates the GPL regarding that collective work, only Bacula Systems, as the copyright owner and licensor of that collective work, has legal authority to enforce the GPL against the violator. Although Bacula Systems “owns” the collective work, in licensing it under the GPL, Bacula Systems grants broad rights in the collective work to others. Neither the GPL nor Bacula Systems’ Support License Agreement grant any right to use Bacula System’s trademarks in the redistribution of the collective work.
Protection of Trademarks
Under trademark law, owners of trademarks who use their trademarks improperly or who fail to police the use of their trademarks by others may lose their rights in those trademarks. For instance, now-common words such as “zipper” and “elevator” were trademarks at one time. Their owners allowed the marks to be widely known and used as generic names for the associated products, and, as a result, all trademark protection was lost. Some examples of trademarks that are protected by their owners at great lengths today from such “genericide” include Kleenex® brand facial tissues, Band-Aid® brand bandages and Xerox® brand photocopiers.
In addition to monitoring the use of trademarks by others, policing also requires maintaining control over the nature and quality of the goods and services that are marketed under the trademarks. Bacula Systems has filed a regrastion for the trademark Bacula Systems™ and the Bacula Systems logo in the United States Patent and Trademark Office. Our unregistered trademarks are also protected under trademark law. Unregistered trademarks of Bacula Systems include, but are not limited to, Bacula Enteprise Edition™, Bweb Enterprise Edition™, and BAT Enterprise Edition™.
“Fair Use” of Trademarks
Although a trademark owner should take action to police the use of its trademarks by others, it cannot prevent others from using its trademarks under all circumstances. For instance, a company may refer to the trademarks of competing products in marketing its own products. As an example, Burger King might choose to state in advertisements that “Burger King® french fries were preferred over McDonald’s® french fries in a taste test.” Although McDonald’s® is a trademark of McDonald’s Corporation, Burger King could mention it in its marketing in this fashion so long as the statement is truthful and not misleading, does not imply an improper association with or sponsorship by McDonald’s and otherwise complies with applicable laws.
A key element in evaluating whether the use of someone else’s trademark is acceptable is whether the use is likely to cause confusion in the marketplace as to the source or sponsorship of a product. Burger King’s use of “McDonald’s®” in the statement above is not likely to lead consumers to believe that Burger King® french fries are a product of McDonald’s or that Burger King® french fries emanate from or are sponsored or approved by McDonald’s Corporation.
Use of Bacula Systems Trademarks
It may be that some companies or individuals are producing CD-ROM and other products that contain the software which Bacula Systems distributes as Bacula Enterprise™. Although they are entitled to do this under the GPL and other applicable licenses, they do not have the right to use the name or brand their products “Bacula Systems” or to use the Bacula Systems trademarks in any way on their products or in related advertising, except under certain limited circumstances (See the sections entitled “Fair Use of Trademarks” and “Publishing And Marketing Bacula Enterprise™ That Has Been Modified”). Doing so would cause confusion among the customers who purchase those products, because they may believe they are purchasing a product produced or sponsored by Bacula Systems SA. but, in reality, it is a product of another company altogether.
To address this issue, we have developed the following guidelines for the use of our trademarks. These guidelines are designed to serve both consumers of open source products, to ensure that they know the source of the products they purchase, and publishers of open source products, so that they can avoid improperly generating confusion in the marketplace.
A. Use of the Brand “Bacula Systems”
Bacula Systems™ is a registered trademark of Bacula Systems SA. and may be used only with Bacula Systems’ express written permission. You may not use “Bacula Systems” or any confusingly similar mark as a trademark for your product, or use “Bacula Systems” in any other manner that might cause confusion in the marketplace, including in advertising, on auction sites, or on software or hardware. The only way to obtain permission to use Bacula Systems’ trademark is by entering into a written license agreement with Bacula Systems SA, signed by both Bacula Systems and the licensee or by qualifying under or complying with the ‘‘Trademark Permissions’’ set forth in these Guidelines. Absolutely no exceptions. If you are a publisher of software, books, t-shirts or any other products, you may not use the Bacula Systems trademark unless you have entered into a written agreement with Bacula Systems that allows you to do so or you qualify for use under the ‘‘Trademark Permissions.’’ If you are a consumer of a product that contains the Bacula Systems trademark, and you believe it is not an official product of Bacula Systems SA, please bring it to our attention by contacting Bacula Systems SA, Legal Affairs, Rue Galilée 5, 1400 Yverdon-les-Bains, Switzerland.
B. Use of the Bacula Systems Logo
The Bacula Systems logo is also a registered trademark of Bacula Systems SA. It may not be used on any products without Bacula Systems’ express written permission. The only way to obtain permission to use the Bacula Systems logo is by entering into a written license agreement with Bacula Systems SA, signed by both Bacula Systems and the licensee or by qualifying under or complying with the “Trademark Permissions” set forth in these Guidelines. Absolutely no exceptions. If you are a publisher of software, books, t shirts or any other products, you may not use the Bacula Systems logo unless you have entered into a written agreement with Bacula Systems that allows you to do so or you qualify for use under the “Trademark Permissions”. If you are a consumer of a product that contains the Bacula Systems logo, and you believe it is not an official product of Bacula Systems SA, please bring it to our attention by contacting Bacula Systems SA, Legal Affairs, Rue Galilée 5, 1400 Yverdon-les-Bains, Switzerland.
C. “Plays On Words” And Other Actions That May Cause Confusion Are Also Prohibited
Bacula Systems SA has spent time and money to establish goodwill in its products, services and trademarks. As a result, you may not use the words “Bacula“ or “Bacula Systems“ (together or individually), words with similar connotations or pronunciations, translations of those words, or other words that may cause confusion in the market as a trademark for your products. Some examples of prohibited uses include, but are not limited to, “Baculer”, “Baculer Systems” , “Bakula”, “Back-Yu-La”, and “Bachula”
The Relationship Between Bacula System’s Trademarks And Our Bacula® Enterprise Edition™ Software
Bacula Enterprise™ is a collection of many different software programs, developed both by Bacula Systems and othermembers of the open source community, which we gather and build to create “Bacula Enterprise™ .” All software programs included in Bacula Enterprise ™ are PGP or GPG signed, or otherwise authenticated, by Bacula Systems to indicate that Bacula Systems built them. We make Bacula Enterprise™ available via software products on CD-ROM as well as free download on the Internet through our ftp site and other authorized electronic download sites. We give each new release a version number, which is usually expressed in the format “Bacula Enterprise™ X.X.” As of July 2010, the most recent version number is Bacula Enterprise™4.0.1. As a licensee under the GPL and other applicable licenses, you have the right to make changes to Bacula Enterprise™ software and can market and distribute those changes according to the terms of the license. Those changes may include making modifications to certain portions of the software, adding new components that were not included by Bacula Systems, or removing components that were included by Bacula Systems However, you may not call or brand your resulting product “Bacula” or “Bacula Systems”, or use any Bacula Systems trademarks on your product or in any related advertising in any way. Once you have made changes to the software, it is no longer the same as the original, and as a result, it is inappropriate to name it or brand it as though it is.
Bacula Systems does not restrict the rights granted to you under applicable copyright licenses to copy, modify and redistribute the software contained in Bacula Enterprise™ . We encourage you to take full advantage of your rights under the copyright licenses with respect to the software. However, it is important that our customers and the public at large are easily able to determine which products are Bacula Enterprise™ and which products are versions of Linux-based operating systems, including modifications of Bacula Enterprise™ , distributed by parties unaffiliated with Bacula Systems.
Guidelines For Marketing Software Products Containing Unmodified Bacula Enterprise™ Software
As a licensee under the GPL and other applicable copyright licenses, you may replicate the software contained in Bacula® Enterprise Edition®, whether downloaded from an FTP site or other electronic download site or copied from a CD originally produced by Bacula Systems, and may market the replicated product in accordance with the terms of the copyright licenses. However, it would be confusing to consumers if you identify such a replicated product as Bacula® Enterprise Edition®. If you do not qualify under and comply with the “Trademark Permissions” but want to produce and market copies of Bacula® Enterprise Edition® software, as it is developed and released by Bacula Systems without modification, you may do so, provided you strictly follow these guidelines:
A. You must comply with all applicable copyright licenses for the software and the guidelines in this document.
B. You may not name or brand your product “Bacula Enterprise™,” “Bacula Systems Enterprise Edition™,” or use the Bacula Systems trademarks in any way, either on your product or in advertising. You must use a different trademark for your product that will not cause confusion with the trademarks of Bacula Systems or another party, will not indicate or imply that your product originates from or is sponsored or approved by Bacula Systems, and which otherwise complies with applicable trademark laws. Please also refer to the guidelines for use of the brand “Bacula Systems” and for plays on the words “Bacula” or “Bacula Systems.”
C. You may not state that your product “contains Bacula Enterprise X.X.” or “ Bacula Systems Enterprise Edition X.X.” This would amount to impermissible use of Bacula Systems’ trademarks. You may resell the boxed version of your software that you purchased from Bacula Systems so long as you sell the original discs and documentation included with the boxed version. However, if you have registered the product with Bacula Systems for purposes of obtaining support services, you may not transfer your right in those support services, and you must advise the purchaser that they are not receiving support services.
D. You must modify the files identified as Bacula Systems logos so as to remove all use of images containing the “Bacula Systems” or “Bacula” trademark or the Bacula Systems logo. Note that mere deletion of these files may corrupt the software.
NOTE: The some of the software we distribute may include some proprietary products. If you wish to distribute any of that proprietary application software, you must obtain a license to do so from the owner of that proprietary application software. Please do not copy any proprietary application software contained in our releases unless the license for that software permits you to do so or you have obtained a separate license from the owner of the proprietary application software.
Example and FAQ
Julie Jones decides to download Bacula Enterprise™ 4 from Bacula Systems’ site. She makes no modifications to the software and manufactures CDs containing Bacula Enterprise™4 and no other software. She wants to market her CD’s.
Q: Can she sell the CD’s?
A: Yes, provided she follows the guidelines stated in this document, the applicable license agreements for the software, and provided she abides by all other applicable laws.
Q: Can she call or brand her product “Bacula Enterprise”?
A: No, not unless she has received express permission from Bacula Systems either in writing or by qualifying and complying with the “Trademark Permissions”. Such unpermitted use would be an infringement of the Bacula Systems trademark and would cause confusion in the market among consumers as to the source of the product.
Q: Julie decides to brand her product “ Jones Backup.” On her product packaging, she prints “ Jones Backup” in the upper left corner in a large typeface. In the middle of the product, she prints in a smaller typeface “Contains Bacula Enterprise™4.” Is this acceptable?
A: No. Such use of “Bacula Enterprise” violates the guidelines regarding Bacula Systems’ trademarks and is likely to cause confusion in the market.
Q: Can Bacula Systems determine what price Julie charges for her product?
A: No. Julie may charge any price she wishes, including a price substantially less than the prices charged by Bacula Systems for its products.
Publishing And Marketing Bacula Enterprise Software That Has Been Modified
As a licensee under the GPL and other applicable licenses, you may make modifications to the software contained in Bacula Enterprise or Bweb Enterprise Edition and may market the revised product in accordance with the terms of the licenses. In order to do this, you must follow these guidelines:
A. You must comply with all applicable licenses for the software and the guidelines in this document.
B. You may not name or brand your product “Bacula Systems,” or use the Bacula Systems trademarks in any way, either on your product or in related advertising. You must use a different trademark for your product that will not cause confusion with the trademarks of Bacula Systems, will not indicate or imply that your product originates from or is sponsored or approved by Bacula Systems, and which otherwise complies with applicable trademark laws. Please also refer to the guidelines for use of the brand “Bacula Systems” and for plays on the words “Bacula Systems .”
C. You may not state that your product “contains “Bacula Enterprise X.X or Bweb Enterprise Edition X.X” This would amount to impermissible use of Bacula Systems’ trademarks. You may resell the boxed version of your software that you purchased from Bacula Systems so long as you sell the original discs and documentation included with the boxed version. However, if you have registered the product with Bacula Systems for purposes of obtaining support services, you may not transfer your right in those support services, and you must advise the purchaser that they are not receiving support services.
D. You must modify the files identified as Bacula Systems logos so as to remove all use of images containing the “Bacula Systems” trademark or Bacula Systems’ logo. Note that mere deletion of these files may corrupt the software.
Trademark Permissions for Bacula® Enterprise Edition® Only – Educational Institutions, Not-For-Profits, Linux User Groups and Aff iliated Individuals
We consider non-commercial redistribution to be any distribution for which you charge no more than the cost of replicating the product and a reasonable handling fee. If any copies are to be distributed to individuals outside your organization, either the label or an accompanying printed document must indicate that: (a) the distribution is provided without any warranties (unless you elect to provide those warranties); and (b) this distribution does not include support (either technical or developer) services from Bacula Systems but that such services may be purchased from Bacula Systems separately. If you are making copies available for electronic download from your site, these same statements must be prominently displayed prior to any download being initiated. (Authorized FTP or Electronic Download Sites, please see below.) This permission is not applicable to Bacula Enterprise™or any Bacula Systems subscription product.
Of course, you are always permitted to redistribute the code without utilizing Bacula Systems’ trademark so long as you otherwise comply with the GNU General Public License and Bacula Systems’ Trademark Guidelines. Please note that if Bacula Systems feels that an activity falls outside of this limited license or you are not a qualified individual or entity under this provision, Bacula Systems reserves the right to revoke this limited license.
Personal Use or Businesses
If you are an individual or business (including allsubsidiaries of such business) and you only intend to use Bacula Enterprise™ personally or, in the case of a business, internally, in the original form delivered by Bacula Systems (or its authorized distributors) or with modifications provided by Bacula Systems, you have permission to apply Bacula Systems’ trademarks to all such internal copies. Please note that without a separate support contract from Bacula Systems, only an original purchased copy comes with installation support. And of course, you are always permitted to redistribute the code without utilizing Bacula Systems’ trademark so long as you otherwise comply with the GNU General Public License and Bacula Systems’ Trademark Guidelines.
Authorized FTP or Electronic Download Sites
If you have requested from Bacula Systems the ability to serve as an FTP orother electronic download site, you have permission to identify the download using the Bacula Systems trademark. If you are using the Bacula Systems mark to identify the download, we ask that you also display the following statement: “This distribution of Bacula Enterprise is subject to Bacula Systems’ End User License Agreement which may be found at www.baculasystes.com/licenses/. This distribution of Bacula Enterprise does not include support (technical or developer) services from Bacula Systems.” Of course, you are always permitted to redistribute the code without utilizing Bacula Systems’ trademark so long as you otherwise comply with the GNU General Public License and Bacula Systems’ Trademark Guidelines. Please bear in mind that you are solely responsible for ensuring that the download you provide contains no modifications from the software you obtained directly from Bacula Systems
All Other Parties
You should contact communications@baculasystems.com, and we will discuss possible arrangements with you.
Conclusion
This document is designed to assist both publishers of Linux-based products and consumers of those byproducts you are aware of violations of them, please contact us at Bacula Systems SA, Legal Affairs, Avenue des Sciences 11, 1400 Yverdon-les-Bains, Switzerland.
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