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OSM - A Poor Performing Board of Directors.

11 Dec 2011
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Most boards are driven by mission and the will to serve, but there are boards that have gone very awry, who act with impunity, and ignore accountability standards and best practices. These are often controlled by a small group supported by an apathetic majority.

Let's once again examine how the board members of OSM fail to ensure that decisions made are decisions of the board and not decisions of individuals on the board. For instance, the goals supposedly set by the board for the 2011 fiscal year were never discussed by the board in a board meeting and no motion was ever made to approve those goals. So what was the outcome - zero, zip, nada. As far as we can tell by the board minutes, the goals were not accomplished. No surprise there.

Yet, now once again, the 2012 fiscal year proposed goals for OSM have never been discussed in a board meeting and there certainly has been no board motion noted in the minutes so far to approve those goals.

There has been quite a bit of talk by Ryan Ozimek about changes to the trademark policies of the board. In fact, he started in August, 2011 by apologizing to the leadership and the community in the Google Leadership Group. In that communication he stated:

The current status of our trademark policy is not of the quality I expect from a project as well-respected as ours, and at the end of the day, the responsibility of ensuring its worthiness lies on my desk.

Emphasis mine. Of course, that is absolutely incorrect. The trademark policy is the responsibility of the board not one individual.

Then on October 25, 2011 Ryan Ozimek stated once again in the Google Leadership Group:

Here's the schedule I've put together for this process.  It's not written in stone, and we have the ability to alter it if we find we need more time, but at least it's a good set of milestones to start moving forward.  All of this starts with a simple, short document in plain English that outlines a new trademark policy.
OSM Board and Trademark Team Input: October 17 - October 28, 2011
Leadership Team Input: October 29 - November 11, 2011
Community Input: November 12 - November 25, 2011
Evaluate Input, Create Final Draft for Community Input: November 26, 2011 - December 10, 2011
OSM Board Vote for Ratification of New Trademark Policy: December 17, 2011

Now, I can understand the schedule slipping somewhat. As Ryan said, nothing is written in stone. But, I have to say, I haven't seen the proposal published on the Leadership Google Group. I haven't seen a blog about it published for the community. I have, however, seen a little bit of back and forth between Ryan Ozimek and James Vasile in the November board meeting minutes. James is an attorney with the Software Freedom Law Center. In the board meeting minutes Ryan and James have the following discussion (emphasis added):

Ryan reports on the progress of the trademark policy discussion. James cautions us against throwing away the learned experience in an effort of reaching a goal of a simple policy.

Ryan responds that this review exercise helps to open our eyes to areas where we can be more effective or communicate more clearly, and that the goal is to be informed by the past, but re-imagined for the future. James warns that we should guard against having complaints replaced by outcomes for which we did not plan. We need to understand the reason for the complexity of our policies, and the reason for each element. Ryan shares that the goal is not so much a change in policy, but finding a way to communicate more clearly. It is a process of refactoring than throwing away lessons and experiences of the past.

And then, without any board action whatsoever -

Action item: Ryan will distribute a refactored version that includes the current feedback from the Trademark team and Leadership teams, to the leadership for further comment. After this has been circulated internally, Ryan will provide the updated policy for community feedback.

So, many things wrong here. First off, to get an action item out of the board, there should have been a motion, second, vote, and approval of the board to take such action. Didn't happen. Second, Ryan is actually arguing with a member of the board who happens to be an attorney concerning Ryan's approach to the trademark issue. And finally, OSM retains an excellent group of trademark attorneys. You don't see one mention by Ryan or the board suggesting that he contact those attorneys for appropriate advice.

In fact, trying to review what OSM has been paying the trademark attorneys over the past couple of years turns out to be difficult. In 2009, the legal fees were $149,252.57. Since OSM hasn't held a declared Annual Meeting for the last several years where they are required by both their own bylaws and New York Law to post the financial summary information along with the Annual Meeting minutes, it was impossible to get the 2010 legal fees for the year. Update: However, the New York Charities Bureau just published OSM's 990 filing on December 14, 2011. Legal fees in that filing were $84,411.  For 2011,  legal fees through October were  $12,194.99. A very significant decline. Of course if the Treasurer of OSM had seen fit to publish the financial report for November as was promised, we would have better information. For now, however, I would hazard a guess that there has been  systematic action to reduce the Joomla! trademark protections by reducing contact with the OSM trademark attorneys - Whiteford, Taylor & Preston, L.L.P.

What was trademarked with the US Patent and Trademark Office (USPTO):

The word Joomla! achieved registration status with the USPTO on 8/5/2008. The mark  ImageAgentProxyalso achieved registration status with the USPTO on 8/5/2008. The mark consists of a design consisting of four "J's" rotated and linked together next to the word "Joomla!". Color is not claimed as a feature of the mark.

Of course, trademark proceedings were also instituted in a number of other countries. No list is publicly maintained to my knowledge of the extent of the trademark activity.

Mr. Ozimek should continue to involve the trademark attorneys in any activity where there might be changes proposed to the existing policies for the following reasons:

"Cybersquatters" (also known as “domain squatters”) are those who use your trademarks or close variations as part of domain names for a variety of purposes, such as, to divert your customers to them, to stop your use of your trademark as a domain name, to generate traffic to their sites, or to trick people into disclosing confidential information.

"Unintentional Abandonment." This occurs when the owner causes or permits the mark to lose its significance as an indicator of the origin of the goods or services. This can occur through a number of means as outlined below.

Naked Licenses. Generally, the licensing of a mark without reserving any rights of "quality control" is a naked license. If a company permits anyone to use its name for just any product, there would be no value left to the name. It would not signify anything. A naked license may result in the mark losing its identity as a symbol of equal quality since there are no restrictions over the products or services that bear the mark. Hence it is deemed an absolute assignment and the mark is abandoned by the assignor.

Widespread Usage. If an owner permits others to use the mark with similar goods, then there is nothing to protect because it no longer signifies anything. A mark needs to be distinctive.

Generic Term. If a mark becomes a generic term then it will be deemed abandoned since the mark no longer identifies a single source of goods or services. You cannot own a generic term like hamburger for the sale of hamburgers, fish for the sale of fish, and the like. A mark can become generic due to widespread usage such as elevator, aspirin, etc.

 The failure to protect your trademark can be deemed an abandonment of your trademark or name or a waiver against enforcement of your rights.

Finally, I note that there are a number of committees indicated in the board minutes. Executive Committee, Capital Committee, Audit Committee,  and License, Trademark and Copyright Committee. None of these committees were approved by the board as required by New York State Law (emphasis added) -

§ 712. Executive committee and other committees

(a) If the certificate of incorporation or the by-laws so provide, the board, by resolution adopted by a majority of the entire board, may designate from among its members an executive committee and other standing committees, each consisting of three or more directors, and each of which, to the extent provided in the resolution or in the certificate of incorporation or by-laws, shall have all the authority of the board, except that no such committee shall have authority as to the following matters: ...

 or the OSM bylaws (emphasis added):

10. EXECUTIVE AND OTHER COMMITTEES.

The Board may designate from among its members, the Corporation's Officers, the Community Oversight Committee, and the public, an executive committee and other committees, each consisting of three or more people. Each such committee will serve at the pleasure of the Board.

About time board members stood for something don't you think? How about the rest of the Joomla! leadership? Something lacking there too if they don't ensure that the board they created performs according to the law and the mission of the board.

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David Huelsmann

Dave Huelsmann was Treasurer of Open Source Matters, Inc. from 2008 to July, 2010 and Joomla Forum Global Moderator from 2005 to November, 2010. Now retired, he was a senior healthcare executive who managed large and diverse clinical laboratory, radiology, electroencephalography, and centralized patient transport operations/departments in both not-for-profit and for-profit companies throughout the United States.

Dave was a Navy Corpsman who served in Vietnam while attached to Seabee battalionmcb71
MCB-71.

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