A blog for the enterprise open source community
Open source and trademarks – a matter of trustMatthew Aslett, May 14, 2009 @ 5:07 am ET
Last week PC World published a blog post that argued that trademarks are a “hidden menace” that, like patents and copyright, “are a weapon that companies can use to battle each other and ultimately restrict the freedom of their customers”.
The post was (rightfully IMO) slapped down, both in the comments section, and by Tarus Balog: used correctly trademarks are vital in protecting the interests of both the vendor and the user – enabling the vendor to protect its brand and the user to have the confidence that they are using a genuine product.
Which is not to say that trademarking is not without its problems, particularly when businesses or individuals trademark common phrases, but when we are talking about the trademarking of vendor or product names there are genuine benefits for both vendors and users.
Open source is no different – just because a vendor is prepared to hand over rights to its code, does not mean that it could or should hand over rights to its brands. The freedom to use open source code is not restricted by trademarks.
However, given the community aspects of open source distribution and development, the issue of trademarks is perhaps not always black and white when it comes to open source projects.
Nagios creator Ethan Galdstad discusses trademarks in a great post related to the recent forking of the open source systems monitoring software, noting that open source requires a more lenient view of trademark policy – but one that has firm limits and is firmly enforced.
“Would I or Nagios Enterprises attack individuals or groups of individuals that are using (and perhaps even “violating” in a legal sense) the Nagios mark when they have no commercial intent and their usage of the mark actually benefits the Nagios brand and project? Absolutely not. That would be tantamount to insanity. It would kill the project, and as a result, the brand.
But does that mean such usage by individuals will have no regulation or restrictions placed on it? No. We need to ensure the integrity of the brand and how its used – even by individuals within the community. Failing to do so can cause enormous problems for everyone.”
The important issue here is that the trademark is used in a way that establishes trust and enforces the brand, rather than undermines it. That cuts both ways.
Meanwhile an Ubuntu bug report this week indicated that open source vendors also have to be careful about their own use of trademarks in order to avoid creating disharmony. The report relates to Ubuntu One, Canonical’s new file sharing project and finds Tony Yarusso pointing out that the usage of the word Ubuntu in the context of “Ubuntu One” is inconsistent with the Trademark Policy.
Tony’s specific complaint is that “The service is not Ubuntu and… merely runs on and works with Ubuntu, on equal footing with other applications like Apache, Firefox, or an Ubuntu user’s blog.” As such he believes that it is “attempting to capitalize on the brand, which is… explicitly prohibited.”
In response several people pointed out that as Canonical owns the Ubuntu trademark it is not possible for the company to infringe the trademark. While that may be legally correct, clearly Tony sees this as a case of Canonical wanting its partners and users to ‘do as I say and not as I do’.
And he is not the only one. As Corey Burger pointed out “yes, Canonical owns the Ubuntu trademark. However, it is accountable to the larger Ubuntu community for use of that trademark and I think this use violates that trust and accountability.”
The issue has been nominated for discussion by the Ubuntu Community Council and goes to show that while trademarks are not a hidden menace, they are something around which vendors need to tread carefully.
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