Trademarks - The dinosaur in the room (H Online) [LWN.net]

The H has a lengthy article exploring trademarks and free software. "The issue is trust, and trust goes both ways. Users and developers, who are often involved on a purely voluntary basis, are resistant to the paternalism that is implicit in a Trademark License Agreement, and some view it as a surreptitious method for suppressing criticism. The most contentious clause in such agreements has been the claim to ownership of all domains that include the trademark, illustrated by the clause in the Drupal trademark and logo policy which seeks to deny a trademark license to domains which do not qualify as 'fostering the Drupal software', such as "creating a Drupal fork 'ImprovedDrupal', or 'publishing a website 'drupalhallofshame.com' with pictures of infamous Drupal contributors.'"

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Trademarks - The dinosaur in the room (H Online)

Posted Sep 16, 2009 15:09 UTC (Wed) by Baylink (guest, #755) [Link] (2 responses)

Ok. Having actually read TFA, I have a couple things to say.

First, I wonder if the writer actually thinks that CentOS and Unbreakable are *aiming* to be Red Hat, as he implies. Cause if he thinks that, I think he doesn't understand the marketplace.

Red Hat *hadn't* become a generic term, in my experience, and that was *certainly* not what Bob Young was aiming for. Well, at least not officially, wink wink, nudge nudge, say no more.

I personally think the reason Red Hat prospered was the one we'd all expect here -- they *contributed*, and they still do. A *lot*. Sure; lots of us would like to own (or already do) the actual hat -- but that's because we like the company, not the *reason why* we like the company. Do you have Geico insurance because the lizard's cute?

The Mobilix Incident, for me, is merely evidence that the law is an ass -- does German tradmark law not divide commerce into categories the way American law does? I don't think that comic book characters are going to want to branch out into operating systems as a new line of business...

> The greater issue is that Drupal isn't left vulnerable to unscrupulous competition

Now, we come to an interesting bit.

Trademarks are to protect *trade*. Drupal doesn't *engage* in commerce, do they? They don't *sell* anything, that I am able to see. IACNAL, but this might be a problem for them, anyway. Red Hat, Ubuntu; they actually sell things...

Trademarks - The dinosaur in the room (H Online)

Posted Sep 16, 2009 22:07 UTC (Wed) by rickmoen (subscriber, #6943) [Link] (1 responses)

Jay, a friend once posted that question (about the "use in commerce" requirement embodied in 15 USC 1051(a)(3)(C)) to the Coalition for Networked Information's CNI-COPYRIGHT mailing list. Three members answered as follows (in part):

"Trademarks associate goods or services with their source. Use in commerce does not require a commercial purpose; it's just a term of art limiting the reach of the federal act to its constitutionally prescribed bounds. States have their own similar trademark laws and their enactments require no interstate commerce nexis, and infringement suits are typically filed under both bodies of law."

"With regard to use by the adoptee which qualifies as use 'in commerce' to support a claim of trademark rights, there is a lot of caselaw judicially interpreting the statute, and then there is the caselaw developed with regard to common law trademark protection. As a general rule, you don't have to be making money or be profit-oriented to be making a use 'in commerce.' To understand the parameters of this area, your best bet is to review a treatise such as McCarthy on Trademarks and Unfair Competition, which goes over the basics. Also, federal trademark protection explicitly extends to various quasi-commercial affiliations such as certification (ie there is a special section of the Lanham Act for certification marks, which are not used commercially by the certifying body, but by those entities it has certified)."

"The term 'commerce' is generally considered in the broadest possible sense. A use of a pet name for a friend or family member would not be commerce. The use of that same name to brand anything in general, even if not for profit, would be use in commerce. I could create a Web site called 'Steve's Iluminatifarie Insight Site' and dispense advice or whatever and probably get a TM for it, even though no money is involved and few folk every visit my words of wisdom."

(Even though the mailing list exists to cover copyright issues, the regulars, they don't seem to mind a trademark question once in a long while.)

Rick Moen
rick@linuxmafia.com

Trademarks - The dinosaur in the room (H Online)

Posted Sep 17, 2009 13:12 UTC (Thu) by zotz (guest, #26117) [Link]

My initial, off the cuff take on the proper use of Trademarks in Free Software is that they should only be used to allow the person in the seat of the *user* or *consumer* to know who they are dealing with. For their protection. Not for the protection of the person trading under the mark if that results in lack of protection for the *user*... If by protecting the *user* in allowing them to know who they are trading with, the holder of the mark also derives some protection, great.

I especially don't like the idea I have seen about of using Trademarks as another lever to try for vendor lock in.

Thoughts?

all the best,

drew