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Trademarks Considered Harmful To Open Source 226

Posted by kdawson
from the say-pretty-please dept.
An anonymous reader touts a blog posting up at PC World titled "Trademarks: The Hidden Menace." Keir Thomas asks why open source advocates are keen to suggest patent and copyright reform, yet completely ignore the issue of trademarks, which can be just as corrosive to the freedom that open source projects strive to embody. "Even within the Linux community, trademarking can be used as obstructively as copyright and patenting to further business ends. ... Is this how open source is supposed to work? Restricted redistribution? Tight control on who can compile software and still be able to call it by its proper name? ... Trademarking is almost totally incompatible with the essential freedom offered by open source. Trademarking is a way of severely limiting all activity on a particular product to that which you approve of. ... If an open source company embraces trademarks then it embraces this philosophy. On the one hand it advocates freedom, and [on] the other it takes it away."
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Trademarks Considered Harmful To Open Source

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  • Re:Copyright reform? (Score:2, Interesting)

    by argux (568146) <<dazu.huike> <at> <gmail.com>> on Sunday May 10, 2009 @01:29AM (#27894247) Homepage

    If copyright didn't exist, maybe we wouldn't need GPL.

  • by reporter (666905) on Sunday May 10, 2009 @01:37AM (#27894285) Homepage
    The value of trademarks is psychological. Most people attribute value, warmth, and comfort to a name. Consider the name, "Toyota". Immediately, it engenders feelings of "high quality", "reliability", "lots of bang for the buck".

    A while ago, the same factory produced a Toyota Corolla and a Geo Prizm. Chevrolet sold the Geo Prizm. Even though it was nearly identical to the Corolla, customers preferred the Corolla, and it had higher resale value than the Prizm.

    Trademarks are important because the name itself -- a string of characters -- has financial value.

  • by k31 (98145) on Sunday May 10, 2009 @03:03AM (#27894611) Journal

    I concur; if anything, Trademarks can be used to enforce branding/quality. A company trademark is like a personal signature.

    What I still don't understand is why people are talking only about openness in software, and ignoring how closed hardware is becoming... try writing an alternative to the Award-Phoenix BIOS and you're see what I mean (yes, I know they're some projects to do just that, but look at how hard it is an how many NDAs would be involved if you wanted to support most hardware)....

  • by xigxag (167441) on Sunday May 10, 2009 @04:30AM (#27894935)

    Debian may do this with Iceweasel, but Debian doesn't do this with Debian [debian.org]. Parens implicitly acknowledges that on some level, you need a way to establish and verify trust. Debian says, "We'll do the verification for you. If you trust us, you can trust the untrademarked software we use." In essence, Mozilla(TM) Firefox(TM) becomes "Debian(TM) Iceweasel."

  • by blowdart (31458) on Sunday May 10, 2009 @04:37AM (#27894963) Homepage

    Except ... Rails. Rails is a trademark, so in theory we now need to write Rails(tm). Now I can understand the Ruby on Rails(tm) logo being trademarked, if you don't want it appropriated, but Hansson has gone a bit further.

    On the use of the logo he's said [rubyinside.com]

    So I only grant promotional use for products I'm directly involved with. Such as books that I've been part of the development process for or conferences where I have a say in the execution.

    This steps out of protection and into control, he's been refusing to allow books [unspace.ca] to use the logo on their covers. He's even trademarked "Ruby on Rails [rubyonrails.org]", taking the name of something he didn't invent or write and using that as part of his mark;

    "Rails", "Ruby on Rails", and the Rails logo are trademarks of David Heinemeier Hansson.

    Want to have a Ruby on Rails(tm) conference? Better not include the name of the platform in your conference name then, that would be violating Hansson's trade mark. Even more "interesting" is the Ruby on Rails(tm) logo was a community effort (although the wiki pages for that are now gone [rubyonrails.org]. The original logo [rubyonrails.org] was even open source. The money to register the trademarks came from the community, but the marks are in the hands of Hansson alone.

    It's not trademarks that are the problem, it's the person who controls them. If, for example, the Rails(tm) marks were overseen by a committee (made up, as a starting point, of everyone that helped pay for them) then that would be more acceptable than the current situation.

  • by SlashWombat (1227578) on Sunday May 10, 2009 @05:08AM (#27895071)
    A better example is Toyota - Lexus. In Japan, many of the vehicles sold in the USA as Lexus's were sold in Japan as Toyota's. (Although, this is strictly no longer the case ... Also, the Toyota's in Japan were often more luxurious than the Lexus in the USA!)
  • by EsbenMoseHansen (731150) on Sunday May 10, 2009 @06:13AM (#27895303) Homepage

    Well, trademarks aren't that hard to get around. E.g, for the conference, I cannot find anything to prevent a conference of "Rapid Web Application Conference for Ruby on Rails users". From wikipedia, that should be ok since you are "using the mark to describe accurately an aspect of its products". Wikipedia gives the example "In a related sense, an auto mechanic can truthfully advertise that he services Cadillacs", which is basically the same thing and is a car analogy, almost ;)

    Misappropriating a community designed logo, if that is what he has done, is violation of copyright law. But (again from wikipedia), the license of the logo is MIT, which means that said community chose a license that permits this, much as if Mr. Hansson had bought the logo from an artist. Perhaps they should have considered a copyleft license? Still, the laws of trademarks severely limits what he prevent; e.g., "A book to quickly learn Ruby on Rails [logo]" is again, probably ok.

    I do agree, however, that Mr. Hanssons approach is hindering rather than helping ruby on rails, which is a shame because it is a very sweet framework for web services and applications. Especially for people like me who only do web as an aside from our "real" skills :) But of course, the community could fork off and change the trademark (maybe even get a non-ugly logo? :P) in a week, with very little momentum lost.

  • by ThePhilips (752041) on Sunday May 10, 2009 @06:32AM (#27895357) Homepage Journal

    In other words it is all about identity.

    Trademarks are sort of like authorship. You can transfer copyright to your work to somebody else - but you can't transfer authorship. That's doesn't prevent you from using the work, it only prevents you from imposing on somebody else.

    Seems pretty logical to me.

  • by Znork (31774) on Sunday May 10, 2009 @07:57AM (#27895665)

    And to help the customers from being deceived.

    Ah, no, that was the old way. Then it used to prevent Chinese companies to manufacture cheap copies of Western goods complete with trademark name.

    Now it's the new way. Now all the goods are cheaply manufactured by Chinese companies, and trademarks prevent Western consumers from getting exactly the same goods for cheap.

    that this is indeed X by company Y

    Except it's not any more. It's X by company Z, labelled and marketed as A, B, C and D trademarks by companies Y, E, F, and G and available for a tenth of the price in China. The days when trademarks were used to prevent deception are gone with in house production, now they're often used to deceive instead.

    I don't see any reason that one should want CentOS to call themselves "Red Hat Enterprise Linux".

    That I can agree with. I would, however, like to see a requirement for a clear origination labelling, like CentOS (derived from Red Hat Enterprise Linux), Blu Wear Jeans 1023 (derived from XianPing model Ping134), Coca-Cola Dasani (derived from bromate contaminated tap water).

    If someone else made it, consumers should be able to tell who did and what the product originally was.

    Basically, the purpose would be enforcing the supposed consumer protection of trademarks both ways; you shouldn't claim your product is someone elses, but neither should be be able to claim that someone elses product is fully and exclusively yours.

    Even if trademarks did hurt

    They're nowhere near as damaging to the economy as copyright and patents, but I think they certainly have room for improvement. Particularly as applies to their function as consumer protection.

  • Re:Look at the title (Score:3, Interesting)

    by pjt33 (739471) on Sunday May 10, 2009 @08:01AM (#27895693)

    He's not necessarily uneducated. He might just be an idiot.

  • by pdh11 (227974) on Sunday May 10, 2009 @08:07AM (#27895719) Homepage

    It's a bit of a pain to explain why Firefox is the same thing as Ice Weasel.

    "Because the Mozilla people have done something insane, egotistical, and counter-productive." There, that wasn't very painful.

    As you imply, the reason that anyone who forks Firefox should be able to call the binaries their project produces firefox is the same reason that anyone who forks ls should be able to call the binary their project produces ls. Anything else just causes user confusion. If you want to have a trademark because you think you're so darn good that anyone else's version of your code just won't be the same, trademark your organisation name, not your project name. FSF Emacs vs XEmacs, FSF Glibc vs eglibc, coreutils ls vs BSD ls: there's no ambiguity in any of those cases.

    By trademarking the name of the product, and imposing restrictions on uses of that trademark which affect people carrying out the normal processes of open-source natural selection, the Mozilla people have placed their own personal egos above the quality of the user experience. That's the sort of behaviour that open-source more usually comes as a blessed relief from.

    That such restrictions on trademarked product names are allegedly compatible with open-source licences should be viewed as a bug in those licences, and Debian are absolutely right to call the Mozilla people on not being DFSG-free. If you want to pinpoint the moment they lost their way, it was when they trademarked "Mozilla" and named their foundation after it, and changed the mozilla tree so that it no longer built a binary called mozilla. If when they realised their "mistake" they'd changed the foundation name not the binary name, there'd be the Seamonkey Foundation's mozilla versus everyone else's mozilla, which would be perfectly straightforward, and they'd have generated much less ill will.

    Peter

  • by kripkenstein (913150) on Sunday May 10, 2009 @08:28AM (#27895823) Homepage

    In other words it is all about identity.

    Trademarks are sort of like authorship. You can transfer copyright to your work to somebody else - but you can't transfer authorship. That's doesn't prevent you from using the work, it only prevents you from imposing on somebody else.

    Seems pretty logical to me.

    And not only is it logical, it's very much at the heart of open source. Even the most permissive licenses (BSD, etc.) have the requirement that you not remove the original author names, and not claim that you wrote the original software (unless you actually did, of course).

    In other words, all open source licenses explicitly support the principle of identity - use the code, but know who wrote it. That's the principle behind trademarks as well - to let people know where something comes from. To lop this in with patents as a "risk to open source" is completely incorrect.

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