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Brouhaha Raises Important Questions About FOSS Trademarking

OpenSUSE Community Manager Joe Brockmeier has a very interesting post up about trademarks, in which he argues that they are vitally important to protecting branding related to open source projects. His post is a reaction to this one from Linux book author Keir Thomas, author of Ubuntu Pocket Guide and Reference, which we covered here. Thomas recounts getting comments from Canonical about how his use of Ubuntu trademarks may have included taking too many liberties. Thomas finds rules like Canonical's, surrounding trademarks, to be too restrictive. I see good points made on both side of this argument, and it's an important one.

In Thomas' discussion with the folks at Canonical, they specifically pointed to his use of the Ubuntu trademark. Thomas writes:

"My book and associated Web site are an entirely separate commercial endeavour from Canonical or the Ubuntu project at large. I have no other choice than to use the term Ubuntu in the title of my book and web site. How else would people know what they're about otherwise?"

I'm afraid I have to agree that if Canonical's reaction was specifically aimed at Thomas simply using the Ubuntu name--and even the logo--that's unnecessarily restrictive. Thomas' book has been downloaded more than 150,000 times, and many of those downloaders will probably become enthusiastic Ubuntu users, benefitting Canonical. Thomas cites the nominative use provisions, a part of "fair use" law that allows a product to use a trademarked term if it's descriptive and unavoidable.

On the flip side of the argument, Brockmeier takes issue with Thomas' assertion that "trademarking is almost totally incompatible with the essential freedom offered by open source." Brockmeier writes:

"Removing the ability to restrict trademark usage would be highly destructive to the FOSS community. Thomas is mixing 'free as in beer,' with 'free as in speech.' He wants vendors to not only provide the recipe for their brew, but also to give him a full keg and some branded cups so he can go out and sell what he received for free."

The way I see it, both Thomas and Brockmeier make good points. Thomas' umbrage seems to extend primarily from Canonical's prickly behavior regarding the name Ubuntu and the Ubuntu logo. (Am I in trouble for mentioning these?) I don't think an author writing about Ubuntu should feel restricted in discussing it, unless we are talking about a version that is under non-disclosure. And, as I mentioned, Thomas' books very likely increase the overall user base of and good will toward Ubuntu.

Brockmeir has experience with protection of trademarks surrounding open source software, though, and he makes the good point that branding is important to commercial open source offerings. That has to be true. Coca Cola carries billions of dollars on its balance sheet under "Good Will," which is nomenclature related to how well-liked its brand is. It's perfectly acceptable, under Generally Accepted Accounting Principles (GAAP), to ascribe a dollar value to the good will that a brand has. Many proprietary tech companies have achieved huge coups through great branding, such as Apple and Intel.

I think the truth about trademarks, as they pertain to open source, lies somewhere in between the arguments that Brockmeier and Thomas make. Trademarks are important for commercial open source projects, just as they are for proprietary brands. However, in the case Thomas cites, I get the strong sense that the lawyerly micro-management of words and pictures went too far on Canonical's side. Thomas' popular books, without a doubt, advance Canonical's cause. 
 

• ubuntu
• opensuse
• Canonical
• trademarks
• Keir Thomas
• Joe Brockmeier

by Richard Carmody on May. 20, 2009

There are going to be a bunch of people who will attempt to free-ride off other people's work. It is critical that the legal system, as well as the community police these transgressions. One channel is to take the people to task in court. The other is to shame them in public. Folks like Apache do not permit the use of their logo to people who attempt to show 'endorsement' when there is none.

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by ReeceM on May. 21, 2009

The American taxpayer is part of the building blocks of the U.S. financial system, and the sole reason for the existence of Federal and state governments. The taxpayer, who has had their tax dollars earmarked to bailout large businesses short of cash, as a payday loan to boost the economy, has also had to worry about their employment being terminated by these very same companies. Neil Barosky was appointed as oversight for the bailout by Timothy Geithner, and he hasn't come out with a report yet that explains why it is getting so much harder for the average taxpayer to get personal loans from the companies that we all paid for to bailout.

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