Open Source Trademark Definition

Simon Phipps has been on a bit a roll lately, first posting Adoption-Led as a Force of Nature last friday, and then Software Freedom: More Than Copyright.

The current Open Source Definition doesn’t actually define Open Source – rather, it defines a subset of the requirements that protect software freedom, in this case the copyright license. I actually think renaming it (“Open Source Copyright Definition”?) would be good since there’s more to Open Source than just the copyright license. I then suggest we explore creating an “Open Source Patent Definition” and an “Open Source Trademark Definition”.

I’d agree with Simon in that most business and government see Copyright, Trademark, and Patents and the 3 foundations of what gets called Intellectual Property (I really don’t like that term). One of the undervalued benefits of the OSD and the mainline approved licenses is that it helps to frame an understanding of copyright licensing for non-lawyers like me.

The whole GPLv3 process where a collection of legal experts and technology experts were able to debate and discuss and ultimately create a new Free software (and OSD compliant) license was partly enabled by the implicit education in licensing that the OSD and the major licenses (L/GPL, BSDMPLMIT/X11) have given us.

Most of the OSD compliant licenses are short (or at least no longer than necessary) and clearly written, and broadly understandable without the need for a law degree (granted there will be some nuances in the interaction of the provisions of the licenses with local law and case history that require legal expertise). Compare to any proprietary EULA or collaboration agreement and the difference is stark.

Trademarks in particular seem to be an area that could do with some illumination from the light of an Open Source Trademark Definition. For example, if you look into trademarks, then one of the things you will see repeated again and again,

Never use a trademark as a noun. Always use a trademark as an adjective modifying the noun.

Correct: Red Hat® Enterprise Linux® operating system performance is incredible.
Incorrect: Red Hat’s performance is incredible.

this is from the RedHat Trademark Style Guide – yet the very first sentence of the style guide is,

The trademarks of Red Hat, Inc. not only represent the quality, innovation, and excellence of Red Hat’s products,…..

I’m not trying to pick on RedHat because this is something repeated all over the place and the two usages are not entirely equivalent. However, when I’ve seen the advice ‘Never use a trademark as a noun’ I’ve always wondered how it’s possible to trademark a company or product name without using it as a noun – the advert is ‘Drink Coca-cola’ not ‘Drink Coca-cola caffeinated beverage’ after all. Sadly I’ve never had the grammatical knowledge or confidence to break the advice down. Thankfully the folks over at the Language log know what they’re talking about,

Notice also that INTA International Trademark Association says a trademark must always be used as an adjective. What they mean actually has nothing to do with adjectives. Adjective are words like good, big, soft, reddish, etc. They are often used as attributive modifiers of nouns: good reasons, a big company, etc. But other things can be used as attributive modifiers. Proper nouns can: when we talk about London fog, we are using London (a proper noun) as an attributive modifier of the noun fog. That doesn’t mean London is an adjective. It isn’t. It’s the name of a city. Adjectives never name cities. And adjectives are virtually never trademarked. When we use the expression a London Fog raincoat, we use London Fog (a trademark, with the form of a nominal construction, consisting of a proper noun attributive modifier and a common noun) as an attributive modifier of the noun raincoat. What INTA is saying is that it wants you to always use trademarks as attributive modifiers.

But what the INTA people mean is more subtle than they know how to say, so they get it all wrong. The enemy they are laying defenses against is the danger that a trademark might fall into the public domain. For fear of this (and it can happen), they want to forestall the conversion of certain proper noun trademarks into common count nouns. The worry is that the next stage after writing “Tic Tacs” will be writing “tictacs”, and soon people will be referring to some other company’s little white mints as tictacs, and soon the trademark might become unprotectable and its value be lost. It would just be a two-syllable word in the dictionary, with a small t, meaning little hard white mint candy.

But notice, none of this is relevant to other products, for example, cars: Porsche is surely very happy for you to praise Porsches as much as you like, calling them Porsches. INTA’s intent is clear, but what is actually stated about grammar on their website and in their brochure is nothing like what it is trying to say.

Sadly Porsche don’t seem to have a Trademark style guide for us to confirm that they don’t mind us calling them Porches, but the point is well made.

It’s worth noting that there is already some great advice for open source projects on the subject of trademarks in the SFLC’sA Legal Issues Primer for Open Source and Free Software Projects which doesn’t repeat the whole noun / adjective misnomer or include a long technical grammatical discussion,

Using a project’s name in place of its function or general class increases the risk that the name will become generic and thus unprotected. A common example of this is “Aspirin”; formerly a trademark of Bayer, the name was used so frequently as a noun in place of “acetylsalicylic acid” that it became generic in the United States. Because software is functional by nature, there is a particular tendency for users to substitute a program’s name for the function it performs (i.e., to use the mark as a verb, as in “grep”). You should avoid using your mark this way.

and also contains a simple, easy to understand, trademark policy for open-source projects.

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