Trademarks redux

Wednesday, April 25th, 2007

One of the very interesting issues-du-jour is the interaction between the three “legs” of “intellectual property”. Traditionally, those three are copyrights, patents and trademarks, and they have quite different laws and contractual precedents that are associated with them.

Recently, however, I’ve observed an increase in the cross-talk between them.

Classically, “software freedom” was about the copyright license associated with the code. But patents and trademarks are now being brought into the mix. For example, the discussion around Mozilla’s trademark policy was directly linking the concept of “freedom” to trademark policy as much as code copyright license. And much of the very hard debate in the GPLv3 process is about linkages between copyright license and relevant patents. And like it or not, the GPL is widely considered the reference implementation of freedom so GPLv3′s approach will be, for many, definitive on the subject.

In the Ubuntu community we’ve recently gone through a process to agree a trademark policy. This was recently approved by the Community Council, and the final draft is here:

http://www.ubuntu.com/aboutus/trademarkpolicy

We’ve tried to strike a balance that keeps the trademarks of Ubuntu meaningful (i.e. if it says Ubuntu, it really is Ubuntu) but also recognizes the fact that Ubuntu is a shared work, in which many different participants of our community make a personal investment, and which they should have the right to share. So we’ve made explicit the idea of a remix – a reworking of Ubuntu that addresses the needs of a specific community (could be national, could be an industry like medical or educational) but preserves the key things that people would expect from Ubuntu, like hardware support and certification.

I’m sure this isn’t the last word on the subject, but I hope it’s a useful contribution to the debate, and would welcome other projects adopting similar licenses. For that reason, our trademark license is published under the Creative Commons Sharealike with Attribution license (CC-BY-SA).

18 comments:

  1. Susan says: (permalink)
    April 25th, 2007 at 6:28 pm

    Oh, something else
    (you might know this already?)

    the diversity of Intellectual property & its integration goes even further than what you mention…

    A couple of years (2003/4?) ago, Max Planck institute created the first legal masters that straddled all 3 major “strains” of IP law across the planet i.e. USA, EU & Far East…
    So there’d be lawyers who could take all 3 of the broad legal frameworks & formulate global responses to IP legalities…
    (Little Multinational IP soldiers the global corporates could send out to do battle in IP War Zones
    to protect their interests across multiple geographies…)

    http://www.miplc.de/llm/

    BTW – the chap who was heading up Max Planck Institute’s miplc when this was started is called Prof Josef Strauss.
    He’s an IP deity….
    When India formulated their most recent IP statutes,
    he was the one the Prime Minister of India got to sign it off..
    If people want a definitive opinion on whether something is IP or not – they consult him.
    Professor Strauss has since retired from MIPLC… but I guess if you ever want an opinion on something IP related
    - he’d be a good person to contact.

  2. Luis Villa’s Blog / quick notes says: (permalink)
    April 26th, 2007 at 12:34 pm

    [...] Mark has posted about the trademark thing. I’ve not had time to do more than skim the policy or think about it in depth, but in the post he seems to understand the issues better than most, and regardless of whether or not he is right, everything he says and does is influential and important. Now, Mark, what about that patent policy? :) [...]

  3. Roy Schestowitz says: (permalink)
    April 26th, 2007 at 12:40 pm

    Why be so pendantic? Sure, Linux is now a registered trademark, but look where this whole sordid mess of restrictions got Debian GNU/Linux? They have IceWeasel.

  4. BArrYZ says: (permalink)
    April 26th, 2007 at 12:44 pm

    Very interesting license, great proposal.

    And, to remain on the news: what’s your opinion, Mark, about the recent IPRED2 approval in the European Council ?
    (I suggest to make a specific post on your blog for this important theme)

    Thanks a lot in advance :-D


    BArrYZ

  5. Fresh Ubuntu says: (permalink)
    April 26th, 2007 at 4:17 pm

    The Trademark…

    I just read the blog post on the use of the trademark, and frankly, I am a bit concerned. Not just form me but for others like me who have taking such a liking to this distro that they, no WE, decided to become independent advocates. I have recently…

  6. Chenney says: (permalink)
    April 26th, 2007 at 4:58 pm

    Debian is not a political party or religion. It is about FREEDOM! And i believe that in a reasonable world we need to make sure that when we are talking about FREEDOM we are not talking about anarchy. We need in fact to prevent people’s freedom to be theft!

  7. MJ Ray says: (permalink)
    April 27th, 2007 at 8:10 am

    At first glance, the only commercial terms are ‘call for details’ but I thought trademarks only gave control over use of the mark in commerce (see http://www.iusmentis.com/trademarks/crashcourse/ ). All the permitted uses have ‘no commercial intent’ or similar, but can the mark holder block much non-commercial use anyway? http://www.iusmentis.com/trademarks/crashcourse/limitations/#Noncommercialuseofatrademark

    Could http://www.ubuntu.com/aboutus/trademarkpolicy be replaced with ‘contact us’ and have the same effect as far as trademark use is concerned?

  8. zyz says: (permalink)
    April 28th, 2007 at 12:46 pm

    I really hope this will force Ubuntu CE to change its name. Or is it an officially approved name for this one religion oriented remix?

  9. Nikolay Kolev says: (permalink)
    April 28th, 2007 at 6:43 pm

    This is not doing a favor to Linux and the open-source community in general. Now, there’s Firefox and IceWeasel… soon there will be others. Same with Ubuntu, Debian and so on. Internet Explorer, Windows and other Microsoft products will be leaders forever compared to the market shares of all those individual “brands”. Like Roy said, let’s not be so pedantic and egocentric!

  10. Ubuntu Codifies Its Own Trademark Policy - Open Web Development says: (permalink)
    April 29th, 2007 at 3:12 pm

    [...] Mark Shuttleworth recently announced a trademark policy for Ubuntu in his blog. He writes: “Classically, ’software freedom’ was about the copyright license associated with the code. But patents and trademarks are now being brought into the mix. For example, the discussion around Mozilla’s trademark policy was directly linking the concept of “freedom” to trademark policy as much as code copyright license,” [...]

  11. lyceum says: (permalink)
    April 30th, 2007 at 1:02 pm

    The open source business model is clearly the future of software. Proprietary, though not really needed, helped in the efforts of getting PC’s into homes at an alarming speed. Now that computers are in businesses and homes all over the world people are looking for more cost effective solutions. They are tired of paying good money for something that, in the end, does not work as well as the feel it should. (My humble opinion.) In order for the computer world to go back to its roots (FOSS) there is a need for standards, for names the consumers can trust. If someone makes a software package, will it fall to the wayside down the road? While this is a risk users must take, regardless of the software provider, security and trust is build on names and reputations. These names must be kept safe. This is why companies providing software like Ubuntu, Firefox, etc. need to maintain the rights to and to use their names and logos. I think that the proposal Ubuntu offers is fair and balanced. It still allows others to use the name, but protects the good name of the product. Even though something offered may be free as in both speech and beer someone still needs to make money off of it to keep the lights on and to keep the quality improving on their program. If the name is abused or used maliciously, this can hinder the process. Good job on the new policy.

  12. GrammarFreak3000 says: (permalink)
    April 30th, 2007 at 1:19 pm

    SyntaxError: invalid syntax

    On the Trademark Policy, under “Logo Usage Guidelines”, there is a missing bracket in the following line:

    A monotone version may be acceptable in certain situations, if the use requires it (e.g. desktop backgrounds.

  13. FreeSoftNews » Blog Archive » Ubuntu Weekly News: Issue #38 says: (permalink)
    April 30th, 2007 at 4:37 pm

    [...] * Steven J. Vaughan-Nichols, at Linux-Watch.com, writes about Ubuntu’s recently updated trademark license which is published under Creative Commons Sharealike with Attribution license (CC-BY-SA). The trademarks states that Canonical owns Ubuntu, Kubuntu, Edubuntu, and Xubuntu in word and logo form. Any trademarks consisting of Ubuntu or buntu will need permission before use. Non-profits groups advocating the use of Ubuntu are exempt. Remixes, which are derivitives that haven’t changed any shared libraries or desktop components are allowed. Read the full article: http://www.linux-watch.com/news/NS6581540510.html and http://www.markshuttleworth.com/archives/112 (Mark’s post) [...]

  14. non-lawyer says: (permalink)
    April 30th, 2007 at 9:09 pm

    How can you insist that all commercial use requires a license? That would be a misuse of your trademarks. As far as I understand the situation, everything you permit under the “Commentary and parody” section is anyway a legal right. In other words, using the mark “Ubuntu” to refer to Ubuntu is legal is any context whatsoever. That’s the point of trademarks, after all.

    For example, it is surely legal to “disparage Ubuntu, Canonical or its products”; it is absurd for you to assert that such disparagement may not refer to the products by their actual names. No-one need ask your premission to say “OSFOO(R) is better than Ubuntu(R)”. In fact, it should be ok to say that even for the purpose of selling more newspapers (by a reporter), or for the purpose of selling more copies of OSFOO (by whoever makes OSFOO).

    Mark Shuttleworth says:

    It’s perfectly OK to say “Ubuntu sucks”, and the policy we’ve outlined here  states that clearly. I funded the definitive case in South Africa which entrenched the idea of brand parody in SA law, so it’s something I take quite seriously. Parody, like “Ublewtoo”, is absolutely fine too. The catch, however, is that it needs to be clear to anybody reading it that this is a third party speaking ABOUT Ubuntu, and not Ubuntu speaking about itself. So for example if a proprietary software company designed and published a fake full-page newspaper add that says “Ubuntu isn’t really free”, and the fonts and colours made it look like that was a genuine Ubuntu ad, for-and-by Ubuntu, then it would be a violation of the policy. But if you write an article saying “My impressions of Ubuntu are terrible” than that’s fine, because it’s clear that it’s you speaking for yourself ABOUT Ubuntu.

  15. non-laywer says: (permalink)
    May 1st, 2007 at 4:56 am

    Thanks for the reply. I think I understand where I went wrong: probably “using” a trademark is a (legal) technical term that means more than simply invoking the mark. In that light the policy is great.

    PS: My personal impressions of Ubuntu are great — it’s the OS I recommend to others. Keep it up!

  16. tecosystems » links for 2007-05-02 says: (permalink)
    May 2nd, 2007 at 5:26 am

    [...] Mark Shuttleworth » Blog Archive » Trademarks redux good to see some creative thinking re: trademarks, as they are increasingly the bane of existence for many a project (tags: trademarks MarkShuttleworth Ubuntu copyright patents licensing) [...]

  17. Fabrizio Balliano says: (permalink)
    May 15th, 2007 at 2:50 pm

    Is Ubuntu trademark appliance working?…

    If you don’t know it, read the start of the story.
    This is the 3rd week I’m waiting for an answer, will someone ever answer me? Also Mark alert seems not to gave me priority.
    It seems to me that the “startup” term is loosing his…

  18. Mark Shuttleworth » Blog Archive » Microsoft is not the real threat says: (permalink)
    May 22nd, 2007 at 11:14 am

    [...] There are three legs to IP law: copyright, trademark and patents. I expect a definitive suit associated with each of them. SCO stepped up on the copyright front, and that’s nearly dealt with now. A trademark-based suit is harder to envisage, because Linus and others did the smart thing and established clear ownership of the “Linux” trademark a while ago. The best-practice trademark framework for free software is still evolving, and there will probably be a suit or two, but none that could threaten the continued development of free software. And the third leg is patent law. I’m certain someone will sue somebody else about Linux on patent grounds, but it’s less likely to be Microsoft (starting a trench war) and more likely to be a litigant who only holds IP and doesn’t actually get involved in the business of software. [...]