Trademarks: The Hidden Menace

When Ubuntu Pocket Guide and Reference went on sale in January, I created a Web site to redistribute the free edition and act as a central information source for the book. And because the book was about Ubuntu, I made ample mention of the word "Ubuntu" and also used the familiar three-part circle logo.


A few weeks later, while chatting with the nice folks at Canonical (the company that originated and sponsors Ubuntu) about an unrelated matter, they mentioned that I might have taken liberties with the website. The issue boiled down to use of the Ubuntu trademark, and they pointed out that there are strict rules on who can and can't use the trademark. Put simply, community projects are usually fine (provided a few rules are followed), but commercial projects must apply for a trademark license.

Ending the circle

It was a friendly discussion, and I don't think they meant to chastise me. But I found it alarming. My book and associated Web site are an entirely separate commercial endeavour from Canonical or the Ubuntu project at large. I'd made this clear via a disclaimer on each page of the website. However, I immediately removed all uses of the trademark graphic apart from those I'd got specific permission for (which is to say, the use of the logo on the front cover of the book itself). All other uses of the word "Ubuntu" seemed to me to be allowed under nominative use provisions, an exception in trademark law for which we have to thank New Kids on the Block (yes, really). It allows a product to use a trademark term if it's descriptive and unavoidable. I have no other choice than to use the term Ubuntu in the title of my book and website. How else would people know what they're about otherwise?

Now in possession of a somewhat graphically barren Web site, I was reasonably sure I was safe, even if I had only consulted good-ol' Wikipedia instead of a lawyer.

Commercial freedoms

To be honest, it didn't really matter to me about using the trademark. My only desire had been to make the site familiar for Ubuntu users. But the whole episode was a strong reminder that trademarks dominate all commercial activity in America. Like patents and copyright, trademarks are a weapon that companies can use to battle each other and ultimately restrict the freedom of their customers. As such, I find it odd that while many people in the world of open source are campaigning for reforms in copyright and patents, most ignore trademarking. Trademarking is just as dangerous as its two intellectual property brothers.

There's history here, of course. Back in 1994 a lawyer spotted that "Linux" wasn't trademarked, so decided to trademark it himself. In a move that only a lawyer could dream-up, he then attempted to sue companies involved with Linux for using "his" trademark without permission. To cut a long story short, the trademark assignation was eventually overturned and the trademark assigned to Linus Torvalds. The Linux Mark Institute was subsequently setup and, after a little turbulence, presently hands-out free licenses for the word "Linux" upon request.

However, make no mistake: If you want to use the word "Linux" in any commercial way related to computers, such as including the word in your organization's title, you need to get a license. The word "Linux" is nowhere near as free as the software it represents. In fact, it isn't free. For this we have to thank the system of trademarks.

Obstructive use

Even within the Linux community, trademarking can be used as obstructively as copyright and patenting to further business ends. Red Hat prohibit redistribution of binary packages of their Enterprise distro by claiming doing so would mean the reproduction of their trademark (see Section 2 of Red Hat's EULA). Never mind that the free and unrestricted redistribution of the software is pretty much the core value of Linux.

(Red Hat's policy gave rise to CentOS, which is effectively Red Hat Enterprise without any mention of Red Hat. The community will always route around any restrictions.)

To be fair, at the time of the creation of the Enterprise distro, Red Hat also created the Fedora project to encourage the creation of an entirely unrestricted Linux distro. Novell did the same with the openSUSE project. But I can't help feeling that this was a way of paying-off the community -- throwing meat to the wolves, so they don't bite. With community projects to chew-on, people are less likely to bring-up troubling trademarking or redistribution issues. It seems to have worked too.

Policy decisions

In discussing trademarks, most open source companies make it clear that they see nothing wrong with them, and that they intend to make full use of them to protect their brand identity. That's certainly the case with Ubuntu and Mozilla, the two most successful open source stories of recent times.

What tends to happen is that open source companies have to walk a tightrope, and slightly strange rules on trademark get put in place. For example, Ubuntu is cool with community remixes using the trademark, but if you intend to make money from Ubuntu and want to include the word in your business title, you're going to need permission. It's not quite clear here how the former won't dilute the Ubuntu brand, while the latter possibly will. The "protecting brand identity" argument falls apart almost immediately upon examination.

Mozilla is even worse. If I create a new Linux distro, and include my own compiled Firefox binary, it's unlikely I would be able to call the browser "Firefox", or use the familiar fox logo, without getting permission from Mozilla. This could put me at a competitive disadvantage compared to other versions of Linux because my users would be using what appears to be unfamiliar software. It's worth mentioning that Mozilla's trademark rules also indicate they're not terribly happy about the unofficial redistribution of their binaries, either, and would prefer it if they were the exclusive source.

Is this how open source is supposed to work? Redistricted redistribution? Tight control on who can compile software and still be able to call it by its proper name?

Iceweasel

The example I gave above has already happened. In 2004 Mozilla got a little irked at the Debian guys for distributing modified versions of Firefox (even though the modifications did not significantly change the functionality). Debian responded by mischeiveously rebranding its version of Firefox as Iceweasel, and a policy grew from there to rebrand all Mozilla products in a similar way: Thunderbird became Icedove, for example (which is actually a better name IMHO).

The nature of Linux and open source in general is to encourage forking and splinter projects. That's the basic freedom provided by the GNU Public License, and similar licenses. Some of the forks or splinter projects will be poor quality. Some will fail. But that's just the way things work with Linux.

Essential freedoms

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. That's what it was created to do, and that's what it unapologetically does on a daily basis around the world. If an open source company embraces trademarks then it embraces this philosophy. On the one hand it advocates freedom, and the other it takes it away.

Trademarking encourages organizations to foster back-room deals, and negotiations to get permissions. It's almost exclusively a domain for lawyers. Does this sound familiar? That's right -- it's just like the kind of deals that go on over copyright and patents in the boardrooms of big corporations. And just like patents and traditional copyright, it's totally incompatible with the spirit and ethos of open source software.

Note: Mozilla has asked me to point out that compiled binaries based on source code that hasn't been altered are permitted to use the Firefox trademark.

Keir Thomas is the author of several books on Ubuntu, including the free-of-charge Ubuntu Pocket Guide and Reference .

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