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Trademarks are open-source-friendly

By Joe Brockmeier
May 19, 2009 02:05 PM ET

PC World - Keir Thomas calls trademarks a menace to open source, but I couldn't disagree more. When used properly, trademarks, like copyright, are a handy tool to protect and promote open-source projects.

A little background. For the past few months, the openSUSE Project (or at least a few of its contributors) had been knee-deep in creating what we hope is a workable trademark policy to allow as much remixing and redistribution as possible by community contributors -- while ensuring that there's clarity around what is (and isn't) an "official" openSUSE release or use of the openSUSE name.

Far from being a "menace," we've found that trademarks are a good way to protect the project. Granted, providing clarity around trademarks is not easy for FOSS projects, but trademarks are not the hazard that Thomas claims.

Competitive disadvantage

Nothing about free or open-source licensing is meant to guarantee competitors an equal playing field when it comes to sales and marketing of a code base. Take a look at the Free Software Foundation's Four Freedoms:

When a company releases source code but says, "Sorry, you can't use our trademark for commercial purposes unless we give permission," it does nothing to restrict the freedoms that the FSF seeks to guarantee. You can still run, study, redistribute and improve the program without the benefit of the use of the trademark. You just have to rename it.

According to Thomas, "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."

Thomas is conjuring up an imaginary "fifth freedom," the right to benefit from branding associated with code. Not only does that concept not exist in FOSS licensing, removing the ability to restrict trademark usage would be highly destructive to the FOSS community.

It doesn't, as he claims, severely limit "all activity," it simply limits branding modified and redistributed code as the original product. Nothing stops Oracle from reselling RHEL as "Unbreakable Linux," though it may blunt their effectiveness in siphoning off name recognition from their competitor. Nothing stops Debian or anyone else from redistributing Firefox, only from claiming that modified versions are "Firefox," unless the Mozilla folks approve. And that's how it should be.

In a world where anyone can copy, modify and distribute code, it's vitally important for a project or vendor to be able to control the trademark for the project. Like many, 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. Don't be surprised if that idea doesn't gain traction with projects or vendors.

Reprinted with permission from PCWorld.com. Story copyright 2012 PC World Communications. All rights reserved.
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