I generally agree with you and came to pretty much the same conclusion as Josh and Bill. The ownership problem is easily solved through the creation of a legal entity for the purpose, but you need to get a solid handle on what the “community” is in order for that entity to know how to identify valid commands (e.g. is it a majority vote of the members of a mailing list or a single individual? Is a single individual having full control even a valid option for a “community”?). Once you’ve nailed that down you need to work out how to safely license the trademark to the public, which generally requires enforcement of some quality – for example use only with official relases of a certain software product (again how do you define “official release”?). If it’s not tight enough then you’ll get a rude surprise when you try to enforce it against an infringer but if it’s too tight the community won’t be able to benefit from it.

Ultimately I think there are structures that could make this a reality even in today’s legal climate without making too many concessions. Obviously abiding by the rules is easier than changing them.

Sam

What we need is a Creative Commons or Open Source license equivalent for trademarks. If you write a piece of software, take a photograph, write a book, etc. you have mechanisms for sharing the work with the world in ways that are open. But there is no such mechanism for trademarks.

Consider the Linux trademark. There was a series of legal situations in the 90’s about who owns that word, ending up with Linus Torvalds as the owner (personally). Linus has allowed the mark to be used very widely by all sorts of companies and organizations, but I don’t think there’s an official license for it other than Linus’s say-so.

But if we had a Community Mark License or something of that sort, which people could use alongside a mark such as “Bar Camp,” then one could easily and readily know under what terms one could use the mark for a similar event.

Our legal system wouldn’t support the idea of community ownership, I fear. There would need to be a person or corporation owning it officially, or it could be not trademarked at all (public domain). But if you want to make “Bar Camp” be available to the community, perhaps you should talk to Creative Commons about extending their ideas for copyright to cover trademarks. (I think a similar solution could also be used for patents, but that’s another matter.)

Part of the problem here is that we do not have a legal mechanism for a “community” to “own” something. If the community incorporates (for profit or not), then it can own the TM and it’s theoretically all good. Problem is that incorporation tends to create narrow, brittle channels for power and decisions, which can mess up the value of the community being able to self-direct. That’s an age-old thing about power, commitment, governance, etc, and it’s probably not going away.

However, the question you’re looking to answer inre: SpreadSpread has to do with large and fluid communities, much more like communities of interest (or “movements”) than a close-knit group of individuals. These are much more difficult to formalize. The situation seems like a big informal community of interest (the movement) around a small incorporated community (the Foundation). Current law directs the Foundation to defend its trademarks from community “help”, lest they lose the authority to prevent misuse.

In your previous post, you mentioned how this frustrated the potential to have the community collectively do work that’s usually relegated to a PR firm. It seems to me that one possible answer is to create some sort of agreement between community members and a foundation which in essence gives the participating community members the same relationship to the Foundation as a PR firm would…

Another way would be to create a membership-based organization for the Movement, possibly with a chapter structure. This should create the necessary legal cover for chapters/members to do whatever they like with the TradeMark, without dilluting the Foundation’s ability to prevent misuse. In the old days this would be prohibitively difficult because of beureaucricy, etc, but in the networked era it should be possible to do this cheap and make it scale fast.

And wow, cool:

The Community trade mark complements the national systems of trade mark protection. The filing date accorded to a Community trade mark is recognised as constituting a date of priority for both national and international trade marks. This applies equally where applicants decide to convert their application or registered Community trade mark into national applications. There is therefore no risk involved in deciding immediately to opt for a Community trade mark.

So it’s important to note that my criticism of trademark law is particularly aimed at the US legal system, since that’s where I reside. It is nice to know that, at least in the EU, a Community Mark is an option — as it should be in the states.

Thanks for the pointer!

If you check out the O’Reilly application for trade marking the term “Web 2.0″ in the EU, you can see it is an application for a Community Trade Mark or Community Mark for short.