Open source, Society & economy

Blowing up trademarks

Ian Betteridge provides me an opportunity to clarify what I meant in my post on Why BarCamp is a Community Mark.

In strewing together patents, copyright and trademark, I created what he refers to as a specious argument, which, after having looked it up, means that it sounds good on the surface to the point of making sense but ultimately is wrong. Given the structure of my argument and how he interpreted what I said, I would actually agree with him.

But that’s because I was commenting on the need to reexamine all US intellectual property laws in light of the recent “Web 2.0” brouhaha, and in particular, trademark, since copyright is essentially debunked with Creative Commons and patents, well, they’re a whole different can of fish.

Let me rephrase my argument thus: Trademarks do not stifle innovation (unlike copyright and patents). They do, instead, inhibit distributed ownership of a mark or symbol, and when it comes to an idea that a community strongly connects with or takes at least partial ownership, trying to wrest it out of the hands of that community will result in the kind of tantrum we witnessed recently.

Have you ever taken a pacifier away from a contently suckling 2-year-old? Exactly.

(And I offer that metaphor not as a commentary on the behavior of anyone but to give you an idea of the attachment one might form with something it identifies as its own, even if, clearly, it’s the property of the parent who purchased it).

So, if we’re to move into a productive discourse about this area of IP, let’s, shall we?

Ian poses two questions to me in his post:

  1. Can anyone give an example where trademark law – NOT patents or copyright – has been used to stifle innovation or damage the interests of consumers (and no, the O’Reilly spat can’t be used – the facts of the case aren’t exactly clear, especially if you read Tim O’Reilly’s response).
  2. If trademark law was removed from the statute books tomorrow, what would be the consequences?

To the first, I’d argue that that’s not really my point, at least in terms of stifling innovation, nor the reason why trademark must be considered.

He does combine the notion of “[damaging] the interests of consumers”, but I don’t think that’s actually the argument I’m making either. In fact, I’m more interested in the plight of Tim O’Reilly — and what he might have done differently — besides sending out the C&D letter — to protect or enforce his organization’s mark. Let me be clear: it’s important that people receive due credit for the work that they do and the ideas that they generate (and, to counter Mr Douglas’ suggestion, I have always called myself a co-organizer of the first BarCamp — pfffbttt). This is a tenant of open source chivalry and at the cornerstone of a meritocratic system.

Trademark law was designed to stop people from using a mark in unsanctioned ways — and requires obvious enforcement efforts in order to sanctify your ownership of that mark: fail to protect it, you lose your legal protections.

So what the whole idea of a Community Mark is to proactively look at this situation — at the impossibility and huge expense of trademark enforcement on the web — and find some balanced approach whereby the cost of enforcement is thrust upon those who use the term most and belong to the original creative community. I don’t think that anyone would argue that the O’Reilly camp didn’t help advance the Web 2.0 concept and phrase — just like Adaptive Path-man JJG pushed forward the term AJAX for technologies that had been in use on the web forever. The difference, as it played out last week, was that the legal department at CMP decided to try to enforce their legal protections, and got biatch-slapped because the community felt betrayed (well, in particular, Tom Raftery). His response could have easily been predicted, as it was a human one, and ended up with everyone feeling a bit indignant about how the witchhunt gathered force so quickly in the absense of an official “Tim” response (just like the response to Cheney’s shotgun wedding after 24 hours of silence).

A Community Mark is a pragmatic reconsideration of the kind of laws that were written long before we had the internet and instant forms of mass communication. And just like the Dean campaign or the Spread Firefox NYTimes campaign, time and time again it’s been shown that if you rely on your community in real ways, and give them influence of your destiny, they will come out to support you — and most notably — protect you.


6 thoughts on “Blowing up trademarks

  1. Unfortunately Chris the term Community mark is already being used (and no this is not a joke!). Community Mark is the name given to a trade mark which applies to all member states of the EU.

    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.

  2. Ha! Sweet.

    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!

  3. Chris,

    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.

  4. Maybe I don’t really understand your point, but how is this any different from copyright?

    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.)

  5. Chris,

    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.


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