Patent the baby, trademark the bathwater

Feed icon registered trademark?

If you take anything away from the second trademark brouhaha in as many weeks, it’s this quote from Mozilla Chief Lizard wrangler, Mitchell Baker:

I believe the Free and Open Source Software world is due for a long discussion of trademarks, how we use them, what their value is and so on. Ultimately I’d like to see some Creative Commons type options available for trademark- type purposes. (Creative Commons licenses are all copyright licenses, and do not purport to address the trademark – like issues of providing clarity to consumers about what consumers are getting.) We haven’t had this discussion yet.

So obviously, this points to the discussion I’ve been waging towards the establishment of something akin to the Community Mark idea. It’s not that trademark should necessarily go away; instead it’s about providing a choice when traditional trademark law simply does not make sense and only stands to incense and divide communities — which, ironically, such laws were intended to protect.

I don’t think the question in this case really revolves around the question of the meaning of icons so much as the enforcement and consistent use of symbols that come to mean something to a given community. For what Mitchell is really proposing is something more like reverse trademark, where you compel someone to use your mark in a certain way in order to produce consistency. Let’s face it, by restricting the use of the mark or icon, you’re actually moving away from your goal, which in this case is to establish a symbol, to be used in common, to identify a particular interface interaction.

It doesn’t seem like trademark is the appropriate means to the end in this case… and I’m very happy that Mitchell has proposed that the best solution is likely her option #3, “to try a less formal process with more authority resided in community norms and [see] how that works.” This is, I believe, the only true option that stands a chance of gaining widespread adoption as well as heading off the kind of scorn and antipathy that members of the open source community simply don’t need.

Author: Chris Messina

Head of West Coast Business Development at Republic. Ever-curious product designer and technologist. Hashtag inventor. Previously: (YC W18), Uber, Google.

7 thoughts on “Patent the baby, trademark the bathwater”

  1. What an idiotic idea? If there’s so much an itch to tell the world that they invented this icon, it could be done in a more civilized manner—like a Wikipedia entry. Patent, copyright logos—by Mozilla? Beginning of suck-age?

  2. Pingback: NetWizard's Blog
  3. an icon does not identify a trade or a brand. that why it cant be a TM anyway. CM is an idea i dig. though id call it commonmark instead and connect it to a fixed CC to keep it connected to some semi-established system. well basically.

  4. Kosmar: the “community” in Community Mark refers to both the intentional use of the mark as well as who would enforce it. A “commons mark” leaves it unclear who would do the protecting of the correct or proper usage of the mark — since you’d ultimately face the tragedy of said commons when no one is left particularly responsible.

  5. i see the responsibility point. and a responsible community would surely be a good entity to control. wikipedia shows that you still need admin people to make decisions, right? a CM would still need an explanation or rule to what it is intended to mean or do, and someone/ a community to define that. just to avoid confusion or misuse. no need to overreglement (is that a word?), though, but something like a RFC could work in the end.

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