Register Marks You Trade (Lit Review)

February 23, 2015

Who

Software Freedom Law Center

What

A Legal Issues Primer for Open Source and Free Software Projects (Ch. 5)

Where

PDF Document

When

2008

The Gist

Trademarks are a way to protect the integrity, trust, and association of quality with a certain product/invention/brand
Like patents, trademarks are codified in the law and managed by the same entity as patents (USPTO)
Unlike patents, trademarks have a much lower abuse potential, while still serving to protect both producers and consumers

The Good

The difference in meaning between ™ and ® is explained well
Appropriateness of trademarks for FOSS is established which benefits everyone
Covers how to get a registered trademark in detail, in a concise manner

The Bad

Cursory mention of international trademarking
Confusing singular female pronoun “she” on page 44
The book just ends…like super suddenly

The Questions

What are some specific rights that owners of projects with unregistered trademarks have?
What if your project is FOSS, but it is provided as a service? Are there registered service marks too?
Who determines when a trademark should be revoked due to genericide, like in the case of aspirin?

Trademarks are everywhere. We live our lives by trademarks. We pledge our loyalty to them. Gas stations, TV channels, grocery stores, brands of liquor and soda, just to name a few. A trademark is one of the closest things a company or product can get to a personal identity, short of anthropomorphism. In fact, some people take their loyalty to trademarks to difficult extremes.

The third leg of the legal invention trinity (with patents and copyright), trademarks are important as a mechanism of free market competition. If there is any way for the masses to recognize the producer of something, it is via a trademarked brand. Names carry such weight, yet the amount of existing words is finite, so sometimes there is ugly overlap, like when the record label for an iconic British 60s pop band fought a lengthy battle with an equally iconic 70s computer company because they shared the same name. The unfortunate thing about the Apple case, from a consumer standpoint, is that the biggest effect was the inability of many to listen to The Beatles (legally, digitally) for a while. Both companies probably paid dearly for the battle, financially. And in the end, did it even matter? Who would confuse Apple Records with Apple Computer? Obviously they make different things…

Or do they? It’s true that Apple started out as only a computer business. Yet, Apple definitely seemed to tread into…the other Apple’s territory through its launch of music products, namely iPod and iTunes. It’s a troubling issue, because even though Apple Records started solely as a music business and Apple Computer didn’t, Apple became so much more active as a music business that they seemed to have earned the right to use it in that way. And Apple Records still walked away with more money than most people will ever see, plus being, you know, the rights holders to the legendary collection of The Beatles. You win some, you lose some.

Another knee-slapping case of trademark shenanigans is Adobe’s trademark on its Photoshop software. Photoshop is a quite ubiquitous program in the digital art industry; nary a company in that would look your way if you didn’t know it, because a digital artist who doesn’t know how to use Photoshop is like a farmer who doesn’t know how to plant and harvest crops. Yet the trademark is valuable to Adobe, which it should be, because I certainly wouldn’t want inferior, competing products using that name. Yet, as the chapter points out, ubiquity breeds generic use of terms. If you’d like a rather hilarious read about this subject, please check out Adobe’s two documents which discourage…uh…use of their words they don’t like that way?

As an aside, it really grinds my gears that the author of the FOSS Primer decided to use a random “she” on page 44 in lieu of a much more appropriate singular “they”:

FOSS developers should perform a thorough search before choosing a mark; it behooves a FOSS project to be as certain as possible their chosen mark is not already in use. The best search is one performed by an experienced trademark specialist, largely because she knows where to look

Seriously, why would you use the word “she”? Or “he”? I had to do a double take because I thought I missed a part where the guide mentioned a specific person by name. Normally I love gendered pronouns, and I hate the people who hate them, but using one here is confusing. Confusing enough to detract from the rating.