Is Trademark the New Copyright?

I want to be clear before I begin that this article is not an attack on open source, copyleft or any of the products listed. Rather, it is an exploration of the role trademark will play in the future of copyleft and intellectual property in general.

What do the following have in common: Ubuntu, Firefox, OpenOffice.org, WordPress and osCommerce.

The answer is that, in addition to all being open source projects, they are also all trademarks, registered and protected.

Of course, in recent years, trademarks have become very pervasive. Even Digg, which licenses all user-posted content into the public domain, adamantly protects its trademark, shutting down sites that have similar names.

While there is nothing wrong with having and protecting a trademark, it is a good business move, what is different is that, traditionally, only enterprise open source projects such as Red Hat have taken advantage of trademark protection. Community projects rarely, if ever, applied for or enforced trademarks. Though using another open source’s project name was considered bad form, as with the Firebird/Firefox mix up, legal protection was rarely sought after or necessary.

However, the injection of trademark into the open source movement is a sign of a larger trend when it comes to intellectual property. A sign that copyrights and patents may be losing some of their prominence while trademark, their often-forgotten brother, may be stepping into the light for his time to shine.

Background

According to Harvard Law School, a trademark is “a word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another.”

Unlike copyright, trademark is not designed to prevent copying or public display, but rather, confusion in the marketplace. The standard for trademark infringement is simply “likelihood of confusion” and that is determined on a set of variables including.

1. the strength of the mark
2. the proximity of the goods
3. the similarity of the marks
4. evidence of actual confusion
5. the similarity of marketing channels used
6. the degree of caution exercised by the typical purchaser
7. the defendant’s intent

In short, you can not use a trademark in a way that is likely to cause confusion as to the source of the product or service. Delta Faucets and Delta Airlines can coexist because they are two very different fields but if one attempts to found another computer company named Apple, they will likely find themselves in a courtroom very quickly.

Also unlike copyright, trademarks have to be defended in order to remain valid. Registering for a copyright means defending it actively. This is why Mozilla has a robust trademark policy and you can not use WordPress in a domain name without approval.

This trend toward stronger trademark protection, however, is bound to affect open source and the Web in general.

Impacting Open Source

A trademark is, fundamentally, an intellectual property right. Having a trademark gives you protections over an intangible creation the same as a copyright gives you protections over creative expressions and patents over inventions.

Since all intellectual property law is interconnected, it is inevitable that a greater push in one area will impact others. Since open source and other copyleft projects eschew many of their copyright protections, trademark becomes a way to retain control over their work when, otherwise, they would have almost none.

For example, under the terms of the GNU General Public License, I would be perfectly free to take the Firefox code and create my own browser based upon it, so long as the new browser was licensed under the same terms. However, with Mozilla’s trademark policy, I could not call this new browser “PT Mozilla” or “Jonathan’s Firefox”. Even non-official builds of Firefox itself have to carry different names and icons to avoid trademark infringement.

This means that any new browser I create would require a whole new name, whole new marketing and a whole new brand. Though some have been successful at doing just that, most notably Flock with Firefox and gOS with Ubunutu, the vast majority are not. The uphill battle is just too great and the mother project usually just absorbs any worthwhile code from the lesser-known fork.

What this results in is that most of there is no incentive to fork off new versions of a product as the chance of success if very low. Once a project has gotten established, reached a point where it warrants a trademark and has burned itself into the public mind, it can almost prevent competition. There will be no “Firefox +” or “WordPress Lite” without permission from their owners.

Perhaps even worse is that, should the company behind the mark close down, it takes up to five years before the mark is available again for public use. That is, of course, assuming that the trademark isn’t simply sold and another company, perhaps one with less interest in the product.

Though rampant forking has been one of the biggest problems with open source technology, trademark law is prone to many of the same abuses and problems as both copyright and patent. Relying on trademark to make open source profitable and sustainable may open it up to many of the same problems as a reliance on other intellectual property.

This isn’t to say it shouldn’t be done or that it is a bad idea, just that every business plan has risks, especially new ones.

Trademark As a Business Model

What we’ve seen over the past few years is the rise of trademark as a business model. You create, or have your users create, large amounts of copyrightable content, give the content away for free, often giving up many rights to the work and then leverage your brand name to make money.

It’s a system that has been used repeatedly with a great deal of success on the Web. Many sites, including this one, have followed that principle and made it work.

Open source projects have begun to use it as well. You can get a free WordPress blog on any number of sites, but most still choose to get one from WordPress.com. The strong brand name and reputation make it an preferred choice. That type of preference, generally, comes from a combination of a good product, successful marketing and diligent trademark enforcement.

Indeed, without trademark protection and enforcement, it is unlikely that many open source companies would have a business model at all. If anyone could make and distribute their own Firefox browser, we’d have little reason to go to Mozilla and download their version, complete with Google links that put money into the foundation.

While this can be said about many businesses, traditional, open source or otherwise, it can’t be denied that open source companies, along with millions of Web sites, are more dependent on trademark than most companies were 20 years ago. With the digital age copyright has slipped in importance while trademark protection has grown.

This isn’t to say that copyright does not have an important role (otherwise this would be the swan song for this site) but that role is more geared toward enforcing the trademark, registered or unregistered. Copyright, as a business model, is no longer a matter of simply targeting illegal copying (unless your organization ends in AA) but in protecting your corporate identity by targeting plagiarists, spammers and those try to sell works commercially.

In a few decades, trademark may replace copyright as a cornerstone of intellectual property, that is, if it hasn’t done so already.

Conclusions

Copyright is not going anywhere. It is going to remain an important intellectual property right for a very long time to come. However, the role it plays is shifting and how it relates to other forms of intellectual property, especially when looked at from a purely practical standpoint, is going to change.

Personally, I am glad that these companies and their products have registered and enforced trademarks. It means that they are taken more seriously as businesses, helps them focus their community’s energy and, I feel, has improved the quality of the products. The same can also be said for most Web sites and content producers that have gone down this path.

When Creative Commons protects its trademark, you know things can not be too bad.

The one request that I would make is that those in the open source and copyleft movement show more understanding for those who do choose to strictly enforce their copyrights. I may often disagree with their decisions, but it is their choice. Not only is copyright necessary for the GPL, Creative Commons and other open source licenses to be valid and enforceable, but many of the stars in the industry are making their living off of another intellectual property right, namely trademark. Sadly, most of the criticisms hurled at copyright enforcement can be said about trademark just as easily.

Intellectual property isn’t the enemy, it is how it is used. Any law, including trademark, copyright and patent can be abused. What is important is that we are responsible citizens. Those without good business models will die off soon enough. Those who find the right balance will thrive.

In the end, that will determine who is right and who is wrong. The law of the jungle has always been more vicious than the law of the land.