Trademark Law and Free Software
Even though I write about Intellectual Property Law a fair bit, the one thing I almost never talk about is Trademark Law, because Trademark is the one branch of IP that seems to be almost reasonable.
The idea is that when an entity adopts a name for itself or its product, it wants exclusivity. The justification for this is that the entity will be doing the hard work of building a reputation, and it wants to prevent any other entity from either taking unfair advantage of their good name by getting business through name confusion, and avoid being associated with (and possibly sullied by) projects, products or organizations it neither endorses or is affiliated with.
Groupon vs Gnome
Understandably, the GNOME Foundation was not pleased.
To use the GNOME name for a proprietary software product that is antithetical to the fundamental ideas of the GNOME community, the free software community and the GNU project is outrageous. Please help us fight this huge company as they try to trade on our goodwill and hard earned reputation.”
Of course, in a sane world where trademarks are not only allowed to exist but are protected by law, Groupon should have backed down immediately.
In the real world if you trespass on someone else’s real property and get caught, when told to leave you must leave or you can be removed or arrested.
In the demented world of IP, Groupon trespassed on the GNOME trademark and was caught. Instead of gathering up it’s IP infringement and going home, the response appears to have been “This isn’t trespassing, this is the name we chose, and we won’t give up without a fight.”
In the copyright mad world we actually live in, the only way for the GNOME Foundation to fight this was to oppose Groupon’s Trademark Applications, requiring the outlay of large sums of money. Oddly enough, free software purveyors generally don’t have large sums of money earmarked for legal battles. So naturally the GNOME Foundation had to launch a fundraising campaign to raise the estimated $80,000 it would need to opposing the trademark registration.
If a state is going to allow the existence of trademark law, it should not matter who is richer. In a sane world, Groupon would have backed down the moment it became aware of a conflict, because there would not have been any hope it would acquire a trademark that was already in use, and any Trademark Application process would have effective penalties to discourage specious applications.
Except there doesn’t seem to be any more sanity in Trademark Applications than there is in any other form of Intellectual Property Law. IP Law is always a gamble, and it always costs a lot of money. Without enough money, the best argument in the world can be drowned out.
Like any entity, GNOME had to jump through legal hoops — which surely cost money — in order to get the Trademark on it’s name. You would think that would provide protection. The problem is that it doesn’t. Like all IP law, the protection is only good until your money runs out.
The problem, of course, is that Trademark Law has become such a monster that if the entity doesn’t actively fight for its name, it can lose the right to use it.
But luckily the GNOME appeal to the Free Software Community must have achieved enough traction that Groupon felt the heat, because today I discover that Groupon has agreed to change its product name.
Proceeding in a campaign to commandeer the “gnome” name in the light of day could very well damage Groupon’s own reputation, so it has “decided to abandon our pending trademark applications for “Gnome.” “
So this should be cause for cheering, right?
what’s in a name?
‘Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What’s in a name? that which we call a rose
By any other name would smell as sweet
When I started writing professionally, television production companies used de Forest Research to vet the scripts they produced, to ensure that things in their scripts — like character names — wouldn’t be a legal liability. Say your movie’s villain is a doctor who murders his patients. Now if there is only one human being alive in the world with this name, and that person is a doctor, he could suffer reputation damage and may very well sue the production company (and the writer) into oblivion. But if the name you’ve chosen for your murdering doctor is John Smith, there are sure to be so many doctors named John Smith that any reputation damage would be minuscule.
So the rule of thumb was that it was safest to use a common name like John Smith. or a name so uncommon nobody has it. In today’s Internet world, we can get a pretty good idea if a name is common or non existent through internet searches. (Note: be careful to search outside your default search engine because you want an unbiased search. If you’re making a movie, it’s still wise to hire de Forest.)
Reputation is just as important to human beings as it is to corporate entities or products. Yet there are many people in the world with the same name. Maybe I’m just biased, but I think the reputation of a human being is far more important the the reputation of a corporate entity or a product. If a human being’s reputation is destroyed, a life is effectively destroyed. And yet nobody suggests human beings should be obliged to have unique names that must be registered (as racehorse names are) and defended in court on pain of losing them.
And law provides recourse to slander and libel and fraud without requiring human beings to stick to a single name. In fact, a good number of human beings have online pseudonyms as well. Certainly, name space collisions happen, but it doesn’t require human name registration.
The Free Software movement began as a way to fight for the existence of free (as in liberty) software. This movement was begun by programmers, because they didn’t want to lose the freedom to innovate and create. The Free Software Foundation fought against the application of Patent Law to software, because software is made up of mathematical formulas — the programmer’s raw materials — which should not be owned by anyone.
By the same token, words make up our human languages; they allow human beings communicate. And as a writer, words are my raw materials. Which is why no one, no person, no entity, should be allowed to lay claim to ownership of a pre-existing word.