CollabMark
About & contact
CollabMark
Trademark guide for free culture
The Collaborative Mark project aims to provide information about why open source and free culture communities may consider
trademarks
and how they can use them. The project includes a
Collaborative Mark Policy
and other
trademark hacks
that collaborative communities can adapt to protect their name and logo.
Collaborative communities, like Linux and Wikimedia, are built on the principle that information should be shared and remixed. Some of their work has widely recognized names and logos. But if communities try to legally protect their names and logos, they face a challenge: trademark law requires some degree of restriction (or "quality control"), whereas communities expect their work to be free for anyone to use. This is a
common source of difficulty
in collaborative communities.
Until trademark law evolves to accommodate collaborative work, communities can use the trademark hacks on this page to reconcile that conflict. Learn more
about this project
TM
What's trademark?
A community's name or logo is what we call the "mark." Trademark law can provide powerful protections for a mark. Here are some basics on trademark law:
Unlike copyright or patent, trademark law generally only applies when you actually use a name or logo, so don't try to be a
trademark troll
Marks that have no other meaning (like "
XKCD
") get the strongest legal protection.
Not all names and logos are eligible. For example, a generic term for a particular type of project and names that are similar to pre-existing marks usually can't be trademarked. Descriptive names (such as "ComputerLand") are only protected once they get a
secondary meaning
in the mind of users.
Trademarks can be registered. An unregistered trademark may still be protected, but a registration makes legal enforcement easier and may alert others that you are using a name.
Trademark protection only applies to certain types of uses. For example, someone can use your trademark to refer to your product, to criticize you, or make a parody.
Why trademark?
The identity of a collaborative community is valuable. Trademark law may strengthen that identity by providing a legal right to:
Keep the community distinct so that it can recruit new members and build a strong reputation.
Prevent other communities from using their name and logo in confusing ways (such as an imposter offering incompatible, insecure, or malicious software that is confusing to users).
Fight
cyber-squatters
(an unfortunate problem for any popular site) and phishing sites that pretend to host the community's work to steal users' login information.
TM -> CM
Protecting your mark
Collaborative communities have come up with a few different "hacks" to overcome the challenge of using trademarks to protect collaborative projects. But there is no silver bullet and the hacks are often used in parallel depending on the needs of a community. Here are some things that communities may think about:
Is the community ready for trademark registration?
New communities could start with general principles about how to govern their identity. They may want to have a governance structure in place before they register trademarks.
Prematurely registering a trademark law may be problematic:
If the mark is descriptive (i.e. "ComputerLand"), it may take time for it to get a secondary meaning to be trademarkable. It may be better to wait for the mark to become well-known before registering.
Focusing on restricting trademark use early in a community's development may be counterproductive for the promotion of the community. It may be better allow people to freely spread the word before the community establishes the name.
Filing for trademark registration is not a cheap investment. A young community will often have limited resources and only a few contributors, who are better off focusing on developing the community's project.
Who holds the mark?
Trademark law generally does not recognize a decentralized community as a legal holder for a mark. A person or organization may need to hold a trademark on behalf of the community.
Communities may want to contact an umbrella organization, such as the
Free Software Foundation
Software in the Public Interest
, and
Software Freedom Conservancy
for assistance with registering, holding, and enforcing trademarks. More established communities may set up a dedicated nonprofit (like the
Python Software Foundation
) to hold the mark. Some communities have had problems when individuals or companies hold trademarks on behalf of a community without a clear policy and accountability to the community.
What type of trademark?
Some communities have an unregistered mascot, such as the
Tux penguin
, to accompany their protected trademark. Maintaining two marks is not a great hack. It doesn't provide protection for one of the marks, which may be the most important mark to community, and it still restricts the use of the other mark.
Another option is to register a
collective membership mark
, which provides full protection for the mark, but requires less quality control.
What type of restrictions to put in place?
Trademark holders can identify the good uses that the community wishes to encourage and the damaging uses that the community members should avoid (and often already do).
How to design the trademark restrictions?
Trademark holders should ensure that community members can
effortlessly
get permission to use the marks for their collaborative work. It may help to decide the trademark restrictions through a process that is consistent with the community's usual decision-making, such as email discussions or requests for comments. The trademark restrictions can be stated in a
"public license" style
trademark policy, similar to how the
Creative Commons
license "hacks" copyright law.
Collaborative Mark Policy
A trademark holder can state how a mark may be used in a public document. This is called a "trademark policy." The policy can explain: (1) how marks can be used without a trademark license; (2) when a license from the trademark holder is necessary; and (3) what uses are always prohibited.
We have released the
Collaborative Mark Policy
, which is a sample trademark policy that is modeled after the new Wikimedia trademark policy and licensed under CC BY-SA 3.0. Feel free to adapt it for your collaborative community or suggest improvements by
submitting a pull request
or
opening an issue
on Github.
About this project
Our forthcoming law journal paper:
Hacking Trademark Law for Collaborative Communities
Blog post for Stanford CIS:
Hacking Trademark for Free Culture
Background for the Wikimedia Trademark Policy:
The purpose of our trademark policy
Sample language for trademark guidelines for FLOSS software projects:
Model Trademark Guidelines
Software Freedom Law Center's
Trademark primer for free software communities
Cornell Legal Information Institute article on
Trademark
Wikipedia article on
Trademark
EFF's Internet Law Treatise:
Trademarks generally
Trademark Manual of Examining Procedure
Section 1304 on Collective Membership Mark
Examples of disagreements in collaborative communities over trademarks:
Linux
and various early trademark trolls
Mozilla and Debian
(also
GNUzilla
Legal Hackers
and other legal hackers
GNOME and Groupon
Truecrypt
's abandonment and TM clause
NPM and Nodejitsu
more
, and
more
Ubuntu and privacy critics
the Markdown / Standard Markdown / Common Markdown ordeal
Python vs. Veber
OSI
and OSHWA
VirtualDub TM fight in Germany
Wikimedia Community logo
mitsuhiko and tip4commit
PNAELV and CentOS
Ruby on Rails logo
openbay
and
openbay
Get involved
Start a
discussion on Github
. More ways to participate are coming soon!
Contact us: @
yanatweets
& @
sklaporte
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