Two Open Source Communities Battle It Out Over Trademarks

from the why-can't-trademarks-be-open-source dept

Trademarks are a fickle beast. It seems that no matter what you do, no matter what you name your product or service, no matter how you color your shape your logo, someone comes along and claims that you are infringing their own trademark. Sometimes the trademarks are within the same industry, sometimes they seem to have absolutely nothing to do with each other. Yet, for some companies it doesn't matter. All that matters is that you are using something they think is too close.

Not long ago, an organization was formed to promote the creation and use of open source hardware, hardware that has an open spec and design that others can copy and modify. This organization, Open Source Hardware Association, upon creation, had the community vote on a logo to represent the initiative and brand any hardware meeting its qualifications. Unfortunately, another open source organization, the Open Source Initiative, feels that the logo chosen by the OSHWA community is much too close to its own. According to the complaint, OSHWA's logo looks too similar to OSI's logo. You can see the two below.

Open Source Hardware and Open Source Initiative Logos

The main similarity that has OSI complaining is the keyhole shaped opening in the middle of the two logos. Because of this similarity, OSI feels that people might associate its organization with the products of OSHWA. OSI feels that it could be problematic as it doesn't want its brand diluted.

Perhaps it should be approaching this dispute differently. The OSHWA logo was chosen by the community. Which means that on some level, the open source community felt inspired by the work of the OSI and wanted to pay homage to it. Perhaps the OSI has recognized that fact as it is offering OSHWA a licensing offer. Unfortunately, OSHWA feels that even that license will not work.

OSI has indicated that they would grant a trademark license to OSHWA. This would give OSI the means to protect their trademark. However, accepting such a license would establish OSI as the owner of the crowdsourced ‘gear’ logo. It would make OSI responsible for deciding where and when the logo can be used, effectively giving OSI control of defining what can and cannot be labeled as open source hardware.

Such a license would limit OSHWA's autonomy as an organization. Something that neither it nor its community want. So it is weighing other options as well. These include ignoring OSI's complaint or sourcing a new logo. Fortunately, it looks as if OSHWA and its community are leaning more toward the latter than the former.

But while it is busy dealing with this conflict, it cannot continue with its core mission of promoting the use of open source hardware. This dispute has even been scaring some people away from participating until it can be worked out.

Dave Vandenbout, who runs X Engineering Software Systems in North Carolina, was putting the gear mark on open-source boards, but is suspending that until the issue is sorted out. The gear logo told people that the board is open-source and they can build upon it if they wish.

“If it is found that the Gear logo infringes OSI's trademark, then I suppose I could receive a cease-and-desist letter. That might be pretty disastrous for me if I had to actually scrap my inventory,” Vandenbout said.

This is certainly not a good way to start an open source movement. If this dispute keeps up, it might undermine all the effort its founders and board have put in to building a brand. If it cannot build confidence in hardware makers now, it might not recover. Fortunately, it is doing all it can and keeping the community informed about new developments. Something that will really help it stay strong.

OSHWA has stated in an update to its blog post that it is going into renewed talks with OSI and hopes to come to a conclusion that will be agreeable to all parties. Hopefully, it will also keep both parties out of the court room. Yet, I find it a tad disappointing that two organizations whose main stated goal is promoting the use and building upon the work of others through open source are even having such a dispute at all. You would think that such a philosophy would transcend the nature of their core work to other areas such as trademark.

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Companies: open source hardware association, open source initiative

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Comments on “Two Open Source Communities Battle It Out Over Trademarks”

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37 Comments
SujaOfJauhnral (profile) says:

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Anonymous Coward says:

Looking at the logos, it does seem like a reasonable person would conclude there was some form of affiliation.

It’s unfortunate this happened, but the fact that the groups are centered around open source is really just a red herring; each wants a logo that will be identified with their views and initiatives, and different open source movements can have extreme differences in opinion (e.g., Richard Stallman). The OSI isn’t trying to exert a monopoly right over a scarce resource – their reputation and brand are what they’re protecting and can be damaged by another organization using a similar logo. It’s entirely self consistent to be pro open source while still defending a trademark.

The OSHWA will just end up changing their logo a bit and life will go on.

J.B. Nicholson-Owens (profile) says:

Re: Free Software and Open Source aren't the same

Richard Stallman is not a member of a “different open source movement”. Stallman is a member of the free software movement he began over 20 years ago. He makes the distinction between free software and open source clear at every talk I’ve heard him give and in essays (1, 2, to name a couple). Open source is not an enemy of free software; open source enthusiasts and free software advocates do work together on the same projects and have for a long time?but free software philosophy and open source’s development model don’t stand for the same thing, they don’t share the same history, nor do they arrive at the same views on some software issues?most notably how to think about proprietary software. It’s simply a mistake to lump Stallman in with a movement he’s not a member of and whose values he does not share.

Stallman’s movement, the free software movement, was started over a decade before the Open Source Initiative began. Free software also has a philosophy that will sometimes lead to radically different conclusions than open source (the entire essay is helpful on the distinction, but particularly the section called “Different Values Can Lead to Similar Conclusions…but Not Always”).

Anonymous Coward says:

There was a post about how “Trolling” was losing it’s meaning.

Now you say “Battle it out” as if it’s synonymous with “Have friendly meetings and make jokes at the lawyers”.

This incident is how trademark disputes should happen and should be held up as an example of how to do it right, not be sensationalized as something wrong (the Slashdot article was more guilty of this then Techdirt)

Baldaur Regis (profile) says:

Just a quick question.....

….to actual lawyers here. Since the “open keyhole” mark seems to resonate with open source crowds, could OSI assign the trademark to a neutral third party, then release a noble and awesome statement inviting ANY open source movement (open source software, open source authorship, open source whatever) to build on the mark, provided they get the approval of already participating users of the mark (OSI and OSHWA to start, one vote each, neutral third party providing any tie-breaking vote)? Could the neutral third party provide a smackdown if say, Monsanto jumped the mark and said “look, we’re open source too”?

If OSI doesn’t want to play, could OSHWA crowdsource a new logo, then do the same thing?

Rapnel (profile) says:

new

oshwa needs a new mark. osi needs to let any current stamping move forward and find solace in the knowledge that it, the current mark, will be changed and any existing presence will be diluted with a new mark moving forward.

oshwa needs a smack for even submitting the mark for use, crowd sourced or not. For fuck’s sake, it’s even got rounded corners.. they should really know better.

nospacesorspecialcharacters (profile) says:

I may be chewing the wrong end of the stick but shouldn’t OSHWA really be called Patent Free Hardware? Open source refers to source-code.

They could consider a name change, lending weight to the fact they’re not ‘competing’ in the same industry therefore no customer confusion (since we must also remember that trademarks’ original intention was to protect the consumer, not protect a brand.

In the end, it seems to me that if hardware and software freedom is to really take off, laws need to be changed to adapt to business models which may not primarily be profit driven (but at the same time not a registered charity).

In this case, I can understand the desire to protect the TM for OSI (prevent anyone from taking it and classifying their software as ‘open’ through an implied association) but the same time the law doesn’t provide for the core philosophy behind the mark… its a case of defend it or lose it – even if there’s no actual ‘product’ being sold.

Anonymous Coward says:

I wouldn’t assume that they are the same organization, but I could assume that they work together and support each other. It would make me foster the same trust level to both, whatever that might be. Right now they are acting like busy-bodies with way too much time on their hands, and are neglecting their core mission. Of course the conflict is great free advertising. I mean have you heard about either of these organizations in the news lately.

Anonymous Coward says:

Tee-hee. This is another wonderful story of what happens when people have something to protect, something they feel ownership over – even if it’s in the open source field.

Sums up nicely my long term opinion on many things discussed here and the comments posted: Your views will change when you finally make something worth protecting

Anonymous Coward says:

forget logo’s, they have to create a PRODUCT that people want, that is far more important..

yes, harder, or impossible for these groups, but ya, gotta do what ya gotta do..

and so far,, FOSS, OSS, OSI or whatever has a shocking record of actually creating anything (AT ALL) of worth or value.. well over 20 years we’ve been waiting for OS to do something, or for Linux to get anywhere, and still nothing..

Anonymous Coward says:

forget logo’s, they have to create a PRODUCT that people want, that is far more important..

yes, harder, or impossible for these groups, but ya, gotta do what ya gotta do..

and so far,, FOSS, OSS, OSI or whatever has a shocking record of actually creating anything (AT ALL) of worth or value.. well over 20 years we’ve been waiting for OS to do something, or for Linux to get anywhere, and still nothing..

Anonymous Coward says:

forget logo’s, they have to create a PRODUCT that people want, that is far more important..

yes, harder, or impossible for these groups, but ya, gotta do what ya gotta do..

and so far,, FOSS, OSS, OSI or whatever has a shocking record of actually creating anything (AT ALL) of worth or value.. well over 20 years we’ve been waiting for OS to do something, or for Linux to get anywhere, and still nothing..

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