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.



Reader Comments (rss)

(Flattened / Threaded)

  •  
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    SujaOfJauhnral (profile), Aug 10th, 2012 @ 3:27pm

    . . . . .. . . . . . . . . . . ,.-‘”. . . . . . . . . .``~.,
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    . . . . . . . .. .,?. . . . . . . . . . . . . . . . . . . . . . . . . . .\,
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    . . . . . . . ./. . . . . . . . . . . . . . . . . . . . . . . . . ,:”. . . ./
    . . . . . . .?. . . __. . . . . . . . . . . . . . . . . . . . :`. . . ./
    . . . . . . . /__.(. . .“~-,_. . . . . . . . . . . . . . ,:`. . . .. ./
    . . . . . . /(_. . ”~,_. . . ..“~,_. . . . . . . . . .,:`. . . . _/
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    . . . . . . . . . .`=~-,,.\,. . . . . . . . . . . . . . . .\
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    . . . . . . . . . . . . . . . . . . .`=-,. . . . . . . . . .,%`>--==``
    . . . . . . . . . . . . . . . . . . . . _\. . . . . ._,-%. . . ..`

     

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    Get off my cyber-lawn! (profile), Aug 10th, 2012 @ 3:37pm

    Arguing over "keyholes"...

    makes one sound more like an A$$hole.

     

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      Anonymous Coward, Aug 10th, 2012 @ 5:04pm

      Re: Arguing over "keyholes"...

      "keyholes"

      giggady

       

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      SujaOfJauhnral (profile), Aug 10th, 2012 @ 5:31pm

      Re: Arguing over "keyholes"...

      Ironically I can actually see validity in this case.

      The fact they are both circular with keyholes, both start with 'Open source" in the same position with very close colors (cyan is right next to green) make it's seem as if they are part of a set as in labels for separate sections of a website.

       

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    PlagueSD (profile), Aug 10th, 2012 @ 4:12pm

    So two "open source" communtities battle over who gets the cooler looking logo???


    /mindboggle

     

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    Anonymous Coward, Aug 10th, 2012 @ 4:13pm

    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.

     

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      J.B. Nicholson-Owens (profile), Aug 10th, 2012 @ 5:55pm

      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").

       

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    Anonymous Coward, Aug 10th, 2012 @ 4:20pm

    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)

     

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    Anonymous Coward, Aug 10th, 2012 @ 4:52pm

    I can see where the complaint comes from, but I'm not really convinced changing the logo will solve the problem. The names are related enough that I'm not sure changing the logo will make them seem completely different.

     

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    Torg (profile), Aug 10th, 2012 @ 4:59pm

    I'm confused about how dilution of a trademark could hurt an open source group. Under what scenarios could hardware bearing a logo similar to one associated with open source software be problematic?

     

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    Baldaur Regis (profile), Aug 10th, 2012 @ 5:03pm

    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?

     

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    Anonymous Coward, Aug 10th, 2012 @ 5:03pm

    ROFL The real problem is both logos look like shit..

     

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    Anonymous Coward, Aug 10th, 2012 @ 5:12pm

    I am so disappointed right now.

     

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    Nina Paley (profile), Aug 10th, 2012 @ 5:32pm

    Open Source Trademarks

    Clearly what's needed is an Open Source Trademarks organization. I have a great idea for a logo...

     

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      Anonymous Coward, Aug 10th, 2012 @ 5:57pm

      Re: Open Source Trademarks

      Go Nina! We luv ya, babe.

      How about completing the gear wheel by including the last tooth and making it solid. That gets rid of the keyhole aspect. Then have two of them meshing. That would say "hardware" much more clearly.

       

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        rick (profile), Aug 11th, 2012 @ 6:33pm

        Re: Re: Open Source Trademarks

        If they completed the gear, then they could be infringing on Techshop's gear logo (http://www.techshop.ws/). They use the gear for quite a lot of their teaching projects, so they are rather proud of it.

         

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      gnudist, Aug 10th, 2012 @ 7:36pm

      Re: Open Source Trademarks

      I don't think open source translates well from copyright to trademarks.

      Trademarks is about securing an identity to protect consumers, everyone being able to reuse the brand misses the point entirely.

       

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    Rapnel (profile), Aug 10th, 2012 @ 6:42pm

    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.

     

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    Bengie, Aug 10th, 2012 @ 6:47pm

    wtf

    Different color, different size, different shape. Ohhh... one *part* of the logo has the same shape.

     

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    nospacesorspecialcharacters (profile), Aug 10th, 2012 @ 7:46pm

    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.

     

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      Jeff Rowberg (profile), Aug 10th, 2012 @ 8:36pm

      Re:

      Sort of. While OSHW is usually patent-free, the specific main point is to actually provide the source designs, just like with open-source software. It isn't that you're just allowed to copy or improve it, you're actually encouraged to do so.

       

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    Anonymous Coward, Aug 11th, 2012 @ 2:20am

    who gives a fuck, apart from them? it's open source representation, let both things mean open source! all this is doing is joining ridiculous battles that closed source companies engage in and being as bad as they are. grow up for christ's sake

     

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    dennis deems (profile), Aug 11th, 2012 @ 6:04am

    My first thought on seeing the OSHWA logo was Gizmonic Institute.

     

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    Anonymous Coward, Aug 11th, 2012 @ 6:14am

    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.

     

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    Jake Roberts, Aug 11th, 2012 @ 6:56am

    Seriously

    Seriously guys? You have problems like MS' and Apple's continued legal onslaught, and the looming UEFI catastrophe, but you're going to spend time and resources in-fighting? #leadershipFail

     

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    Hodge, Aug 11th, 2012 @ 8:19am

    Shrugs.

    They both look like the goatse image to me.

     

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    Solbu, Aug 11th, 2012 @ 9:57am

    Uhm, and the problem is?

    I really don't see the problem. If it is a problem for OSI, why don't they change the logo? After all, it's just that, a logo.

     

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    Kaega (profile), Aug 11th, 2012 @ 1:26pm

    They both suck

    Is it just me? Or is it weird that both Open Source companies both have logos that look like old fashioned locks? Seems like a poor logo.

     

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    Bergman (profile), Aug 11th, 2012 @ 3:15pm

    So basically, OSI is yet another patent/copyright/trademark troll, this time in sheep's clothing?

    Just another soulless corporation to boycott, I guess.

     

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    Anonymous Coward, Aug 12th, 2012 @ 8:12am

    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

     

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    Kev, Aug 12th, 2012 @ 1:16pm

    blowing smoke up our collective asses

    since youtube gets more dmca infringement notices then anyone else on the web who is going to punish them? i know google wont!

     

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    Kev, Aug 12th, 2012 @ 1:17pm

    blowing smoke up our collective asses

    since youtube gets more dmca infringement notices then anyone else on the web who is going to punish them? i know google wont!

     

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    Anonymous Coward, Aug 13th, 2012 @ 12:04am

    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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    Anonymous Coward, Aug 13th, 2012 @ 12:07am

    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..

     

    reply to this | link to this | view in chronology ]

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    identicon
    Anonymous Coward, Aug 13th, 2012 @ 12:09am

    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..

     

    reply to this | link to this | view in chronology ]


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