Why we trademark Open Source software and you should too

Sam Tuke Feb 23 2021 Share

Note: the author is not a lawyer and this does not constitute legal advice ?

Lightmeter uses trademarks for the project (Lightmeter), applications (e.g. Lightmeter Control Center), and technology components or ingredients (e.g. Ray Chaser).

Trademarks are a type of intellectual property, and they therefore restrict people’s freedom to use certain words and images in some contexts. Does this mean that using trademarks contradicts Open Source principles of maximising freedom and collaboration?

The short answer is “no”, because some trademark protections are necessary to ensure that broader freedoms exist for everyone.

Motivations to trademark

There’s a long history of the abuse and misuse of Open Source software which could have been avoided if trademarks had been effectively used to defend it.

The effects of Open Source trademarks and their absence are not intuitive, and by the time a related problem arises it’s often too late to resolve it, due to the central role of timing in trademark litigation.

Neither the terms “Open Source” nor “Free Software” are themselves trademarked, which unfortunately allows anyone to use them to describe anything – companies regularly exploit this to undermine public understanding of the freedoms which the words originally conveyed.

This is why we are using trademarks early and often in Lightmeter — to avoid problems for users and ourselves later on.

In theory: trademarks protect freedom

For many people to posses broad freedom to do what they like, they must have freedom from certain obstacles to freedom such as, in the extreme, their imprisonment or murder. This is called positive vs negative freedom.

Freedom from those obstacles entails limits on other people’s freedom to do the imprisoning and murdering. Trademarks constrain the freedom of a minority of people who would use it to abuse the freedom of others. In this way trademarks are used to guarantee the freedom of the majority.

In practice: trademarks prevent abuse

Having trademarks impacts many specific avoidable problems; they:

• Help guarantee the quality of releases made in our name (e.g. no malware included)
• Help build a brand and identity to attract users and contributors
• Prevent companies from lying about endorsements and support from us
• Prevent companies from charging people to download our Free Software
• Prevent the false attribution of bad behaviour to us
• Avoid legal liability for products which pretend to be made by us
• Allow us to register domains and social media accounts which require trademarks
• Prevent other software pretending to have the same innovations we do
• In the case of a software fork distinguish between the two editions

Additionally opportunities are provided by using trademarks because they:

• Help communicate how innovative features are different to competing systems
• Make several aspects of providing future commercial services more viable

Proactivity is not optional

By the time that bad behaviour as occurred which relates to trademarks, new trademarks cannot be registered to help.

Trademarks must be registered early and actively asserted and defended in order to have legal meaning. In many countries whoever registers a particular name or image first gets to own it forever.

Our strategy

Open Source products should not be at a disadvantage to proprietary ones or vulnerable to exploitation. To make empowering new tools we must protect our collective interest and investment, and trademarks are legitimate and necessary means of doing so.

For these reasons we trademark Open Source software at Lightmeter, and you will see the ™ trademark symbol and the ® registered symbol next to some words and images. In this way we protect the innovative solutions we are building with our community for mailops monitoring and automation. We look forward to adding more as Lightmeter shares additional inventions in future.

Further reading

• LWN: Trademarks for open-source projects
• FossMarks.org
• Trademarks (Producing OSS)
• Practical Trademark Law For FOSS Projects (video)

Thanks

Thanks to Shane Curcuru at Punderthings Open Source consulting for providing advice and inspiration for this article.

Legal

The Open Source logo is the property of the Open Source Initiative and used in artwork for this article under terms of Fair Use.