Feed icon madness

June 16, 2006 3:57 pm Dave Neary gnome

Seems like I missed the storm in the teacup about Mozilla’s treatment of the RSS feed icon – Frank Hecker has cleared up Mozilla’s intentions, and how they plan to proceed.

As rows go, this one is a little particular. Mozilla wanted to encourage universal use of the orange feed icon for syndication in open formats. So far so good. One option that they were considering to accomplish that goal is trademarking the icon, to avoid its use for things other than syndication using open formats.

Now, anyone who’s been involved in trademark discussions in the free software community knows how hard an issue this is. O’Reilly found that out recently, as have Mozilla in the past. You want to reconcile two fundamentally incompatible ideas:

  1. Allow the good guys to use and spread freely the mark and thus get the word out about your project
  2. Fulfill the requirements of trademark law by ensuring the quality of each use of the trademark

If you don’t police your mark, by verifying each use of the trademark and saying “I agree with this use of the mark” in some semi-formal way, you lose the protections which trademark law gives, and you don’t get to take bad guys who abuse the mark to court. If you do police your mark, then you are restraining the good guys from freely spreading the mark.

So you end up with absurdities where if you distribute the exact bits of what the Mozilla Foundation releases and calls “Mozilla Firefox”(R) you can also call it “Mozilla Firefox” (R), but if you change more or less anything (as insignificant as scratching an itch and fixing a bug, or customising artwork, or changing the default home page) then I have to call it “Mozilla Firefox Community Edition” (TM) – or even “Incorporating Mozilla (R) technology”.

The long & short of it is that trademarks are a hard problem, when it comes to free software projects, and registering them may not be the right answer, if that implies that you must do things which you are uncomfortable doing in a community. As Luis pointed out, Chris Messina has been thinking a lot about this issue and the approximate conclusion is “registering trademarks is the wrong answer to community use of our brands”.

I’m not convinced of this. I think that there must be some way to increase what you consider fair use of a logo, and distribute QA of marks across a community. A solution will require imagination, and lots of help from inventive people with in-depth knowledge of trademark law. And perhaps a lobbyist or two to get the law changed.

6 Responses

  1. Chris Messina Says:
    June 17th, 2006 at 8:13 am

    Hey Dave — good points and summary of the issue at hand. I’m hoping that Mozilla’s pursuit of this issue will lead to the option of using the community mark concept to publish symbols and marks that communities identify themselves by.

    It’s unclear whether trademark law as it stands will permit this kind of free-use, especially when community enforcement is actually *much* more effective and cost efficient than traditional legal remedies that tend to drag on forever and leave all sides raw.

    I’m not anti-trademark, but I am pro-choice, in the IP sense. Copyright has an alternative in Creative Commons; why shouldn’t trademark?

  2. Chris Heuer Says:
    June 17th, 2006 at 9:46 am

    Perhaps there is a way to set up a Community Mark Legal Support System, where the organization (or foundation) can collect money on behalf of a given mark which will go towards registering the mark officially. Lawyers could contribute pro-bono over the net to remotely contribute their expertise – adopting a given mark to usher through the process. The community tools could enable members of the community to donate money via any number of methods and work towards establishing some generally acceptable guidelines for the usage of community marks in a manner similar to Creative Commons’ process. Enforcement can be done via automated diiscovery systems and through community reporting / policing – dispute resolution processes could also be established in this regards.

    I would think there must be a creative solution in here somewhere, just a matter of time before it becomes clear.

    Not my area of expertise, just my .02

  3. mini-me Says:
    June 17th, 2006 at 12:14 pm

    What’s with the “As Luis pointed out” link? Is that a clever hax0r attempt?

  4. Dave Neary Says:
    June 17th, 2006 at 4:20 pm

    mini-me: corrected now. Not a ha><0r thing – just a rogue C&P.

  5. Chris Messina Says:
    June 20th, 2006 at 1:32 am

    But Chris, the whole point is to *not* rely on the cumbersome and costly legal system… it’s about having a choice — opening your mark up to community protection is not a legal guarentee of anything: it’s half economic and half an act of faith. And it shows great courage on the part of the entity that does open it up since the community could indeed take the mark in the wrong direction… but c’est la vie — if the community you’re serving doesn’t endorse your use of the mark or agree with your intentions, you have a larger problem than enforcing the “proper” use of a symbol. M’kay? 🙂

  6. Dave Neary Says:
    June 20th, 2006 at 1:43 am

    But Chris (2), the whole point of trying to find some imaginative solution within the legal framework is to have a stick for the bad guy who sets up a porn site with your logos and tells you and the community to go screw yourselves (while looking at his site, preferably).

    I refuse to believe that the “abandonment” mentioned in US trademark law means “the first time anyone uses your trademarks, and you know about it, and you don’t stop them from using it, you lose the mark” – surely as trademark holder, you get to have some say about how the mark gets used, including the ability to say “all the following uses are fine by me – fire ahead”?