Open Source Is An Interesting Conundrum When It Comes To Trademark Issues

Is open source technology subject to trademark issues? This is a question that has two sides to it.

Currently, a large portion of the open source community, referred to as OpenStack, is working on a set of rules that actually let anyone take the software from their open source project and do whatever they want with it. Yes, including sending it all over the place and reselling it, if that’s what the person taking it wants to do with it.

In any other company or group on the planet that was developing software, one of the first issues they’d want to deal with is trademark protection, patent protection, patent infringement, etc., provided they weren’t working on other open source technology, such as Open Office.

OpenStack is a compilation of open source products that offer secure, scalable, standard-based cloud computing software solutions. They are in the midst of tweaking OpenStack Compute and OpenStack Object Storage. Who uses this software? Anyone who needs it can use it, ranging from service providers to corporations and from researchers to global data centers. All of the code is available to anyone, because they believe in the open development model.

Other open source projects do have trademark policies, but the mostly focus on who cannot and who can use the trademark. This is what people find amazing. You’d expect that the policies would deal with who could and could not use the software, so it comes as a bit of a surprise to find out that if you’re dealing with open source technology, all you can protect is the trademark itself and not the product.

Here’s how open source trademarking is protected. The rules are usually written that anyone may use the trademark for general community promotion and that anyone may use the mark if they are shipping a product that is based on the open source technology. So far, so good. But there is a bit of a glitch and that has to do with each particular open source community, meaning, each community has their own set of rules that outlines what they feel is a product that people may take and use open source technology in.

It’s the “what is a product” part of the equation that makes it very difficult to figure out what is trademarked and what is not. This is largely due to the fact that the whole reason for being for the open source community is for others to take what you may have worked on as a solution, tweak it, perhaps modify it, improve it and then pass it on to someone else, without any restrictions.

While it may sound like all the community needs to do is just figure out who gets what, when and why, the needs and reality of the open source community has to be in balance with customers outside the open source community. For instance, in OpenStack’s case, they offer two endeavors that can either go together or remain separate. It’s up to the end user as to how they want to use the technology. This has the potential to create interesting problems legally.

To learn more about David Alden Erikson, Attorney at Law, visit Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law

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