"Open Source" Not Trademarked After All?

Mike_Miller writes "According to a ZDNet Article, the term "Open Source" is not, and never has been, trademarked. Quote: "The term has never been a registered trademark, and it's no longer even pending registration." " Oh dear. Update: 06/15 02:30 by CT : ESR wrote in to say "Hey, chill, everybody. OSI was planning to issue a statement about this matter after our Wednesday board meeting (despite some of the rumors going around, we do operate by consensus; this slows us down a bit sometimes). So if you'll wait a bit, all will be made clear. In the mean time: don't panic!"

Comments

He says now it's free, but...

[Anonymous Coward]

The author says (in a snotty tone of voice) that he is glad the term Open Source is free as what it represents. Actually this doesn't make any sense, because now anyone else can snatch the name up and take it away from public use. GPL'd software is not public domain. It is copyrighted and that is why GPL'd software can not be taken over by one company. That is the same protection you need for the term Open Source.

Re:Actually, it is trademarked, although pending

[dhms]

Ummmm.., I hate to burst (or, was that "Berst") your bubble. but did you bother to click on the "ckeck status" button?

It returns:
If you require additional information about the application status, contact the Trademark Assistance Center (703) 308-9000 (M-F 8:30 a.m. to 5:00 p.m. EST). You could also contact SOPHIA S. KIM, Trademark Examining Attorney. Click here to find out the examiner's phone number.

Serial Number: 75439502

Registration Number: (NOT AVAILABLE)

Current Status: Abandoned: Applicant failed to respond to an Office action.

Date of Status: MAY 24,1999

It's still a trademark, registered or not

[Bruce Perens]

It's still a trademark, regardless of the status of its registration. OSI can re-apply if they wish.

I don't know why OSI elected to drop the ball on registration. When last they corresponded with me, they had an attorney working on it. I sent the registration papers to Nils Lohner at SPI quite a while ago, and he would have forwarded them to OSI.

Evan is so darned malicious.

Bruce

It's still in the USPTO database

[Bruce Perens]

It's still in the USPTO database under pending trademarks. I did hear elsewhere that OSI failed to respond to an office action, but I'd not call it dead yet.

Bruce

Re:Any response from Perens, Raymond?

[Bruce Perens]

Well, remember I walked off of OSI quite a while ago and said it was time to call it "Free Software" again. So, I'm not going to get upset about the status of the trademark for its own sake.

However, I had heard a while back that OSI had failed to respond to an office action, though I don't understand why they'd do that it was undoubtably deliberate.

I wish Evan wouldn't sound so malicious. Doesn't he understand that a trademark is the best protection against someone else registering a trademark on the same thing?

Bruce Perens

The Open Source Definition is more important!

[Bruce Perens]

There's been some question regarding the legal status of the Open Source certification mark. Although the mark still exists, its application for federal registration has apparently been allowed to lapse, perhaps temporarily. In February, I published It's Time To Talk About Free Software Again , because I felt that the use of the phrase Open Source had caused us to think less about the freedom involved in Free Software. What I said then still stands, and thus I'm ambivalent about the fate of the Open Source certification mark. However, the Open Source Definition is still a good idea. That document has been a very important standard: it's helped us distinguish between licenses that provide a fair return to the free software community for the effort our developers contribute, and those that don't. Many large corporations and individual developers have been influenced to use better licenses because the community insisted that they be OSD-Compliant, and that's helped free software prosper.

Now more than ever, as Free Software finally becomes commercialized, as $100 Million dollar IPOs draw the greedy as well as those who would treat us fairly, it's important that the free software community continue to insist on licenses that comply with the OSD. Our stand on licensing during the next year will make the difference between life and death for free software. Either we maintain the quid-pro-quo, or the developers who have made free software great will leave in disillusionment. Without the fair return to the free software community that the OSD stipulates, we'll be left with will be shareware-with-source, when we can get source at all.

I wrote the OSD with the help of the Debian developers, and it still exists as the Debian Free Software Guidelines. None of the presently-announced Open Source Initiative board members were involved. This isn't to imply anything negative about them, it's just to point out that they aren't essential to the preservation of the OSD. Regardless of what happens with the Open Source trademark and the Open Source Initiative, the author of the OSD and many other members of the free software community will continue to stand behind the Open Source Definition. We will insist on software with OSD-compliant licensing, and we won't donate our efforts to anything else. I hope you'll do the same.

Since there are a lot of newcomers to our community, I guess some of you might not have encountered the Open Source Definition. You can read an extended analysis of the OSD, with commentary, at this link.

Thanks

Bruce Perens

A grain of salt?

[Jeff Monks]

It's not clear where this ZD guy got his information, but if it was straight from the USPTO's web page, it may not be the most current information. According to the USPTO's disclaimer page, the web database could be quite out of date:

Currency of the Web Database

• The PTO?s trademark data on the Web is updated on a two-month cycle. Coupled with the time required for data production, this means that particular trademarks could be as much as four months out of sequence with the PTO?s internal trademark database.
• The Web database does not include new applications that were filed and entered into the PTO?s internal trademark database during the last two to four months.
• The Web database does not reflect changes made to the PTO?s internal trademark database during the last two to four months.
• The Web database will show applications that registered after its last update as pending applications rather than registrations.
• The Web database will not include edits made to individual records after its last update.

loss of trademark is a loss for us all

[jetson123]

Companies like Microsoft subvert technologies by abusing terminology. Their "transactional" file system isn't really transactional, their "Java" implementation makes few of the safety and security guarantees that Java stands for, and they have already indicated that they think Windows NT is open source--you give them a lot of money and sign your rights away and you get the source. Changing the meaning of words is much simpler and cheaper than actually delivering. A lot of other companies with the moniker "open" in their name also really deliver highly proprietary products.

Trademarks ensure that people get what they think they get, and that's a very good thing in a market where companies benefit enormously from using the latest public-relations-friendly buzzwords.

Of course, there is always the risk that a trademark isn't administered well. But a well-administered trademark on the term "open source" could have ensured that people have a clear understanding of what they get and what they don't get when, say, Apple claims that their release is "open source". It could also have encouraged companies to go the extra mile to make their releases "open source" compliant, rather than having each company's lawyers make things up as they go along.

While a few years ago, the term "open source" was novel enough, I fear it may be too late to rescue the term "open source" as a trademark. And that's a big lost opportunity to anybody interested in open source.

Any response from Perens, Raymond?

[HarpMan]

Would Bruce Parens, Eric Raymond, or anyone else from OSI or SPI care to talk about this? I don't recall the exact wording of Peren or Raymonds statements, or the wording on SPI's page, but they certainly left the impression that there was something worth disputing about -- that either the term was trademarked or registered to be.

Why the big soap opera much ado about nothing? Were these guys hiding the truth from us (that there was no Open Source trademark)? Or were they ignorant of the fact that the trademark expired? If the latter, then they're incompetent in legal matters and shouldn't be handling trademark issues at all.

Not that I'm flaming Raymond, Perens, et al, but this is really embarassing.

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