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Drupal sucks?

Cases like these have given trademarks a bad name among free software users and developers, so perhaps it isn't entirely surprising that Drupal, Fedora and Ubuntu have come under fire recently for their trademark policies - although it would be a mistake to assume that the use and defence of a trademark signals approval or concurrence with all aspects of current trademark law, or that an attempt by the Drupal developers, (for instance), to define a workable trademark policy is equivalent to acceptance of all the dubious uses of trademarks. Drupal logo
Drupal logo
Anyone can fork the Drupal code and market it under another name. Ownership and defence of the Drupal trademark is the only protection the project can claim for its identity. Seen in this light, Drupal's (unstated) wish not to see a drupal-sucks website is a trivial side issue. The greater issue is that Drupal isn't left vulnerable to unscrupulous competition or random exploitation by individuals such as William R Della Croce Jnr., and is complicated in many jurisdictions by the legal proviso that a trademark which isn't defended is considered to have passed into common usage, like ketchup and kleenex, fridge or hoover.

The problem for free software projects such as Ubuntu, Drupal and Fedora is that they have to balance the need to protect their marks against the need to encourage and preserve community participation, as expounded in the opening paragraph of the Ubuntu Trademark policy. "The objective of the Ubuntu trademark policy is to encourage widespread use of the Ubuntu trademarks by the Ubuntu community while controlling that use in order to avoid confusion on the part of Ubuntu users and the general public, to maintain the value of the image and reputation of the trademarks and to protect them from inappropriate or unauthorised use."

The partial solution has been to explore the concept of trademark licensing, whereby a trademark may be attached to a community project that is allied to the main project with the permission of the trademark holder, and the ownership of the sub-project's identity is retained by the main project. This allows for the conflicting aims of protecting the trademark within the law and encouraging community participation, but involves a compromise, a recognition of the project's right to proscribe use of the trademark.

The issue is trust, and trust goes both ways. Users and developers, who are often involved on a purely voluntary basis, are resistant to the paternalism that is implicit in a Trademark License Agreement, and some view it as a surreptitious method for suppressing criticism. The most contentious clause in such agreements has been the claim to ownership of all domains that include the trademark, illustrated by the clause in the Drupal trademark and logo policy which seeks to deny a trademark license to domains which do not qualify as "fostering the Drupal software", such as "creating a Drupal fork 'ImprovedDrupal', or "publishing a website '' with pictures of infamous Drupal contributors."

How such issues are resolved is a matter for debate among the communities involved, but it is inevitable that major projects will have to make some compromise with trademark law if only to ensure their integrity and unity in the face of unprincipled competition, although some individuals will continue to argue otherwise. As Mark Shuttleworth suggests "this isn’t the last word on the subject..."

For other feature articles by Richard Hillesley, please see the archive.

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