[OSM-talk] OSMF Trademark Policy

[Russ Nelson]

Frederik Ramm writes:
 >     I've recently started a thread about a future OSMF trademark policy 
 > on the osmf-talk list, here
 > 
 > http://lists.openstreetmap.org/pipermail/osmf-talk/2012-December/001947.html
 > 
 > If you're not in the OSMF (and therefore not on osmf-talk), you're of 
 > course welcome to say your opinion too, e.g. on this list.

In the USA, a "trademark" is the identification (whether words or
graphics) which you use to identify a product. A trademark is used in
trade to ensure that your customers know that they are getting your
product when they fork over their money. Anybody who is engaged in
trade and identifies their product or service with a name or graphic
is entitled to trademark protection. The key is that the trademark
owner has control over the nature and quality of the product.

So, since the OpenStreetMap Foundation controls the domain name
openstreetmap.org, and osm.org, it controls what data goes into the
database and maps which are available at that name, thus is controls
the quality of the data, thus is entitled to control the name under
U.S. trademark law. Registration with the USPTO is helpful but not
necessary to own a trademark. The final decision about ownership comes
from the courts. Thus, when someone registered and was granted
Linux(R) as a trademark in the U.S., the Linux Foundation, on behalf
of Linus, had to, and was able to, sue to get the name properly
registered in Linus's name.

The foundation seems not to have registered openstreetmap nor "open
street map" as a trademark in the U.S. That would be a mistake which
should be promptly rectified. Like, NOW, geezums.

In some countries, a trademark is granted by registration. I'm not as
familiar with the details of how that works, nor whether the OSMF has
registered OSM and the map graphic as a trademark. I expect that even
with registration, it is possible to lose a trademark by permitting it
to be used on products over which the owner has no control. Since we
should at least worry about maintaining the U.S. trademark, I'll limit
my remarks to U.S. trademark law (as I understand it from a layman's
point).

To simplify, if I use "OSM" as a noun, I mean OpenStreetMap, Open
Street Map, openstreetmap.org, osm.org, and the creased map graphic.

When to permit trademark use? Well, you cannot stop people from using
your trademark to describe your product. Everybody is free to use OSM
when describing the OSM database or mapnik tiles available from the
OSMF's computers. Thus, we give nothing away if we give people
permission to do what the law permits them to do anyway.

That's the one end of the spectrum of permissions. The other end
is to say "You can use the trademark to describe anything as
long as it is ultimately derived from some portion of the OSM data."
FAIL! That lets anybody use the trademark to describe anything even
though it bears no resemblance to anything we here think of as
OSM. That road leads to loss of the trademark.

The OSGEO Foundation has a fairly tight set off trademark
guidelines. They present a minimal risk of loss of their trademark.

But we're not the OSGEO. We're OSM. We distribute data which we expect
people to use to render maps, possibly by combining it with other
data, and certainly by choosing what gets rendered and what does
not. Moreover, we *require* people to let map recipients to know that
they have a map derived from OpenStreetMap data.

So we have a quandry: How do we simultaneously protect the trademark,
while also enforcing the copyright?

I don't have an answer to that, but I'm sure that is one question we
need to ask.

-- 
--my blog is at    http://blog.russnelson.com
Crynwr supports open source software
521 Pleasant Valley Rd. | +1 315-600-8815
Potsdam, NY 13676-3213  |     Sheepdog