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What's trademark?

A community's name or logo is what we call the "mark." Trademark law can provide powerful protections for a mark. Here are some basics on trademark law:

Why trademark?

The identity of a collaborative community is valuable. Trademark law may strengthen that identity by providing a legal right to:

TM -> CM

Protecting your mark

Collaborative communities have come up with a few different "hacks" to overcome the challenge of using trademarks to protect collaborative projects. But there is no silver bullet and the hacks are often used in parallel depending on the needs of a community. Here are some things that communities may think about:

Is the community ready for trademark registration?

New communities could start with general principles about how to govern their identity. They may want to have a governance structure in place before they register trademarks.

Prematurely registering a trademark law may be problematic:

Who holds the mark?

Trademark law generally does not recognize a decentralized community as a legal holder for a mark. A person or organization may need to hold a trademark on behalf of the community.

Communities may want to contact an umbrella organization, such as the Free Software Foundation, Software in the Public Interest, and Software Freedom Conservancy for assistance with registering, holding, and enforcing trademarks. More established communities may set up a dedicated nonprofit (like the Python Software Foundation) to hold the mark. Some communities have had problems when individuals or companies hold trademarks on behalf of a community without a clear policy and accountability to the community.

What type of trademark?

Some communities have an unregistered mascot, such as the Tux penguin, to accompany their protected trademark. Maintaining two marks is not a great hack. It doesn't provide protection for one of the marks, which may be the most important mark to community, and it still restricts the use of the other mark.

Another option is to register a collective membership mark, which provides full protection for the mark, but requires less quality control.

What type of restrictions to put in place?

Trademark holders can identify the good uses that the community wishes to encourage and the damaging uses that the community members should avoid (and often already do).

How to design the trademark restrictions?

Trademark holders should ensure that community members can effortlessly get permission to use the marks for their collaborative work. It may help to decide the trademark restrictions through a process that is consistent with the community's usual decision-making, such as email discussions or requests for comments. The trademark restrictions can be stated in a "public license" style trademark policy, similar to how the Creative Commons license "hacks" copyright law.

Collaborative Mark Policy

A trademark holder can state how a mark may be used in a public document. This is called a "trademark policy." The policy can explain: (1) how marks can be used without a trademark license; (2) when a license from the trademark holder is necessary; and (3) what uses are always prohibited.

We have released the Collaborative Mark Policy, which is a sample trademark policy that is modeled after the new Wikimedia trademark policy and licensed under CC BY-SA 3.0. Feel free to adapt it for your collaborative community or suggest improvements by submitting a pull request or opening an issue on Github.

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