Friday, October 07, 2005

Free Open Source Software (FOSS) and Trademarks / Servicemarks: The JBoss case

I saw a lot of discussions going on how FOSS should be and how FOSS shouldn't be but I only read occasionally about the implications a trademark might have to FOSS. Most of the discussions deal with GPL/LGPL stuff which is most important, no doubt. You might check this: http://www.theserverside.com/news/thread.tss?thread_id=36156#182919.
But only a few care about the effects a registered trademark/servicemark has and I assume most of the contributors, developers, architects of FOSS don't care about it.

So what do I say?
Have a look at JBoss, they own the trademark/servicemark 'JBoss'. That's no surprise, they announce it everywhere on their website and Bill Burke - the chief architect of JBoss - mentioned it as the most important thing to have (see: http://www.theserverside.com/news/thread.tss?thread_id=35156)
What they do not announce is, what this trademark exactly stands for or implies. Checked against the Office for Harmonization of the Internal Market, which is an EC-wide registration authority (http://oami.eu.int/CTMOnline/RequestManager/en_DetailCTM) you will find under the trademark of JBoss the following:

Nice Classification: 9
Computer software, in particular enterprise server software for web application development and deployment, database connectivity, transaction processing, presentation and directory services.
Nice Classification: 41
Technical support services related to Computer software, in particular training in and troubleshooting of problems with enterprise server software for web application development and deployment, database connectivity, transaction processing, presentation and directory services.

This clearly says, that everyone has to be allowed to provide services according to classification 41 above under the trademark of JBoss by Marc Fleury as owner personally. Surprisingly (and in contrast to the US) Marc Fleury holds the trademark personally, not JBoss Inc., not JBoss (Europe) S.a.r.l. in Switzerland.

Well, registering a trademark for the "product" JBoss is one thing, registering all services is something different. I personally do not believe that Marc Fleury will grant the right of usage to everyone for free as it affects his money-making partner-/ service-model.

Let's have a look at this model. To get the right using Jboss as trademark, you have to have a license for this. Becoming a partner might be something you should consider; you are right, if you expect this not to be granted for free. You have to pay for it and you have to certify your employees (to my knowledge dependant on the level of partnership, at least four). Take my hint: ask them about prices and simply compare them to other vendors.
This looks like a money machine for JBoss, but no one cares for successful companies making money out of products, so do I.

Anyway: You are not allowed to conduct trainings or to offer support under the trademark "JBoss" regardless you're a partner or not! This is allowed for a few chosen ones, you do not have any influence on it or even could buy it.

What are the individual consequences of this?

Anyone offering a service dealing with the registered trademark must be aware of breaching laws and must be ready to take the consequences. These consequences according to the law of country I reside:
(1) claim for damages
(2) penalty in case of recurrence of abuse (trademark holder determines how much)
(3) reporting customers and revenues to trademark holder
(4) Obviously you have to stop it regardless what that means to your customer.

One could say, the law allows to use the trademark in descriptive ways. This is true but you have to defeat yourselves against accusation; maybe case-by-case. Without doubt that will cost you time, money and perhaps reputation (what will your customers think about this ?). Once you are faced with a preliminary injunction you are in trouble, if you imprudently or precipitously sign something you are out of the business forever!
Once a trademark is introduced the trademark will get stronger and stronger, direct implication: harder and harder for you to defeat yourself even in terms of descriptive usage!

Strong stuff, isn't it. So be aware!

Make up your mind, how to offer anything without using the letters J+b+o+s+s commercially assumed you run a service company? In contrast LGPL states, that FOSS is free to distribute; in this case it might mean distribution without naming it.

What are the general consequences of this?
In my opinion and according to what I have learned at university (holding a degree in BA) there is a word for this: monopoly!
It sounds hard and vicious to compare them to a monopoly but to my opinion, they might be on their way.
Most people would agree to consider a monopoly as something harmful for the market, no doubt. Companies coming close to a monopoly in most cases have a bad reputation.
Registering a trademark for a product (you might not own: see the copyright / licensing discussions in terms of JBoss actually going on) is a known trick (ask your lawyer if you don't believe) to keep competition offside the business.
It happened frequently within my home country to be bothered with letters from advocates, enforcing you to stop this-or-that, paying some penalty and opposite lawyer’s fee to get rid of them and so on.

Who trusts/guarantees a venture capitalized FOSS company will not to act this way; in other words is someone out there who could say, they will not act this way, blowing away competitors by using their trademarks?
Additionally a lot of coding is done by volunteers which gives a clear competitive advantage regardless of the fact that they have hired a few of the volunteers over the last two years. Does the rest of them know what is going on / might go on and agrees?

Anyway, granting licenses to only a few restricts competition, period.
And remember: We are talking about FOSS!

Coming to an end / (personal) conclusion:
1. JBoss AS is a good product, a lot of people / companies are using it and like to use it.
2. But choosing JBoss in commercial areas might mean uncertain license and copyright issues and to my knowledge (I'm not a lawyer, ask yours !) their indemnification does NOT work within EC.
3. Selecting your vendor in terms of services might limit you to only a few with a fixed pricing model, the other ones might be not allowed to compete.
4. Download JBoss for free, use it, develop some mission-critical things. If you run into a knowledge / support problem you might be bound to them (or licensed partners which has no effect on the price as they are probably fixed by contract)!
5. Finally: There is nothing bad in earning money with FOSS, Competition is vital, let the market decide (and not trademarks).


Disclaimer: I’m not a lawyer, nor do I intend to give legal advices. Although everything was discussed with my lawyer, my only intention is giving you food for thought. I'm only reflecting my personal opinions, not speaking for anyone aside myself. To the ones considering this blog harmful: freedom of opinion is guaranteed! You might have another and are invited to discuss.


Lastly: I love my family, I don't want to be loved by Marc Fleury although he mentioned it within every newsletter he sent me.

Sincerly,

Karin-Ulrike Ledwon