Open source groups spar over Google trademark initiative

Profile picture for user maxcooter By Maxwell Cooter July 17, 2020
Summary:
The new trademark initiative has caused a row in the open source community, but has Google picked up on a traditionally underrepresented area of IP?

Image of Google Open Source logo
(Image sourced via Google)

If there's one thing we've learned over the years, it's that you can never have too many open source organisations. And, if we've learned something else, every one of the will ruffle the feathers of one of the others.

It was no surprise, then, that Google's announcement of a new open source initiative called the Open Usage Commons caused some consternation among other open source proponents. IBM's reaction is typical. In a statement, the company said that "the creation of the Open Usage Commons (OUC) is disappointing because it doesn't live up to the community's expectation for open governance. An open governance process is the underpinning of many successful projects. Without this vendor-neutral approach to project governance, there will be friction within the community of Kubernetes-related projects."

This row between the various groups has been a distraction for what has been a radical move by Google. What the company has done has highlighted how companies had previously missed out on a crucial area of intellectual property and the company has shown that this could be a vital new area to explore.

Google's bright idea was to tap into the neglected area of trademarks, which previously has not been the most exciting area for developers to explore. However Google sees this differently. Launching the new initiative, the company explained that it "created the Open Usage Commons because free and fair open source trademark use is critical to the long-term sustainability of open source."

The underlying reason was that the management of trademarks was an area for legal specialists - something beyond the competence of open source project maintainers. According to Google, the new initiative would address this knowledge gap.

The Open Usage Commons is therefore dedicated to creating a model where everyone in the open source chain - from project maintainers to downstream users to ecosystem companies - has peace of mind around trademark usage and management. The projects in the Open Usage Commons will receive support specific to trademark protection and management, usage guidelines, and conformance testing.

This is quite a well-defined approach to a particular area, addressing a topic that has been lightly covered - if covered at all. Consequently, Google itself is a bit perplexed at the way that the OUC initiative has been perceived as a threat by other open source and insists that it's not trying to stir up the market. Chris DiBona, director of open source at Google and Alphabet said:

Google has been part of open source foundations for many years and was the driving force behind the creation of the CNCF with our donation of Kubernetes. Our Kubernetes donation was considered trailblazing at the time and we are eager to create something new with the OUC as well. The OUC is focused on a very specific pain point we see in open source - trademarks. We see our work with the OUC as being in service to the existing open source foundations by providing thoughtful leadership in trademark policy.

An imbalance of control

To reinforce his point about the importance of maintaining trademarks, DiBona considered the example of Istio. "Today, Istio users may freely use the Istio trademark to accurately refer to the project without prior written permission or a formal licence." There is one condition, however. DiBona adds:

FUsers may not use the mark in a way that confuses consumers about the origin of Istio or their own applications. This is in line with the history of trademarks in open source, where the permissive spirit of open source implies that you can use the mark this way.

That in a nutshell is the heart of the problem and it's the grey area that the Open Usage Commons wants to address. DiBona says that he wants to give users peace of mind that accurate, referential uses of marks are okay. Our focus is to align the philosophy and definition of open source to project trademarks. The Open Usage Commons will work with the Istio community and leadership to establish any relevant guidelines. This could include conformance testing, with the goal of providing users with clear trademark usage guidelines going forward.

DiBona's choice of Istio to illustrate the issue is, shall we say, an interesting one. It's Google's decision not to donate Istio to the Linux Foundation/Cloud Native Computing Foundation that has engendered some of the ill-feeling towards the search giant in the first place.

What's noticeable at the moment is that Google has enticed any other company down the OUC route. The three early members - Istio, Angular and Gerrit are all Google projects - however DiBona says that the company is hopeful of attracting other entrants.

The OUC Governing Board will soon publish consideration criteria for projects who want to join the Open Usage Commons, but projects are welcome to express their interest right away at openusage.org.

Google clearly believes that its donation of Kubernetes has proved its open source chops and believes that its OUC move has raised important issues. The Linux Foundation's response was that trademarks had been discussed - albeit not widely. In a statement, it said:

Neutral control of trademarks is a key prerequisite for open source projects that operate under open governance. When trademarks of an open source project are owned by a single company within a community, there is an imbalance of control. … The reservation of this exclusive right to exercise such control necessarily undermines the level playing field that is the basis for open governance. This is especially the case where the trademark is used in association with commercial products or solutions.

Red Monk analyst James Governor says that while Google's actions can be seen as provocative, it has gone down an interesting route.

The CNCF community is perhaps justifiably upset given expectations about Google's direction of travel for open source projects, but the creation of a trademark commons is an interesting one. We shall have to see how this plays out. There could be a fork ahead, or it all might be a storm in a teacup.

My take

Many of the positions in the open source world (and the cloud one too) are determined by commercial interests, so it's hard to disentangle technical viewpoints from political ones but Google's move has certainly shaken things up and has brought the issue of trademarks to the fore, something that the open source world has been slow to think about.