Canonical, Ltd.'s Trademark Aggression

Friday 8 November 2013 by Bradley M. Kuhn

I was disturbed to read that Canonical, Ltd.'s trademark aggression, which I've been vaguely aware of for some time, has reached a new height. And, I say this as someone who regularly encourages Free Software projects to register trademarks, and to occasionally do trademark enforcement and also to actively avoid project policies that might lead to naked licensing. Names matter, and Free Software projects should strive to strike a careful balance between assuring that names mean what they are supposed to mean, and also encourage software sharing and modification at the same time.

However, Canonical, Ltd.'s behavior shows what happens when lawyers and corporate marketing run amok and fail to strike that necessary balance. Specifically, Canonical, Ltd. sent a standard cease and desist (C&D) letter to Micah F. Lee, for running fixubuntu.com, a site that clearly to any casual reader is not affiliated with Canonical, Ltd. or its Ubuntu® project. In fact, the site is specifically telling you how to undo some anti-privacy stuff that Canonical, Ltd. puts into its Ubuntu, so there is no trademark-governed threat to its Ubuntu branding. Lee fortunately got legal assistance from the EFF, who wrote a letter explaining why Canonical, Ltd. was completely wrong.

Anyway, this sort of bad behavior is so commonplace by Canonical, Ltd. that I'd previously decided to stop talking about when it reached the crescendo of Mark Shuttleworth calling me a McCarthyist because of my Free Software beliefs and work. But, one comment on Micah's blog inspired me to comment here. Specifically, Jono Bacon, who leads Ubuntu's PR division under the dubious title of Community Manager, asks this insultingly naïve question as a comment on Micah's blog: Did you raise your concerns the team who sent the email?.

I am sure that Jono knows well what a C&D letter is and what one looks like. I also am sure that he knows that any lawyer would advise Micah to not engage with an adverse party on his own over an issue of trademark dispute without adequate legal counsel. Thus, for Jono to suggest that there is some Canonical, Ltd. “team” that Micah should be talking to not only pathetically conflates Free Software community operations with corporate legal aggression, but also seem like a Canonical, Ltd. employee subtly suggesting that those who receive C&D's from Canonical, Ltd.'s legal departments should engage in discussion without seeking their own legal counsel.

Free Software projects should get trademarks of their own. Indeed, I fully support that and I encourage for folks interested in this issue to listen to Pam Chestek's excellent talk on the topic at FOSDEM 2013 (which Karen Sandler and I broadcast on Free as in Freedom). However, true Free Software communities don't try to squelch Free Speech that criticizes their projects. It's deplorable that Canonical, Ltd. has an organized campaign between their lawyers and their public relations folks like Jono to (a) send aggressive C&D letters to Free Software enthusiasts who criticize Ubuntu and (b) follow up on those efforts by subtly shaming those who lawyer-up upon receiving that C&D.

I should finally note that Canonical, Ltd. has an inappropriate and Orwellian predilection for coopting words our community (including the word “community” itself, BTW). Most people don't know that I myself registered the domain name canonical.org back on 1999-08-06 (when Shuttleworth was still running Thawte) for a group of friends who liked to use the word canonical in the canonical way, and still do so today. However, thanks to Shuttleworth, it's difficult to use canonical in the canonical way anymore in Free Software circles, because Shuttleworth coopted the term and brand-markets on top of it. Ubuntu, for its part, is a word meaning human kindness that Shuttleworth has also coopted for his often unkind activities.


Update at 16:17 on 2013-11-08: Canonical, Ltd. has posted a response regarding their enforcement action, which claims that their trademark policy is unusually permissive. This is true if the universe is “all trademark policies in the world”, but it is false if the universe is “Open Source and Free Software trademark policies”. Of course, like any good spin doctors, Canonical, Ltd. doesn't actually say this explicitly.

Similarly, Canonical, Ltd. restates the oft-over-simplified claim that in trademark law a mark owner is expected to protect the authenticity of a trademark otherwise they risk losing the mark. What they don't tell you is why they believe failure to enforce in this specific instance against fixubuntu.com had specific risk. Why didn't they tell us that?: because it doesn't. I suspect they could have simply asked for the disclaimer that Micah gave them willingly, and that would have satisfied the aforementioned risk adequately.

Posted on Friday 8 November 2013 at 11:30 by Bradley M. Kuhn.

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