Groupon Tried To Take GNOME's Name & Failed

Tuesday 11 November 2014 by Bradley M. Kuhn

[ I'm writing this last update to this post, which I posted at 15:55 US/Eastern on 2014-11-11, above the original post (and its other update), since the first text below is the most important message about this siutation. (Please note that I am merely a mundane GF member, and I don't speak for GF in any way.) ]

There is a lesson learned here, now that Groupon has (only after public admonishing from GNOME Foundation) decided to do what GNOME Foundation asked them for from the start. Specifically, I'd like to point out how it's all too common for for-profit companies to treat non-profit charities quite badly, even when the non-profit charity is involved in an endeavor that the for-profit company nominally “supports”.

The GNOME Foundation (GF) Board minutes are public; you can go and read them. If you do, you'll find that for many months, GF has been spending substantial time and resources to deal with this issue. They've begged Groupon to be reasonable, and Groupon refused. Then, GF (having at least a few politically savvy folks on their Board of Directors) decided they had to make the (correct) political next move and go public.

As a professional “Free Software politician”, I can tell you from personal experience that going public with a private dispute is always a gamble. It can backfire, and thus is almost always a “last hope” before the only other option: litigation. But, Groupon's aggressive stance and deceitful behavior seems to have left GF with little choice; I'd have done the same in GF's situation. Fortunately, the gamble paid off, and Groupon caved when they realized that GF would win — both in the court of public opinion and in a real court later.

However, this tells us something about the ethos of Groupon as a company: they are willing to waste the resources of a tiny non-profit charity (which is currently run exclusively by volunteers) simply because Groupon thought they could beat that charity down by outspending them. And, it's not as if it's a charity with a mission Groupon opposes — it's a charity operating in a space which Groupon claims to love.

I suppose I'm reacting so strongly to this because this is exactly the kind of manipulative behavior I see every day from GPL violators. The situations are quite analogous: a non-profit charity, standing up for a legal right of a group of volunteer Free Software developers, is viewed by that company like a bug the company can squash with their shoe. The company only gives up when they realize the bug won't die, and they'll just have to give up this time and let the bug live.

GF frankly and fortunately got off a little light. For my part, the companies (and their cronies) that oppose copyleft have called me a “copyright troll”, “guilty of criminal copyright abuse”, and also accused me of enforcing the GPL merely to “get rich” (even though my salary has been public since 1999 and is less than all of theirs). Based on my experience with GPL enforcement, I can assure you: Groupon had exactly two ways to go politically: either give up almost immediately once the dispute was public (which they did), or start attacking GF with dirty politics.

Having personally often faced the aforementioned “next political step” by the for-profit company in similar situations, I'm thankful that GF dodged that, and we now know that Groupon is unlikely to make dirty political attacks against GF as their next move. However, please don't misread this situation: Groupon didn't “do something nice just because GF asked them to”, as the Groupon press people are no doubt at this moment feeding the tech press for tomorrow's news cycle. The real story is: “Groupon stonewalled, wasting limited resources of a small non-profit for months, and gave up only when the non-profit politically outflanked them”.


My original post and update from earlier in the day on 2014-11-11 follows as they originally appeared:

It's probably been at least a decade, possibly more, since I saw a a proprietary software company attempt to take the name of an existing Free Software project. I'm very glad GNOME Foundation had the forethought to register their trademark, and I'm glad they're defending it.

It's important to note that names are really different from copyrights. I've been a regular critic of the patent and copyright systems, particularly as applied to software. However, trademarks, while the system has some serious flaws, has at its root a useful principle: people looking for stuff they really want shouldn't be confused by what they find. (I remember as a kid the first time I got a knock-off toy and I was quite frustrated and upset for being duped.) Trademark law is designed primarily to prevent the public from being duped.

Trademark is also designed to prevent a new actor in the marketplace from gaining advantage using the good name of an existing work. Of course, that's what Groupon is doing here, but Groupon's position seems to have come from the sleaziest of their attorneys and it's completely disingenuous Oh, we never heard of GNOME and we didn't even search the trademark database before filing. Meanwhile, now that you've contacted us, we're going to file a bunch more trademarks with your name in them. BTW, the odds that they are lying about never searching the USTPO database for GNOME are close to 100%. I have been involved with registration of many a trademark for a Free Software project: the first thing you do is search the trademark database. The USPTO even provides a public search engine for it!

Finally, GNOME's legal battle is not merely their own. Proprietary software companies always think they can bully Free Software projects. They figure Free Software just doesn't matter that much and doesn't have the resources to fight. Of course, one major flaw in the trademark system is that it is expensive (because of the substantial time investment needed by trademark experts) to fight an attack like this. Therefore, please donate to the GNOME Foundation to help them in this fight. This is part of a proxy war against all proprietary software companies that think they can walk all over a Free Software project. Thus, this issue relates to many others in our community. We have to show the wealthy companies that Free Software projects with limited resources are not pushovers, but non-profit charities like GNOME Foundation cannot do this without your help.

Update on 2014-11-11 at 12:23 US/Eastern: Groupon responded to the GNOME Foundation publicly on their “engineering” site. I wrote the following comment on that page and posted it, but of course they refused to allow me to post a comment0, so I've posted my comment here:

If you respected software freedom and the GNOME project, then you'd have already stop trying to use their good name (which was trademarked before your company was even founded) to market proprietary software. You say you'd be glad to look for another name; I suspect that was GNOME Foundation's first request to you, wasn't it? Are you saying the GNOME Foundation has never asked you to change the name of the product you've been calling GNOME?

Meanwhile, your comments about “open source” are suspect at best. Most technology companies these days have little choice but to interact in some ways with open source. I see of course, that Groupon has released a few tidbits of code, but your website is primarily proprietary software. (I notice, for example, a visit just to your welcome page at groupon.com attempts to install a huge amount of proprietary Javascript on my machine — lucky I use NoScript to reject it). Therefore, your argument that you “love open source” is quite dubious. Someone who loves open source doesn't just liberate a few tidbits of their code, they embrace it fully. To be accurate, you probably should have said: We like open source a little bit.

Finally, your statement, which is certainly well-drafted Orwellian marketing-speak, doesn't actually answer any of the points the GNOME Foundation raised with you. According to the GNOME Foundation, you were certainly communicating, but in the meantime you were dubiously registering more infringing trademarks with the USPTO. The only reasonable conclusion is that you used the communication to buy time to stab GNOME Foundation in the back further. I do a lot of work defending copyleft communities against companies that try to exploit and mistreat those communities, and yours are the exact types of manipulative tactics I often see in those negotiations.


0While it's of course standard procedure for website to refuse comments, I find it additionally disingenuous when a website looks like it accepts comments, but then refuses some. Obviously, I don't think trolls should be given a free pass to submit comments, but I rather like the solution of simply full disclosure: Groupon should disclose that they are screening some comments. This, BTW, is why I just use a third party application (pump.io) for my comments. Anyone can post. :)

Posted on Tuesday 11 November 2014 at 09:10 by Bradley M. Kuhn.

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