 Well, let's get started. You'll be talking about trademarks and open-source projects today. For those of you who don't know me in the room or are viewing online, I'm Daniel Scales. I'm Chief Brand Counsel for the Linux Foundation. I've been working for the Linux Foundation since the spring, but I've been working with the Linux Foundation for about 11 years on their trademarks. Before I joined the Linux Foundation earlier this year, I led the trademark practice at Chote Hall & Stewart in Boston, and before that I worked in-house at a company called Avid Technology, which makes the Pro Tools and Media Composer software products, which some of you may use. When I was at Avid, I worked on their trademarks. I also worked on technology licensing, open-source counseling, and technology standards. So I've been working in open-source and trademarks forever, and now I work for the Linux Foundation exclusively. So before we get started, I want to cover a couple of housekeeping items. First, I'm a trademark lawyer. I am not your trademark lawyer, so I just want to make sure that everybody is clear about that. Today's presentation is not legal advice. It's informational in nature. If you have questions about these things, I encourage you to seek out a qualified trademark lawyer and discuss it with them. And this presentation does not necessarily represent the views of the Linux Foundation or any of the projects that we host. Okay, so what are we going to cover today? We're going to cover some really important trademark basics. And I want to start there, because I've had a number of recent conversations where I think folks were missing the mark, pun intended. I think there's a lot of confusion or just lack of experience with trademarks where they confuse it with other things. And so I want to make sure we're all starting from the same foundation about what a trademark is and what it can do for a project. Once we cover the basics, then I want to talk more specifically about open-source projects and how they can benefit from showing their trademarks some love. And then we'll finish up with some specific details on the process and things to do that once we all agree that we love our trademarks for our projects. How do we actually go about protecting them? All right, so I said we were going to start with basics. What is a trademark? I don't think we can get more basic than that. So as a lawyer, when I know what's the definition of something, I go to the statue. A trademark protects any word, name, symbol, or device. Also throw in color, smell. It's really anything that is used to identify and distinguish a specific good or a service from the goods or services of others. It really can be anything. I threw color in there. I threw in smells. The United States tends to be a leader in this area. We call it alternative trademarks. But you think about the color brown for UPS. I think that's been recognized for quite some time as a trademark of the UPS company, that specific color. Other countries are getting there, but the U.S. I think is really receptive to acknowledging the reality of how consumers perceive things. And I think that's an important concept when we're talking about trademarks. Everything is through the lens of what is the relevant consumer seeing? How are they seeing this out in the marketplace? That's always where you need to start when you're talking about any trademark issue is what is the relevant consumer seeing. Another thing to note about what is a trademark? It's a valuable intellectual property right? Yes. It's also a consumer protection statute. It serves a really important consumer protection function. When you walk into a store, you grab a bottle of Coca-Cola off the shelf, you want to be able to trust that it has that Coca-Cola label on there, what the contents are, and that it came from the company in Atlanta, Georgia. And that's the trademark doing that work. It's a market efficiency protection, if you will. The long and short of it, what's a trademark in layman's speak? It's the brand. We're talking about brands here, source identifiers. And source, not in the sense of source code, which is obviously where I think a lot of people at an open source conference where their brain goes, where did the good come from? Who is providing the service? That type of source. One feature of trademarks, they never expire. Well, they don't have to expire. Let's put it that way. You'll notice I put an asterisk. There's a couple of requirements, but unlike other intellectual property rights, which have a defined expiration to them, trademarks can last forever if you nurture them and you love them. So they have to continue to be used as a trademark out in commerce. And if you have registered trademark rights, those registrations have certain requirements to maintain them. Typically, it's every 10 years, and it varies country to country, you have to pay a renewal fee, and you may have to provide additional evidence that you are, in fact, still using the mark as a trademark. Now you'll note there, I said it varies country to country. Like most IP rights, there are country-specific rights. So if you have a US trademark registration, doesn't necessarily mean you have any protection in Canada or Europe or Africa or anywhere. Every country has their own trademark laws. There is harmonization across those laws, not complete harmonization. But it is something that you need to take steps in each country, which you're interested in having protection, to obtain that protection. And then finally, alright, so how do I know something's a trademark? I mean, one, I think we're all consumers. So from the trademark perspective compared to other IP rights, that part's kind of easy. We've been conditioned since a very young age to kind of know what a brand is and what a trademark is. But you'll also see brand owners use trademark notice. So either the TM symbol or the R with a circle. And they are separate things, and I do want to spend a minute talking about this. The TM symbol doesn't really have a legal effect of any sort. It is the trademark owner saying, world, I believe that this term or this logo or this design is my trademark. And I'm going to tell you that because I'm putting a TM symbol next to it. So I think there's significant value there, but the actual legal effect of it is pretty minimal. Contrast that against the R with a circle, which is the registered trademark symbol. And that is specifically called out in the US Trademark Act, the Lanham Act, for use solely with registered trademarks. There are specific benefits for using the R with a circle in a litigation context, which is getting a bit far ahead from what we're talking about today. But I think it's important to note that if you're starting a project and naming it, don't use the R with a circle, unless you do actually have a registered trademark. I think another benefit of the trademark notice is that people just tend to like it. It's a little bit of a kind of a badge of honor, if you will. All right. So we talked a little bit about what trademarks are, but I think it's valuable to contrast them against the other three kinds of intellectual property rights because I see people in my conversations confusing them quite a bit and that can lead to challenges. So first, let's compare a trademark right to a patent right. So patent protects certain inventions for a limited term, roughly 20 years, which can be adjusted depending on a number of factors, which we're going to not get into. But a patent, it covers an invention, it covers certain types of ideas that meet the requirements for patent protection. And then the trade that is made is that the government says, we're going to give you this monopoly power for your invention for this limited term. But you have to tell us all about your invention and how it works and how we can do it. So when the patent expires, society benefits from it. That's the trade-off, the enablement requirement. When you see, so how do you know if something is covered by a patent? There, I think it's harder, you don't necessarily know that it's a new invention or that they've sought out and obtained patent protection. So the device or the product or the documentation will have a, it's a pretty simple patent notice, like the one here, US patent number 4656917, which happens to be the notice for Eddie Van Halen's patent that he obtained for a device for raising his guitar during a live performance, which I thought was kind of cool. All right. At an open source conference, let's talk about copyright. So again, copyright and trademark two different kinds of intellectual property rights. Copyright protects works of authorship or expression for a limited term. Generally, life of the author plus 70 years or 95 years from first publication. The copyright act is a little bit like the tax act in that it is way over complicated. So there's tons of variation on the duration of copyright. There's tons of special interest protection as a result of lobbying by various groups over the years. It's a really complicated act, but for our purposes, I just want to make sure we're distinguishing it from what trademarks are. So copyright protects the expression of ideas. Patents protect the ideas themselves if they meet the requirements for a patentable invention. Copyrights protect expression. So most of the act protects creative expression, works of art, sculptures, architecture, drawings, paintings, musical works, motion pictures. But even when it is protecting those things, it's only the particular expression that it is protecting, not the idea itself. So everybody here could be doing a portrait of me right now. Please don't do that. If you were, you're all going to end up with a bald guy standing up front wearing glasses. And that's fine from a copyright perspective, right? But it's the way that you draw the glasses. It's the way that you choose to represent certain things in the portrait. That's the expression and that's protected by copyright. Now, bringing it back to why we're here, software is protected by copyright. So the source code itself. So you write a thousand lines of code just by writing it and fixing it in a medium, so saving it in a computer file. It's protected by copyright. You don't have to register that copyright in order to have protection. You may register copyright and get some pretty meaningful additional benefits, namely you can't sue anyone in federal court without a copyright registration. But you don't have to register it in order to obtain copyright protection under the act. So how do you know something is copyrighted? I mean, pretty much if it's a written work, if it's any type of work of art, you can safely assume that some part of it is protected by copyright. There are exceptions to it. But people will often use notice as well. So this presentation is copyright 2021, the Linux Foundation. One specific note there, you can use the C symbol or the word copyright. I think it's pretty well established in open source that we use the full word copyright. Because I think when people are scanning code looking for license provisions, they're looking for that full word copyright. So I think it's pretty common for projects to use the full word when they're adding their own copyright notice. All right, just a little bit of time on the last type of IP, compare trademark rights to trade secrets. Trade secrets are something that's valuable because it is a secret and is subject to reasonable efforts to keep it a secret. So how do you know if something is a trade secret? Well, by its nature, you probably don't know about it. If they're doing it right, you're not even going to know that it's there. That's trade secret protection. Or somebody may share their trade secret with you, but it's under the terms of a non-disclosure agreement that's very specific about the secret being shared. Or it's marked confidential, and you've agreed to keep it a secret. Or something is there, but it's blacked out, and they're not sharing that particular nugget with you. So that's trade secrets. All right, so those are the four types of intellectual property rights. I also want to compare trademarks to a couple other things, which again come from a lot of conversations that I have. So they're not, I don't want to say they're confused, but they're kind of blended together when people are talking about trademarks. And I always like to be precise when we're talking about things. So take domain name registrations, for example. Kind of makes sense that people often, when they're talking about one, they're really talking about the other. Because domain name registrations often include a trademark of a company. It makes sense. It's your brand that you're putting out there. You want brand.com. That makes a lot of sense. And there is a lot of overlap there, but it doesn't necessarily mean that the domain name is a trademark or vice versa. Now, if you're a company like booking.com, yes, then they are the same. Your trademark is your domain name. But otherwise, you know, there's overlap there, but they're not one and the same. And I think it's important to be clear about that. Similar concepts with social media account identifiers, you know, whatever your Twitter handle is, may have a trademark in it. But it doesn't necessarily mean that your Twitter handle is a trademark. It's something to keep in mind. I do want to spend a little bit of time on this last one, no trade names. Because again, I've had a lot of conversations about this recently. They can be the same. So my employer, the Linux Foundation, that's the name of the legal entity who employs me. It is also one of our most prominent trademarks, the Linux Foundation. So they can be the same. But they're serving different things. You register your trade name in the United States with a state secretary of state's office so that you can conduct business in that state. You can open a bank account. It's the legal name of the entity. Just because something is a legal name of an entity doesn't necessarily mean there are trademark issues there. There can be. But again, remember what I talked about at the beginning, everything comes back to what is the relevant consumer, whoever that may be, how are they seeing it? And so if they're never seeing the legal name of the entity and they have a different brand, then the legal name really doesn't, there isn't much of a trademark analysis to be done there. Now, it's the legal name of the company. It's kind of hard to be a public-facing organization without your legal name being out there in some capacity. So usually at some point there has to be a trademark discussion if it's similar to somebody else's trademark. But you're doing a trademark analysis there. It's not just the fact that it's the legal name of the company. Okay. So we all know we don't patent a trademark. Hopefully we've established that. That's a phrase that I've heard on more than one occasion. What is it, right? So I said it earlier. It's a source identifier. It's the thing that represents the goodwill of the organization. It's a symbol that people recognize and they have come to associate that with the offering of certain goods and services, a certain quality level, certain features, functions, attributes, who's involved, whatever the good and service is, who are the people behind it? Do I trust them? Do I like the work that they do? Things like that. It's a mechanism to communicate those things out in the marketplace. But I think more specifically in the open source world, it's the central rallying point for open source software projects. So we'll take a minute here. So we have a project. They come together. They write a lot of code. It does something. We put it out there under an open source license. Anybody can take the code. They now have the right to use, modify, distribute, probably that code. The thing that brings things back together and serves as that rallying point for the community to come together, to serve as a beacon, to attract people, say, we're doing this thing. You should come try our code. That's the trademark doing that work, right? It's not, yes, the code is obviously crucially important. But once you have licensed the code, you can go and do what you want. It's really the bringing together that I think the good will that's symbolized by the trademark, that's this rallying point that I'm talking about. So open source licenses typically are pretty clear on this, right? So you can go to our project if they licensed their code under Apache. The Apache license says write in the license. This license does not grant permission to use the trademark service marks or product names of the license or. So it grants you a license to use the code, modify it, distribute it, copy it. But you can't use the project name. That's outside the scope of the license. And the Apache license is very clear about that. Now, the Apache license I think is interesting because it has a specific carve out at the name which kind of recognizes a fair use of another party's trademark. Which is, well, I need to, if I take the code and make some modifications, okay, I can put it out there, but I want to be able to tell people that it's XYZ projects code and I've made some modifications to it. And the Apache license says, okay, that's all right. You can make that descriptive fair use of that if you need to refer back so people can understand what it is that they're getting. And that's a different situation than somebody branding it as using the XYZ project name for their own distribution. We're going to talk about that a bit later. Some other licenses, quickly, the Eclipse license, similar effect, they take a slightly different approach. They don't specifically talk about trademarks in the Eclipse license, but the license grants, there's two of them. One is a copyright grant and one is a patent grant. Both of them, they're back to back in section two of the Eclipse license. And there's a concept in IP licensing that if a right is not expressly granted, it's reserved to the owner, it's not an applied license. So here they expressly grant a copyright license, they expressly grant a patent license, but there's no mention of trademarks. And then CC by four, another very popular license these days, especially for documentation and data, is very clear that the rights that it's granting under copyright to whatever it is, does not include any trademark rights. So trademarks, it makes it efficient for people to find your project and then to get involved or to use the code, contribute back to it. But I think a key component of that is that assumes that they're looking for you in the first place. And I think that's the goodwill of the trademark that's out there. That's the work that an open source project's trademark is doing for it. It's the gathering point, the rallying point, an efficient communication of, oh, it's Kubernetes. I know what that means. That's the goodwill associated with the trademark. And so goodwill is valuable and you want to protect that. And trademark rights are the rights that help you protect yourself and carve out your own territory in the software landscape. So how does it do that? So if you do have a trademark registration, it's public notice that you have these trademark rights. You're using this mark in connection with certain types of goods and services. The world is on notice. Trademark offices worldwide maintain databases of this information. You can go on the USPTO database right now and run all sorts of searches to find this information. And furthermore, trademark offices will reject future trademark applications for something that might be confusingly similar to your trademark. So it's helping kind of keep a perimeter around the goodwill represented by your trademark by preventing others from registering similar, confusingly similar trademarks. And let me actually pause there because it's a phrase that I use all the time, but it's a crucially important point. The standard for trademark infringement is not that somebody is using an identical mark to sell identical goods and services. That would clearly be trademark infringement. But the standard is lower than that. It's confusingly similar. So, and again, from the perspective of a relevant consumer, if I see a mark out in the marketplace and it's reasonable for me to think that it's associated in some way or a next generation product from an existing trademark, then that's confusingly similar. So it's a lot of times I'll hear people say like, oh, well, it's a different mark. We added an S to the end. It's like, that's probably not enough to differentiate it from an existing trademark, right? So trademark rights can stop others from passing off their work as the projects or as endorsed by or affiliated with the project. They alluded to this earlier. This is really two separate concepts, but somewhat related. In one sense, it can just be a bad actor. So they've taken the code. Whether they've changed it or not, they're offering it out by themselves under the exact same trademark, counterfeit goods in a kind of a traditional consumer product scenario. It can help protect against that. But it also can help protect against downstream users of your project's code who are built a service on top of the project's code or have added things and are offering something slightly different. And then they may want to market themselves. And from the relevant consumer's perspective, it's not clear that is this the project? Are they affiliated with the project? Has the project endorsed them? Like what's going on here? And that's inefficient for the marketplace. And trademarks help you prevent that type of activity. Another thing that trademarks can do for an open source project, protect against confusingly similar account names. And I'm thinking specifically about social media and GitHub, right? So if one of the things we're hoping to accomplish with our trademark is that people will recognize it and they want to come look for us, well, I don't want them going on to GitHub, looking for my project. And there's 43 other repositories with the same name because then people can't find us. Now the good news is, oh, I'm going to get to that later about the GitHub policy. Because the first thing we have to talk about before we get to the social media and GitHub policies is that registrations, you can't have common law protection for trademarks in the United States, but it is valuable to have a trademark registration. That said, it's kind of an odd time for trademarks. A massive, massive increase in the number of filings in the United States and really everywhere. The USPTO published a study earlier this summer that their applications are up 63% over last year. And so this is just continuing on a trend of more applications each year. But the explosive growth is kind of overwhelming them right now, to be honest. It used to be that a new trademark application would be reviewed within two months. Now we're looking at six, seven, eight months, which is having a real impact on brand owners. And that's a link to the study there, if you want to have a look at it. Why else is it an odd time? I mean, it really started early days of the internet and search engines where let's say you ran a restaurant in Idaho, it's a very successful restaurant, and you marketed your services locally and then the internet started. And it's like, okay, well, people want to find me on the internet. I'm going to have a web page or maybe not, but all of a sudden there's a restaurant with the same name in Croatia. And it's coming up as the top two hits when people are searching. And it starts to get confusing for people. So that was 15, 20 years ago. The last five years, now we have the same type of thing, but just happening all the time on these online platforms. So I put up the example of hashtag delta. So delta faucets wants to do some marketing on Twitter. They're going to put out a bunch of pictures of their new line of faucets and they tag it with hashtag delta. Great. So then I want to find information on what the current restrictions are on delta flights. So I search in Twitter under hashtag delta and I get a bunch of pictures of faucets. That's not what I was looking for. And then in the last couple of months, I'm trying to find that same information and instead I'm getting research reports on the delta variant of COVID. And so you see how things are just colliding with each other at rapid speed now on these online platforms. And so it is a challenge. It's a problem. I wouldn't necessarily say that any of that is trademark infringement, but it's a challenge of getting information out there. So, you know, trademark registrations have always been valuable. You know, we were talking about earlier, you get to use the R with the circle, which a lot of brand owners really like. Like I said, you know, it's that badge of honor. It's a trademark registration. It's a presumption of valid trademark rights, which if you're in a situation where it matters like a trademark litigation or a dispute, that's huge having that presumption of valid trademark rights. Because if you're relying on your common law rights and you file an infringement claim, you have to prove that you actually have trademark rights to enforce. And that can be very expensive to even get to the point of what the other person is doing. And that added cost can be cost prohibitive to people from enforcing their trademark rights. There's a lot of other rights that trademark registrations get you. There's a link up there to an international trademark association fact sheet, which has a lot of information. But I don't want to get bogged down on that. What I do want to talk about is the last five years or so, you know, my thinking as a trademark lawyer has really changed in that when I first started practicing, I would tell my clients, some clients, yeah, you know, you don't have much money right now, you know, spending money on a trademark registration, you really don't have to. You're only in the US. You can rely on common law rights. It's a great feature of US trademark law. You know, don't bother. I would say now, like you really, really, really should think hard about getting a trademark registration, you know, for your project name or, you know, whatever your business is for your trademarks. And, you know, the reason is, you know, these last two points and they go hand in hand is there are really useful enforcement mechanisms outside of courts, right, filing somebody, filing a claim in federal court for trademark infringement. It's pretty much a six-figure proposition and perhaps more. And, you know, most open source projects are simply not going to go there because of the cost associated with that. But there's other tools that are available that are low cost, but you need a trademark registration to avail yourself. And for that reason alone, and also looking at the volume of filings and worried about how crowded the trademark register is getting, you know, these days I really think I would err on the side of trying to get a registration versus not trying to get a registration. So this is what I was referring to earlier when I stopped myself. So, you know, Twitter, you have people bumping into each other all the time. Google AdWords, you know, competitors are using each other's trademarks to generate, you know, for search engine optimization, GitHub, all of a sudden you've got 40 repositories with your project's trademark in it. All of these private companies have trademark infringement policies that are really useful. But you need a trademark registration. Now, for Twitter, you actually do need a trademark registration. You can't even submit your objection to them without a registration number. The other policies you can, but my experience has been if you don't have a registration, it's really got to be a clear cut slam dunk case of trademark infringement for them to take action on it. Because it's a private company, they're not going to decide for themselves whether you have trademark enforceable trademark rights or not. They're going to say, look, you know, I'm sorry, this is unfortunate, but you're really going to need to go to a court to sort this out. So getting a trademark registration allows you to use these things, which even if you're using a lawyer to file complaints under these policies, it's not much work at all to get those complaints filed. And they're generally really responsive. We've had a lot of success with them. Okay. So you're starting a project or you have started a project. You know what a trademark is now. And you know that registration is important. You just need a trademark. You need a name, you know, something to call it and so that people can find you. So just a couple of things to consider on that front. First, you want to make sure that it can actually function as a trademark. In trademark land, we have this thing that we call the spectrum of protectability or spectrum of distinctiveness. And on one end, you have generic terms. So Apple, the word Apple for apples, right? It's what it is. It's the noun for the thing. Those can never function as trademarks. Everybody has to have the ability to use that word to describe the thing because that's what it is. A step up from that are descriptive terms. So let's say, you know, red brand apples, probably not going to work. Because most, you know, apples are usually either red or green. And so it describes the product or the service or it describes a feature of the product or service. And consumers' brains immediately would make that connection. Courts are going to say, no, that term that you're using, that's not an enforceable trademark. It's descriptive. And others have to be able to say that their apples are red, too, because they are. But then you do have descriptive marks that can hop over a little dotted line here, and they acquire distinctiveness. So these are descriptive marks. But through just sheer effort, using it for a long time, doing a lot of advertising, people have come to associate the term with a unique source of that glitter service. So it now has secondary meaning. So yes, the words themselves are descriptive, but now it functions as a trademark. So a good example of this is American Airlines. I mean, at this day and age, like nobody thinks twice about it, but take a step back, American Airlines. It is completely descriptive of what they do. It's a U.S.-based company providing airline services. But they've been around for a really long time, and they have done millions and millions and millions of dollars of advertising. So when I say American Airlines to everybody in this room, you know it's a specific company that I'm talking about. That's a trademark. It's a source identifier. So that mark has acquired distinctiveness over time. Then we get into a category of trademarks that are inherently distinctive. They're protectable from day one. And on the lower end of that are suggestive terms. One that I saw on a list recently of suggestive terms that I never really thought about, but then when I saw it, it became obvious, Netflix. Netflix. Movies that back in the day, you would order online and they'd know you're the DVD, but now it's the streaming service. But you got to connect a few dots there. It's not directly descriptive of the services that they're offering, but you kind of see what they're talking about. So that's a suggestive trademark. I think suggestive marks are a great place to be, particularly for an open source project, because it communicates a little bit about what the project is actually doing and the type of software that it's producing, but it's not in that descriptive, unprotectable area. So that's a good place to kind of aim for if you're an open source project. From there, we get into arbitrary and fanciful marks. So arbitrary is a word or a term that really has nothing to do with the offerings of the company that's using it as a trademark. The classic example is Apple for Apple computers. You can kind of tell a story about how Apple's Isaac Newton intelligence or whatnot, but it's a long story to kind of make the connection, and so it's viewed as pretty much an arbitrary connection. And fanciful marks are words that didn't exist until they were created to be a trademark. Kodak is a classic example of a fanciful trademark. Now arbitrary and fanciful are, it's great because especially fanciful, like when nobody else has the right to use your fanciful mark is you just came up with it. So it's very protectable. The downside is nobody's going to have any idea what it is unless you do other marketing to help build awareness around what that fanciful term is. And that can be okay. It's a balance. So that's other things to consider when you're choosing a trademark. And I think open source, I think all brand owners can struggle with this, but open source projects in particular because they usually don't have huge budgets for advertising or other things to help communicate what their project is doing. So they try to jam all of their marketing effort into the name of the project. And you usually end up with a pretty descriptive name when you try to do that. So I would just encourage folks to try to avoid that. And that's why I was saying like suggestive marks are a good place to look because you communicate a little something about what the project is doing. But you know, people have to make a connection. And, you know, hopefully you can, you know, couple that with, you know, kind of emotional things. So, you know, people are happy when they see your trademark, things like that. All right, so you've picked a hopefully inherently distinctive mark that you're happy with and you're ready to go. Challenges, there's a lot of other really creative and smart people out in the world who may have picked a confusingly similar mark and are using it already. So you want to do some clearance research before you move forward with your mark. You know, classic clearance research is, you know, the legal sort. So, you know, you or your trademark lawyer is going to look in the USPTO database to see if there's any confusingly similar marks. Open source projects tend to be international in their activities. So you want to look internationally, right, because searching in the PTO database isn't going to tell you if there's a registered trademarking candidate, that's going to be a problem for you. WIPO, the World International World Intellectual Property Organization, has a new product that is actually quite nice, their global brand database. It's a good user interface. It covers international registrations, which they manage. But it also picks up searches in another like 40 jurisdictions, which is a really nice quick place to look to see if other people have trademark registrations. But then you also want to do the practical research, right? Just do a Google search, right? So if the first thing comes up that is, you know, a software product in the same space, like that's something you need to know about and you're going to be kicking yourself if you could have found that in a two-second Google search. You also be surprised sometimes at the search results that you get for a term that you're considering as a trademark that may have nothing to do with software, but you want to perhaps sit back and ask your question, oh, when people are trying to find me, this is going to be the second result in their search and is that really where we want to go? So kind of a practical consideration. And then are the desired account names available? So if you're launching an open source project, you're going to need, you know, you're going to have to get yourself a GitHub account. You're probably going on Twitter handle, Instagram, Facebook, whatever you're going to use, see if your desired name is available on those platforms and go ahead and register them. You don't have to wait for trademark registration to register those accounts. And then if it turns out you don't want them, then you can just, you know, cancel those registrations to free them up for somebody else. Okay. So we know what a trademark is. We decided registration is important. We picked an inherently distinctive mark. Nobody else is using it. We're going to file an application. So you talk to your trademark lawyer, and I would suggest having your trademark lawyer file. You can do it yourself or use a self-help service. But I got to say, when I was in private practice, I made a lot of money fixing those mistakes where people try to do it themselves or had a self-help service. So your trademark lawyer says, great, filling out the application on the USPTO database right now. Who's the owner? Who's the owner? Right? It's the project, probably, is the owner of the trademark. But what does that mean? Right? Is it the core group of maintainers? Is there two of them? Is there seven of them? Are there 23 of them? Is it one individual? Is it a company, a legal entity that they've set up to host the project and handle legal affairs for the project? Is it a foundation that provides these services for open source projects? It can be any of the above, but it should just be, we asked Bob to do the trademark work. He's going to put his name as the owner. A lot, when we're talking about open source, the upsides of open source is the velocity at which open source can do things. You create code, get it out there, make bug fixes. This is a moment to press pause and the core group at the beginning of the project should have a conversation. Who's going to own this trademark? If it's going to be the core group of maintainers, do you want to set up an entity, perhaps, to be the legal owner of the trademarks? At the beginning, is it going to really matter that much? Not really, but then the project grows and it gets successful. And then when you're one, two, three years down the line, this issue becomes really important and sorting it out then rather than at the beginning up front can be a big problem. It can be a big problem in lots of situations where it's definitely a big problem is where there's misalignment, where the identified owner of the trademark registration and reality of who's controlling the use of the mark, who's, if you're granting licenses to use your trademark, who's granting it. If those things don't align with one another, then you're risking the validity of the trademark rights overall because what's a trademark? It's a source identifier. So if it's identifying in reality one source but the legal owner is a different one and there's no real connection there, you may lose, everybody may lose the trademark rights because it's not identifying a single source. So that's my pitch on having that. It can be an awkward discussion but have it, have it up front. Thank you. Questions? Yes. Yeah, I mean that's a, so the question about confusingly similar marks in a specific instance of, you know, we have get and we have get hub. I mean, I will say there's a lot of history there and it's like I probably don't know enough about the details to kind of offer a perspective. But again, when you're evaluating whether something is confusing to the relevant consumer, I think you can have situations where those relevant consumers have kind of just learned, right? That get is technology and get hub is the company. Whether that was intended or not, it's kind of where we are and that can be okay. So I'd say every situation is kind of different but, you know, again, everything is from the perspective of the relevant consumer and here, the relevant consumer, you know, software developers who are pretty smart about this stuff. So that's another factor to that. Yes. Here, if you're kind of your own set-round governance in general, there's parents that you're still about. You know, the trademark has to be part of a bigger governance structure or it is maybe some sort of governance. What's your palpation about? Yeah, so I mean, I think I do think trademarks are kind of fundamentally, sorry, back into the question for those who didn't hear was about how trademarks fit into the overall governance conversation and it's been a lot of that in recent years. I do think that trademarks are fundamentally a part of that and a big reason why I say that is, you know, what I was saying before is that if they're not part of that initial discussion, it really does jeopardize the validity of the project mark down the road. And so I think you can go in lots of different directions but pick one and make sure that everyone is on board with who's going to own the trademark. How are we going to allow our downstream users to use it? How is that decision going to be made? I think that's a governance question. I think those are important parts of early governance questions. Yes. Get back. Yeah, so the question was about specifications and how do you go about protecting those? And I will say, you know, the struggles that you're having are common because it is a challenge, because, you know, so you're using a copyright license, which, you know, people respect to varying degrees. I do think trademark is a tool that you should be using. And this is for things like specifications, methodologies, you know, things with a way of doing things. You know, I was talking with some of the other night and I don't know if it's a perfect analogy, but you know, think about like Montessori schools, right? Well, Montessori, it's a methodology of philosophy of teaching, right? But Montessori is a trademark. And so, again, if a school identifies itself as a Montessori trademark as the relevant consumer, you know, a parent of a kid, that should mean certain things to me. And the same thing, if somebody is saying that they meet the specification or, you know, they're, you know, you know, however your specification works, like that should mean something specific. And so what, you know, combination of having a specific trademark for it, licensing that out, if people meet the requirements, those various, you're right, it is a little specific and quite complex. But I think you're heading down the right path the way you're thinking about it. You know, I like the, you know, the license that you were using, but it's not getting you all the way there. I think trademarks might be, you know, and perhaps a trademark licensing program might be the next step for your project to consider. Yeah. And I think last question. What is the typical cost for, I mean, I know it's going to vary a lot. Yeah. What is the typical cost? Stay in the US. Yeah. No, that's a great question. And actually expand by the US because I think it's an important point. It's funny when I tell people numbers, I get one of two reactions. One is it's either, oh, that's really expensive. Or if they've done a lot of patent prosecution, they're like, oh, that's nothing. So, you know, the official fees, it's, again, everything with the US government, it depends. Let's call it $275 or $325 per class of goods and services. So if it's just software, that's one class. And then, you know, lawyer fees, you know, will range, you know, a few hundred dollars to, you know, $1500, $2000 to apply to register the trademark. But once the application is in, then the USPTO is going to look at it. And they may go back and say, no, you have to fix these things. And so there's additional work once it's filed that you want to budget in as well. But let's say, you know, one that sales through soup to nuts, $3, $4,000 should get you there with a good trademark lawyer. But that's for a US application. And we talked about how trademark rights are jurisdiction specific. So let's say you have a name, a logo, a tagline, and you file in the US. But then you have, you know, contributors in eight other countries. And you want to register in, you know, those countries as well, because you think you're fairly active there. So then you take those numbers times three marks times eight countries, it can get pretty expensive pretty quickly. And so a good trademark lawyer would be able to help you kind of parse like, all right, this is the budget I have, like what's the best use of that money? But yeah, you know, compared to patents, it's, you know, divided by, you know, in half or a factor of 10. It's a lot cheaper than patent filing. But it's still real money. All right. Well, thank you. Thank you, everyone. Hope you enjoyed the session and enjoy the rest of Open Source Summit.