Licensing a Trademark under Creative Commons

Question

For several indie art/media projects I am working on, I am actually considering registering trademarks and then licensing them out under Creative Commons Attribution 3.0 Unported (CC BY 3.0).

I honestly do not know if such a thing has been done before. It would surprise me if it hasn't. The basic principle is by releasing the actual trademark under CC BY 3.0. I am letting go of control for the sake of marketing.

• Connects with fans by offering a way to legitimize fan works (such as fiction and artwork), as well as even allow fans to make money off of their own creative spin-offs. The goal is to gain free advertising, since fans are often the best way to spread the word.
• Combats obscurity through attribution.
• Removes the Stress from trying to assert control over things that are not controllable. Let's face it - I am starting out, and cannot afford big lawyers and probably won't anytime soon. I've seen too many artists that are so paranoid about trying to get paid for every little thing they cannot control to see that the stress is not worth it.
• Encourages an interacting fan-base. Fans will communicate anyways, but by releasing the trademark under CC BY 3.0, it encourages fans to feel a part of the actual process.
• It lets me see what others can come up with. I like to see what happens when other people have a chance to run with someone else's idea. Often, the idea can be refined into something new and/or better than the original creator.

Technically, since Creative Commons is a license specifically designed for copyright, the actual wording of the license would have to be modified slightly to cover trademarks. The legalese for CC BY 3.0 appears simple enough that it wouldn't take much to alter the wording to cover a trademark as well. Will there be potential problems arising from it? Of course. Letting go of control always leaves a work open for abuse. Since I cannot restrain the internet to prevent abuse, I am attempting to use this method as a way to take advantage of it.

Answer 1

CC licenses are copyright licenses. Trademark is for something quite different -- restricting competitors from using the mark to confuse potential customers. The copyright on a work and the trademark on a work are two separate issues.

There's absolutely nothing inconsistent about licensing the copyright for a symbol which is also used as a trademark under a permissive license (indeed, I think it's absurd to even consider restricting a trademark under copyright -- it defeats the purpose, since you want your trademark to be copied as long as it is used correctly to refer to your product).

When you trademark something, you are insisting that when people use that mark, they are using it to refer to you or your product, and not some competing product. It's a matter of reputation and truth in advertising, and it has very little to do with restricting copying.

In general, anyone may use a trademark as long as they acknowledge that the trademark belongs to you and they do not attempt to use it to falsely label competing products.

If you want to allow your trademark to be used by others for specific purposes (say, to indicate that they support your product), then you can allow that. I recommend looking at the trademark page for Debian GNU/Linux:
Debian Open Use Logo License

 

Comments

@terryhancock
Thank you for the advice and the link.

I had a longer comment, but apparently there is a text limit and it was cut off.

---

@terryhancock Thanks for this comment. I was thinking of saying something similar, but you said it better than I ever could.

Once again, thank you.

Answer 2

That's a really interesting question, and I might ping someone from CC to see if they'll provide their thoughts as well.  I agree that the license itself would almost certainly need to be changed (especially since it doesn't mention trademark at all), but I imagine a similar license could be created.

The one question I have is if you even need that?  There are a few arguments here.  One is that some people will claim if you don't enforce the trademark, you'll lose it.  But if you make it clear that the trademark is freely licenseable under certain terms, then I think you can protect against that.

I remember that, in the past (less so these days), Twitter employed an extremely permissive trademark regime, where they allowed others to use the term "tweet" or "twit" in their own offerings, leading to thinks like TwitPic and Tweetdeck -- both of which have often been confused as actually coming from Twitter (though, recently, Twitter did buy Tweetdeck).  But on the flipside, I strongly believe that a part of Twitter's success was due to its permissive attitude on trademarks, which allowed others to make Twitter's brand much more valuable.

So the short term answer is that I don't have an answer directly... but it certainly is an interesting question, and I'm going to ping some CC folks to see what they think.

Comments

@mmasnick
The Attribution clause is designed to make the trademark self-enforcing.