Commons talk:Trademarks proposal

Reasons to enact this policy

Trademark restrictions are restrictive enough to make a mockery of our aim to offer free content that can be used for any purpose. Even though such images may in fact be released under a free license, they are in effect non-free because of the trademark restriction. We should move to formally treat them as such. Enacting this policy will also reduce many fruitless, repetitive arguments about whether or not logos can ever be free. It will create a much clearer policy especially for trademarks of open source software. pfctdayelise (translate?) 10:02, 6 September 2006 (UTC)

I completely agree. Sanbec ✉ 10:22, 6 September 2006 (UTC)

It sounds good on the surface. But.

• What about spurious trademark claims? Apple has been threatening everyone who uses the prefix "i-" or the suffix "-pod".
• Trademark law is far from uniform internationally. Which sets of trademark laws do we decide to ignore?
• How many and which countries must it be trademarked in?
• How do we deal with claimed trademarks that are not registered trademarks?

- David Gerard 10:24, 6 September 2006 (UTC)

replied on mailing list. (Essentially, we worry mainly/only about registered trademarks, and country of origin - same as copyright.) pfctdayelise (translate?) 11:36, 6 September 2006 (UTC)

I agree completely. --EugeneZelenko 13:30, 6 September 2006 (UTC)

Why trademarks but not {{Insignia}}? Both trademark law and the law governing private/official insignia restrict the use of images in a similar way: You can't use them so that someone might falsely think you are the owner of the trademark or insignia. (Official insignia may even be protected by special laws which often are even more restrictive than trademark law.)

Why images but not text? Trademark law restricts both the use of images and words. If you outlaw a (non-copyrighted) logo, you'd consequently also have to outlaw the name, too. Even worse, we even claim the name to be GFDL when it appears in the text of articles.

What if someone registers a free image as a trademark? Should we delete Category:Mona Lisa because the image is a registered trademark? -- 3247 13:50, 6 September 2006 (UTC)

My rationale: corporations have enough money to sue for trademarks misuse. Additionally it'll automatically resolve Commons cases like McJunk. --EugeneZelenko 15:00, 6 September 2006 (UTC)

Governments have ... no, not money, but ... public prosecutors. ;-) Seriously, I think you're right, corporations are more likely to aggressivley defend their trademarks than governments or NGOs and they are more likely to aggressivly contest the use of logos or other non-textual trademarks. Of course, this raises the question whether Wikimedia should evade legal problems, even if the claims are unfounded.

What about this alternative wording:

Any image that depicts work which is primarily used as a registered trademark or is confusingly similar to a trademark shall be subject to deletion regardless of its copyright status.

-- 3247 15:23, 6 September 2006 (UTC)

I agree with your additions. Public domain images (like Mona Lisa or images on O'Reilly animal series books) were not intended to be used as trademarks. Corporate trademarks were invented only to be associated with particular products/services/etc. --EugeneZelenko 15:38, 6 September 2006 (UTC)

[edit conflict] It's certainly a good idea to clarify once and for all what Commons considers "free" images. However I think we should leave it at the pre-definded minimum a free (copyright) license. There are many other factors limiting the "fredom for any use": Cars designs, for example, are specially protected (you can't just build a car with the same design); or any images showing people. If trademarked images become unfree, we should look at each of these cases, too. —da Pete (ばか) 13:59, 6 September 2006 (UTC)

I don't think it is a good idea to ignore all non-copyright restrictions. There should be a definition of freeness that is agnostic to the source of restrictions. Protected designs (design patents, registered or un-registered designs, design models) are actually very similar to copyright.

The main problem here is that photos will inevitably contain protected works. A photo of a street scene will usually contain a lot of advertisements (works of art, trademarks), buildings (works of architecture), cars (designs, trademarks), persons (right to one's own image) etc. All of these elements are unfree in one or the other way. The advertisement must not be singled out (or it would be no longer fair use/minor "beiwerk"), the look of the building must not be changed ("panoramafreiheit" does not allow modification), the trademark can't be used on products (which would be clearly infringing) and so on (NB: these are copyright and non-copyright restrictions). If we required that all elements of an image are free, most photos would have to be deleted. (BTW, this is not unique to photos, e.g. texts may contain quotes from other sources, which require attribution (free) and must not be changed (unfree)).

I think the solution to this problem is to allow that some parts of a work may be unfree if they (a) do not make the work as a whole unfree and (b) are not the main content of the image.

To recur to trademarks, that general rule can apply to trademarks as well: If the image's main content is the depiction of the trademark, it's considered unfree, if the image has enough other content, it's considered free even if you can't freely use, modify and distribute the trademark. -- 3247 15:58, 6 September 2006 (UTC)

I would strongly disagree with any attempt to bar depictions of products on Commons. If Commons goes down the road of prohibiting any content where there may be any restriction on its use under any circumstances, the project will prove utterly worthless for my use, and many others'. The fact is that almost any product of humankind in recent times has some kind of restriction on use, somewhere. Manufactured objects, almost certainly, especially if they have visible trademarks on them (which almost all do, these days) or a distinctive design (whether considered copyrighted or design protected in another way). This covers pictures of cars, computers, electronic devices of all kinds, buildings, and nearly everything I can think of.

Pictures of living people also have restrictions on them. In some jurisdictions, there is in fact no way for any model release or contract to remove all restrictions; the person depicted still has some rights over the image. Pictures which contain living people even incidentally are also restricted, especially if no model release or contract has been signed. The picture as a whole is PROBABLY legally non-problematic, but if cropped down to show only a person or group as the main subject would be a problem.

Also, in many countries, creators have inalienable moral rights over their creations that cannot be signed away. These are legal restrictions over and above those of the GFDL or other free license.

If commons goes down the road that any restrictions on use at all except those specified by GFDL or CC-By-SA are unacceptable, then Commons will be a repository only for public-domain art (but beware of those copied without the consent of the current owner!), pictures of landscapes and growing things (but even then, beware! Some landscape features have been trademarked ...) and suchlike. That Commons is nearly useless to me, and I will not use it or contribute to it. Morven 16:14, 6 September 2006 (UTC)

I strongly disagree with this proposal. We have not the slightest problem with using verbal trademarks. We use them in articles and even as lemmata. We write about sun in astronomy, and in operatins systems. We write about apple regarding fruits and hardware. No one ever proposed not to use these words anymore, but they are of course trademarked. I think this proposal is not based on fact but on fear. en:FUD obviously worked. Reading about cases of trademark infrinngement can be scary, but all we ever did with trademarked logos was completely legal. If a logo is free of copyright (by age or lack of originality), we should use it. There is no sense in volutarily denying ourself from using perfectly legal illustrations. --h-stt !? 19:29, 8 September 2006 (UTC)

I strongly disagree too --Historiograf 00:22, 14 September 2006 (UTC)

I too, strongly disagree with this proposal as most things are trademarked, and most of the picture on commons would be gone.--THUGCHILDz 16:32, 31 May 2007 (UTC)

(ja)強く反対します。商標登録された絵のアップロードを禁止するのであれば、商標登録されたテキストの掲載もやめるべきです。商標は万能ではありません。著作権のあるロゴのアップロードのみを禁止すべきです。ただ、注意書きはあったほうがいいと思います（参考：Template:Nazi symbol）（英語の得意な方へ、英語がおかしかったらフォローをお願いします）。--Monaneko 09:59, 1 July 2007 (UTC)

(en)I strongly disagree. If we forbid uploading Registered Trademark Images(Example:Trademark Logo), We should forbid writing Registered Trademark Words (Example: Apple) too. A trademark does not have the infinite power. We should ONLY forbid uploading Copyrighted Image.... But, I think that there had better be information (Like Template:Nazi symbol).--Monaneko 09:59, 1 July 2007 (UTC)

Slippery slopes

I'm not keen for this proposal, because it seems like a slippery slope. Our primary test for inclusion is free-ness of license, and we use that argument to justify keeping pictures that may be illegal to publish in many countries, because those laws have nothing to do with copyright. Adding trademark as a new restriction gets into a very messy area; as we learn from w:trademark, there is no international harmonization of trademark law corresponding to what we have for copyright, plus which it's much more contextual; Bass doesn't control every imaginable use of red triangles, in fact it only controls a narrow slice of uses. I don't think anybody wants to get in a situation where we're forced to remove all commons images where a red triangle is prominent, on the off chance that somebody might print one out and paste it on a bottle! Stan Shebs 17:33, 6 September 2006 (UTC)

Trademarks are a messy area, indeed, but so are copyrights already. I don't intend this to be used in cases like you say... obviously. How can it be reworded more strongly? pfctdayelise (translate?) 03:33, 7 September 2006 (UTC)

Text, images, logos, what?

What specifically is this meant to apply to? Logos, text, images, what? I'm also somewhat confused as to how often we run into the problem that an image is copyleft-but-trademarked (that is, would run into a problem with trademark law but not our copyright policies)? It seems like it would be relatively limited circumstances, and if we wanted to be clear on the policy we should give some concrete examples. --Fastfission 23:22, 7 September 2006 (UTC)

Images. Not text. It seems to frequently be a problem with German logos, which apparently set quite a high bar for "originality" - so even the MediaWiki logo would not be able to be copyrighted, according to them -- it would only be protected by trademark law. pfctdayelise (translate?) 03:09, 8 September 2006 (UTC)

If it is just a problem with logos, let's make that the policy, not something vaguely worded which is supposed to be generalized. It is easier to say, "don't upload company logos to Commons" than to try and do it all in terms of trademark law. --Fastfission 16:56, 8 September 2006 (UTC)

Simple Solution

We never cared about trademarks or logos on commons. Only thing we cared about is copyright. Examples:

• The Debian Logo is copyrighted. Therfore delete.
• The Image:Güldner G40 1965 Logo.jpg is {PD-ineligible} because of german law "Keine Schöpfungshöhe". Therfore keep. --Paddy 09:05, 8 September 2006 (UTC)