Hacking Trademark Law for Collaborative Communities
91 Pages Posted: 7 Aug 2014 Last revised: 19 Jul 2015
Date Written: August 5, 2014
Collaborative communities create popular work with widely recognized brands, such as Wikipedia, Linux, Android, and Firefox. Trademark law can provide protections to members of these communities and the users of their products so that they can rely on the brands to identify the original projects. This Article explores the conflict between collaborative communities and trademark law. While collaborative communities thrive on openness and decentralization, trademark law requires centralized quality control and various formalities.
This Article introduces a descriptive taxonomy of “hacks” that collaborative communities have used to try to mitigate the tensions between their values and trademark law. These hacks are supported by a range of examples that illustrate their effectiveness and limitations in practice. Using the recent Wikimedia Trademark Policy as a case study, this Article proposes a public trademark policy for collaborative communities, similar to how Creative Commons serves as a hack for copyright law. Some of the hacks discussed in this Article are largely unprecedented, or may be combined in new ways to improve their effectiveness. As many other types of hacks, the trademark hacks outlined in this Article may ultimately need to be replaced by code that provides a more holistic patch to the identified “bug” in the trademark system.
Keywords: collaborative communities, trademark, intellectual property, open source, free culture, internet law
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