[Foundation-l] Wikipedia trade mark misuse

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Jiří Hofman

12 Jun 2010 12 Jun '10

6:47 p.m.

Hi! One of the Czech online news services, Aktuálně.cz ( http://aktualne.cz ) has launched its own encyclopedia a few weeks ago. Links to the encyclopedia's articles are used in news articles on this server. That would not be anything strange if the encyclopedia wasn't named "Wiki". Even that would not be so strange. But it is not a wiki at all. Users and/or readers of this server cannot edit it. It looks like the name was not chosen after a generic word "wiki" but "Wikipedia". I consider this as a misuse of the Wikipedia trade mark. The issue has been brought to the Czech Wikipedia community (by accident twice): http://cs.wikipedia.org/wiki/Wikipedie:Pod_l%C3%ADpou_%28v_rohu%29#Wiki_akt… http://cs.wikipedia.org/wiki/Wikipedie:Pod_l%C3%ADpou_%28pr%C3%A1va%29#Zneu… The community is not unanimous. Therefore I would like to ask an international Wikipedia community for its opinion. Is it a violation of the Wikimedia Foundation rights? Something more to know: 1) The "Wiki" is here: http://wiki.aktualne.centrum.cz/ . The article "Poslanecká sněmovna Parlamentu ČR" ("Chamber of Deputies of the Czech Republic") is currently used as its title page. 2) According to the Czech Wikipedia user Elm, the Aktualne.cz wants to make editing by users possible in the future. 3) No license violation has been noticed in this encyclopedia so far. Additional questions: Are any Wikimedia Foundation's trademarks registered also for / in Czechia or the European Union? How the Wikimedia Foundation would defend its trademarks in Czechia or the EU? Did the Wikimedia Foundation solved a similar case ever before? Thanks for your opinions. I hope a clear statement will be given by the Wikimedia Foundation. Jiri

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Thomas Dalton

13 Jun 13 Jun

3:19 a.m.

2010/6/12 Jiří Hofman <hofmanj(a)aldebaran.cz>cz>:

...

The community is not unanimous. Therefore I would like to ask an international Wikipedia community for its opinion. Is it a violation of the Wikimedia Foundation rights?

The opinion of the community (local or international) is largely irrelevant. It's not a matter of opinion, it is a matter of legal interpretation and we should let lawyers work it out. I

...

Additional questions: Are any Wikimedia Foundation's trademarks registered also for / in Czechia or the European Union? How the Wikimedia Foundation would defend its trademarks in Czechia or the EU? Did the Wikimedia Foundation solved a similar case ever before?

The Wikipedia trademark is registered in the EU. You can search for EU trademarks here: http://oami.europa.eu/CTMOnline/RequestManager/en_SearchBasic

Tim Landscheidt

2:58 p.m.

Jiří Hofman <hofmanj(a)aldebaran.cz> wrote:

...

One of the Czech online news services, Aktuálně.cz ( http://aktualne.cz ) has launched its own encyclopedia a few weeks ago. Links to the encyclopedia's articles are used in news articles on this server. That would not be anything strange if the encyclopedia wasn't named "Wiki". Even that would not be so strange. But it is not a wiki at all. Users and/or readers of this server cannot edit it. It looks like the name was not chosen after a generic word "wiki" but "Wikipedia". I consider this as a misuse of the Wikipedia trade mark. [...]

You are aware of [[en:Wiki]] for a history of wikis and WMF's part in it? Tim

Pedro Sanchez

4:22 p.m.

On Sun, Jun 13, 2010 at 9:58 AM, Tim Landscheidt <tim(a)tim-landscheidt.de> wrote:

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Jiří Hofman <hofmanj(a)aldebaran.cz> wrote: You are aware of [[en:Wiki]] for a history of wikis and WMF's part in it? Tim

In other words, the use of "wiki" predates wikipedia (wikipedia gets its name since it was a encyclopedia using the wiki system)

David Gerard

4:28 p.m.

On 13 June 2010 17:22, Pedro Sanchez <pdsanchez(a)gmail.com> wrote:

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In other words, the use of "wiki" predates wikipedia (wikipedia gets its name since it was a encyclopedia using the wiki system)

(speaking only personally) The consistent WMF position has been that "Wikipedia" is a proper name and a trademark - but "wiki" is a generic word for "user-editable website" and anyone can use it. So if they call it "wiki-" something, even if it's an encyclopedia, that's fine, but if they call it "Wikipedia" or appear to be associated with Wikipedia or WMF in a way they aren't, the Foundation would probably ask them nicely to stop doing that. - d.

Thomas Dalton

4:28 p.m.

On 13 June 2010 17:22, Pedro Sanchez <pdsanchez(a)gmail.com> wrote:

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On Sun, Jun 13, 2010 at 9:58 AM, Tim Landscheidt <tim(a)tim-landscheidt.de> wrote:

Jiří Hofman <hofmanj(a)aldebaran.cz> wrote: You are aware of [[en:Wiki]] for a history of wikis and WMF's part in it? Tim

In other words, the use of "wiki" predates wikipedia (wikipedia gets its name since it was a encyclopedia using the wiki system)

I think everyone in this conversation is aware of that. Jiri said they were calling it "Wiki" despite it not actually being a wiki, which strongly suggests they are trying to associate it with Wikipedia (which is very commonly abbreviated to "Wiki" despite our attempts to discourage it). Whether it goes far enough to be a violation is for the lawyers to work out - I'm not going to guess (I think it is Czech law that is relevant, and I don't know anything about it - there is a lot of consistency between trademark law in EU member states, but I'm not sure of the details).

Tim Landscheidt

6:04 p.m.

Thomas Dalton <thomas.dalton(a)gmail.com> wrote:

...

>> You are aware of [[en:Wiki]] for a history of wikis and >> WMF's part in it?

...

> In other words, the use of "wiki" predates wikipedia (wikipedia gets > its name since it was a encyclopedia using the wiki system)

...

But that's most likely not a trademark issue. There are doz- ens of cola brands on the market and few feature extracts of the kola nut, but that doesn't mean that it is Coca-Cola's right or duty to take legal action on a trademark basis. Tim

Thomas Dalton

6:52 p.m.

On 13 June 2010 19:04, Tim Landscheidt <tim(a)tim-landscheidt.de> wrote:

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Thomas Dalton <thomas.dalton(a)gmail.com> wrote:

>> You are aware of [[en:Wiki]] for a history of wikis and >> WMF's part in it?

> In other words, the use of "wiki" predates wikipedia (wikipedia gets > its name since it was a encyclopedia using the wiki system)

The various cola brands are brands of cola, though. This site isn't a wiki. I have no idea whether this is a trademark violation under Czech law or not, and I don't believe that you do either. Let's leave it to the lawyers to work out.

Platonides

9:28 p.m.

Thomas Dalton wrote:

...

On 13 June 2010 19:04, Tim Landscheidt <tim(a)tim-landscheidt.de> wrote:

Thomas Dalton <thomas.dalton(a)gmail.com> wrote: But that's most likely not a trademark issue. There are doz- ens of cola brands on the market and few feature extracts of the kola nut, but that doesn't mean that it is Coca-Cola's right or duty to take legal action on a trademark basis.

I could create a pet shop called "The paraise of the dog" which was focused on cats, and just on cats. It would be silly and people would say so by the street while mocking on me*. But illegal? No. *And that could have been my strategy for getting known.

Thomas Dalton

9:36 p.m.

On 13 June 2010 22:28, Platonides <Platonides(a)gmail.com> wrote:

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Thomas Dalton wrote:

On 13 June 2010 19:04, Tim Landscheidt <tim(a)tim-landscheidt.de> wrote:

I could create a pet shop called "The paraise of the dog" which was focused on cats, and just on cats. It would be silly and people would say so by the street while mocking on me*. But illegal? No.

"Dog" isn't strongly associated in the public psyche with a particular brand. "Wiki" is. Like I say, these are complicated issues of legal interpretation and really should be left to the lawyers.

Jussi-Ville Heiskanen

10:33 p.m.

Thomas Dalton wrote:

...

"Dog" isn't strongly associated in the public psyche with a particular brand. "Wiki" is. Like I say, these are complicated issues of legal interpretation and really should be left to the lawyers.

If there is any party with dibs on "Wiki", that would be Ward Cunningham, not the WMF. Also it is worth mentioning that the MediaWiki software is not a trademark or anything remotely like that of WMF. MediaWiki serves a huge community of which WMF is just the literal butt-end. Sure, as a single site WMF is t e h biggest. But it still in toto is dwarfed by the userbase in whole. In terms of dilution of trademark of WMF properties, you would pretty much have to take a WMF projects name and use it as a part or whole of what you were offering. Just using "wiki" doesn't come close to meeting that standard. Ward Cunningham I think famously said that an encyclopaedia built over his software might be something novel, but it wouldn't be a "wiki"; so we should really not be too tight-ass about things, if Ward was laid-back to deliver a keynote at a Wikimania anyway. Getting Ward to deliver a full brimstone and hail Jeremiad against misappropriation of the term "wiki" is the best that you could ask for in the particular instance discussed here. I wouldn't hold my breath though. Yours, Jussi-Ville Heiskanen

Thomas Dalton

10:54 p.m.

On 13 June 2010 23:33, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

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Thomas Dalton wrote:

"Dog" isn't strongly associated in the public psyche with a particular brand. "Wiki" is. Like I say, these are complicated issues of legal interpretation and really should be left to the lawyers.

If there is any party with dibs on "Wiki", that would be Ward Cunningham, not the WMF.

Trademark law does not include an automatic right to "dibs" on a mark to the first person to use it. (At least, it doesn't in the UK - I expect Czech law is similar.) What is important is what the public associate the mark with, and "Wiki" is very strongly associated with "Wikipedia". (A fun example: the trademark on police boxes is owned by the BBC and the police need the BBC's permission to use them in films and videos. That's because the public associates police boxes with Doctor Who much more strongly than with the police. The police clearly used them first, but that's not relevant.) Trademark law is a lot more complicated that you seem to think, so please stop guessing and leave it to the lawyers.

Jussi-Ville Heiskanen

14 Jun 14 Jun

11:17 p.m.

Thomas Dalton wrote:

...

On 13 June 2010 23:33, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

If there is any party with dibs on "Wiki", that would be Ward Cunningham, not the WMF.

I happen to know there is an English phrase "Doctor, heal thyself." You probably ANAL. But that doesn't stop you from FUDDing. Tardises are antiquated visual whatchamacallits, but not even remotely "trademarks". You are claiming the law is complicated. But the facts are plain and simple, and no amount of FUDD is going to support a view that there is any reasonable justification (by moral or juridifical standards) to claim WMF is the body to apply for permission to use "wiki" on something. That just ain't gonna happen, *nohow*. Sorry. That is just a fact. Don't try to squirm. Yours, Jussi-Ville Heiskanen

David Gerard

11:20 p.m.

On 15 June 2010 00:17, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

...

You are claiming the law is complicated. But the facts are plain and simple, and no amount of FUDD is going to support a view that there is any reasonable justification (by moral or juridifical standards) to claim WMF is the body to apply for permission to use "wiki" on something. That just ain't gonna happen, *nohow*. Sorry. That is just a fact. Don't try to squirm.

Frankly, if we *could* try to claim a trademark on the word "wiki", we *shouldn't*. At most, ask the site nicely to note somewhere they're nothing to do with "Wikipedia." - d.

Thomas Dalton

11:25 p.m.

On 15 June 2010 00:20, David Gerard <dgerard(a)gmail.com> wrote:

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On 15 June 2010 00:17, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

Frankly, if we *could* try to claim a trademark on the word "wiki", we *shouldn't*. At most, ask the site nicely to note somewhere they're nothing to do with "Wikipedia."

I'm not suggesting we should claim a trademark on the word "wiki" (it wouldn't stand up). I'm suggesting that "wiki" when used as the name of an encyclopaedia is sufficiently similar to "Wikipedia" to cause confusion in the market (which is what trademarks are designed to prevent).

David Gerard

11:43 p.m.

On 15 June 2010 00:25, Thomas Dalton <thomas.dalton(a)gmail.com> wrote:

...

That's what I think would be verging on wrong. IMO. Presumably the WMF has sufficient diplomatic experience to make it less problematic for the actual trademarks. - d.

Jussi-Ville Heiskanen

15 Jun 15 Jun

8:34 a.m.

Thomas Dalton wrote:

...

On 15 June 2010 00:20, David Gerard <dgerard(a)gmail.com> wrote:

On 15 June 2010 00:17, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

Frankly, if we *could* try to claim a trademark on the word "wiki", we *shouldn't*. At most, ask the site nicely to note somewhere they're nothing to do with "Wikipedia."

You are of course aware </sarcasm> that there are a remarkable range of encyclopaedia-like (even if limited in scope) projects not handled by WMF, which the WMF has excellent relations with, and no wish to "reduce confusion" with regard. Such as Wiki-Travel, Wikia, WikiHow, etc. I have been accused before of using too strong language on this mailing list, so I will pointedly restrain myself here with a humongous effort. Yours, Jussi-Ville Heiskanen

Thomas Dalton

14 Jun 14 Jun

11:24 p.m.

On 15 June 2010 00:17, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

...

I happen to know there is an English phrase "Doctor, heal thyself." You probably ANAL. But that doesn't stop you from FUDDing.

I'm an anal non-lawyer, at that! I may be spreading uncertainty and doubt and something that is very uncertain and doubtful, but I don't think anyone is particularly frightened by anything I'm saying.

...

Tardises are antiquated visual whatchamacallits, but not even remotely "trademarks".

Now you are just embarrassing yourself. Check your facts: http://news.bbc.co.uk/1/hi/entertainment/2352743.stm

...

You can repeat it as much as you like. That doesn't make it so.

Jussi-Ville Heiskanen

11:42 p.m.

Thomas Dalton wrote:

...

On 15 June 2010 00:17, Jussi-Ville Heiskanen <cimonavaro(a)gmail.com> wrote:

I happen to know there is an English phrase "Doctor, heal thyself." You probably ANAL. But that doesn't stop you from FUDDing.

Tardises are antiquated visual whatchamacallits, but not even remotely "trademarks".

Now you are just embarrassing yourself. Check your facts: http://news.bbc.co.uk/1/hi/entertainment/2352743.stm

You are probably expecting me to eat crow here. I seriously doubt anyone would have a problem with usage of the textual expression "police whatever box", but the visual representation of what most people would think was a _TARDIS_, and nothing to do with police, would be a mite jarring. On the same level, I would really think somebody using the puzzle globe on their site (or even a non-trivially distinguishable mock-up) was pushing their luck. The word "wiki" seriously, you really should take it in, is *not* something defensibly ours. So yes, if you really want to consider me embarrased by the fact that I was talking about words that are very live and current, rather than antiquated images only surviving because of a popular culture connection... ...you have to be a very sick puppy indeed. Takes much more than that to embarrass me.

...

You can repeat it as much as you like. That doesn't make it so.

Indeed, the cards speak for themselves. Yours, Jussi-Ville Heiskanen

Ray Saintonge

16 Jun 16 Jun

7:52 a.m.

Thomas Dalton wrote:

...

On 15 June 2010 00:17, Jussi-Ville Heiskanen wrote:

Tardises are antiquated visual whatchamacallits, but not even remotely "trademarks".

Now you are just embarrassing yourself. Check your facts: http://news.bbc.co.uk/1/hi/entertainment/2352743.stm

You misrepresent your own case. If you read the article carefully you will see that the police could not prevent the BBC from using the police box image on T-shirts and other promotional material. Nowhere does it say the the police could no longer use the image. I have a copy of "Wiki Wiki Kau Kau Cookbook", first published in 1954, Ward Cunningham did adapt the word to the computer age, but it was already in use for other contexts. Ec

Thomas Dalton

3:25 p.m.

On 16 June 2010 08:52, Ray Saintonge <saintonge(a)telus.net> wrote:

...

Thomas Dalton wrote:

On 15 June 2010 00:17, Jussi-Ville Heiskanen wrote:

Tardises are antiquated visual whatchamacallits, but not even remotely "trademarks".

Now you are just embarrassing yourself. Check your facts: http://news.bbc.co.uk/1/hi/entertainment/2352743.stm

That source was to counter the claim that there was no trademark on police boxes, which it was perfectly adequate to do. The story of the police trademark is a long one, and if my memory is correct it does include a ruling that the police couldn't use an image of a police box in some training or recruitment video. I can't immediately find a source for that - it's a difficult topic to google, since the internet is full of stuff about tardises.

...

I have a copy of "Wiki Wiki Kau Kau Cookbook", first published in 1954, Ward Cunningham did adapt the word to the computer age, but it was already in use for other contexts.

Context is extremely important in trademark law. For example, the trademark on "apple" is owned by Steve Jobs' company in the context of computers, The Beatles' company in the context of music and is generic in the context of fruit. That "wiki wiki" appeared in the title of a Hawaiian cookbook is completely irrelevant.

Jussi-Ville Heiskanen

17 Jun 17 Jun

5:18 a.m.

Thomas Dalton wrote:

...

On 16 June 2010 08:52, Ray Saintonge <saintonge(a)telus.net> wrote:

Thomas Dalton wrote:

On 15 June 2010 00:17, Jussi-Ville Heiskanen wrote:

Tardises are antiquated visual whatchamacallits, but not even remotely "trademarks".

Now you are just embarrassing yourself. Check your facts: http://news.bbc.co.uk/1/hi/entertainment/2352743.stm

I have a copy of "Wiki Wiki Kau Kau Cookbook", first published in 1954, Ward Cunningham did adapt the word to the computer age, but it was already in use for other contexts.

Well, the quotation that is most relevant in that TARDIS affair, in the sense of being on point for "wiki" and "wikpedia" is: 'Mr Knight said that the police telephone box had been used by other police forces outside London, so was not exclusive to the Metropolitan Police, and at best it would be described by the public as "street furniture".' This is the situation with regard to wikipedia, and other reference works with "wiki" in their names. That is Wikihow, Wikitravel, Wikia, etc. Yours, Jussi-Ville Heiskanen

Peter Gervai

10:37 a.m.

On Wed, Jun 16, 2010 at 17:25, Thomas Dalton <thomas.dalton(a)gmail.com> wrote many things. My sidenote is that if you believe in what you say then you imply Wikipedia, Wikimedia and everything we have with 'wiki' string in it, and every method we use which described as 'wiki-way of web publishing' violates Ward's intellectual rights since it was him who first used the word, who conjured up the method and made it known. He didn't, doesn't, and won't, and never intended to interfere, however please realise that "wiki" was _well_before_ Wikipedia, both the term and the method, and we just use them out of the kindness of Ward ["courtesy of Ward" - if it were a commercial thing :)]. Trying to claim rights on someone else's work is at best uncivilised. (But of course the legal way is that if you'd try to trademark it it would be nullified by prior art in five seconds.) I would like this thread to stop as it's now really just a waste of precious bits of ones and zeroes. I guess the original question was overanswered now. Let's move on to real problems. World peace, anyone? Thanks, [[user:grin|<g>]]

Thomas Dalton

11:39 a.m.

On 17 June 2010 11:37, Peter Gervai <grinapo(a)gmail.com> wrote:

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We're not talking about patents; we're talking about trademarks. Who conjured up the method is completely irrelevant, as I have already explained. This complete lack of understanding of trademark law is precisely why people shouldn't be trying to guess whether something is a violation or not. I have not once claimed that it is a violation. I have said that it might be one. That is the most I can say with my level of understanding of the relevant law and it is clear I have far more understanding of the relevant law than anyone else in this discussion.

Nathan

1:47 p.m.

Wow, this thread just needs to end. Nathan

Marc Riddell

2:24 p.m.

on 6/17/10 9:47 AM, Nathan at nawrich(a)gmail.com wrote:

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Wow, this thread just needs to end. Nathan

Interesting, Nathan. "Needs to end" for whom? Would you say the same thing if this were a live in-person discussion? Marc Riddell

Mariano Cecowski

20 Jun 20 Jun

7:43 p.m.

If the Czech Wikimedia things the newspaper is abusing of the 'wiki' concept to sell something that is not, and really wishes to do something about it, I recommend to contact "consumer protection" and present the case to them; it's a free services in all the countries I know. You can claim that the newspaper is using a confusing concept to attract visitors seeking for collaborative information where there is none. I don't think you can do anything else, and certainly not along the 'wiki' trademark/copyright path. Good luck, MarianoC.- --- El jue 17-jun-10, Thomas Dalton <thomas.dalton(a)gmail.com> escribió:

...

De: Thomas Dalton <thomas.dalton(a)gmail.com> Asunto: Re: [Foundation-l] Wikipedia trade mark misuse Para: "Wikimedia Foundation Mailing List" <foundation-l(a)lists.wikimedia.org> Fecha: jueves, 17 de junio de 2010, 8:39 On 17 June 2010 11:37, Peter Gervai <grinapo(a)gmail.com> wrote:

On Wed, Jun 16, 2010 at 17:25, Thomas Dalton <thomas.dalton(a)gmail.com> wrote many things. My sidenote is that if you believe in what you say

then you imply

Wikipedia, Wikimedia and everything we have with

'wiki' string in it,

and every method we use which described as 'wiki-way

of web

publishing' violates Ward's intellectual rights since

it was him who

first used the word, who conjured up the method and

made it known. We're not talking about patents; we're talking about trademarks. Who conjured up the method is completely irrelevant, as I have already explained. This complete lack of understanding of trademark law is precisely why people shouldn't be trying to guess whether something is a violation or not. I have not once claimed that it is a violation. I have said that it might be one. That is the most I can say with my level of understanding of the relevant law and it is clear I have far more understanding of the relevant law than anyone else in this discussion. _______________________________________________ foundation-l mailing list foundation-l(a)lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l

Nathan

13 Jun 13 Jun

10:46 p.m.

On Sun, Jun 13, 2010 at 5:36 PM, Thomas Dalton <thomas.dalton(a)gmail.com> wrote:

...

"Dog" isn't strongly associated in the public psyche with a particular brand. "Wiki" is. Like I say, these are complicated issues of legal interpretation and really should be left to the lawyers.

What's relevant is that the WMF doesn't regard "wiki" as a protected mark. There are zillions of wikis out there, and whether they are actually massively editable (and in my experience, most of them actually are not) is irrelevant to the question of trademarks and the WMF. You don't need to be a lawyer to figure that out. Nathan

wiki-list＠phizz.demon.co.uk

6:32 p.m.

Thomas Dalton wrote:

...

Err! One can download and install the MediaWiki software on a website without allowing the world, and his dog, cat, and their fleas to edit the pages. IIRC one gets the option of turning off unregistered user updates, and autoregistration during the install. It even comes with a little a "powered by MediaWiki" logo. OTOH the site whined about has no reference to WMF at all.

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participants (13)

David Gerard
Jiří Hofman
Jussi-Ville Heiskanen
Marc Riddell
Mariano Cecowski
Nathan
Pedro Sanchez
Peter Gervai
Platonides
Ray Saintonge
Thomas Dalton
Tim Landscheidt
wiki-list＠phizz.demon.co.uk