These Apache Trademark Use Reporting Guidelines provide best practices for managing Apache® projects' brands and trademarks, especially in terms of reviewing and addressing use by third parties, and how to ensure we treat other third parties trademarks with respect. This document is focused on Apache committers and PMC members; outside parties probably want to start with the Apache Trademark Policy.
The Apache Software Foundation (ASF) strives to promote appropriate uses of all Apache marks for the benefit of our project communities and for the ASF as a whole. The mission of the ASF is to provide software for the public good, and the way we accomplish that is through our community and consensus based projects. Having clear trademarks and service marks that identify our projects and software products is important to the health of our communities, both to encourage the sense of community, to ensure that our projects may be run independently of outside or commercial influence, and to allow new consumers to discover our many freely available products and services.
Likewise, our project communities bear responsibility for managing their own
brands and marks, as well as treating trademarks of third parties with respect.
The VP, Brand Management relies on each PMC to understand its own brand, and to monitor the use of their brand by third parties. We also welcome assistance from the many users of our software in respectfully promoting our software.
Our best practices for monitoring the use of Apache trademarks by third parties are below, along with suggestions for how to report potentially improper use of our marks.
Reminder: This document should not be used as a substitute for legal advice. If you have a legal question, you should contact your own lawyer. Apache committers may contact the private legal-internal@ mailing list (monitored by the VP, Legal Affairs officer of the ASF along with counsel) with any specific legal questions about Apache projects. Outside parties with legal questions about trademarks may contact us.
So you're browsing a website with "Hadoop" plastered all over their marketing materials, and there's no mention of Apache anywhere on the page - what should you do? The first thing is to actually ask: is this actually a problem, or is it really nominative use of the Hadoop name, and it's just fine?
Trademarks exist to prevent customer confusion about the source of goods or services. When you buy an HP printer, you know what kind of quality and service to expect, because you know it came from HP. Likewise when you order a Coke beverage, you'll expect that particular tartly sweet flavor, instead of the more brightly sweet flavor of Pepsi beverages. The name - and logo, and other branding - are a clear association of that product with it's manufacturer in the mind of the consumer buying the product.
The majority of times we use trademarks like Hadoop are just fine, because we're talking about the trademarked product. Often, the only way to refer to the Apache Hadoop® software product is to use it's name. Discussing how great Hadoop software is, or how slow it can be, is typically not an infringing use, because it is not likely to confuse consumers as to the source of Hadoop software. These uses are called nominative use; that is, a third party using the name to refer to the thing itself - i.e. our software product.
The problem comes when trademarks are used in an infringing manner: when a third party's use of a trademark would confuse a reasonable consumer about where the product comes from. For example, it's just fine to write about how well BMWs handle or drive; it's probably not OK to start a website to sell BMW Cars that you make in your own shop. It may or may not be OK to start a business called The Best BMW Service; that depends on how it's marketed (i.e. presented to consumers), and how BMW as the owner of the trademark decides to license (or not) its trademark. It all boils down to: would a new consumer looking for a car or service related to this "BMW" brand they've heard of be led to believe that your independent shop is related to the international BMW company.
The Fedora® project has a useful chart of appropriate and inappropriate ways to use their FEDORA trademark in common situations. While that policy is written for the Fedora mark, the examples are generally applicable to Apache marks, or even most software product marks as well.
When reviewing a potentially troublesome use of an Apache mark by a third party, it helps to think through the context of that specific use of Apache marks:
What is the specific mark being used? Is it the name of an Apache product or project, or is it a logo from our website? Or is it an obviously derived word or logo created from an Apache mark, like "Hadooper", or a blue elephant similar in appearance to the beloved Hadoop yellow elephant?
Where is the mark being used? On a website (provide URL), on marketing materials, on a business card, in an email campaign?
What is the immediate context to the use? Think about the paragraph that Hadoop is being discussed in, or think about where the elephant logo is positioned in relation to other text or graphic elements on the page.
What is the larger context to the use? This may be harder to evaluate, because there are cases where a website may discuss Hadoop at length, where the individual uses do not appear to be infringing, but that the overall appearance in the entire website could reasonably lead to consumer confusion. Consider the whole context from the point of view of a user who is not experienced with Hadoop, but wants to learn more about it.
Is the use commercial/by an organization, or is it personal/by an individual?
Use by individuals is rarely infringement unless they are actually providing a software product for use or download using a similar name.
Is the use related to a software product or service that does *not come from Apache? Uses of Apache marks in direct conjunction with third party software products are generally not OK, and require investigation unless they are already following the Powered By guideline.
Is this use about a software product or service, or is it related to some other goods (apparel, mining operations, computer hardware, whatever)? The ASF and Apache projects primarily provide software products to the public, and to a lesser degree provide software support services. Use of trademark names in relation to software products or services should always be evaluated carefully. Use of trademark names in relation to other kinds of goods should be evaluated, but are generally less likely to be infringing.
Is this use clearly in relation to a parody of the Apache brand, or clearly in the context of a review, benchmark, or other commentary about that particular Apache brand? Use of trademarks in parodies, or in factual reviews, even uncomplimentary ones, are often nominative uses, unless they are causing consumer confusion as to the source of the goods or software product. I.e. as long as a new user would understand that the use by a third party is a parody, and not coming from the official Apache project, it's not likely a problem.
Is the use in a domain name? See the Domain Name Branding Policy for more information on allowable third party use of Apache brands in domain names.
Is the use in conjunction with an event or conference? See the Event Name Branding policy.
If any user or other person (i.e. not a committer on any Apache project) is aware of potentially improper third party uses of any Apache marks, we request that you inform the relevant Project Management Committee, or PMC. Email that project's PMC at firstname.lastname@example.org and inform them of the third party and its use of Apache marks. Please include a URL link to the specific page that shows the Apache mark being used, and a brief description of the situation.
The project's PMC will then examine the third party use of their mark, and take appropriate action if needed as described below. In general, we prefer if a member of a project's PMC contacts any third party that may be improperly using that project's marks, rather than having non-PMC members contacting them directly. While we very much appreciate our users bringing these issues to our attention, from the legal perspective, only the ASF and it's projects can directly enforce the proper use of our marks.
If you do not receive a response form that project's PMC within a couple of weeks, please contact the ASF privately including all the details to request an update.
A project's PMC (or podling's PPMC) is responsible for being aware of
significant third party uses of their project's marks.
PMCs are also responsible for managing the process of contacting any third parties that may be infringing on their project's brand in conjunction with VP, Brand Management on the trademarks@ private mailing list.
When discussing reports of problems, or reporting a potential infringement by a third party, it is a best practice to use the email@example.com mailing list. Many potential cases are either shown to not be a trademark issue at all, or are resolved by a friendly email to the third party politely requesting that they respect our trademarks. Discussing these issues in private is recommended because many unintentional misuses of marks are more easily cleared up this way.
PMCs should contact third parties believed to be infringing on their marks in most cases. When the PMC believes it's likely to be an unintentional infringement, or if PMC members are personally familiar with the third party potentially infringing, then any PMC member may contact the third party using one of the Brand template letters available in the committers Subversion® repository:
The intent is to send a polite, non-confrontational email to the infringing party, reminding them of the proper treatment of our trademarks. Do not imply any legal action or suggest that lawyers need to be involved, and do not issue any official endorsement or approval of any third party uses of any Apache marks. In many cases, the third party may not be aware that it's a trademark of Apache, or of specific trademark law, and will happily comply. Be sure to use a signature that makes your formal involvement with the project clear (i.e. as Apache Foo PMC member).
HOWEVER if the third party use seems to be either a serious infringement, or is obviously intentional, then the PMC should work with Brand Management to craft an official request to the third party. Brand Management will investigate if this is an actual infringement, and then will lead the process with the PMC of working with the third party to correct improper uses of Apache marks. This process starts with an email discussion with the third party, and may take some time.
Similarly, if the PMC does not get a positive reply from any request to any third party in a reasonable amount of time, contact Brand Management to decide how to proceed. Also: PMC members other than the project VP are not empowered to grant any exceptions to Apache brand policy for third party use of Apache marks.
If there is a question of if something is infringing or not, then PMC members should email trademarks@, and cc: private@pmc for further investigation and understanding of proper trademark use. If necessary, after discussion on trademarks@, someone from trademarks@ or the PMC chair may take a specific question to legal-internal@ to get a specific response from ASF counsel. Remember: discussion about any trademark infringements should always happen on private@ lists.
Apache projects strive to always be respectful of other organizations' trademarks. If you see any questionable uses of trademarks on any .apache.org website - either of third party marks or of Apache marks - please contact the relevant project's PMC through their private@projectname*.apache.org mailing list.
If you are a third party with a serious concern about potential misuse of your trademarks, and the relevant PMC is not responding to your official requests in a timely manner, or if you are legal council, please contact our Brand Management Committee privately.
For more information about Apache marks, please see our formal Trademark Policy. PMC members should also read the PMC Branding Responsibilities and the Project Website Requirements. Or, see the site map of Apache Trademark Resources.
Nothing in this ASF policy statement shall be interpreted to allow any third party to claim any association with the Apache Software Foundation or any of its projects or to imply any approval or support by ASF for any third party products, services, or events.