Community-led development "The Apache Way"
These Apache Trademark Use Reporting Best Practices provide best practices for reviewing the use of Apache® projects' brands and trademarks and for contacting other parties when there may be an infringement or misuse of any Apache trademarks. This document is focused on Apache committers and PMC members; outside parties should start with our 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 by supporting 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 other Apache projects and third parties with respect. The ASF relies on every PMC to manage their own brand, and to monitor the use of their brand by third parties (i.e. anyone outside of the project). We also welcome assistance from the many users of our software in respectfully promoting our software.
Reminder: This document is not 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 ASF's VP, Legal Affairs officer and legal counsel) with any specific legal questions about Apache projects. Outside parties with legal questions about trademarks may contact us privately.
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 Apache 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 Apache 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, you must think through the context of that specific use of Apache marks before you contact the third party:
What specific trademark is 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. Be sure to copy the paragraph or a screenshot of where a logo appears if you are reporting this to a PMC.
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 (i.e. someone looking to download Hadoop® software might do it from that website, instead of from our Apache Hadoop project). 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. Uses by journalists or technology writers, or non-software related companies may be important to address. Uses by software vendors or services providers that work with Apache technologies are usually important to address.
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, or unless they are clearly a different kind of software product.
IMPORTANT: If the name being used happens to match an Apache product name, but the software product is unrelated to our Apache product, you must check with trademarks@ before contacting the third party. In particular, we must check to see if the other party has registered that name as their trademark for their software.
Is this use about some non-software related product (apparel, kitchen appliances, 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 (i.e. non-software) should be evaluated, but are probably not infringing. Trademarks generally apply only within a specific class or field of goods; consumers would rarely confuse a Ford® car with a Ford software product (unless the software is an app on the dashboard).
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 or review, 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 part of an event or conference brand? 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 should 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 from that project's PMC within a couple of weeks, please contact the ASF privately including all the details to request an update. Note that it is the ASF's responsibility to police our trademarks, so while we strive to acknowledge every report, we do not discuss enforcement activities publicly.
A project's PMC (or podling's PPMC) should be responsible for being aware of significant third party uses of their project's marks. PMCs should be 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.
Discuss questions in private: It is a best practice to use the email@example.com mailing list to discuss any reports of potential infringement first, before contacting a third party. Many potential cases are either shown to not be a trademark issue at all (meaning no action is needed), 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. Similarly, many other companies have registered or otherwise well-known brands for their software offerings that we must respect if they are registered or otherwise an earlier use (or, if they are for a different kind of software functionality).
Verify if it's really a problem: If there is any question of if something is infringing or not, then PMC members must email trademarks@, and cc: private@ for further investigation and understanding of proper trademark use before contacting the third party. 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.
For obvious problems, contact directly: If it is a clear and obvious PMCs should contact third parties known to be misusing their marks and cc: trademarks@. 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 by following our Guide For Contacting Third Parties.
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 or VP).
For flagrant trademark infringements, work with VP Brand: 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.
If the PMC does not get a positive reply from any request to any third party in a reasonable amount of time, or any time you are contacted by legal counsel for a third party, you must 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 you are a Member of the ASF and spot any issues with any uses of Apache trademarks, please contact trademarks@ and the private@ list for that PMC.
Apache projects strive to always be respectful of other organizations'
trademarks, but as in all volunteer organization mistakes sometimes happen.
If you see any questionable uses of trademarks on any
apache.org website - either of your marks
or of Apache marks - please contact the relevant project's PMC through
their firstname.lastname@example.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 counsel, 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 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.