The Name Problem, Part II

In House | brendan, November 18th, 2005

We’re seeing a lot of blog traffic about this, so we thought we’d clear some things up. On Wednesday a blog and news site launched under the name “Open Source Media.” As you might guess, this left us a little perplexed, so we sent them an email and posted this. By 5:00 Thursday afternoon we had not received a response to our email, so we printed a copy and Fedexed it. They did, however, post something to their own site under the title “About Our Name.”

Then, Thursday evening as we were drafting this post, “About Our Name” became unavailable again on their website. We aren’t sure how to interpret that, so we’ll just go ahead and address the one response they did briefly make public. Because we were already working from quotes when the link disappeared, we can no longer confirm the order of what we’ve excerpted.

By the way, if you don’t care about the blogosphere or trademark law, stop now and take a look at the “Recently Aired” box there on the left. Paris Burning is a particularly nice show. Otherwise, dive in.

We are OSM. A gentleman named Christopher Lydon has an excellent web site called Open Source. He uses that as his corporate name, but not as his trade name. His URL is RADIOopensource, and he’s given up opensourcemedia.net – which we and our lawyers confirmed before we chose our name.

OSM, “About Our Name” 1.0

Our corporate name is “Open Source Media, Inc.” “Open Source” is the name of our website and our radio show. We didn’t give up opensourcemedia.net; we stopped using it as an active URL in mid-May. I’m not sure what their lawyers confirmed, because an email to the domain’s registration service provider could have determined that the URL is still registered for our use.

And we thank OSM for the compliment.

His trade name is Open Source – and Open Source alone. He’s filed a trademark application under Open Source alone, not Open Source Media.

OSM, “About Our Name”

We do have a pending registration for a trademark on “Open Source,” submitted in May of this year, as the title of a radio show and a website.

We own opensourcemedia.com but we are not using that as our primary URL because we do not consider Open Source Media to be protectable name by anyone … which is why it’s not our name.

OSM, “About Our Name”

What they’re saying here doesn’t look like it holds up. “Open source,” if used to describe software, cannot be trademarked. But “Open Source,” if applied to a current affairs blog and radio show can be trademarked; in our case, it is distinctive, not descriptive. For example, if I were a seller of apples, I could without any fear of legal challenge display a basket of apples with a sign that read “macintosh.” The word “Macintosh,” if applied to an apple, is descriptive. But if I were a manufacturer of computers, I would bring swift and overwhelming legal challenge upon myself were I to apply a label to my computer that read “macintosh.” The word “macintosh,” when applied to a computer, is not descriptive. It is distinctive.

We chose the name “Open Source” because it signals the way we produce radio and web content. We’re aware of the irony of a trademark on the phrase “open source,” but we’ve done our best to live up to it as journalists. We publish every step in our production process, from idea to post-air wrap-up. We put bloggers on the radio almost every night. We allow comments, and use them to steer production and find new show ideas. Because we’re a non-profit, we use photos under a Creative Commons license from Flickr users. Our site content — including mp3 files — is licensed back out under a Creative Commons license in turn.

Our trade name is OSM, and please note that we have a TM after OSM, not after Open Source Media. We consider Open Source Media to be a description of what we are and do, not a trade name.

OSM, “About Our Name”

The question is whether their use of the phrase “open source” could create confusion in our current and not insignificant web and radio audience. Or our partners. Or our sponsors. Or our future sponsors. Their product sounds strikingly similar to ours, and many of the bloggers listed on their site have appeared on our show; it seems like confusion would be hard to avoid. We wish them well with their portal, but we maintain our request — already articulated in an overnighted letter — that they stop referring to themselves in any way as “Open Source.”

…but what is important is the name used in the public.

OSM, “About Our Name”

Screen capture from Technorati, 11/17/05

Fair enough, but after OSM’s PR push and launch party at the Rainbow Room on Wednesday, “Open Source Media” was the top search term on Technorati. As of 5:43 yesterday, a Technorati search of “open source media” returned 862 results, with 20 posts in the last three hours. The blogosphere seems to writing about a company called “Open Source Media.” From Jeff Jarvis — certainly a discriminating blog consumer — we read the following:

Now I’m even more confused about Pajamas Open Source Media. I just tuned in from Munich to their Rockefeller Center event and they’re into a panel about fashion. … How is this going to be open source? … What’s it all about, Alfie?

Jeff Jarvis, Taking the Pajamas Off, Buzzmachine

Why would Jeff Jarvis and the rest of the blogosphere get this wrong? Possibly because many of the names listed on the site as OSM Blogs seem to use “Open Source Media” and “OSM” interchangeably.

I’m thrilled to be one of the Open Source Media Contributing Blogs and yesterday’s event was outstanding.

GayPatriot, Bye bye Big Apple!, gaypatriot

But the strangest thing about the meetings, dinners and parties surrounding the Open Source Media launch was its twisted sense of deja vu…

wretchard, Posting will be light, The Belmont Club

THE OPEN SOURCE MEDIA LAUNCH went well.

Glenn Reynolds, November 16, 2005, INSTAPUNDIT.COM

The list here is by no means exhaustive. No beef here with any of bloggers; as far as I understand, they’re responsible for providing content, not logistics. Ok. OSM doesn’t seem to have told its bloggers not to use the name “Open Source Media.” What, then, did OSM tell the traditional press?

EL SEGUNDO, Calif. and NEW YORK, Nov. 16 /PRNewswire/ — OSM(TM) (Open Source Media), a new online venture … Open Source Media will detail its plan to become … Open Source Media’s vision remains one of … Open Source Media currently features content from … an Open Source Media Editorial Board that includes … or to the new Open Source Media website, located at … available at the Open Source Media website. … About Open Source Media … Open Source Media is a new media venture… For more information on Open Source Media, please visit…

PR Newswire, Bloggers Unite Under New ‘Open Source Media’ Moniker as New Site Is Unveiled; Event to Be Audiocast Live

NEW YORK, Nov. 16 /PRNewswire/ — At the OSM(TM) (Open Source Media)
launch event today … a new strategic relationship with Open Source Media, a new online venture … to the Open Source Media site … Open Source Media detailed its plan … Open Source Media readers will benefit … full-text blog content from Open Source Media will be added … “Open Source Media’s most important goal is the free and respectful exchange of ideas expressed through citizen journalists, coupled with a dedication to honesty and the truth,” said Open Source Media co-founders Roger L. Simon and Charles Johnson. … “Open Source Media has embarked … we look forward to being part of that vision,” said Larry Schwartz, Newstex President. … About Open Source Media … Open Source Media is a new media venture … For more information on Open Source Media… Open Source Media / Media Contact

PR Newswire, Newstex to distribute Open Source Media content as part of full-text blog feed

Whoops.

But maybe OSM’s PR outfit got it wrong; what about their website, then?

Screen capture from OSM, 11/17/05

OSM’s logo

The title on OSM’s homepage — as you can see there on the left — displays as “Open Source Media Website Home.” Every other page bears a title like “Open Source Media – About” or “Open Source Media – Contact OSM.” And, well, there’s also the matter of their logo. So OSM’s designers, its publicists, its web architects, its partner companies, many of its bloggers and apparently all of its readers fail to register the legal distinction that OSM has offered us. We’re inclined not to register it, either.

We’re happy to continue to give OSM the benefit of the doubt, but if this was a careless mistake, it needs to be remedied. They should have our letter in hard copy by today. We propose that they respond to it.