This guide is not legal advice or legal opinion: do not use it as a substitute. Its aims are education and information only.
This process filters out unsuitable names for Apache podlings early, reducing the legal resources required and limiting the potential disruption to a community of a forced name change later. A smooth path, but not the only one. If there are reasons why this road isn’t right for your podling, consult incubator general.
Meet the Apache Branding Team
For podlings in the Incubator, the Brand and Incubator communities manage naming issues cooperatively. Rules for podlings include all branding requirements for PMCs, plus a few extras.
Trademark law is a complex subject. Distinctive differences from other intellectual property laws (such as patent or copyright) mean that intuition or knowledge you have gained from other areas may not be applicable to trademark issues. The Apache Software Foundation is a US corporation. Developing some understanding of the basic principles of US trademark law is therefore important.
Trademarks and the Apache License
6. Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file."
All Apache projects share the Apache License. The license issues standard copy and patent rights to downstream consumers. Trademark rights for Apache products are issued and managed independently, beyond the Apache License. This allows Apache communities to use trademark law to protect their reputation and that of the Foundation, within the broader framework provided by the Brand team.
What Makes a Name Good
Good names for commercial products or UNIX utilities have tended to work less well here at Apache. Many successful Apache project names are memorable, unusual and a little whimsical. These qualities also happen to be useful when it comes to securing trademark protection. Have fun. Be creative.
Podling-Suitable Name Search
The initial podling proposal establishes a working name for the new podling. Often some discussion and filtering of suitable names happens during the election process, but this proposed name is not final, only provisional. The community may choose to change it. Or the community may discover that the name is unsuitable: in which case the community must find a suitable new name.
A podling needs to discover whether a name is suitable. The Incubator community calls this process the suitable name search. This avoids any potential confusion with phrases like trademark search, which has technical meanings in the trademark community. Please be careful with language. In particular:
Avoid using loaded technical or legal terms
Use plain, simple English to describe what you did and what you found
Don’t offer advice or opinions
The podling must complete a suitable name search successfully before it can graduate to Top Level Project (TLP) status. This isn’t the only way to do such a search, just a smooth path.
Names are an essential part of building a brand and community. Switching names wastes the efforts put into establishing the original name. Therefore complete this task as soon as possible.
Conducting a Suitable Name Search
The aim: to find a name that is acceptable to the community and is not unsuitable.
See the instructions at Suitable Name Search about how to perform the name search and interact with the VP, Brand and their committee. Approval of the podling name comes from them.
The following are notes about the suitable name search, based on the experience of many podlings.
A suitable name search has public and private elements. The tracker provides the public record. Incubator best practice evolves over time, and documentation lags. The public records of past searches are a primary source of guidance. Review now the records of previous searches, beginning with the most recent and working back.
The public record consists of actions (how you searched) and facts (what your search found). In particular, in all public forums (mailing lists, issue trackers and so on):
-Do not speculate. -Do not use loaded technical legal language. -Do not offer -opinions -advice -interpretation -analysis
Use the public lists in the Incubator to ask questions about how to conduct the search. Once you have collected and collated sufficient information, ask the trademark team on the private lists, copying in the PPMC, to help interpret and analyse the results. Finally, discuss the results of your investigation on the private PPMC list. Record whether a candidate name is suitable or unsuitable (or somewhere in between) when you close the issue.
Eliminate Unsuitable Names
To be suitable, a name needs to be
judged appropriate by the wider community
unique enough to avoid confusion
Facts and activities performed are recorded for the public. Interpretation and analysis of these facts happens on private mailing lists; the PPMC private@ in the first instance. Record whether the name proved suitable or unsuitable into the public record, but take care to use our categories (ethically unsuitable or not unique enough) and to avoid loaded legal terms.
The Main Sequence
Every podling is unique, but, using a cosmic metaphor, most fit into a main sequence. For podlings on the main sequence, most of the bugs should have been squashed and rough edges documented away, so expect a smooth journey. Away from the main sequence, you may need to grow process, documentation is likely be sparse and progress less smooth.
We describe the main sequence here. This well-known path is appropriate for almost all podlings. If there are good reasons to think that your podling is a special case, discuss this with the Incubator community and reach consensus on the way forward.
Some names are not appropriate for open source projects. Acceptability under US Trademark Law is a good base line. This excludes marks that
Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;
Proposals with inappropriate names are unlikely to pass the initial review, but spend a few moments considering whether you have missed anything. Check for alternative meanings, perhaps in foreign languages or among distinct communities (such as people on the autism spectrum).
The name needs be unique enough to avoid confusion with software that already exists. For the community to be able to protect its reputation for quality and openness, its name needs to unique enough to have potential as a trademark.
But this isn’t only about being able to register trademark protection. Ethics also plays a role. Even when a name may offer enough protection, existing adoption of the name by an active community may mean that you need to eliminate the choice on ethical grounds. There is some judgment involved in this decision. So, involve the wider Incubator community if a name, or something like it, is already in use elsewhere.
How to Collect Evidence of Uniqueness
To decide whether a potential name is unique enough to be suitable:
Collect evidence about current name usage.
Record the facts.
Analyse and interpret these facts in private, with help from the brand team.
Reach consensus about whether the name is unique enough.
Record whether the name is suitable.
If the candidate name is unsuitable, the community should pick a more unique name and repeat this process.
Evidence of Open Source Adoption
Existing adoption in another active open source community may give ethical reasons for eliminating a name. This is an example of a condition with a fractal boundary. You do not need to eliminate as unsuitable every name which has been used before, but this is an issue which you need to discuss more widely so you can reach a consensus with the broad Incubator community.
Look for evidence of existing adoption amongst open source communities by searching well-known foundries (for example GitHub and Sourceforge) and the web (use several search engines, for example Bing, Google and Yahoo). Review recent records for ideas about where to search. Record each search and describe the results.
If the community has used the name before it arrived at Apache, that’s fine; but note that in the record.
Evidence of Registration
A number of online resources may help you discover evidence of competing registered trademarks. Not every trademark is registered. These resources do not list every registered trademark. Even if you find evidence of existing registrations, this does not necessary eliminate the proposed name. Just record the facts. Leave analysis and interpretation to private lists. When a search returns a large number of hits, focus on live registrations related to software.
The foremost online resource is TESS, run by the US Patent and Trademarks Office (USPTO). Before using TESS, browse the documentation links from the USPTO trademark home.
Other resources which allow cheap searches of their databases exist, but are often ephemeral. Review the records for the state of this art.
Evidence of Use on the World Wide Web
Registration of trademark is not required. An organization may also obtain rights by use of a mark in commerce.
The name itself (e.g.,
Cassandra). The results returned by a search for the name itself may provide evidence of well-known usages of the term.
The name, plus
software. The results returned by searching for
Cassandra softwaremay provide evidence of existing use in trade.
The name, plus key functionality the software provides: e.g.,
Cassandra "big data".
The name, plus
open source: e.g.,
Cassandra open source.