Copyright and trademark laws do not grant the owners unlimited rights over their work. These laws primarily prevent content owners from letting competitors use content to their commercial advantage. For trademark law in particular, trademark protection prevents a company from allowing another company from piggybacking on the owner’s mark. What trademark law does not permit is stifling criticism.
Canonical, the company that owns Linux distribution Ubuntu, received criticism over a decision to allow internet results when searching on the desktop. Specifically, some of the results would link to Amazon as a method of raising money for Canonical. Canonical sent a takedown notice to the site Fix Ubuntu (a site critical of this practice that contained advice on how to remove the Amazon search results), claiming trademark infringement. Fix Ubuntu, which is run by the Electronic Frontier Foundation’s Micah Lee, refused to follow the takedown order and denied its legal basis. His experience is also illustrative of why certain exceptions exist in trademark law.
As detailed on Wednesday, trademark fair use (while vague) allows for two major exceptions in trademark protection: nominative use and free speech. Nominative use mostly deals with incidental mentions for purposes of identification, and doesn’t require permission from the trademark owner. Lee argued he used the terms Ubuntu and Canonical in order to identify the target of his criticism. This is partially why nominative use exists as a fair use exception; Lee could not criticize Canonical’s practice of adding Amazon search links without identifying the appropriate trademarks. To illustrate this point further, think of how difficult that previous sentence would be to write if the author had to ask all of the identified parties for permission to use their trademarks. Without such permission, that sentence would be either confusingly vague or entirely useless. Needing such permission would make criticism of any entity employing a registered trademark cumbersome, impossible, or both.
Furthermore, part of the free speech fair use logic is to preserve the right to criticism. Trademark law exists to prevent consumer confusion. Intellectual property policy does not favor allowing sodas calling themselves Coke in order to gain sales at the expense of Coca-Cola. While there is a commercial dimension to Canonical wanting Fix Ubuntu to not using their trademarks (since the site teaches people how to remove a potentially unwanted feature that makes Canonical money), that right does not extend to stifling legitimate criticism (particularly on a non-commercial website). To his credit, Mr. Lee did remove Ubuntu’s logo and added a disclaimer to the site specifying that he is not affiliated with or endorsed by Canonical in any way.
This analysis is very straightforward from a legal standpoint, but it does illustrate a very important point (also addressed on Wednesday): you can’t use a valid trademark to remove criticism. It should be a simple lesson, and is hopefully one Canonical is mindful of moving forward.