eWeek is reporting on the recent hullabaloo over Hibernate or, rather, the trademarking thereof. Red Hat has been limiting others' rights to advertise Hibernate training, and members of the Hibernate community are crying 'Foul!' At the heart of the dispute is trademark law, not "Red Hat turning into Microsoft." The community may not like intellectual property law as it is, as its requirements may seem to conflic eWeek is reporting on the recent hullabaloo over Hibernate or, rather, the trademarking thereof. Red Hat has been limiting others’ rights to advertise Hibernate training, and members of the Hibernate community are crying ‘Foul!’At the heart of the dispute is trademark law, not “Red Hat turning into Microsoft.” The community may not like intellectual property law as it is, as its requirements may seem to conflict with the “we all love each other” chumminess of community. But this is something that every successful open source project – commercial or otherwise – will go through. The key is in how the project lead manages the process.Bill Dudney, former CTO at Virtuas, writes: Hibernate is trademarked by JBoss/Red Hat …Which means that me and the thousands of other consultants that put in a bunch of time learning the framework cannot profit by publicly claiming Hibernate services. I can claim ‘OR Mapping’ [object-relational mapping] services but who (with money) knows what OR Mapping is and why would they pay me for my knowledge about it.This is only sort of true, as Deputy General Counsel Mark Webbink suggests in the comments:Contrary to Gavin’s statements above, you cannot offer HIBERNATE Training or JBOSS Training. This is an improper use of Red Hat trademarks in that the marks are being used (a) either as nouns or (b) to promote a good or service that is directly branded with Red Hat owned marks. What is permissable, and I am sure this is what Gavin meant, is that you are permitted to offer HIBERNATE(R) Object Relational Mapping Software Training or, as another example, JBoss(R) Application Server Training. Here the marks are being applied to the goods in a proper manner and it is clear that the training is being provided for that branded technology, not by the brand owner. As a further common courtesy, it would also be appropriate for those properly using the marks in this manner to make clear that they are not in anyway associated with Red Hat or its JBoss Division.Here, by the way, is the letter that Red Hat sent to alleged violators of its trademarks:Dear Sir or Madam: Red Hat, Inc. has become aware that your company is offering Hibernate training courses. Red Hat does not allow the use of its trademarks without a written agreement. Red Hat is the owner of numerous trademarks, including but not limited to, its Hibernate mark, U.S. Federal Registration Number 3135582. RedHat has made extensive use of its Hibernate marks in interstate and international commerce in connection with the advertising, promotion, and sale of its goods and services. Due widespread use, advertising and extensive marketing, the RedHat marks have become famous. Red Hat requests that you immediately cease offering Hibernate branded training, as well as any other training that may contain Red Hat marks or marks that are confusingly similar. Although you may offer object oriented relational database mapping training, you may not use the Hibernate name to promote and advertise your products and services. We trust you will understand Red Hat’s interest in protecting its valuable intellectual property and ensuring that consumers are not misled as to the source and sponsorship of goods and services sold and/or distributed under the RED HAT marks. We trust this matter can be resolved promptly and amicably and appreciate your attention to this matter. We look forward to your reply and request a response no later than {WITHHELD}. Sincerely, Meredith K. Robertson Legal Specialist Red Hat, Inc. And so on. The Hibernate community objects to how Red Hat is enforcing its trademarks; unfortunately, I think Red Hat is doing what it must do to enforce its trademarks. US trademark law requires you to go through just this sort of notice that Red Hat is doing, and to consistently enforce its trademarks or risk losing them. It seems to me that Dudney and others are conflating open source with public domain, in a way. Dudney continues:The issue with the way JBoss (and the other companies that Gavin mentioned above) approach ‘open’ is that they want the benifits of community without the competition that comes from that. They want me to learn Hibernate, JBoss, whatever and evangliaze it to my clients and friends but then send me cease and desist letters when I try to profit from my hard won knowledge and work. That is what I object to, I prefer the Apache license @ apache.org because it makes this kind of behavior much harder to pull off. But the license is not as importatnt to me as the behavior of the community. I think this conflict stems from misunderstandings of open source. Open source changes the rules of the copyright game, but it does not free people from these rules entirely. Or even at all. Just because something is open source does not mean it is public domain. Red Hat may actually like having Dudney and others provide Hibernate training, but it can’t allow the advertisement of this training in such a way that violates trademarks, because otherwise Red Hat will lose the rights to those trademarks. It’s unfortunate that this has become an issue, but it’s easy to see why it has: communities grow up around open source projects and come to feel ownership in the project, as well they should. But whether a project is owned by a company or simply an individual, it’s important that trademarks, copyrights, and patents be honored. If the project lead chooses not to, that’s fine (and many don’t). Red Hat is a business. It’s not a charity. It does a lot of work that may look like charity at times, just as Sun, Novell, IBM, and others give a lot of open source contributions and so appear generous (in the charitable sense). But at the end of the day each of these companies is beholden to shareholders that demand a return for their investment. This means that they have to protect their intellectual property. I may not like how some choose to do so, but I don’t question the core right and need to do so. I suspect that this conflict between community and company is something that many projects will go through as companies assert stronger roles within these communities. It seems inevitable to me. Any valuable project will have this “problem.” The important thing is in how the community lead – be it a company or an individual – enforces those rights. Soft actions may well turn away wrath…. Open Source