The Dilemma of Dilution

15 Jan The Dilemma of Dilution

Dilution (dī-lōō’shən) n.

1. The process of making weaker or less concentrated
2. Trademark concept forbidding the use of a famous trademark in a way that would lessen its uniqueness

My previous post discusses the increasing irrelevance of the term “open source”. Much of this irrelevance stems from the fact that the definition is squishy, it has been misappropriated by companies in serving their whims by free-riding the increasing market awareness of the approach, and the fact that there is no one defending its correct use. The inherent value and branding power of a trademark gets “diluted” when this happens. Dilution of a trademark can result in legal action, and typically has one of two elements associated with it:

  1. “Blurring” – by which the connection in consumers’ minds between the plaintiff’s mark and the plaintiff’s associated goods or services is weakened; or
  2. “Tarnishment” – which means that the defendant’s use is unsavory or unwholesome, or the mark is used in connection with inferior products.

Dilution of a trademark is a problem for consumers. It creates confusion, conveys incorrect information, and results in a loss of public trust in the mark. I don’t believe that any company can come along and be able to say we are the “leading provider of open source [choose your industry]” without having a legitimate open source business. There are several good definitions of what it means to be an open source business, from industry heavyweights Matt Asay, Simon Phipp, and others.

Please note, I am not trying to be prescriptive with the definition. I am not overtly “religious” about free software, but I do believe in the fundamental principles as represented by both the license and the philosophy embodied by the GPL. As a result, I feel strongly about dilution and misuse of the term “open source”.

I believe that if you are going to use the term publicly as a company, you should be required to have some basic business elements that would allow you to be appropriately described by the term. Like, you make your source code accessible to the public using an OSI approved license, that your organization actually contributes code to a community project, that some interchange actually exists between you and the community, and your contributions and your community actually matter to your business. This clearly needs to be better defined and the OSI is the natural organization that provide leadership in establishing an “OSI Certified Business” service mark.

However, in the meantime, it appears that the greater community will have to languish with the dilution of the term open source in a situation analogous to the famous obscenity definition issued by Chief Justic Potter Stewart: I know it when I see it”.

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