8 ms·

I don't understand why they didn't treat Amazon's previous offering as a trademark infringement.

by orra 2y ago

vineyardmike 2y ago
If I sell my Toyota car on the side of the road I can call it a Toyota. If I sell you ElasticSearch(tm) Service which is the actual ES code base, what’s the infringement?
- orra 2y ago
  The service is more than the code base: it's who is offering it, who supports it. Besides, I'd be shocked if that analogy is how the law works. Perhaps if you'd bought an individual license then sure, you could resell it with the brand name, just like the car. But wholesale is a completely different situation.
  - dboreham 2y ago
    It depends on the legal jurisdiction but in the US you're allowed to use a competitor's brand name/trademark specifically to inform your customers. E.g. "acetaminophen, the stuff that's in Tylenol". You can also use the competitor's brand colors.
    - exe34 2y ago
      so if I create a website called other-Facebook.com that looks exactly like Facebook, I can even tell people I'm going to steal their time and information just like the real Facebook, and that's allowed?
      - rescbr 2y ago
        I think “foobar.com, a Facebook with blackjack and hookers” would be OK, while “other-facebook.com” wouldn’t. I’d say one is marketing, the other is misrepresentation.
  - SteveNuts 2y ago
    > Besides, I'd be shocked if that analogy is how the law works. There's not really much actual law at work here, it's all civil matters.
    - orra 2y ago
      That's splitting hairs. It's trademark statute which make trademarks enforceable.
- jkaplowitz 2y ago
  > If I sell you ElasticSearch(tm) Service which is the actual ES code base, what’s the infringement? A reasonable consumer or customer might be confused into thinking a service named ElasticSearch(tm) Service is being provided by the company behind ElasticSearch. This confusion is exactly what trademarks rather than copyrights are meant to prevent. The trademark law doctrine of nominative fair use allows you to describe your product as a hosted version of the ElasticSearch codebase, which provides the substance of the right you were describing, and it's also why you can describe the Toyota car you're selling as a Toyota, both without needing permission from a rights holder. In the car case, you can also reference the product by name as a Toyota product because it is the same product Toyota sold, just being resold by you. But in the hosted service case, you're not reselling the same service as Elastic does; you're offering your own independent version of the service, backed by their technology. To prevent unwarranted damage to Elastic's reputation from any weaknesses in your service's reliability, customer support, or other factors, trademark law doesn't let you call your service ElasticSearch Service without their permission. This works similarly for lots of software products and services, even other free and open source software projects. Debian has a trademark policy and exercises oversight of modified / derived / integrated versions shipped by the major public cloud providers to make sure that it's consistent enough with Debian's software freedom values, expected functionality, and quality standards to be called Debian, using trademark rights as the way they have that leverage. At the same time, the cloud providers do not need trademark permission from Debian to redistribute unmodified official Debian images under the name Debian, or to derive from them without using Debian in the product name. (As with the ElasticSearch example, they can still use the word Debian in a fair and accurate way when describing the nature of any derived product they make without trademark permission.)
  - pjerem 2y ago
    How is it different than the thousands companies selling you PostgreSQL or Redis services ?
    - jeppester 2y ago
      Development of postgres is funded by the companies using it, for instance Amazon. Elasticsearch and Redis are private companies that fund most of the development themselves. When Amazon sell Elasticsearch and Redis, they are in direct competition with its creators. Obviously such a situation isn't sustainable in the long run, and as such both Elasticsearch and Redis (and to my knowledge also mongodb) have changed their licenses to avoid that cloud providers sell their OSS product without paying a license or otherwise contributing back. In the case of Elasticsearch and Amazon, Amazon even used the Elasticsearch brand to sell their own version. As I see it it's a good thing that cloud providers are forced to take part in maintaining the OSS software (forked or not) that they are cashing in on.
- zem 2y ago
  but if you set up a showroom that only sells toyota cars, i'm fairly sure you can't call it a toyota dealership
  - vineyardmike 2y ago
    I don’t know if that’s true. I see tons of car repair services advertising “we repair $BRAND with original parts” and they’re definitely not owned by $BRAND. Clearly not confused with the original brand, but also advertising a service built off that brand.
    - bigstrat2003 2y ago
      Right, but they aren't naming their business "Bob's $BRAND" which is kinda the point.
      - lucianbr 2y ago
        How can that be the point? That would be parallel to Amazon calling itself Elasticsearch, which never happened or was even a remote possibility.
        orra 2y ago
        The parallel is Amazon called their offering Amazon Elasticsearch Service.
voxic11 2y ago
They did https://www.elastic.co/blog/elastic-and-amazon-reach-agreement-on-trademark-infringement-lawsuit https://www.elastic.co/blog/elastic-and-amazon-reach-agreeme...
xeraa 2y ago
We did: https://www.elastic.co/blog/elastic-and-amazon-reach-agreement-on-trademark-infringement-lawsuit https://www.elastic.co/blog/elastic-and-amazon-reach-agreeme... But it takes a long time. And it's very costly (especially against a much larger entity like Amazon). Legal battles alone will rarely save you (in time). [I work for Elastic]
- orra 2y ago
  Thanks, I'd missed that. Anyway, congrats on doing open source again
everfrustrated 2y ago
Also worth noting that AWS was already selling products using Elastic in the name before Elastic/Elasticsearch (2010) Eg AWS Elastic Compute Cloud (2006) AWS Elastic Block Storage (2008) I suspect if Elastic tried to take them to court they would have got the trademark thrown out.
- dhd415 2y ago
  As a previous comment noted, Elastic _did_ take them to court over the trademark and it was _not_ thrown out: https://www.elastic.co/blog/elastic-and-amazon-reach-agreement-on-trademark-infringement-lawsuit https://www.elastic.co/blog/elastic-and-amazon-reach-agreeme...

I don't understand why they didn't treat Amazon's previous offering as a trademark infringement.

by orra 2y ago

I don't understand why they didn't treat Amazon's previous offering as a trademark infringement.

If I sell my Toyota car on the side of the road I can call it a Toyota. If I sell you ElasticSearch(tm) Service which is the actual ES code base, what’s the infringement?

orra 2y ago
The service is more than the code base: it's who is offering it, who supports it. Besides, I'd be shocked if that analogy is how the law works. Perhaps if you'd bought an individual license then sure, you could resell it with the brand name, just like the car. But wholesale is a completely different situation.
- dboreham 2y ago
  It depends on the legal jurisdiction but in the US you're allowed to use a competitor's brand name/trademark specifically to inform your customers. E.g. "acetaminophen, the stuff that's in Tylenol". You can also use the competitor's brand colors.
  - exe34 2y ago
    so if I create a website called other-Facebook.com that looks exactly like Facebook, I can even tell people I'm going to steal their time and information just like the real Facebook, and that's allowed?
    - rescbr 2y ago
      I think “foobar.com, a Facebook with blackjack and hookers” would be OK, while “other-facebook.com” wouldn’t. I’d say one is marketing, the other is misrepresentation.
- SteveNuts 2y ago
  > Besides, I'd be shocked if that analogy is how the law works. There's not really much actual law at work here, it's all civil matters.
  - orra 2y ago
    That's splitting hairs. It's trademark statute which make trademarks enforceable.
jkaplowitz 2y ago
> If I sell you ElasticSearch(tm) Service which is the actual ES code base, what’s the infringement? A reasonable consumer or customer might be confused into thinking a service named ElasticSearch(tm) Service is being provided by the company behind ElasticSearch. This confusion is exactly what trademarks rather than copyrights are meant to prevent. The trademark law doctrine of nominative fair use allows you to describe your product as a hosted version of the ElasticSearch codebase, which provides the substance of the right you were describing, and it's also why you can describe the Toyota car you're selling as a Toyota, both without needing permission from a rights holder. In the car case, you can also reference the product by name as a Toyota product because it is the same product Toyota sold, just being resold by you. But in the hosted service case, you're not reselling the same service as Elastic does; you're offering your own independent version of the service, backed by their technology. To prevent unwarranted damage to Elastic's reputation from any weaknesses in your service's reliability, customer support, or other factors, trademark law doesn't let you call your service ElasticSearch Service without their permission. This works similarly for lots of software products and services, even other free and open source software projects. Debian has a trademark policy and exercises oversight of modified / derived / integrated versions shipped by the major public cloud providers to make sure that it's consistent enough with Debian's software freedom values, expected functionality, and quality standards to be called Debian, using trademark rights as the way they have that leverage. At the same time, the cloud providers do not need trademark permission from Debian to redistribute unmodified official Debian images under the name Debian, or to derive from them without using Debian in the product name. (As with the ElasticSearch example, they can still use the word Debian in a fair and accurate way when describing the nature of any derived product they make without trademark permission.)
- pjerem 2y ago
  How is it different than the thousands companies selling you PostgreSQL or Redis services ?
  - jeppester 2y ago
    Development of postgres is funded by the companies using it, for instance Amazon. Elasticsearch and Redis are private companies that fund most of the development themselves. When Amazon sell Elasticsearch and Redis, they are in direct competition with its creators. Obviously such a situation isn't sustainable in the long run, and as such both Elasticsearch and Redis (and to my knowledge also mongodb) have changed their licenses to avoid that cloud providers sell their OSS product without paying a license or otherwise contributing back. In the case of Elasticsearch and Amazon, Amazon even used the Elasticsearch brand to sell their own version. As I see it it's a good thing that cloud providers are forced to take part in maintaining the OSS software (forked or not) that they are cashing in on.
zem 2y ago
but if you set up a showroom that only sells toyota cars, i'm fairly sure you can't call it a toyota dealership
- vineyardmike 2y ago
  I don’t know if that’s true. I see tons of car repair services advertising “we repair $BRAND with original parts” and they’re definitely not owned by $BRAND. Clearly not confused with the original brand, but also advertising a service built off that brand.
  - bigstrat2003 2y ago
    Right, but they aren't naming their business "Bob's $BRAND" which is kinda the point.
    - lucianbr 2y ago
      How can that be the point? That would be parallel to Amazon calling itself Elasticsearch, which never happened or was even a remote possibility.
      - orra 2y ago
        The parallel is Amazon called their offering Amazon Elasticsearch Service.

voxic11 2y ago

They did https://www.elastic.co/blog/elastic-and-amazon-reach-agreement-on-trademark-infringement-lawsuit https://www.elastic.co/blog/elastic-and-amazon-reach-agreeme...

xeraa 2y ago

We did: https://www.elastic.co/blog/elastic-and-amazon-reach-agreement-on-trademark-infringement-lawsuit https://www.elastic.co/blog/elastic-and-amazon-reach-agreeme... But it takes a long time. And it's very costly (especially against a much larger entity like Amazon). Legal battles alone will rarely save you (in time). [I work for Elastic]

orra 2y ago
Thanks, I'd missed that. Anyway, congrats on doing open source again

everfrustrated 2y ago

Also worth noting that AWS was already selling products using Elastic in the name before Elastic/Elasticsearch (2010) Eg AWS Elastic Compute Cloud (2006) AWS Elastic Block Storage (2008) I suspect if Elastic tried to take them to court they would have got the trademark thrown out.

dhd415 2y ago
As a previous comment noted, Elastic _did_ take them to court over the trademark and it was _not_ thrown out: https://www.elastic.co/blog/elastic-and-amazon-reach-agreement-on-trademark-infringement-lawsuit https://www.elastic.co/blog/elastic-and-amazon-reach-agreeme...