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> 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 t

> 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.
  - prepend 2y ago
    It’s the license type that matters, not how development is funded. Postgres’ license is similar to BSD so even if Microsoft made and was the sole developer and sold it, anyone could distribute or sell it or whatever regardless of who contributes. Similar to Elastic’s old license and why Amazon was legal in what they did. Amazon (and most all large companies these days) do a ton of OSS dev, but that doesn’t matter. The license of the various software counts.
  - reconditerose 2y ago
    FWIW, Redis was previously mostly developed by the community but the trademark was acquired by a VC funded tech company. AWS, and other cloud providers like Tencent, were contributing to Redis and they went ahead and changed the license anyways. You can read more about it here, https://lwn.net/Articles/966631/ https://lwn.net/Articles/966631/.
fmbb 2y ago
The problem in that case is that ElasticSearch named their company after their product that they published for everyone to use or sell.
vineyardmike 2y ago
> 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. > 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. I don’t know. The orginal AWS-hosted Elastic Search product was the elastic search code, hosted by AWS. That’s fundamentally the same thing. Maybe the exact wording matters and the service name was “AWS managed elastic search” or whatever. I’m sure the Amazon lawyers knew how to name it. This feels analogous to “Amazon Linux” where it’s clearly Amazon’s version of Linux (which is also a trademark). Or “hosted postgres” or “Postgres compatible RDS” or any number of other services based on OSS.
- jacobr1 2y ago
  > Maybe the exact wording matters and the service name was “AWS managed elastic search” or whatever. I’m sure the Amazon lawyers knew how to name it. Yep, that was the problem, they just called it "Amazon Elasticsearch Service" and it resulted in a lawsuit.
- jkaplowitz 2y ago
  > The orginal AWS-hosted Elastic Search product was the elastic search code, hosted by AWS. That’s fundamentally the same thing. It isn’t, though, when comparing it to the ElasticSearch service offered by Elastic the company. Using the same codebase is very different than offering the same service. At minimum, pricing, billing, support, legalese, etc will all vary between the two. Downsides in Amazon’s service shouldn’t be misattributed to Elastic the company without Elastic’s permission, and trademark law quite rightly seems this more likely if Elastic trademarks are in the name of the product. As for RDS’s PostgreSQL version, I presume the lawyers very carefully made sure it was called Amazon RDS for PostgreSQL (as indeed it is) and not PostgreSQL for Amazon RDS or PostgreSQL, Amazon RDS Edition or PostgreSQL on Amazon Web Services. Wouldn’t any of these last three names quite reasonably make a lot of people blame the PostgreSQL project rather than Amazon for any failings? Doubly so if the PostgreSQL project offered their own managed service on AWS, as Elastic does. And as for Amazon Linux, I can think of a bunch of ways they might be operating legally in this regard, but a key one is that they probably have explicit permission from the Linux Foundation or Linux Torvalds to do as they do; in any case, the Linux Foundation and Linus Torvalds are both highly unlikely to sue Amazon for this usage regardless of the legalities, for purely pragmatic reasons that have nothing to do with whether a judge or jury would take the lawsuit seriously, and that don’t apply to companies like Elastic.
rectang 2y ago
That's an excellent explanation of a situation with a lot of complexity. Well done! The confusion between ElasticSearch the software kit and ElasticSearch the hosted service illustrates some of the drawbacks of having the same name for your Open Source product and your business.
dotancohen 2y ago
I remember when CentOS' website described it as, more or less, a major American Linux distribution with the trademarked parts removed. Everyone knew it was RHEL but the official word was mum.

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.
- prepend 2y ago
  It’s the license type that matters, not how development is funded. Postgres’ license is similar to BSD so even if Microsoft made and was the sole developer and sold it, anyone could distribute or sell it or whatever regardless of who contributes. Similar to Elastic’s old license and why Amazon was legal in what they did. Amazon (and most all large companies these days) do a ton of OSS dev, but that doesn’t matter. The license of the various software counts.
- reconditerose 2y ago
  FWIW, Redis was previously mostly developed by the community but the trademark was acquired by a VC funded tech company. AWS, and other cloud providers like Tencent, were contributing to Redis and they went ahead and changed the license anyways. You can read more about it here, https://lwn.net/Articles/966631/ https://lwn.net/Articles/966631/.

fmbb 2y ago

The problem in that case is that ElasticSearch named their company after their product that they published for everyone to use or sell.

vineyardmike 2y ago

> 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. > 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. I don’t know. The orginal AWS-hosted Elastic Search product was the elastic search code, hosted by AWS. That’s fundamentally the same thing. Maybe the exact wording matters and the service name was “AWS managed elastic search” or whatever. I’m sure the Amazon lawyers knew how to name it. This feels analogous to “Amazon Linux” where it’s clearly Amazon’s version of Linux (which is also a trademark). Or “hosted postgres” or “Postgres compatible RDS” or any number of other services based on OSS.

jacobr1 2y ago
> Maybe the exact wording matters and the service name was “AWS managed elastic search” or whatever. I’m sure the Amazon lawyers knew how to name it. Yep, that was the problem, they just called it "Amazon Elasticsearch Service" and it resulted in a lawsuit.
jkaplowitz 2y ago
> The orginal AWS-hosted Elastic Search product was the elastic search code, hosted by AWS. That’s fundamentally the same thing. It isn’t, though, when comparing it to the ElasticSearch service offered by Elastic the company. Using the same codebase is very different than offering the same service. At minimum, pricing, billing, support, legalese, etc will all vary between the two. Downsides in Amazon’s service shouldn’t be misattributed to Elastic the company without Elastic’s permission, and trademark law quite rightly seems this more likely if Elastic trademarks are in the name of the product. As for RDS’s PostgreSQL version, I presume the lawyers very carefully made sure it was called Amazon RDS for PostgreSQL (as indeed it is) and not PostgreSQL for Amazon RDS or PostgreSQL, Amazon RDS Edition or PostgreSQL on Amazon Web Services. Wouldn’t any of these last three names quite reasonably make a lot of people blame the PostgreSQL project rather than Amazon for any failings? Doubly so if the PostgreSQL project offered their own managed service on AWS, as Elastic does. And as for Amazon Linux, I can think of a bunch of ways they might be operating legally in this regard, but a key one is that they probably have explicit permission from the Linux Foundation or Linux Torvalds to do as they do; in any case, the Linux Foundation and Linus Torvalds are both highly unlikely to sue Amazon for this usage regardless of the legalities, for purely pragmatic reasons that have nothing to do with whether a judge or jury would take the lawsuit seriously, and that don’t apply to companies like Elastic.

rectang 2y ago

That's an excellent explanation of a situation with a lot of complexity. Well done! The confusion between ElasticSearch the software kit and ElasticSearch the hosted service illustrates some of the drawbacks of having the same name for your Open Source product and your business.

dotancohen 2y ago

I remember when CentOS' website described it as, more or less, a major American Linux distribution with the trademarked parts removed. Everyone knew it was RHEL but the official word was mum.