Bitcoin Cash Guilty of Trademark Infringement?

[rossrjensen]

Just this morning, a co-worker of mine said he meant to buy some Bitcoin to purchase something online, and accidentally bought Bitcoin Cash from Coinbase instead.  This was no good for him as he couldn't actually buy the item he wanted with Bitcoin Cash.  We work in an online-focused business where most people are pretty tech-savvy. 

It made me start thinking - isn't Bitcoin Cash guilty of trademark abuse here?  My co-workers little snafu is precisely the reason we have trademark protections in place - so that the consumer knows the source of the good, service, or product.  The BCH logo is awfully similar, they use the name, and as demonstrated by my colleague, it can be confusingly misleading for the common person. 

Any thoughts?

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[DooMAD]

The thing with trademarks is that someone generally has to own the trademark.  Since no individual or company owns Bitcoin, there's no one to legally enforce a trademark.  It's unlikely the community would ever accept or generally be comfortable with any single person having that much power or influence over Bitcoin's name.  Bitcoin's code is released as open source and free for anyone to modify as they see fit.  There's nothing in the licensing that specifically states users can't use the name "Bitcoin" in their forks.

Here's the full wording:

Code:

The MIT License (MIT)
Copyright (c) 2009-2018 The Bitcoin Core developers
Copyright (c) 2009-2018 Bitcoin Developers

Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the "Software"), to deal
in the Software without restriction, including without limitation the rights
to use, copy, modify, merge, publish, distribute, sublicense, and/or sell
copies of the Software, and to permit persons to whom the Software is
furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN
THE SOFTWARE.

The key words being "without restriction" and "without limitation", providing they include the copyright notices.  BCH devs have included those in Bitcoin ABC, albeit from earlier dates.  So yeah, the usual 'I-am-not-a-lawyer' disclaimer applies, but I can't see they have anything to worry about in terms of infringement.

[rossrjensen]

The thing with trademarks is that someone generally has to own the trademark.  Since no individual or company owns Bitcoin, there's no one to legally enforce a trademark.  It's unlikely the community would ever accept or generally be comfortable with any single person having that much power or influence over Bitcoin's name.  Bitcoin's code is released as open source and free for anyone to modify as they see fit.  There's nothing in the licensing that specifically states users can't use the name "Bitcoin" in their forks.

Here's the full wording:

Code:

The MIT License (MIT)
Copyright (c) 2009-2018 The Bitcoin Core developers
Copyright (c) 2009-2018 Bitcoin Developers

Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the "Software"), to deal
in the Software without restriction, including without limitation the rights
to use, copy, modify, merge, publish, distribute, sublicense, and/or sell
copies of the Software, and to permit persons to whom the Software is
furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN
THE SOFTWARE.

The key words being "without restriction" and "without limitation", providing they include the copyright notices.  BCH devs have included those in Bitcoin ABC, albeit from earlier dates.  So yeah, the usual 'I-am-not-a-lawyer' disclaimer applies, but I can't see they have anything to worry about in terms of infringement.

I hear you and understand what you're saying.  That said, I have some stipulations to make here without getting into too much legality.

First of all, I'm talking about trademark law, not copyright.  The second half of what you said is all related to copyrights.  In general, copyrights are meant to protect the original product or work and all forms of distribution/re-distribution of it.  Trademarks are meant to protect consumers from the source of the good, product, or service.

Second, regarding the registration - there is still common law trademark law, at least in the United States.  By virtue of having a product or service that is well-known, you have legally protected rights to that trademark.

And yes, of course the same legal disclaimer exists from my side as well.  Thanks for the response!

[odolvlobo]

It made me start thinking - isn't Bitcoin Cash guilty of trademark abuse here?  

There is no trademark to abuse.

By virtue of having a product or service that is well-known, you have legally protected rights to that trademark.

That is not true. But even if it were true, what is the trademark you claim is being abused, and who owns it?

[fenican]

No because there is no trademark and, obviously, Bitcoin Cash is the real Bitcoin - it's not the one with $40 fees and 1-month confirmation waits.

[coinycoiny]

Live by the sword.

Die by the sword.

Welcome to the wonderful world of crypto.

Decentralized=no comeback.

[Maveth13]

Why do you think all these forks have the word 'bitcoin' on their name? The bitcoin logo and name is not a trademark so there would be no trademark infringement. Developers know this and they use that to as an advantage to ride on bitcoin's name. That's the whole point for most of these forks.

[rossrjensen]

It made me start thinking - isn't Bitcoin Cash guilty of trademark abuse here?  

There is no trademark to abuse.

By virtue of having a product or service that is well-known, you have legally protected rights to that trademark.

That is not true. But even if it were true, what is the trademark you claim is being abused, and who owns it?

I suggest you read up on some basic trademark law, common law trademark in particular, if you think there is no trademark. That said, your point that there is no owner, hence nobody to enforce it is very valid, I suspect this is the reason it cannot be considered trademark abuse.

As for the other person claiming that Bitcoin Cash is the real Bitcoin, does it grind your gears to hear that I sold all my Bitcoin Cash to buy Bitcoin?

[kdn]

go to CMC, list all currencies, and ctrl+f bitcoin, I found 30 currencies with Bitcoin in the name

[odolvlobo]

By virtue of having a product or service that is well-known, you have legally protected rights to that trademark.

That is not true. But even if it were true, what is the trademark you claim is being abused, and who owns it?

I suggest you read up on some basic trademark law, common law trademark in particular, if you think there is no trademark.

You are correct. Thank you for pointing out my mistake.

[stompix]

It made me start thinking - isn't Bitcoin Cash guilty of trademark abuse here?  

There is no trademark to abuse.

By virtue of having a product or service that is well-known, you have legally protected rights to that trademark.

That is not true. But even if it were true, what is the trademark you claim is being abused, and who owns it?

I suggest you read up on some basic trademark law, common law trademark in particular, if you think there is no trademark. That said, your point that their is no owner, hence nobody to enforce it is very valid, I suspect this is the reason it cannot be considered trademark abuse.

As for the other person claiming that Bitcoin Cash is the real Bitcoin, does it grind your gears to hear that I sold all my Bitcoin Cash to buy Bitcoin?

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.

Which one here is the enterprise? And which is the other one?

Who could apply for trademark protection with the wipo and on what legal base?
Applying or requesting trademark protection even if we talk about common law trademark requires someone (individual, community, enterprise, company) to prove they own it. Who and how???

[DooMAD]

The interesting part is that each group of developers can definitely trademark their own clients.  If, for example, I were to try and release a new client and called it "Bitcoin Core", I suspect I could quite easily face legal consequences, since the founders and current maintainers of that project can claim clear and undisputed ownership of that name.  Bitcoin as a whole, however, is a network and a protocol.  It's far more problematic for any one group to claim ownership of that.  The only person (or persons, if it does turn out there was more than one person using the pseudonym) that could come close to enforcing a trademark is Satoshi.  But there's no sign they ever had any intention of doing so.  A quick search tells me that in all of their 575 posts on these boards, Satoshi never once used the words "trademark", "copyright", "infringement", or even "intellectual property".  That speaks volumes to me.

[rossrjensen]

Very good points.  I believe Satoshi's intent was to make Bitcoin an entity for the people, owned by the people.  Bringing intellectual property into the fold would certainly undermine that.  It's one of those endearing qualities that makes me so fond of it - I honestly think the cryptocurrency revolution can make the world better and more equitable.  

That said, there is something about all these altcoins using Bitcoin in their name or the fact that Bitcoin Cash's "logo" is so similar to Bitcoin that can be confusing, misleading, and/or harmful to certain consumers, such as my colleague that I mentioned in my original post.  I remember reading an article that talked about how the Bitcoin Core Developers were more hostile towards Segwit 2X than something like Bitcoin Cash because Segwit 2X intended to *be* Bitcoin, not just a Bitcoin derivative (as you could argue Bitcoin Cash and Bitcoin Gold are - along with the dozens or more non-forked altcoins using the Bitcoin name).  The Bitcoin "brand" is probably one of it's biggest advantages in a now very competitive marketplace (along with its already established infrastructure), and it could end up being the difference-maker during the current crypto jockeying for market share.

[odolvlobo]

Anyway, this has been a fun discussion but it is time to add a dose of reality to the speculation.

Mark Karpeles owned the registered trademark for "Bitcoin", but then released it to the public domain in 2011. It will be interesting to see what happens when the trademark expires.

http://web.archive.org/web/20130523004202/https://mtgox.com/press_release_20111014.html