In the wake of the ongoing legal battles with WP Engine, another company has published a cease-and-desist letter against Automattic and WordPress.com1Note that this is against the paid hosting platform, not the free plugin repository! for the alleged unauthorized use of their trademarks.
The frustrating thing here is that it’s not WordPress.com directly advertising or attempting to create any confusion about the use of the WP Fusion brand. Like any other WordPress host, WordPress.com is availing free plugins delivered on the WordPress.org repository to their customers.
The WP Fusion Lite plugin is built, maintained, and published by Very Good Plugins, the owners of the trademark. They publish this plugin to the WordPress.org repository and any WordPress installation has access to it. In fact, even within my own site I see the same details as provided on WordPress.com!
Given, my site is meant for a single user (myself) and no one else has access to the admin interface to begin with. But if this were a multisite installation (like WordPress.com) with a disparate user base (like WordPress.com) would I then be in violation of the WP Fusion trademark because the WordPress.org plugin repository is available to my users?
Fair Use
I’ve mentioned “WP Fusion” already several times in this post. I am not claiming ownership of that trademark, intending to create confusion among customers, or attempting to deceive my readers about sponsorship or affiliation. I’m writing an editorial about the product (or at least its marketing) and referring to it by name.
This is referred to as the “fair use” of a trademark:
Trademarks enable the public to recognize goods or services as originating from a particular source. A trademark owner can stop others from using its trademark to prevent confusion about the source of the goods or services. In some circumstances however, someone may use another party’s trademark if the use is considered a “fair use.” This “fair use” exception is recognized throughout most of the world. – Fair Use of Trademarks, International Trademark Association
The WP Fusion team (Very Good Plugins) published their product on the WordPress.org repository. They used their own trademarks when writing the copy that describes the plugin and creating the banner images and logos. The WordPress.org repository is not in violation of their trademarks as this is user-generated content.
The repository search within a standard WordPress system queries this repository and presents the information to end users. It could be classified as fair use of the trademarks – the content is still coming from a trademark-owner-authorized source. The repository search within WordPress.com is leveraging the same source of data.
While I am not a lawyer, it’s reasonable to assume that this usage would also be classified as fair use. To argue otherwise would be to argue that anyone presenting data from WordPress.org is in the wrong.
Including WP Engine, based on this multisite installation someone gave me momentary access to yesterday that is also presenting the WP Fusion Lite plugin and, according to various accounts, no longer using the public WordPress.org repository to begin with:
The fact that I’ve had to spend any time digesting, analyzing, or commenting on this issue is incredibly frustrating.
- 1Note that this is against the paid hosting platform, not the free plugin repository!