Protecting Trademarks

The most important feature of the Apache license that distinguishes it from the BSD and MIT licenses is that it specifically protects the Apache trademark. This is an acknowledg-ment that trademarks are important assets of open source projects.

Here's what the license says:

The names "Apache" and "Apache Software Foundation" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact [e-mail] . (Apache License section 4.)

Products derived from this software may not be called "Apache", nor may "Apache" appear in their name , without prior written permission of the Apache Software Foundation. (Apache License section 5.)

On the surface, this is similar to the BSD provision preventing the University of California name from being used "to endorse or promote products." But the Apache license goes even further when it states that a derivative work may not use "Apache" as part of its name.

Trademarks are brand names of products. You will recall that a trademark is a word, name, symbol, or design used to identify a company's products and to distinguish those products from the competition. Trademarks are a form of intellectual property.

Open source software poses some difficult marketing problems. The licenses under which such products are distributed require the distribution of source code and permit the creation and distribution of derivative works. It is difficult for a distributor of such products to compete on price alone, because almost any knowledgeable company can undercut the price by simply copying the original software.

Trademarks can be particularly useful in this kind of environment. A company can demonstrate that its software is of high quality, reliable, efficient, feature-rich, and user-friendly. It can promise continual enhancements, product support, user groups, and other goodwill activities. Then over time, through those marketing efforts, that company's customers will begin to associate its trademarks with that software. New or repeat customers will pay for software they perceive to be worth the price even though there may be cheaper competitive products. Customers will select products whose trademarks they identify.

It would not be fair to allow a licensee who receives free software to also receive a license to the valuable trademarks of his licensor . The Apache license makes it clear that the Apache trademark isn't licensed along with the software.