International Law

There has been a minor controversy in the Australian blogosphere over the past few weeks surrounding the term "geekgirl".  Ben Grubb at ZDNet Australia posted the latest developments in a blog post today:

On 20 May, ZDNet Australia reported on IT consultant Kate Carruthers wishing to use the term "geekgirl". Problem was, when she attempted to use it, she said she was told not to.

At the article's time of publication, Carruthers said the original trademark owner, Rosie Cross, had told her to stop using "geekgirl". This turned out to be incorrect, with Carruthers retracting that statement. It was Cross' partner, Carruthers said, that had instead contacted her.

You can find Carruthers' version of events here and Cross' here.

Read the rest of the story here. 

I don't wish to comment generally on the dispute between Kate Carruthers and Rosie Cross (although I should note for the record, that Kate is a friend of mine and I have never met Rosie Cross).  But I do want to question what Cross asserted on Twitter, according to the last line of Ben's piece:

After publication of the original article, Cross tweeted that she had "been working on a Creative Commons licence for #geekgirl". Maybe this will resolve things? Here's hoping.

The problem with that statement is that a Creative Commons license is not at all the appropriate license for a term such as "geekgirl".  This is because copyright does not subsist in names or titles.  For example, these names or titles were all held to be outside the scope of copyright protection:

• "The Man Who Broke the Bank at Monte Carlo" (see Francis, Day & Hunter Ltd v Twentieth Century Fox Corp Ltd [1940] AC 112);
• "Opera in the Outback" (see Lott v JBW & Friends Pty Ltd & Endeavour Corp Design No. SCGRG-99-679 [2000] SASC 3); and
• "Exxon" (see Exxon Corp v Exxon Insurance Consultants International Ltd [1982] RPC 69).

Similarly, copyright would not be held to subsist in the term "geekgirl", which means that you could not then license the term "geekgirl" under a Creative Commons license.

Although copyright could not be used to protect the term "geekgirl", trade mark law would be able to protect the term.  This is presumably why Cross, and now Carruthers, sought to trade mark the term (in different categories, of course).  But you can not license the use of a trade mark under a Creative Commons license.

Against this legal backdrop, it seems a little disingenuous for Cross to have said that she had "been working on a Creative Commons licence for #geekgirl" because if she had indeed "been working on" such a license, she would have very quickly realised that not only was it not the appropriate license, but that it was not legally possible for her to do so.  Despite this minor confusion, I hope that Cross is still seeking to license the "geekgirl" trade mark in certain instances and that she is actively investigating trade mark licensing options.

What is important to take away from this is that although Creative Commons provides a wonderful range of options for copyright owners, Creative Commons does not cover all forms of intellectual property, and that it is important to identify precisely what category of intellectual property it is that you are claiming before you seek to license that interest.