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Comment by j3th9n | Hacker News Reader

The problem here is that Amazon is infringing on copyright, using the "Elasticsearch" trademark and lying about a partnership in a tweet.

> A license is a choice. It means you choose to not gain revenue by directly licensing the IP. Instead, you choose to put the code out there without any further legal obligations on your part as well as those who use that code.

Open source doesn't mean you can infringe on its copyright and use trademarks everywhere you like.

> It also means that you have to find alternate ways of making revenue e.g. by providing consultancy, building services or licensing the trademark (which is an entirely different ball game from open sourcing the code!).

You didn't read the whole article?: "I took a personal loan to register the Elasticsearch trademark in 2011 believing in this norm in the open source ecosystem."

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Please don't confuse trademarks and Copyrights - they are entirely separate things. Using a trademark is not infringing Copyright. It may or may not be infringing the trademark, but that's a whole different thing.

In general, anyone can use your trademark as long as they are using it about you or your product. I can say "I like Coca Cola, it tastes great" or even "Coca Cola is disgusting" but if I put Coca Cola on the menu but give you Pepsi, that's infringing.

This is why some projects have generic names and brand names for the commercial version. PhoneGap and Cordova, RedHat and Centos, etc. Amazon can offer a machine and say "This is Centos, it's mostly the same as RedHat", but they can't say "This is RedHat" unless they pay for actual RedHat.

Don't you need permission to advertise your product with Coca Cola™?

Or in this case, would Amazon not need Elastic's permission to say "we use Elastic" to advertise AWS?

> Don't you need permission to advertise your product with Coca Cola™?

Not if what you're selling is Coca Cola

Genuine question: why Amazon EKS and not Amazon Kubernetes then? I noticed every single managed Kubernetes doesn't call it Kubernetes.

Huh?

EKS => Amazon Elastic Kubernetes Service

Kubernetes is a little different here... it seems a bit more nebulous from an installation/instance point of view. It's a bit like saying we use "Linux". Which Linux? Debian? Ubuntu? RHEL? SUSE?

Because that Trademark is owned by the Linux Foundation who are very well positioned and financed (AWS themselves are Platinum members) and published clear usage instructions.

As someone else said, what constitutes "Kubernetes" isn't well defined, and so the CNCF put limits on using the terminology in product names.

Trademark law is very different than copyright law. You are allowed to use trademarks in certain circumstances. You can’t imply a relationship that doesn’t exist, but AWS saying - this is a hosted version of Elasticsearch would probably be okay (but IANAL).

Where they’d get into trouble is if they said they offered a hosted Elasticsearch, but under the hood it was something else. But, even then they could probably say that their offering was Elasticsearch compatible.

The real question is: was AWS misleading customers? I don’t make any claims one way or the other about this specific case. But I wanted to point out that you don’t always need permission to use another’s trademark.

From [1]:

> Nominative use permits the use of a trademark – even in commercial contexts – if it is the most accurate way to refer to a good or service without misleading consumers as to its source.

[1] https://google.github.io/opencasebook/trademarks/#fair-use-d...

> if it is the most accurate way to refer to a good or service without misleading consumers as to its source.

But if you're buying a service from AWS the source is not Elastic.

You might be able to say compatible with elastic search. But using the name in your own product name seems unlikely to hold.

I think this is shortsighted on Amazon's part, because it probably wouldn't cost all that much to make a joint offering.

I would be curious to know where those lawsuits went. Because it seems like something that should have been resolved, and for which you could get an injunction.

The problem is clearly that people think they are getting a service supported by ES, when they are getting a look-a-like copy service. Which is what trademarks are intended to resolve.

In hindsight, maybe it would have worked better for ES, had they called the open source product something else, like how centos isn't called RedHat.

> clearly that people think they are getting a service supported by ES

Something like this is also asserted in the OP. However, I'm not so sure that is the case. I don't think it's clear at all.

Knowing that Elasticsearch is (was) open-source, I'd assume that I'm getting an AWS hosted installation of Elasticsearch... which is entirely accurate. If you can install the software on your own server, and AWS offers a managed version of it, I have no expectation that the original developers are involved at all.

Ever since the original release, it looks like AWS has been much better at avoiding any mention of Elastic.co. The original announcement Tweet was definitely misleading.

> In hindsight, maybe it would have worked better for ES, had they called the open source product something else, like how centos isn't called RedHat.

I think this is the major problem, and you're right. Elasticsearch was the original trademark and is the accurate mark for the software. They only formed Elastic.co later, and this is where a lot of confusion originates. Elasticsearch != elastic.co

It might be better for AWS to just include a disclaimer like "AWS Elasticsearch Service includes the open source Elasticsearch software, but is not supported by the original developers." Something like that...

> The real question is: was AWS misleading customers?

Hell yes. I thought it was Amazon's trademark!

You don't fix trademarks disputes by changing software licenses. Elastic appear to have a sound argument on the trademark front but to conflate that with changing the license of their product is disingenuous.

I read their argument as 'suing Amazon in the courts for trademark infringement is an insufficiently expedient remedy.'

It does OSS no good if Elastic prevails on merits the day after they go out of business from lost revenue.

And what remedy do they have to a copyright license infringement? The same glacial pace legal system.

The damages and ramifications for violating software copyright are much clearer than the nuanced world of trademark infringement.

The change in ElasticSearch license here is well publicised. If AWS were to continue to incorporate new changes to ElasticSearch it would be obvious they had deliberately violated the terms of the license and it's much easier to pursue a legal case.

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