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Comment by mrwyz | Hacker News Reader

I'm hopeful Automattic will win this one; WP Engine repackages WordPress and delivers it as a service. Fine. Software license allows for that. That does not give them the right to describe their service as "[the] Most Trusted WordPress Hosting and Beyond". They clearly say so in their policy: https://wordpressfoundation.org/trademark-policy/

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You can't prevent someone from using your Trademark as a description with your trademark policy. Everyone can use your Trademark to identify the thing, they don't need your permission. I could call myself the best Linux admin ever and the Linux Mark Institute can do nothing.

That's not how U.S. trademark law works.

Yes it is. Go ahead and Google "nominative fair use".

Do you want to explain how it does work? And what exactly that I said is wrong?

Here’s the Wikipedia article on the subject: https://en.wikipedia.org/wiki/Nominative_use

The law is not black-and-white. Absolutes like "Everyone can use your Trademark to identify the thing" don't fit in this context. Your reliance on Wikipedia to summarize a doctrine further demonstrates you don't have a firm grasp on the subject. Of course none on HN should listen to legal interpretations (including mine) because it's often not that simple. You can get a glimpse of the issue by reading this commentary from the American Bar: https://www.americanbar.org/groups/intellectual_property_law...

I think (and that's my opinion) that a jury would see that what wpengine is doing is not fair use and that their offering is creating confusion among consumers, but that's not for me (or you, or anyone else here on HN) to decide.

Well I’ll be ready to watch the lawsuit for trademark infringement then. Except there won’t be one because there’s no chance that’s trademark infringement. All the statements on the website of WP engine (as I currently see it of course) don’t imply any affiliation with the Wordpress trademark owners and are pretty factual. Do you have some more explicit reasoning for statements on the website that you find infringing?

Exhibit B, C: https://automattic.com/2024/09/25/open-source-trademarks-wp-...

Put some money on those 0% odds.

Let’s see how it goes. I still can’t imagine that Automattic would win a suite, but maybe WP engine complies with the Cease and desist.

You’re making no sense. Those words are just marketing, they’re not shitting on Automattic like Automattic is doing.

The policy says,

...a business related to WordPress themes can describe itself as “XYZ Themes, the world’s best WordPress themes,” but cannot call itself “The WordPress Theme Portal.”

It sounds like "[the] Most Trusted WordPress Hosting and Beyond" would be allowed.

To me, it seems they have been using the mark to describe a product and the policy says clearly:

> but they cannot use them as part of a product

I mean, just go to wpengine.com and look at the first menu item: Products --> WordPress Hosting.

>>All other WordPress-related businesses or projects can use the WordPress name and logo to refer to and explain their services

I think the policy is somewhat vague on this; does 'Wordpress Hosting' refer to and explain the offered service? Clearly. Is 'Wordpress Hosting' a "product" WP Engine is selling? Kind of, yah?

My understanding of trademark is also that "we've been doing this for ages and you didn't say anything" is a pretty solid defense, and "Wordpress Hosting" is about the most generic hosting service offered on the internet at this point, everyone and their dog offers it.

It doesn't matter what the policy says if there is no legal basis for it. WordPress can't prevent Nominative Use, everyone can call the thing they are doing "WordPress hosting" if it is WordPress hosting. If the policy doesn't allow that, the policy can be ignored.

Even if WordPress could suppress nominative use, do they really want a world where everyone selling wordpress-based services and products avoids saying "WordPress" like it was the name of The Dark Lord Himself? Maybe it's time for some malicious compliance by way of a hard fork that strips the word "WordPress" everywhere except where legally required.

Even if Mullenweg somehow had 100% of the facts and law on his side, he's still an embarrassment to both the company and the foundation.

Not to mention, wouldn't this be allowed generally? Like you are allowed to use trademarks if it is the correct description of the products you sell.

https://en.m.wikipedia.org/wiki/Nominative_use

[Ianal]

exactly the link was cited and that citation directly refutes the claim

could someone articulate that wordpress.com is more trusted then wpengine?

Eh, sounds like mere puffery to me.

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