Gabriolan.ca

David Vincent wrote to Gabriolan.ca a few days ago, to ask Who owns the copyright on the word Gabriola? Have you made your guess yet? Then David linked to this Gabriola font page at Microsoft Typography, and noted I find I am annoyed by this. How about you?

Well. That’s interesting. I looked at the page David found, which is about the copyright and trademark of the Gabriola font. For a response, I went to John Hudson, who designed the Gabriola font. John’s reply:

There’s a bit of confusion around copyright and trademark, which are very distinct legal concepts. It makes no sense to talk of someone ‘owning the copyright on the name’ of our island. Copyright applies to content of a published work, in this case a piece of font software, and trademark applies to the name under which a work is published. The purpose of copyright is to protect the originator of a work, for a period of time, against unauthorised copying and financial exploitation by other parties. The purpose of trademark is to protect both the maker or seller of a thing and the public. The basic concept of trademark law is prevention of confusion in the marketplace and, hence, with preventing similar things from being sold under the same or similar names. So in the case of the Gabriola typeface, what Microsoft have either registered or claimed — depending on jurisdiction — is a trademark on this word, Gabriola, as the name of a font. There is nothing in this that prevents anyone else from using the name Gabriola for some other kind of product or service; or, indeed, from registering or claiming a trademark on such use of the name. Where someone would run into trouble would be trying to use the name Gabriola for either a font or for some other product that is part of Microsoft’s business, i.e. software. But if someone were to start marketing, say, a kind of donut under the name Gabriola, Microsoft would not only not be concerned they would not be in a position to take any kind of action, because a donut is not a font or any kind of software.

Copyright protects content, independent of and regardless of the name under which a work is published. Copyright law invites the owners of intellectual property to defend their rights and provides them with a legal framework within which to do so. Interestingly, trademark law does not invite the holders of trademarks to defend their rights: it obliges them to do so. If you claim or register a trademark, you have an obligation to defend that legally if it is infringed, and if you fail to defend your trademark a court may judge that you have have relinquished your claim. Copyright protection is of a fixed term. Trademark protections exists for as long as one consistently uses and is willing to defend a trademark.

[Just to round out the legal description of the Gabriola font, it is also registered under a US design patent, which has a fixed term protecting the actual typeface design, independent of its copyright protection as a piece of software.]

Ok, so. As far as I can see, we are all free to use the term ‘Gabriola’ as we always have used it, and you can create, market, sell, and even trademark products that you call Gabriola cookies, Gabriola roses, or Gabriola beer. The only thing you can’t do is to create a font, and call that font Gabriola — because that name is already taken as far as fonts go.

(Disclaimer: I’m not a lawyer. Neither is John Hudson.)

Does this help at all? Does it change your opinion, David, or do you still have concerns? Your comments are very welcome.

Tags: copyright, Gabriola font, John Hudson, trademark