That time I had to explain to the U.S. patent office that libre software != gratis

February 21st, 2024

Two years ago I applied for a U.S. trademark for LibreTranslate. To my surprise and probably to my own fault for not having declared the English translation of the word “libre” from French (more on that later), the application was initially rejected on the ground that the mark was deemed by the attourney examiner to be “merely descriptive”. A merely descriptive mark is a mark that only describes a product, without adding any significant insight, interpretation, or deeper meaning. For example, you cannot have a brand of apples called “Apple”, because “apple” in the context of apples is merely descriptive. You can of course trademark “Apple” in the context of a brand of personal computers, because it holds a deeper meaning.

Back to LibreTranslate, the examiner concluded that “Libre” must mean “Free” (Merriam-Webster and Collins dictionaries both say so) and the combination of “Free Translate” is merely a description of the product. Indeed the examiner wasn’t wrong; LibreTranslate is a translation product that you can use “free of charge” (gratis).

The problem at the core of the argument is the old “free as in freedom, not as in free beer”:

So I typed up a reply in which I explained the misunderstanding:

Applicant acknowledges the initial lack of the translating requirement for the word “LIBRE”, which was missed during submission and has been amended. It is the opinion of Applicant that the argument presented by the Examining Attorney is built on a common misinterpretation of the word “LIBRE”. Examining Attorney used the definitions of the Merriam-Webster and Collins dictionaries for the word “LIBRE”, which define the word to mean “free” (as in “gratis” or “not requiring payment”). It is in fact true that Applicant’s specimen indicates that Applicant’s goods consist of “Free and Open Source Machine Translation API” (goods being “gratis” or “not requiring payment”). Applicant does not dispute such claims. That definition, however, is incorrect. The word “LIBRE”, in French, refers to someone “who has the disposal of his person, who is exempt from subjugation” (“liberty”, “freedom”). See the attached dictionary definitions from Dictionnaire de l’Academie francaise, which is the official dictionary of the French language. In the context of computer software, the above cited definition is the predominantly accepted definition and purchasers encountering Applicant’s goods will recognize the word “LIBRE” to mean “liberty”, “freedom” and not “free” as Examining Attorney claimed. See the attached article from the well-known computer software magazine UbuntuBuzz, which describes the definition of the term “LIBRE” as well as its use in the computer software industry. Now, having established the meaning of “LIBRE”, a mark consisting of the words “LIBRE” and “TRANSLATE”, “LIBRE” meaning “liberty” and “TRANSLATE” meaning “translate”, is incongruous. “LIBRE” conveys the idea of freedom or liberty, while “TRANSLATE” is a technical term related to language conversion. The combination of these words does not form a clear, cohesive concept. The word “LIBRE” does not naturally connect with the act of translation, leading to a lack of conceptual congruence. Therefore, for the foregoing reasons, the mark is not merely descriptive of Applicant’s goods, and registration should be granted.

Several months later, the appeal was successful and the trademark is on schedule to be granted.

It’s an interesting story that highlights the continuing confusion surrounding the concept of free software. Also make sure to declare “libre is freedom, not free” in your trademark application.