Can anyone own "Web 2.0?"

O'Reilly Media have taken a ton of criticism for attempting to enforce a service mark against a nonprofit group in Ireland that wanted to have "Web 2.0" conference. O'Reilly exec Dale Dougherty coined the term Web 2.0, and O'Reilly used it for a line of very successful conferences chaired by Boing Boing's business manager, John Battelle (I've been a speaker at Web 2.0 as well, and found the con to be an amazing, eye-opening experience).

The dispute seems to have been resolved amicably. O'Reilly has apologized for sending in lawyers against the con before speaking to them, and has granted the con permission to use "Web 2.0" in its name.

However, O'Reilly maintains that Web 2.0 is a service mark of their company when applied to conferences, and that other conferences that want to call themselves "Web 2.0" will have to get O'Reilly's permission — they defend this as part of the sound business practice of defending a trademark.

Trademarks are intended to protect consumers by ensuring that goods and services aren't misleadingly labeled. A trademark holder, say, "Coke," gets the right to sue companies that use the word "Coke" in their products and services in a way that would lead the public to believe that Coke was behind them.

But trademarks aren't "property" — they aren't words owned by companies. They're the ability to use the courts to protect a company's customers. That's a pretty good idea: the public deserves to be protected from misleading marketing.

The question is whether using "Web 2.0" in a conference name is misleading: will the average person who hears about a Web 2.0 event assume that it must be put on by O'Reilly, or will she assume that it's just an event about the Web 2.0 technology and business-practices that O'Reilly defined?

O'Reilly has an amazing, wonderful gift for popularizing hard ideas and for explaining abstruse technology in catchy ways. "Web 2.0" is only one of O'Reilly's many accomplishments, which started with the publication of the first user documentation for Unix, and has continued through many iterations of excellent, world-changing ideas and memes.

The downside of creating amazing, industry-shaking ideas is that they become embedded in the popular consciousness. While the digerati know that O'Reilly originated Web 2.0, the idea is so infectious that it's just become part of the fabric of the industry. One of the things that makes O'Reilly's ideas so great is that they go on to be part of the infrastructure, invisible and huge and powerful.

But that means that O'Reilly's ideas are also not uniquely associated with O'Reilly. When I hear "emerging technology," I think of more than the excellent "O'Reilly Emerging Technology Conference" (even though I've volunteered for every ETECH programming jury so far). When I hear "Open Source," I think of more than the wonderful "O'Reilly Open Source Conferences" (where I've spoken on several occasions). And when I hear "Web 2.0," I think of more than the brilliant "O'Reilly Web 2.0 Conference."

Which is by way of saying that I'm not convinced that there is a trademark here. In O'Reilly's latest post about this, they quote my pal and colleague John Battelle saying "Remember, Web 2.0 is also about having a business that works. And not protecting your trademarks is simply bad business practice." But while that's true — Boing Boing has on one occasion asked someone publishing a really similar blog also called "Boing Boing," with similar graphics, to consider changing its name — it's not the whole story.

The O'Reilly Conferences' unique selling proposition is that they rewrite the rules of the industry and coalesce meaning out of the stew of ideas floating around the field. If you're going to name the next direction the world will take, you have to be prepared for the world to take that direction. Industry shifts become public property — or rather, things that are privately controlled can't shift a diverse industry.

That means that O'Reilly needs to choose whether it's going to retain control the word "Web 2.0" for conferences, or retain control over the shifts that created the Web 2.0 phenomenon.

I think being able to call the shots is more important than being able to own those calls.