ITIL intellectual property

OGC recently published a brochure describing their intellectual property rights over ITIL. Please do not rely on that document to guide your decisions on usage of ITIL.

The brochure is not legal advice. Nor is this blog. I strongly recommend you seek legal advice from a competent international intellectual property lawyer, as I have done.

Here are some points for you to discuss.

A trade mark or "word mark" does not constrain your usage of that word. It only constrains your ability to purport to be part of the same product or to make your product look similar. In other words you can talk about ITIL all you want: you just cannot suggest or imply that your product is part of ITIL. So long as you use the trademark to identify the trademark owner and you do not use it to mislead or deceive especially about the origin or nature of your product then that usage is generally defensible.

A word mark does not automatically prevent you from using that word even in the name of a product, so long as you are talking about their brand, not implying that your product is part of their brand. If you title a book "The Endless Bountiful Benefits of Using ITIL" you probably are OK. If you call it "ITIL Handbook" you probably are not. If you call a website "Discussion of ITIL" you are probably OK, if you call it "The ITIL Community" possibly not.

Logos and other marks ("trade dress" such as colours) are another fuzzy area. Obviously you can't just slap the TSO logo all over your bookshop as one crowd did, notr can you use the OGC swirl shape. But how different does a shape have to be before it isn't a swirl? I've seen a square one. You probably can't be prevented from putting x-rays of plants on the front cover of all your books if you wanted to.

The words in ITIL books are copyright. The concepts are not (that would require a patent).

Most people understand the limits copyright places on using extracts from a work, under the terms of "fair use". You may use extracts from ITIL as from any copyright work.

There is a grey area around just how much one can write about ITIL in one's own words before one infringes on copyright, on the "essense" of the work. Nor can phrases in common use such as Incident Management be copyrighted.

There is also the small matter of the mysterious 1.1.1. The ITIL V2 books were originally published with the words "ITIL has been publicly available. This means that any organisation can use the framework described by OGC in its numerous books." The V3 books still have section 1.2.2 with the title "Good practice in the public domain" which refers to "publicly available frameworks such as ITIL". One could amuse many lawyers for a long time arguing whether the "essense" of ITIL has already been placed in the public domain, which then leaves only the specific wording as copyright.

The issue becomes even more difficult when one is teaching about ITIL. It is even more grey to what extent copyright prevents one from teaching about a copyrighted work. And to teach about ITIL may or may not infringe trademark. If you are in this position you need some seriously good legal advice, but the final answer may only come in court.

Parody and satire opens the field even further. Intellectual property law is not intended to restrain satirical discussion about a subject, such as "IT'IL end in tears".

Possibly one could seek damages if one could show that an intellectual property action was brought vexatiously with the sole intent of restraint of trade. In other words so long as you remain within the law, OGC must be careful not to threaten you with their IP rights solely to try to enforce a monopolistic control over the ITIL industry, for example training. They can require you to be accredited before your students can sit the exams (as is the case in all courses other than Foundation). Whether they can stop you teaching ITIL to students who don't want certification so as to protect the market of the ATOs is entirely another matter.

In summary, intellectual property rights are there to protect the creations of others, not to prevent you from having your own.

Let me stress again, this post is the words of an unqualified amateur - you must seek professional legal advice. You will find it far more enlightening than the OGC brochure.


"trademarks are never about

"trademarks are never about granting monopolies, argues David Bernstein, a lawyer for YSL at Debevoise and Plimpton. Trademarks are merely the right to indicate the origin of a product or service."

The Economist

Not-so-Public Domain...


In preparation for a recent webinar that I conducted on BrightTALK, I found myself re-examining the "Planning to Implement Service Management" (Green Book) and "The Business Perspective" (Purple Book). It was great fun to get reacquainted with this material. Here's one of the things that caught my eye.

In the Purple Book, on p.4, you'll find

“1.3.1 Public Domain Framework
From the beginning, ITIL has been publicly available. This means that any organization can use the framework described by the OGC in its numerous books. Because of this, a wide range of organizations including local and central government, energy, public utilities, retail, finance and manufacturing have used ITIL guidance. Very large organizations, very small organizations and everything in between have implemented ITIL processes.”

In the Green Book, on p.2, you'll find

“1.3.1 Deleted”

The copyright dates are 2004.

I'm wondering how this came about. Would love to hear the story at some point. I think we'll hear about it when we hear the true story of the JFK assassination! LOL



This is exactly the same text as the 1.1.1 mentioned above, except +0.2.0

it suggests that ITIL was originally public domain in spirit (any comments from those involved in ITIL V1??), although it has always been Crown Copyright in fact

Spirit of V1

Certainly in the early days the issue was getting the private sector to support ITIL, rather than stopping inappropriate commercialization.

Hence the V1 Managers' course material that was developed by CCTA and the CSC was then given away to anyone who wanted it, and so went on to form the basis of almost all V1 Manager courses. Having seeded the market HMG (in the guise of the CSC) was then happy to pull out of the training market and leave it entirely to the private sector.

The drift towards defending IP rights started when some of the less scrupulous commercial organizations began to make moves to claim ITIL IP rights for themselves, and as HMG's approach changed, with HMSO being hived off as as commercial organization in its own right.


I own all diagrams with circles and squares - back off!

Nice balance and general overview of the thorny subject of intellectual property rights and as an author one I am keen to get as much publicity through visibility at your website and others.

Its my understanding that if I left my notes for my next book in the trash and restarted the draft, for it to be picked up by someone trawling dumpsters and turned into a book - it remains my copyright material. This assumes I can prove my claim of invention - that I wrote the original, and that no interest in that was transferred to the trawler.

There are so many concepts out there in the realm of service management. And as IT Service Management begins to encroach upon the pre-existing realm of service management as defined by some in product management, through the recent habit of some to just drop the 'IT', I see more interesting term and concept-wars....

For example, can anyone lay claim to the term 'body of knowledge', or the acronym/word 'BOK'? I mean, the BOK Tower in Florida goes back as far as c1928.... so context must have something to do with it. What about the concepts of a 'RACI Chart', lifecycle, or perhaps even a continuous improvement program? What is you restate the definition of a term - and offer a new description for something as mundane as a 'service catalog' or 'service level agreement'?

What if you diagram a workflow using squares and circles and it looks very similar to someone else because you were both trying to diagram a similar subject - such as change management? So much landscape, but its safe to assume that if you stumble across the draft of a book in the office trash bin - its owned by someone... not you.

Syndicate content