Is This the Death of Commercial WordPress?

Caveat

I've conducted approximately 10 hours of research into this topic, and while I've strived for accuracy, there may be areas where my understanding is incomplete. I'm not a legal professional, and the views expressed here are solely my own.?

Contrasting Crops and Code

What does Wordpress and the former agricultural giant Monsanto have in common? Trademark law! In the late 1990s and early 2000s the agricultural giant Monsanto aggressively pursued farmers to force the use of their genetically modified organisms (GMOs) seeds via trademark law. This led to widespread backlash from not only from the farmers but a smear campaign that tarnished Monsanto's brand, fueling distrust in GMOs, and led to the sale of the company. This week in tech, there is a ?????? legal battle that could reshape the Wordpress ecosystem, raising questions about the content management system’s future, its commitment to the open-source community, and it’s commercial stakeholders.

WordPress's Corporate Structure & Commercial License

To understand the intricacies, you need to understand WordPress's structure. At its core is the WordPress Foundation, which owns the open-source WordPress trademark. The WordPress Foundation licenses its trademark to two subsidiaries commercially: WordPress.org (led by Matt Mullenweg) and WordPress.com (privately owned by Automattic). Matt holds positions on all three boards, granting him significant influence. As the trademark holder, the Foundation, through Matt, approaches large WordPress hosting companies like Bluehost and GoDaddy to negotiate commercial licenses. Recently, Matt approached WP Engine, the largest WordPress hosting company, demanding either 8% of their revenue (approximately $40 million annually) or significant contributions to WordPress core development. Unlike Bluehost or GoDaddy, WP Engine has refused to pay for the commercial license, leading Matt to send them a legal Cease & Desist(C&D) letter. Additionally, blocking WP Engine from upgrading their paying users' instances of WordPress.?

The Trademark Infringement Claim

Wordpress Foundation and therefore Matt claims that WP Engine's brand, marketing and communications creates confusion among wordpress users, leading them to believe that WP-Engine is officially affiliated with Wordpress. In a recent livestream a poll was conducted where approx 60% of a 1500 viewer stream responded that they believed that WP Engine was affiliated with WordPress itself. Trademark infringment can start as low as 15%, according to Matt on live streams! This live poll adds significant credibility to Matt’s trademark infringement claim.

The Fallout

The WordPress community is grappling with the potential consequences of this legal battle. Big companies that bet on WordPress are scared if WordPress foundation aka Matt will come after them next. Open source developers of Wordpress think innovation will be stiffled and users of these provider platforms are left vulnerable as they are unable to upgrade WordPress…?

What is the future of WordPress? I think, Not good.

Next, we'll turn our attention to leaders in the WordPress agency world, starting with Jake Goldman, the founder of 10up. We'll explore some of his key questions and share my own insights on the matter.

BTW... I'll paraphrase his question headlines, so please read the original post for full context.?

…Is it 8 %...?

A: Likely not. While 8% has been mentioned, Matt Mullenweg has stated that the fee is negotiable.? Companies like Bluehost reportedly pay less.

…Do sponsorships count…?

A:? Matt has explicitly stated that sponsorships do not count towards the license fee.

…How adjacent does oss have to be to count?

A:? WordPress core definitely counts.? Adjacent plugins might count, but it's best to negotiate this directly with Matt Mullenweg.

Should wp-engine or 10up pay?

A: If their use of the WordPress trademark creates confusion—intentional or not—they could be considered infringing. Matt's pursuit of WP Engine suggests a willingness to enforce this. In such cases, agencies like 10up and WP Engine might be required to pay an 8% fee or contribute to WordPress core development.

What if an agency uses OSS extensively and doesn't label themselves as a WordPress agency?

A: Currently, according to Matt, this likely avoids infringement. However, he could change his stance.? Reducing references to the WordPress trademark in branding and marketing materials might help minimize the risk.

What are typical royalties ... Fair use…

A:? Royalty rates are set by the trademark holder, and comparisons are difficult. Fair use is unlikely to apply in a commercial context. The best approach is to minimize WordPress trademark usage and be prepared to negotiate with Matt when/if necessary.

Introducing an OSS tax…

A:? Calling it a "tax" is debatable.? Matt believes WordPress should have a commercial license fee, but this isn't a universal practice in open source.

Should/how do we audit WordPress tax? Protect SMB... Private revenue…

A: Auditing at scale would be challenging to enforce.? The most practical solutions are to either avoid commercial use of the WordPress trademark or be prepared to pay.? Matt's evolving approach adds uncertainty.

Policy wonk, clarity and specificity

A:? Unfortunately, no. Matt sets the terms, and they are subject to change. Trademark law itself is complex and open to interpretation.

Lawyers and an optimistic future…

A:? The outlook is uncertain. GNU licensing offers some loopholes in favor of enforcing trademarks.? I personally would consider alternatives like developing your own platform or using a framework with a more permissive license like MIT (e.g., Ruby on Rails).

Summary

In the end, WordPress Foundation has every legal right to enforce their commercial license through trademark law. And in many ways, I think they are right to go after WP-Engine. I've personally always been confused about the difference between wordpress.org, wordpress.com, and wpengine.com - part of me believes that's all by design. That said, it all feels like WordPress Foundation and WP-Engine are both ready to engage in a full-blown legal battle that could result in serious damage to not just both sides but the entire ecosystem. In such a scenario, there are rarely any true winners.