In this RedMonk conversation, Ryan Dahl, creator of Node.js and Co-Founder and CEO of Deno, chats with Kate Holterhoff about the recent petition filed by Deno to cancel Oracle’s JavaScript trademark. They discuss the historical context of the trademark, Deno’s case against Oracle, the legal implications of the cancellation process, and the potential future of JavaScript as a generic term for the entire developer community.

Oracle is a RedMonk client, Deno is not a RedMonk client, and this MonkCast interview is an unpaid and independent piece of content.

Transcript

Kate Holterhoff (00:13)
Hello and welcome to this RedMonk conversation. My name is Kate Holterhoff, Senior Analyst at RedMonk, and with me today is Ryan Dahl, creator of Node.js, the JavaScript runtime and co-founder and CEO of Deno. Ryan, thanks so much for joining me on the MonkCast.

Ryan Dahl (00:26)
Thanks for having me.

Kate Holterhoff (00:28)
All right, so I’m a huge JavaScript nerd beyond jazzed to have Ryan here to chat with me about a recent post he authored for the Deno website. He entitled it Deno v Oracle, canceling the JavaScript trademark. It’s a quick read and basically announces that, and I’m gonna quote here, on November 22nd, 2024, Deno formally filed a petition with the United States Patent and Trademark Office to cancel Oracle’s trademark for JavaScript. This marks a pivotal step toward freeing JavaScript,

from legal entanglements and recognizing it as a shared public good. And that’s the end of the section that I will quote from, although we are certainly gonna be digging into the three claims about why this petition holds water. And so out the gate, I do wanna state that one, I am not a lawyer, two, Oracle is a RedMonk client, Deno is not a RedMonk client, and this MonkCast interview is an unpaid and independent piece of content. And so with all that out of the way, Ryan. I have a million questions, but I want to start with the why here. Why bother doing this?

Ryan Dahl (01:27)
I think it might surprise people to learn that JavaScript is actually a trademark at all. It being the world’s most popular programming language, it being the programming language behind multiple web browsers. And it might further surprise people that the holder of that trademark is Oracle. Oracle being a company that does not develop any of the web browsers. This is a historical

relic of when Netscape originally created a scripting language for the web browser back in, I think, 1998. At that time, Netscape did a partnership with Sun Microsystems, and the thinking was Java is very popular. Let’s have a Java-like scripting language for web browsers, and we’ll call it JavaScript.

Sun microsystems was acquired by Oracle in 2009. And with it, they got a bunch of… trademarks, one of them being JavaScript. Since then, they’ve essentially done nothing with this trademark, and JavaScript as a programming language has only flourished and grown in GitHub’s surveys of most popular programming languages. It’s consistently the number one for over a decade now, I think.

There’s this kind of vast difference between what people understand this term to be and what it legally represents. there are just, you know, some, just a few people in the know are even aware of this situation. And I wrote a open letter to Oracle, in 2022 on my blog, got no response.

More recently, this past summer, we did a more thorough open letter and got a domain name for it and put some design effort behind it and allowed people to co-sign the letter. That got a lot of response and I think over 14,000 people signed that open letter.

know, essentially describing what I just described that JavaScript is this trademarked term, but it shouldn’t be. This is not really what trademarks are for. And most recently I have taken kind of the formal steps to start a cancellation claim with the USPTO.

Kate Holterhoff (03:51)
and I’m so glad that you outlined the history here. I’ll be sure to include the links to the show notes. The open letter I noticed you created a URL for it, even bought a domain, so javascript.tm. I was actually interested in that. Why did you choose to create the letter at the separate URL, but then post the blog on Deno’s website?

Ryan Dahl (04:11)
Because this is an industry-wide problem, this concerns all developers. There has never been a JavaScript conference, despite there being millions of programmers for this language. You always have to of dance around the term. So there’s JSConf.

The standard for JavaScript is not called the JavaScript standard, it’s called the ECMAScript standard. There’s just various ways where people, There’s just unclarity in how you can use this term and what to call this programming language, this thing that is massively important to all of us. And yeah, that’s not just a Deno concern. Obviously Deno is a JavaScript runtime and so we have kind of

particular concerns about like, can we call ourselves a JavaScript runtime or is Oracle going to sue us at some point? But this is kind of a broad industry wide concern. so creating this separate domain name and asking for other people to get involved is was the point.

Kate Holterhoff (05:14)
Yeah, and I think what made that letter so exciting was that it really became a who’s who of, you know, folks, influencers, I guess, in the JavaScript community. So, Brendan Eich, Isaac Schlueter, Rich Harris, I mean, the list, goes on. And I think it’s actually up to like 15,000 at this point. yeah, it’s, yeah, yeah, I was…

Ryan Dahl (05:29)
is it? Okay. Yeah. I mean, it’s like all, all JavaScript, all professional JavaScript developers probably, right? yeah, it’s, I think there is industry wide agreement that this, that this trademark is super questionable.

Kate Holterhoff (05:37)
Absolutely. Right, and I think maybe it’s worthwhile to go through the claims. So the first one is that JavaScript is generic as a term. And you’ve kind of pointed to this already. Can you expand on this at all? Like, why, how did it become the generic term? What are the implications of that? Maybe for the average JavaScript developer, for conference organizers, what is the so what behind the generic part of your claim?

Ryan Dahl (06:05)
Yeah, JavaScript doesn’t refer to any particular product, least of all in Oracle products. So first of all, there is no Oracle, there’s not Oracle JavaScript or something like that. There is no product called JavaScript. JavaScript is a programming language that is how you kind of do animations and stuff in websites. So the products around JavaScript, what implements JavaScript is like the Chrome web browser,

Netscape, Firefox, Safari. These are the implementations of JavaScript, or more specifically inside of Chrome, there’s the V8 JavaScript engine. This is a generic term for a programming language that it has multiple implementations. There’s probably, yeah, but I probably a dozen or so implementations of this programming language. There’s three important one, three-ish important one implementations of this. Yeah, I think it’s very clearly a generic term and not referring to a product.

Kate Holterhoff (07:15)
Great, and then the second one I think is the spiciest of them all, Oracle committed fraud. So, you know, the idea of like Hanlon’s razor is that we shouldn’t attribute malice to human behavior that might be explained by stupidity or incompetence. I’m kind of wondering if that’s the case here or if it has this sort of malicious intent. how did you come to the determination that it’s not just a matter of like willful ignorance or that this has sort of happened into their lap through this complex history. And anyone who’s been on the JavaScript Wikipedia page knows that the history of this language is deep and complicated. why fraud? What is your evidence for that?

Ryan Dahl (07:55)
So in 2019, Oracle renewed the JavaScript trademark. And with that, they have to give some evidence of this trademark being in use. The trademark law is pretty clear that you must be using the trademark or else you lose it. In fact, think it’s specifically three years of non-use will show that the trademark will be considered abandoned.

So in 2019, they had to present some evidence that this trademark is in use, which of course it’s not. There is no Oracle JavaScript product. And one of the screenshots that they gave of showing it being in use was of the Node.js website. This is kind of…

particularly interesting to me because I created Node.js and I know that Oracle has nothing to do with Node.js. This was not a demonstration of Oracle using the JavaScript trademark in any capacity whatsoever. So I think, you know…

Potentially there is some lawyer that was very, very confused about something on Oracle’s side, but nevertheless, they submitted this as evidence to the USPTO. And that was probably material in them getting the renewal for this. Lawyers should be careful because they are, that’s their job, but they are saying specifically in their renewal claim that.

to the best of their knowledge that what they’re putting forward here is evidence of the JavaScript trademark being used. And it clearly is not. So yeah, that is fraud on the trademark office. And I think that should be considered by the trademark office about whether this renewal is actually justified.

Kate Holterhoff (09:45)
All right, and then let’s hit the third one. The trademark has been abandoned. Talk to me about what that means in your claim.

Ryan Dahl (09:52)
Yeah, so like I said, trademarks are kind of a use it or lose it situation. And we’ve already said that Oracle does not have a JavaScript product. don’t have a, the Sun Microsystems didn’t even have a JavaScript product. So it has been never used by them. It is, I think in the law specifically that you need to show non-use for three years. So.

They, yeah, I think it’s kind of very clearly abandoned. There are a couple, like every company, Oracle touches JavaScript in various ways. That I think does not rise to the level of use of the trademark. So they have something called the JavaScript extension toolkit. This is like a set of libraries for

for front-end development. They have GraalVM, which can execute JavaScript among other languages. But it is not one of the main JavaScript execution engines. It is a JavaScript execution engine. It is not called JavaScript, the product. So I think this constitutes abandonment.

Kate Holterhoff (10:58)
Fair enough. Yeah, I saw some pushback on Hacker News about the GraalVM representing sort of Oracle’s best case for doing some innovative work around JavaScript. But your contention, I think outlined at length in the letter from this summer, is that, absolutely not, that it’s just one of many.

Ryan Dahl (11:16)
It’s one of many, I mean, if you go to the GraalVM website, you’ll have to kind of dig deep before you start seeing JavaScript. And I think it’s just kind of a stretch that because of that, nobody else in the world can have a JavaScript conference. it’s, I think it’s a pretty clear case of…

a company warehousing trademarks. And that is not what trademarks are for. They are to protect intellectual property, to protect products, but it’s not to have kind of extortion rights across an entire industry. It is not there to create confusion in the market. It’s not to prevent people from having JavaScript conferences.

It’s just a broad harm and Oracle is not developing JavaScript. They play no part in this or, I think they have been at various times on the TC39 committee, which is like the standards body that develops the JavaScript standard that we can’t call the JavaScript standard, actually called the ECMAScript standard to avoid the trademark. Yeah, they’re not…

actively participating in this effort at all. And yet, somehow through this historical curiosity, are able to tell people that they cannot have a JavaScript conference. And people like us developing Deno JavaScript Runtime,

you know, have to be fearful that like at any point we’re going to get a cease and desist and, and, know, we’re going to have to call ourselves a Deno, a JS runtime or something, or a ECMAScript runtime. It’s, it’s just kind of a ridiculous situation. And yeah, I’m, I’m, I’m hoping that that’s because these open letters have not succeeded. I was kind of hoping somebody at Oracle to just be like,

Yeah, actually, you we just kind of forgot about this. You’re right. Let’s get some goodwill for Oracle, which is severely lacking goodwill. And let’s just grant this kind of broadly to everybody indefinitely for four years. That hasn’t happened. It’s been a number of years since I put these claims forward. And yeah, I think it’s time for

time to bring this to the trademark office and ask Oracle to actually justify what’s happening here, including why they’re using a screenshot of my project to say that their trademark is still in use.

Kate Holterhoff (13:44)
How much about the legal system did you need to learn before you move forward with this case? I certainly started this conversation saying I’m not a lawyer, but I did have to look up the difference between a petition and litigation. So it sounds like you’ve thought deeply about how you wanted to approach this. Talk to me about the team that you have supporting you on this, just from a legal side.

Ryan Dahl (13:54)
Yeah, I didn’t know that the USPTO had a process for cancellation originally. as I’ve written these two open letters over the course of years, run into lawyers and talked to people. I have slowly come to the realization that, actually, the USPTO has a process for this.

You don’t need to go through a trademark litigation to ask for a cancellation. Originally, my thinking was that the only possibility of challenging a trademark was to actually put forward a product that is called JavaScript and let Oracle do a cease and desist and then go into litigation with them to ignore their cease and desist and then proceed through a lawsuit.

which sounded arduous and painful. This USPTO cancellation petition is kind of similar to federal litigation. I have learned in the subsequent months is not actually federal litigation. It’s similar to that. And…Yeah, you can, we are going to see how this proceeds. So I’ve got a lawyer working for me, somebody who’s done a lot of trademark work and is kind of helping me file this petition. I think it’s largely a matter of kind of turning our…

our ideas about why this is unjust into kind of legalese to speak to the other lawyers and kind of think about which of these claims is the most important and how to speak directly to Oracle. And this seems to have gotten their attention, or at least they’ve registered with the USPTO

some lawyers, so they’ve registered a notice of appearance of counsel. That doesn’t necessarily say anything about whether they’re going to challenge this cancellation proceeding or do anything, but you know, at least, you know, Oracle’s lawyers, we’ve gotten their attention and they will take some action here, I guess. The due date for an answer is January 4th. 2025. If they don’t make any answer to this cancellation claim, then it will go into default. it’s likely that in that case that the JavaScript trademark will actually be canceled and it will become a kind of public domain term.

It’s very unclear what is going to happen. So yeah, we’re going to see kind of January 4th where, for the first time, kind of where Oracle’s head is at right now. Just because they put forward this notice of appearance of counsel doesn’t mean that they are necessarily going to challenge this. They might just, you know, wanting to be registering for updates. But it also signals that that they’re paying attention and they could very well challenge the cancellation.

Kate Holterhoff (17:08)
And we’ve talked a lot about the stakeholders that would benefit from canceling this trademark. So I’m curious, how are you paying for this currently? When I think of Oracle, think deep pockets and an extensive legal team. It’s not always who’s right or wrong in these cases. It’s really about who can hire the most lawyers. So how are you approaching the elephant in the room of just the immense legal team that Oracle can leverage?

Ryan Dahl (17:34)
yeah, it’s, it’s a little daunting and there are horror stories out there about, about Oracle’s legal prowess. I, I don’t think it’s about who has the most money, honestly. I, like, I believe in the system. I think it’s, it is who, who puts forward sane arguments. how, how am I paying for this? I’m, so we are doing this cancellation through my company.

Deno and Deno has funding and actually just making this cancellation petition is not very expensive because we’ve already done all this research and we kind of have our arguments already there. I think what potentially is going to get expensive is if we do kind of many, many rounds of discovery after this.

We are probably talking somewhere in the range of hundreds of thousands of dollars at maximum. And that is debatable whether it’s in Deno’s business interest to pay that or not. So I think we will cross that bridge when we get there. My hope is that Oracle does not try to

you know, just, try to outlawyer your us and, just, just kind of, try to, try to make us spend, enormous quantities of money to make us go away on, this claim. The claim will still be there, whether, we stop or not.

I also think hundreds of thousands of dollars is not enormously expensive when it comes to an industry wide problem like this and that this affects other people and that there is fundraising that can be done here. Hundreds of thousands of dollars is well within Deno’s budget. Also, we are kind of a VC backed company. It’s just kind of a question of, yeah.

ROI, I guess, at the end of the day. So, yeah, I’m curious to see what’s going to happen in January. And, you know, we are, I’m pretty keen to take this as far as I can. It may come to the point where I’m going to need to go knock on some doors and see if I can get some contributions from other folks. But

Yeah, I don’t think that unjust things should just be like, I don’t think we should just be scared because, you know, Oracle is a big company and blah, blah. And therefore, like, we should just not do anything. I want to believe that the USPTO is the same organization and can, you know, even small companies, small, small interests can.

can kind of put forward claims and that if they are ultimately justified that the USPTO can see that. So we will see. What I’m going to do is publish updates on where we’re at with the proceedings. And every time that we get some new update, we’ll let everybody know what’s going on with it. And if it comes to the point where

you know, it’s looking like things are going to get very, very expensive. Yeah, we’ll kind of cross that bridge when it comes. But I think there’s also a very real possibility that Oracle is just like, you know what, you’re right. We’re not going to like, what’s the point in doing this? Like, it’s just bad press for us. We’re not using it anyway. We have no business interest in this trademark anyway. like why, you know, they also have lawyer fees

I’m sure a couple hundred thousand dollars is drops in a bucket for them. But, you know, I think there is a real possibility that they just kind of shrug their shoulders and say like, yeah, you know, I’m sorry that we had to have our hand force on this, but, you know, we’re not going to try to argue something that we can’t argue.

Kate Holterhoff (21:14)
And I think you’ve implicitly addressed my question of why you and why 2024? And let me just kind of read it back to you then. So it sounds like you’ve been sort of banging this drum since 2022 in terms of like iterating, writing letters, of fleshing this out. And 2024 is the year when you not only got this wildly popular letter signed by the community, but also in that letter said that you would pursue this petition if Oracle didn’t respond to you. So I guess, and that you personally have a stake in this because of this, the issue of fraud where they used Node as part of their argument for their trademark. So I guess what I am less sure about is others in the community. So signing a petition is relatively easy. signing the letter rather. Has anybody else tried to take back this trademark in the past? I mean, I’m thinking of like the OpenJS Foundation, maybe ECMA International. Has anybody tried to do this before?

Ryan Dahl (22:17)
nobody’s taken it this far to actually filing a petition. I’ve heard of a couple of people who have made some efforts in this, this area. Robin from, from OpenJS, has had conversations with, with various executives at Oracle kind of just, you know,

trying to argue this and has had some success. she told me that it got blocked at some stage and just couldn’t make further headwinds. And I forget like at which level this happened at. We also got some emails from people and I’m blanking on the person’s name right now, but.

Some people who had started petition, one person specifically that had started a petition for cancellation never actually got to the point of filing it, but shared with us their draft petition. So this has definitely been on the minds of people, but This is the first time that it’s kind of been formally brought forward to the USPTO as a cancellation petition.

Kate Holterhoff (23:24)
And how did you find out that Oracle had used Node in their 2019, what, trademark renewal?

Ryan Dahl (23:33)
Yeah, can just the USPTO has got a website where you can go look up any trademark and with the JavaScript trademark, you can see all of the records of filings with the USPTO and the most recent one in 2019. If you click in there, you’ll see some specimens and you’ll see the Node.js website. And, you know, once I saw that, I’m just like, what the heck? I found out by browsing

Kate Holterhoff (23:56)
Right? But how did you find out? I assume you don’t do it recreationally.

Ryan Dahl (24:02)
No, I do. I do do it recreationally.

Kate Holterhoff (24:04)
You do? Alright, fair enough. Okay, so recreationally you’re browsing that and you were like, hey, that looks familiar. Wait a second, this isn’t right.

Ryan Dahl (24:12)
I have long been peeved by this trademark situation and yeah, I recreationally browsed the USPTO for updates on this.

Kate Holterhoff (24:15)
Okay. Wow.

I can’t believe it. I figured someone would have notified you or you got an email or maybe have like, I don’t know what, a crawler or something that told you about it. you, mean, gosh, what a kick in the shins to say, hey, wait a second, of all the projects for you to cite, it’s my own. Yeah, awful. Okay, no, that must have been surprising, not in a good way. Okay, let’s talk about…

Ryan Dahl (24:37)
Yeah, it’s like, the heck? Yeah.

Kate Holterhoff (24:48)
Best case scenario here. So say your case wins. What is the future of JavaScript as a trademark? Do you see it being gathered under another entity that could protect the name, like maybe the JavaScript Foundation, which would be sort of similar to the Python Software Foundation? Or would you possibly leverage an existing organization like the OpenJS Foundation, which of course hosts Node and or ECMA International?

Ryan Dahl (25:11)
I think all of those would be fine outcomes, but I don’t think that that would be the outcome of this petition because once this is a petition for cancellation, which means that the trademark will not exist after this. There will be no JavaScript trademark. It won’t be a trademark held by a benevolent entity. It will simply not be a trademark in the same way that like, I don’t know, car is not a trademark. Like it’s just a word.

And so because this is a formal proceeding with the USPTO and because we are arguing that it is generic and trademarks cannot be generic, the outcome would be that it is simply a word, which is actually better, right? It doesn’t need to be held and renewed or like nothing will need to be done further with this term after that. It will simply just be JavaScript.

Kate Holterhoff (26:07)
I don’t think I had quite taken it to that extreme. Okay, that makes a lot of sense. All right, so this just becomes a 100 % generic word. It doesn’t need protection at this point. That’s interesting.

Ryan Dahl (26:17)
It will not be trademarked further. Yeah, it does not refer to any product. It cannot refer to a product. people can use it however they want, right? Ford can use the term car as much as they want. is not a protected term. They cannot trademark the term car because that is a generic term that does not refer to a specific product. And the result of this proceeding, if it goes… my way would be that JavaScript is simply a term.

Kate Holterhoff (26:45)
Okay, that makes sense. know, Ryan, you’re a TypeScript-y guy. Talk to me about where TypeScript fits in here. So, you you, Deno, offer a native TypeScript support. Do you have plans to ask Microsoft to release that trademark to the community, or what is the distinction there?

Ryan Dahl (27:03)
No. So TypeScript is a superset of JavaScript. It adds types to JavaScript. It’s not a separate language in any real sense. It’s tied very, very directly with JavaScript. And in my feeling, in my view, TypeScript is where JavaScript is ultimately going as the language evolves. But TypeScript is very clearly a Microsoft product. It was developed at Microsoft, is maintained by Microsoft, is trademarked by Microsoft. It is an actual thing. It is an actual piece of software. There is one implementation of TypeScript called TFC. It is built by Microsoft, paid for by Microsoft. That is all perfectly fine with me. Like they invented it, they built it, they trademarked it. That is all.

perfectly reasonable. I think that ultimately, thinking like many years out into the future, think ultimately types for JavaScript is something that will get built into the language kind of at the standards level. And there are proposals called types as comments to be added to the JavaScript standard so that web browsers and other JavaScript runtimes can understand TypeScript natively.

It’s unclear where all of that’s going. But my feeling is that eventually, because TypeScript is so useful, has shown so much utility that those kind of functionality that it provides will ultimately be pulled into the JavaScript language. But that is a long time now. For the time being, TypeScript is kind of a tool that overlays on top of JavaScript and helps you write better JavaScript.

Kate Holterhoff (28:43)
So let’s talk about what sort of immediate plans you do foresee. So if it goes into default after January the 4th, you mentioned some possibilities in terms of renaming conferences. I’m wondering if it’s blocking anything else specific. Are you going to convert the node modules folder into JavaScript modules, for instance? How whimsical are you getting with your plans here, your bucket list?

Ryan Dahl (29:05)
I mean, so first of all, it would just remove unclarity in the ecosystem. First of all, we can finally just call the specification, the JavaScript specification. We can retire this term ECMAScript. We can start having the JavaScript conference, a JavaScript conference. That would be great. So I think to a large extent,

You know, it’s a little unclear what the world will look like because all of us grew up in a world with the JavaScript trademark. you know, it’s just, it’s hard to kind of imagine how this would be. But I think it just generally removes the threat of litigation around using this term. And I think specifically like you can have conferences, the specification can be better. Companies like mine, you know, can…

state that we are a JavaScript runtime without worrying too much. Not that we worry that much, because it’s not in our name. We don’t call our product JavaScript. still, there are cases in other trademarks where this has become problems, where you kind of use it as a descriptive term, and suddenly you’re getting cease and desists.

So yeah, I think it will just generally make life simpler and nicer for people. I think to a large extent, for users of the language, it’s not going to change anything massively. It’s more for kind of the tooling providers that it’s just going to provide a little bit more clarity. And more than anything, I think it’s just righting a wrong in the trademark system.

Companies should not be warehousing trademarks like this. And this is a very clear case that many people have known about for a long time. Let’s just take the right action and register this petition with the USPTO.

Kate Holterhoff (30:47)
All right, I think that’s a good place for us to start wrapping up here. So we’re about out of time. I wanted to include a shout out to Dan Moore, Alex Riviere, and Chris Corriere for helping me to crowdsource some questions for this conversation. Such an exciting and important topic. I wanted to poll some smart folks to make sure that I represented the widest swath of concerns possible. So before we go, I do want to hear a little bit about where folks can keep up with this case. I mean, you have mentioned that you’re going to be updating everyone. So, you know, where are those updates going to be? Where can they be found?

Ryan Dahl (31:19)
Yeah, follow Deno on Twitter. So we’re @deno_land. We’ll post updates there. We’ll post it on our blog too, but probably easier to follow us on Twitter. I refuse to call it X.

Kate Holterhoff (31:30)
Fantastic, okay. Don’t do it. Be strong. All right, I’ve really enjoyed speaking with you, Ryan. Again, my name is Kate Holterhoff, senior analyst at RedMonk. If you enjoyed this conversation, please like, subscribe, and review the MonkCast on your podcast platform of choice. If you are watching us on RedMonk’s YouTube channel, please like, subscribe, and engage with us in the comments.

A RedMonk Conversation: Ryan Dahl on the Deno v Oracle Petition

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