And it is in the state of Denmark, although Købnhavn, epicentre of the controversy, is clearly no hamlet. A Danish group in the capital has publicly filed an application to trademark the name el Sistema within the European Union, and if unverified rumour be true, has already started issuing cease-and-desist orders to other organizations currently using the name within the 27-nation confederation.
Historically, the use of the name el Sistema has been subject to a gentleman’s agreement between programs and Venezuela. The Fundación has made no attempt to control the use of the name, on the condition that groups choosing to use it make no claim to ownership either. This doctrine was motivated largely by economics, as the Fundación has had neither the resources nor the desire to accredit or otherwise endorse non-Venezuelan programs. It has also had little need: to date only one other organization has attempted to register a national trademark, a process that was forestalled and ultimately abandoned after some diplomatic pressure from the 18th floor of Parque Central in Caracas. In a context in which outright endorsement is never offered, the threat of a condemnation in the form of loss of diplomatic relations with the Fundación has previously proven sufficient to uphold Maestro Abreu’s wishes.
The European Sistema community has taken a strategic, measured approach to the Danish development, securing legal counsel and coordinating the submission of formal objections to the application within the required public consultation phase. But “gentleman’s agreement” and similar arguments rooted in ideals of friendship, community and noble aspirations make for poor legal grounds, and the Fundación itself is in a weak position to claim ownership internationally given Venezuela’s frequent absence from the list of contracting parties for major WIPO treaties. (It did officially oppose previous applications by the same group, however.)
While the Danish group has been roundly denounced for its temerity in defying the Venezuelans, the issues are more complex than they may first appear. The name el Sistema simply means “the system,” and as such is broad and general enough to be applied to almost any organized or coordinated structure or operation in any industry sector. Conceivably, any business entity unbound by concern for Venezuelan sensitivities could attempt to register the trademark instead, and then start serving cease-and-desist orders to music education programs. This scenario is not so far-fetched: the trademark for el Sistema in the United States was previously held by a company specializing in body-building supplements. The fact that they no longer hold the trademark reflects another consideration: most trademark/copyright law states that it isn’t enough to hold the mark, it must be used in order to prevent what would essentially be squatting on intellectual property. In this light, the actions of the Danish group may reflect only a desire for self-preservation rather than an aggressive branding maneuver, ensuring their name is not usurped by a for-profit entity of far less noble ideals.
The primary leverage of the Fundación has been its implicit endorsement through collaboration, but this is no longer so effective an inducement to ensure compliance. The international fame of the program has meant that the world has come knocking on the Venezuelans’ door in search of partnerships, and the Fundación has been compelled by limits on manpower and financial resources to focus only on key strategic relationships. In short, the hand of friendship has to be offered first before the threat of withdrawing it becomes meaningful, and it is offered with increasing rarity for many justifiable reasons. To be brutally honest, the Fundación has also let down some of its existing partners by cancelling contracted foreign appearances after its groups were scheduled to arrive, thus inviting questions as to the value of a partnership as well.
In the minds of many the optimal solution would be the Fundación adopting a much more active role internationally in accrediting organizations and enforcing its trademark, but this remains extremely unlikely. This “solution” also misses the point. Given that the Venezuelan administration refers to it as “The System” when speaking in English, and that Maestro Abreu himself disavows the term as misleading, the continued use of the Spanish outside non-Spanish speaking nations is an unjustifiable affectation. Use of the name suggests slavish imitation, not adaptation, and in no way does it describe the nature or mission of the work undertaken. The phrase “Social Action through Music” is specific, informative and indicative. It encompasses all such activity, whether inspired by the Venezuelan example or independently conceived, and thus evades the pressing and often terminal problem of developing membership criteria based on a limited, if not artificially imposed rubric. It is also the phrase used in Venezuela (Acción Social por la Música) to describe and distinguish the work of the Fundamusical Bolívar. It not applicable to body-building supplements, IT companies or a process for manufacturing widgets.
It may be that the best outcome of the Danish application is that it is approved, forcing programs globally to consider deeply what is important and relevant to their work, and to name themselves in ways meaningful and comprehensible to the communities that they serve. Venezuela’s position as a global inspiration has been secured in perpetuity: the best way to acknowledge the Fundación’s influence is to adopt its mission, rather than its former government-imposed title.