Hi,

I want information regarding the violation of trademarks for Open
Source Software only.

Ie, what constitues trademark violation in the OPEN SOURCE ARENA.

regards

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Request for Question Clarification by pafalafa-ga on 02 May 2005 17:06 PDT

Hi there,

I noticed your clarification, below, where you said:

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TO clarify, assume oscommerce is already a registered trademark of the
open source software package "oscommerce". I want to use the open
source software package, oscommerce, create a domain called
www.oscommercegurus.com or www.oscommerce.us and start selling
oscommerce services.

Would this likely be seen as a trademark violation?
-----

Ipfan-ga (who is a very knowledgable commenter, but not a GA
researcher, whose names are also hyperlinked in blue) has made a very
astute observation.  A trademark is a trademark, and the fact of it
belonging to Microsoft or open-source or whoever makes little
difference -- they all are protected by the same law.


So...the answer to your above query is, on the one hand, pretty
straightforward.  If 'oscommerce' is a legit trademark, then sure,
they can certainly file a complaint about you stepping over the line
and infringing on their trademark.

However, just because they can, doesn't mean they will.  Open-source
folks are a bit of a different breed, and they may not be inclined to
complain about a trademark violation.  Who knows...they may even
welcome the multiplication of sites devoted to their code.

Of course, that's a couple of big maybe's.  I think the bottom line
here is that -- if you use someone else's trademarked name -- you run
the risk of hearing from their lawyers.  On the other hand, they may
simply decide to look the other way.  No real way of knowing in
advance.

By the way, please note the caveat down below...GA is no substitute
for professional legal advice, so take all this with the appropriate
grains of salt.

Now...having said all that, what sort of information can I add to this
to make for a complete answer to your question?

I've looked through several legal databases and did not see any
open-source-related trademark disputes.  But if there's something else
I can do for you, let me know.

pafalafa-ga

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Clarification of Question by jonnieoscommerce-ga on 02 May 2005 18:39 PDT

Comment>>I've looked through several legal databases and did not see any
open-source-related trademark disputes.

1. Can you please provide me with the links to these databases you mentioned.
2. Links to a database where i can see if a trademark has been
registered in the US.
3. I am happy for you to then close the question as answered.

Regards

Which open source software?  Linux?  Gnutella?  Any or all of the
titles listed at http://directory.fsf.org/GNU/?

Your question becomes more accessible if you could provide a list of
particular open source titles you are interested in so we can
determine the status of those names/titles/trademarks.

osCommerce is released under the GNU General Public License (GPL).

The only relevant case that comes to mind is the Microsoft v Lindows
case.  It's pretty much the inverse of your question, since Microsoft
was trying to protect its Windows trademark against the open source
and similarly-named system, Lindows.

Still, the case discusses the points of tradematk law regarding these
two open source and closed source systems, so it might be of some
interest.

pafalafa-ga

I was looking for cases and explanations of Open Source Software
Companies protecting their trademark rights against other companies
who used them.

The fact that we are talking about open source software is likely
irrelevant to the discussion, now that I think I understand your
question.  Basically, the analysis is this:  does the [open source]
software company have a protectible trademark, and is the other party
infringing that mark?

So let's assume that you develop a software product.  You decide you
like the name ?osCommerce.?  As soon as you begin selling the software
to the public, you accrue trademark rights in that name "osCommerce." 
You may thereafter further refine and perfect those rights by seeking
federal and international registrations of the ?osCommerce? mark. 
This all assumes that "osCommerce" is even protectible as a trademark.
 You cannot successfully claim trademark rights in words that are
generic or merely descriptive with respect to the goods associated
with the mark ("Apple" is a bad trademark for apples but a good mark
for computers.)  So, is your mark protectible or is it merely
descriptive of an open source software package that facilitates
e-commerce?

If we assume your mark is not merely descriptive (a conclusion that is
open to debate), you have the ability to stop others from using
?confusingly similar marks in related lines of goods and services.? 
That?s the test.   You ask for cases dealing with open source software
trademarks?that level of specificity is not required?that?s what all
trademark cases say.  If your mark is protectible, you can stop others
from using confusingly similar marks in related lines of goods and
services.  So you could likely stop someone from using the mark
?opCommerce,? or maybe even ?OSComm? to the extent those were marks
for related lines of goods and services.  If, however, you sold golf
clubs under the ?osCommerce? mark, you could not stop someone from
using ?osCommerce? as a mark for software, for example?unless it was
golf software.

TO clarify, assume oscommerce is already a registered trademark of the
open source software package "oscommerce". I want to use the open
source software package, oscommerce, create a domain called
www.oscommercegurus.com or www.oscommerce.us and start selling
oscommerce services.

Would this likely be seen as a trademark violation?