A Kuro5hin member named Water claims my software's trademarked logo
infringes another programs trademark. While both programs have the GNU
General Public License, they are both commercial products of private
companies. I would take any threat to my livelihood seriously, as I
imagine they would too:
http://www.kuro5hin.org/comments/2006/7/21/203616/307/21#21
I don't think there is actually a conflict, but it's easy to understand
why this fellow thought so.
To head off such a costly dispute, I'm seeking expert advice. If there
is any doubt whatsoever, I will of course consult an attorney. But the
best advice I can get at four in the morning is from debian-legal.
To put a stop to any speculation, I'll be writing up a page about it
based on my arguments below, but corrected any comments you may have. I
will link to it from the legal notices I have on each page of my site.
Before you read further, please look at our two logos. First
impressions in the public mind count significantly when the trademark
courts consider a dispute, as I will explain:
Mine: http://www.oggfrog.com/images/Rippit-the-Ogg-Frog.png
Theirs: http://www.oggfrog.com/images/Azureus.png
You can see why this fellow thought to warn me: both are spotted blue
frogs. But do our trademarks conflict? I claim they don't. I ask you
to point out any flaws in my arguments.
Ogg Frog is described at http://www.oggfrog.com/free-music-software/
It's still in development, with its first released planned for August
12. Azureus is at http://azureus.sourceforge.net/
Why is my Free Software trademarked?
It's because I expect my digital music software to be popular with users
who don't understand Free Software. Thus I expect knock-off websites to
appear with downloads of knockoff software also called Ogg Frog, but
that violate the GPL or the Creative Commons licenses of some of my
website's pages.
This happened to the peer-to-peer application eMule. eMule.org is a
cleverly-similar knock-off site that requires registration before one
can download the software. I'm not clear whether this actually violates
the GPL, but I imagine it would if registration were required to
download the source:
Real: http://www.emule-project.net/ (Note the header's row of flags.)
Fake: http://www.emule.org/ (MP3's, Games, XXX and Warez instead.)
Violation?: http://www.emule.org/join.html (Where's the source code?)
That's enough all by itself to convince me I'm right to use trademarks.
It's established that one can trademark Free Software; Linux is a
trademark in many countries, and AbiWord may only be applied to
verbatim copies of the word processor as distributed by AbiSource.
Derivative works are allowed to be called AbiWord Personal:
http://www.abiword.org/information/license/tm_guide.phtml
I intend to do the same: the source I'll distribute will include a
different logo and Ogg Frog's name in the executable will be changed. I
assert this doesn't infringe the licenses of my GPL dependencies because
the text and graphics won't be linked, the act which brings the GPL to
bear on copies.
Why don't I infringe their trademark?
1. The Azureus frog logo is not actually a trademark.
2. Even if it were, my logo is not confusingly similar to theirs,
which I understand is what constitutes infringement.
3. The law allows trademarks to be identical provided that the
businesses or products are different enough, or separated
geographically. Thus the Canadian high court recently ruled that a
business may be called McDonalds if it doesn't sell fast food. Our
two programs are vastly different from each other.
4. Aelitis.com, the holder of the Azureus trademark, has not taken any
action to stop infringing use of the frog logo. Thus the legal
principle of estoppel would enable me to quash their trademark in court
if it ever came to that. I'm confident it won't.
Now in more detail:
1. Not a Trademark.
Extended Google searching was only able to find one page that mentioned
the Azureus frog in connection with a trademark, but it actually says:
The Azureus trademark and the blue frog logo belong to aelitis.com.
The logo is not available under the GFDL and you must not use it
without permission (with exception to fair use clauses of the
copyright laws of your jurisdiction).
http://www.azureuswiki.com/index.php?title=AzureusWiki:Copyright
Belongs to is not the same thing as is a trademark of; it's not
actually clear just what they're claiming. Their requirement that one
obtain permission before reproducing the logo, with the exception of
Fair Use, indicates that it is protected by copyright rather than
trademark.
Further, trademark law allows anyone to reproduce a trademark, provided
it is done verbatim and not in a way that casts doubt on its ownership.
I don't think it's even required to acknowledge the trademark's owner.
One just can't claim it as one's own.
That page may
