Re: trademark infringement FreeFOAM
Francesco Poli writes: >> p.s. I think the FSF in general plays it quite fair; I'd treat a >> for-profit company with a lot more skepticism. > > I don't think that requiring copyright assignment from contributors is > a fair game, not even when practiced by the FSF. > However, if you trust the FSF to always take "good" decisions on > licensing matters (I don't), you are of course entitled to your > opinion... Of course, as are you. I'm not really defending assignments, but simply saying that _given_ the assignment policy, the FSF has kept the trust put in them (but I don't think I'd put the same amount of trust in a for-profit entity). While the FSF assignment policy itself has obvious negatives, it _is_ an attempt to deal with real issues (i.e., it's not a pointless power-grab), and I don't think it's very clear which alternative is better or worse in general, or if there _is_ any general right answer. -Miles -- The key to happiness is having dreams. [from a fortune cookie] -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/buozksznhhw@dhlpc061.dev.necel.com
Re: trademark infringement FreeFOAM
On Tue, Nov 23, 2010 at 07:27:38PM +0100, Gerber van der Graaf wrote: > OpenCFD (R) has issued new guidelines for their tradmark OpenFOAM: > http://www.openfoam.com/legal/trademark-guidelines.php > My question is if these are legal: not allowing hydrostaticFoam as your > self-written new solver for example. So, actually they are claiming the > "FOAM" word to be used in a name. > Is Pepsi Cola is a trademark infringement of Coca Cola? It's certainly legal for them to set any guidelines they want to for the use of their trademark. The question is, are you doing anything that infringes their trademark in the first place? If you're not doing anything to begin with that requires a trademark license from them, then you should ignore any such trademark policies. They mean nothing *unless you need a trademark license*. And the answer to whether you need a trademark license lies in statute and precedent. You should consult an attorney if you have doubts about whether you're doing something that infringes a trademark. But common sense goes a long way here... -- Steve Langasek Give me a lever long enough and a Free OS Debian Developer to set it on, and I can move the world. Ubuntu Developerhttp://www.debian.org/ slanga...@ubuntu.com vor...@debian.org signature.asc Description: Digital signature
Re: trademark infringement FreeFOAM
On Tue, Nov 23, 2010 at 10:27 AM, Gerber van der Graaf < gerber.vdgr...@gmail.com> wrote: > Is Pepsi Cola is a trademark infringement of Coca Cola? > "Cola" is a common word that describes the product, so no. If the word "FOAM" were a word frequently used to describe things of this type with no connection to OpenCFD then you'd be in the clear.
Re: trademark infringement FreeFOAM
Le Tue, Nov 23, 2010 at 07:27:38PM +0100, Gerber van der Graaf a écrit : > OpenCFD (R) has issued new guidelines for their tradmark OpenFOAM: > http://www.openfoam.com/legal/trademark-guidelines.php > My question is if these are legal: not allowing hydrostaticFoam as your > self-written new solver for example. So, actually they are claiming the > "FOAM" word to be used in a name. Dear Gerber, perhaps you can compare with the trademark usage policy for Python ? While it will not give you a precise answer, I hope it can be a useful reference for you since Python is distributed in Debian. http://www.python.org/psf/trademarks/ Have a nice day, -- Charles Plessy Tsurumi, Kanagawa, Japan -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/20101124004105.ga23...@merveille.plessy.net
Re: trademark infringement FreeFOAM
OpenCFD (R) has issued new guidelines for their tradmark OpenFOAM: http://www.openfoam.com/legal/trademark-guidelines.php My question is if these are legal: not allowing hydrostaticFoam as your self-written new solver for example. So, actually they are claiming the "FOAM" word to be used in a name. Is Pepsi Cola is a trademark infringement of Coca Cola? Gerber On Mon, 2010-11-22 at 21:19 +0100, Francesco Poli wrote: > On Mon, 22 Nov 2010 21:36:16 +0900 Miles Bader wrote: > > > Gerber van der Graaf writes: > > >> I think that accepting contributions only when the contributor transfers > > >> his/her copyright is indeed allowed for GPL software: actually it's > > >> what the FSF does... :-( > > > > > > I didn't know that and that's quite strong. Do they also erase the names > > > of contributing authors, as OpenCFD is requiring? > > Erase the names of the authors?!? > Does OpenCFD Ltd. do that? > How can it be consistent with moral rights? > > The right to be identified as author is a moral right recognized by the > Berne Convention > http://wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726 > and by UK copyright law > http://www.legislation.gov.uk/ukpga/1988/48/section/77 > and by several other copyright laws... > > [...] > > p.s. I think the FSF in general plays it quite fair; I'd treat a > > for-profit company with a lot more skepticism. > > I don't think that requiring copyright assignment from contributors is > a fair game, not even when practiced by the FSF. > However, if you trust the FSF to always take "good" decisions on > licensing matters (I don't), you are of course entitled to your > opinion... > > -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/4cec089b.8cf0d80a.3374.1...@mx.google.com
Copyright assignment (was: trademark infringement FreeFOAM)
Miles Bader writes: > Gerber van der Graaf writes: > >> I think that accepting contributions only when the contributor > >> transfers his/her copyright is indeed allowed for GPL software: > >> actually it's what the FSF does... :-( […] > p.s. I think the FSF in general plays it quite fair; I'd treat a > for-profit company with a lot more skepticism. Bradley Kuhn contrasts the two in a recent weblog entry http://www.ebb.org/bkuhn/blog/2010/02/01/copyright-not-all-equal.html>; he argues that the FSF's approach is good. Michael Meeks gave an interesting presentation on the effects of copyright assignment, using examples of OpenOffice vs LibreOffice and other cases http://lwn.net/Articles/414051/>; he argues that even the FSF's copyright assignment requirement is harmful without any benefit to free software. -- \“There are only two ways to live your life. One is as though | `\ nothing is a miracle. The other is as if everything is.” | _o__) —Albert Einstein | Ben Finney -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/87d3px85n7.fsf...@benfinney.id.au
Re: trademark infringement FreeFOAM
On Mon, 22 Nov 2010 21:36:16 +0900 Miles Bader wrote: > Gerber van der Graaf writes: > >> I think that accepting contributions only when the contributor transfers > >> his/her copyright is indeed allowed for GPL software: actually it's > >> what the FSF does... :-( > > > > I didn't know that and that's quite strong. Do they also erase the names > > of contributing authors, as OpenCFD is requiring? Erase the names of the authors?!? Does OpenCFD Ltd. do that? How can it be consistent with moral rights? The right to be identified as author is a moral right recognized by the Berne Convention http://wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726 and by UK copyright law http://www.legislation.gov.uk/ukpga/1988/48/section/77 and by several other copyright laws... [...] > p.s. I think the FSF in general plays it quite fair; I'd treat a > for-profit company with a lot more skepticism. I don't think that requiring copyright assignment from contributors is a fair game, not even when practiced by the FSF. However, if you trust the FSF to always take "good" decisions on licensing matters (I don't), you are of course entitled to your opinion... -- http://www.inventati.org/frx/progs/scripts/pdebuild-hooks.html Need some pdebuild hook scripts? . Francesco Poli . GnuPG key fpr == C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpNqKzqPfGKL.pgp Description: PGP signature
Re: trademark infringement FreeFOAM
Gerber van der Graaf writes: >> I think that accepting contributions only when the contributor transfers >> his/her copyright is indeed allowed for GPL software: actually it's >> what the FSF does... :-( > > I didn't know that and that's quite strong. Do they also erase the names > of contributing authors, as OpenCFD is requiring? All that gets changed after assignment to the FSF is the copyright statement. No "erasing" that I'm aware of. [E.g., if you look at many lisp files in the GNU Emacs distribution, they contain an "Author: ..." line that is the original author(s).] -Miles p.s. I think the FSF in general plays it quite fair; I'd treat a for-profit company with a lot more skepticism. -- `The suburb is an obsolete and contradictory form of human settlement' -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/buoeiadlem7@dhlpc061.dev.necel.com
Re: trademark infringement FreeFOAM
On Sun, 2010-11-21 at 18:20 +0100, Francesco Poli wrote: > On Sun, 21 Nov 2010 16:04:30 +0100 Gerber van der Graaf wrote: > > > I have to correct something: Holger Marschall, the author of the > > "OpenFOAM Documentation Project", explained me he only received some > > emails where OpenCFD threatened him to write a letter of legally valid > > cease and desist letter. He actually did not receive it as he put down > > the website. Also, after he named it to "FOAM Documentation Project", > > which was put down after OpenCFD complained. > > Were the threats from OpenCFD Ltd. received *before* or *after* the > renaming from "OpenFOAM Documentation Project" to "FOAM Documentation > Project"? > If the answer is "after", I think this could indicate that OpenCFD Ltd. > is willing to lay claims on the "FOAM" term... I don't know whether > such claims would hold in a court, but OpenCFD Ltd. seems to *think* > they would. OpenCFD sent an email of threat after the web page http://www.openfoam-documentation.org was launched. Then the author received another mail of threat after he launched http://www.foam-documentation.org as abbreviation is forbidden. I also think OpenCFD tries to claim the 'FOAM' word. It is however very confusing as there are quite a couple of projects concerning this technology: OpenFOAM-extend, from prof H.Jasak, the second main author of the OpenFOAM project and left OpenCFD, probably after a dispute. pyFOAM and IFOAM, these were mentioned proudly by Jasak during his presentation at the first meeting of Dutch OpenFOAM Usergroup. > > > > > As stated in the OpnCFD trademark policies, the naming OpenFOAM and > > abbreviations are explicitly forbidden. > > http://www.openfoam.com/legal/trademark-policy.php > > > > That said I wonder if FreeFOAM is considered as trademark infringement, > > even by OpenCFD, as a derived naming is not explicitly mentioned to be > > forbidden. > > Well, there's point 7 of the above-mentioned trademark policy, which > states, in part: > > | Third Parties must not market products or services using the Trade > | Marks or any wording that is confusingly similar to the Trade Marks > [...] ^^ > > If I recall correctly, the concept of "confusingly similar" wording > comes from trademark laws, which forbid unauthorized uses of a > trademark and or any mark which is confusingly similar to the trademark > itself. > > However, whether OpenCFD Ltd. (or a court of law) would consider > "FreeFOAM" confusingly similar to "OpenFOAM" is still to be assessed. > > > > > Therefore, I still have my doubts if even renaming of the FreeFOAM > > project is required. > > My suggestion to rename FreeFOAM is mainly driven by the goal of > minimizing the risk of your project name being deemed confusingly > similar to "OpenFOAM". > > > I will ask an attorney at our university for this. > > Good idea: I hope he/she can help you in the difficult task of finding > a safe way through trademark laws!;-) > > > In addition, the trademark 'Freefoam' has already been used by a > > construction company and I found two registered US trademarks > > (extrusion / machinery and a travel luggage and bags company). Whether > > these companies will be annoyed by our software project remains to be > > seen. > > As far as I know (but, I repeat, I am not a lawyer), trademark > infringement occurs when an identical or confusingly similar trademark > is used by an unauthorized party *for products which are similar to > the one covered by the infringed trademark*. > > This may mean that the use of "Freefoam" in other markets than > extrusion machinery or travel luggage cannot be objected to by those > two companies... > > > At least, this might obstruct OpnCFD to go after FreeFOAM. > > I am not sure... > > > > > Thanks a lot for your contributions in searching a new name for the > > FreeFOAM project. We will definitely take them into account. > > You're welcome, indeed. > Have a nice day. > -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/1290364994.2634.53.ca...@solo
Re: trademark infringement FreeFOAM
On Sun, 21 Nov 2010 16:04:30 +0100 Gerber van der Graaf wrote: > I have to correct something: Holger Marschall, the author of the > "OpenFOAM Documentation Project", explained me he only received some > emails where OpenCFD threatened him to write a letter of legally valid > cease and desist letter. He actually did not receive it as he put down > the website. Also, after he named it to "FOAM Documentation Project", > which was put down after OpenCFD complained. Were the threats from OpenCFD Ltd. received *before* or *after* the renaming from "OpenFOAM Documentation Project" to "FOAM Documentation Project"? If the answer is "after", I think this could indicate that OpenCFD Ltd. is willing to lay claims on the "FOAM" term... I don't know whether such claims would hold in a court, but OpenCFD Ltd. seems to *think* they would. > > As stated in the OpnCFD trademark policies, the naming OpenFOAM and > abbreviations are explicitly forbidden. > http://www.openfoam.com/legal/trademark-policy.php > > That said I wonder if FreeFOAM is considered as trademark infringement, > even by OpenCFD, as a derived naming is not explicitly mentioned to be > forbidden. Well, there's point 7 of the above-mentioned trademark policy, which states, in part: | Third Parties must not market products or services using the Trade | Marks or any wording that is confusingly similar to the Trade Marks [...] ^^ If I recall correctly, the concept of "confusingly similar" wording comes from trademark laws, which forbid unauthorized uses of a trademark and or any mark which is confusingly similar to the trademark itself. However, whether OpenCFD Ltd. (or a court of law) would consider "FreeFOAM" confusingly similar to "OpenFOAM" is still to be assessed. > > Therefore, I still have my doubts if even renaming of the FreeFOAM > project is required. My suggestion to rename FreeFOAM is mainly driven by the goal of minimizing the risk of your project name being deemed confusingly similar to "OpenFOAM". > I will ask an attorney at our university for this. Good idea: I hope he/she can help you in the difficult task of finding a safe way through trademark laws!;-) > In addition, the trademark 'Freefoam' has already been used by a > construction company and I found two registered US trademarks > (extrusion / machinery and a travel luggage and bags company). Whether > these companies will be annoyed by our software project remains to be > seen. As far as I know (but, I repeat, I am not a lawyer), trademark infringement occurs when an identical or confusingly similar trademark is used by an unauthorized party *for products which are similar to the one covered by the infringed trademark*. This may mean that the use of "Freefoam" in other markets than extrusion machinery or travel luggage cannot be objected to by those two companies... > At least, this might obstruct OpnCFD to go after FreeFOAM. I am not sure... > > Thanks a lot for your contributions in searching a new name for the > FreeFOAM project. We will definitely take them into account. You're welcome, indeed. Have a nice day. -- http://www.inventati.org/frx/progs/scripts/pdebuild-hooks.html Need some pdebuild hook scripts? . Francesco Poli . GnuPG key fpr == C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpTx9m1cPOmj.pgp Description: PGP signature
Re: trademark infringement FreeFOAM
I have to correct something: Holger Marschall, the author of the "OpenFOAM Documentation Project", explained me he only received some emails where OpenCFD threatened him to write a letter of legally valid cease and desist letter. He actually did not receive it as he put down the website. Also, after he named it to "FOAM Documentation Project", which was put down after OpenCFD complained. As stated in the OpnCFD trademark policies, the naming OpenFOAM and abbreviations are explicitly forbidden. http://www.openfoam.com/legal/trademark-policy.php That said I wonder if FreeFOAM is considered as trademark infringement, even by OpenCFD, as a derived naming is not explicitly mentioned to be forbidden. Therefore, I still have my doubts if even renaming of the FreeFOAM project is required. I will ask an attorney at our university for this. In addition, the trademark 'Freefoam' has already been used by a construction company and I found two registered US trademarks (extrusion / machinery and a travel luggage and bags company). Whether these companies will be annoyed by our software project remains to be seen. At least, this might obstruct OpnCFD to go after FreeFOAM. Thanks a lot for your contributions in searching a new name for the FreeFOAM project. We will definitely take them into account. Gerber the On Fri, 2010-11-19 at 22:57 +0100, Francesco Poli wrote: > On Thu, 18 Nov 2010 16:31:28 +0100 Gerber van der Graaf wrote: > > > Hi, > > Hi! > > > I have a question concerning trademark name infringement for a GPL > > software I and a colleagues are working on. The company OpenCFD > > (http://www.cfd-online.com/) > > I think you meant http://www.openfoam.com/ here... > > > issued software for Computational Fluids > > Dynamics (CFD) called 'OpenFOAM' under the GPL license > > (http://www.openfoam.com/). The abbreviation FOAM is an invent of the > > company and means "Field Operation And Manipulation". > > For other readers' information, there's an RFP bug about OpenFOAM: > http://bugs.debian.org/514327 > > > > > We have modernized the entire configuration / compilation system of > > this software using CMake. In order to publish our improvements we > > have issued the software package under the name 'FreeFOAM', referring > > to the company, the original software and keeping all author rights in > > the existing files (http://freefoam.sourceforge.net/). > > Again, for other readers' information, the ITP bug about FreeFOAM that > you filed is http://bugs.debian.org/528662 > > > We issued a new > > project because it already was widely known that OpenCFD refuses to > > include improvements, extensions etc of the code in their original > > releases unless the author will abandon all rights of his work. IMHO > > not needed nor allowed for GPL software. > > I think that accepting contributions only when the contributor transfers > his/her copyright is indeed allowed for GPL software: actually it's > what the FSF does... :-( I didn't know that and that's quite strong. Do they also erase the names of contributing authors, as OpenCFD is requiring? > > But I agree that this practice is not really needed for GPL software. > > Even worse: I think that it's a very annoying practice, since it > requires additional paperwork, creates a fundamental asymmetry in the > relationship between the original author and the contributor, and gives > too much power in the hands of one sole copyright holder, who may > later decide to change license at whim. > > So in summary, I am not happy to learn that OpenCFD follows this policy. > > > Thanks to this work, I > > have been able to debianize the software relatively quite easily and > > hope to get it into GNU/Debian soon once a formal FreeFOAM > > release has been issued and I have found a sponsor. > > Your efforts are greatly appreciated: thanks for working on this > project and on its packaging for Debian! > > > > > Recently another user started the "OpenFOAM Documentation Project" > > (ODP) and promptly received a letter of thread to bring the project to > > court because of trademark infringement. Because of this and because the > > author of ODP had been threaded to be exiled from the user community > > forums, the ODP project was forced to go down. > > This is more sad news: I think that overly aggressive trademark > enforcement is counterproductive in a Free Software context... > > > As we feel that FreeFOAM > > is now in a similar situation we also fear to receive a similar letter > > of legal thread of trademark infringement. > > > > > > My question is how to handle in such a situation? > > I recommend that you get in touch with a lawyer (one that is well > versed in trademark laws in an international context, and, possibly, > in copyright laws, as well) and seek legal advice. > > I am not a lawyer and I cannot give you any legal advice. > What I can do is tell you what *I* would do in such a situation. > > > So far, > > We have different options: > [.
Re: trademark infringement FreeFOAM
On Thu, 18 Nov 2010 16:31:28 +0100 Gerber van der Graaf wrote: > Hi, Hi! > I have a question concerning trademark name infringement for a GPL > software I and a colleagues are working on. The company OpenCFD > (http://www.cfd-online.com/) I think you meant http://www.openfoam.com/ here... > issued software for Computational Fluids > Dynamics (CFD) called 'OpenFOAM' under the GPL license > (http://www.openfoam.com/). The abbreviation FOAM is an invent of the > company and means "Field Operation And Manipulation". For other readers' information, there's an RFP bug about OpenFOAM: http://bugs.debian.org/514327 > > We have modernized the entire configuration / compilation system of > this software using CMake. In order to publish our improvements we > have issued the software package under the name 'FreeFOAM', referring > to the company, the original software and keeping all author rights in > the existing files (http://freefoam.sourceforge.net/). Again, for other readers' information, the ITP bug about FreeFOAM that you filed is http://bugs.debian.org/528662 > We issued a new > project because it already was widely known that OpenCFD refuses to > include improvements, extensions etc of the code in their original > releases unless the author will abandon all rights of his work. IMHO > not needed nor allowed for GPL software. I think that accepting contributions only when the contributor transfers his/her copyright is indeed allowed for GPL software: actually it's what the FSF does... :-( But I agree that this practice is not really needed for GPL software. Even worse: I think that it's a very annoying practice, since it requires additional paperwork, creates a fundamental asymmetry in the relationship between the original author and the contributor, and gives too much power in the hands of one sole copyright holder, who may later decide to change license at whim. So in summary, I am not happy to learn that OpenCFD follows this policy. > Thanks to this work, I > have been able to debianize the software relatively quite easily and > hope to get it into GNU/Debian soon once a formal FreeFOAM > release has been issued and I have found a sponsor. Your efforts are greatly appreciated: thanks for working on this project and on its packaging for Debian! > > Recently another user started the "OpenFOAM Documentation Project" > (ODP) and promptly received a letter of thread to bring the project to > court because of trademark infringement. Because of this and because the > author of ODP had been threaded to be exiled from the user community > forums, the ODP project was forced to go down. This is more sad news: I think that overly aggressive trademark enforcement is counterproductive in a Free Software context... > As we feel that FreeFOAM > is now in a similar situation we also fear to receive a similar letter > of legal thread of trademark infringement. > > > My question is how to handle in such a situation? I recommend that you get in touch with a lawyer (one that is well versed in trademark laws in an international context, and, possibly, in copyright laws, as well) and seek legal advice. I am not a lawyer and I cannot give you any legal advice. What I can do is tell you what *I* would do in such a situation. > So far, > We have different options: [...] > 2) Change the name of the project. Would this be sufficient to avoid > trademark name infringement? I would personally try hard to minimize the risk of being sued. I think a name change would benefit the project. See the Mozilla-Debian issue, where overly aggressive trademark enforcement on the Mozilla side led to the re-branding of Firefox as Iceweasel and of Thunderbird as Icedove within the Debian distribution. I've been thinking about possible new names that I could suggest. Two options came to my mind: * FreePhi pronunciation: /friː faɪ/ or /friː fiː/ logo: FreeΦ explanation:you already have a Greek letter Φ in your current logo, and that letter may represent a general (scalar, vector, or tensor) field, which is the main type of variables involved in partial differential equations * FROTHY pronunciation: /frɒθɪ/ logo: ΦΡΩΘΙ or ΦROTHY explanation:"froth" is a synonym of "foam", and we could even manage to interpret "FROTHY" as some sort of acronym (FRee sOlver Toolkit based on matHematical sYmbols? or something similar...) > > 3) Or is it required to change the name of the project and all its > libraries, binaries, file names etc. that include the word 'FOAM'? This > would bring a lot of work and maintenance, among synchronization with > the OpenFOAM project. Probably the history of the git repo will be > (partly) lost. I don't think that functional names have to be changed, but, I repeat, I am not a lawyer... [...] > Any recommendations or suggestions are welcome. I hope my contribution to the discussion may help. Bye. -- http://www.inventati.org/frx/progs/scripts/pdebuild-hook
Re: trademark infringement FreeFOAM
Thanks very much for your replies. Gerber On Thu, 2010-11-18 at 08:59 -0800, r...@packetlaw.com wrote: > On Nov 18, 2010, at 7:31 AM, Gerber van der Graaf wrote: > > I have a question concerning trademark name infringement for a GPL > > software I and a colleagues are working on. The company OpenCFD > > (http://www.cfd-online.com/) issued software for Computational Fluids > > Dynamics (CFD) called 'OpenFOAM' under the GPL license > > (http://www.openfoam.com/). The abbreviation FOAM is an invent of the > > company and means "Field Operation And Manipulation". > > FYI, OpenCFD Limited appears to have only the single U.S. registered > trademark "OpenFOAM" (registration no. 3,462,576). This does not rule out > common law trademarks. > > > > We have modernized the entire configuration / compilation system of > > this software using CMake. In order to publish our improvements we > > have issued the software package under the name 'FreeFOAM', referring > > to the company, the original software and keeping all author rights in > > the existing files (http://freefoam.sourceforge.net/). > > In that context, you may have valid defenses to likelihood of confusion > arguments... > > > > Recently another user started the "OpenFOAM Documentation Project" > > (ODP) and promptly received a letter of thread to bring the project to > > court because of trademark infringement. > > Do you happen to have a copy of this letter, or the language they used? No, I do not have it by myself. But as we are joining our eforts, it might be a good idea to ask for it at the author of ODP. > > BTW, I think you mean "threat," not "thread." Sure, apologizes. English is not my native language. > > > > 1) Wait until we will receive such a thread. The advance is we can > > keep the FreeFOAM name that associates the project with the original > > OpenFOAM project and will not break-up its large user community. The > > drawback is uncertainty and fear. > > > 2) Change the name of the project. Would this be sufficient to avoid > > trademark name infringement? > > Not necessarily. OpenCFD could always, if they were so inclined, pursue the > matter based on previous infringement. How likely they are to do so is a > question I don't think anyone here can answer, but litigation is annoying and > expensive. Most companies prefer to make things go away with a > cease-and-desist letter. > > > > 3) Or is it required to change the name of the project and all its > > libraries, binaries, file names etc. that include the word 'FOAM'? This > > would bring a lot of work and maintenance, among synchronization with > > the OpenFOAM project. Probably the history of the git repo will be > > (partly) lost. > > Under-the-hood stuff (libraries etc) that the end user never sees, likely > don't need to be changed. Programmers are unlikely to be confused as to the > origin of the GPL software, especially if they're the ones downloading them > from SourceForge. It's not a "zero" risk, however. > > > > 4) Another option is to write the company asking for a letter of > > declaration it will not pose a thread against the FreeFOAM project > > because of trademark name infringement. Is this done before and, if > > so, what are the experiences? Will such a letter hold in court once > > the company will decide to pose a legal thread? > > A letter stating an intent not to sue might be useful in some contexts > (inducement, possibly laches, etc), but isn't all that binding. It's better > than nothing. But if you can get one, I'd recommend an affirmative grant of > rights to use the FreeFOAM mark (and they'll almost certainly want it to be > crystal clear that OpenCFD is not affiliated, the source provider, etc., of > the FreeFOAM project). > > > > Some other questions remain: > > Will the domain name for a software project give legal rights as primary > > owner of a (trademark) name? Or, to put it in other words: is legal > > trademark registration of GPL software required? If so, how to do this? > > What are the costs? > > I'm not sure what you're asking here. Domain names and trademarks have > interfaces between them ... Registering a domain name and using it can be > evidence of use in commerce for a secondary meaning showing, trademark > ownership gives you certain presumptions in, e.g., UDRP proceedings and > 1125(d) rights, etc. But registering a domain name by itself does not convey > any affirmative legal rights. > > Also, registration of a trademark is preferred (a registered trademark is > presumed to be valid, etc), but not required. You can assert common-law > trademark rights without registration, in the U.S. at least. It'll be more of > a slog, but it's doable. > > > Any recommendations or suggestions are welcome. > > Talk to a trademark attorney. Get real legal advice. (I am an attorney, I do > do trademark work, but this is not legal advice and does not create an > attorney-client relationship.) I will do that. Than
trademark infringement FreeFOAM
Hi, I have a question concerning trademark name infringement for a GPL software I and a colleagues are working on. The company OpenCFD (http://www.cfd-online.com/) issued software for Computational Fluids Dynamics (CFD) called 'OpenFOAM' under the GPL license (http://www.openfoam.com/). The abbreviation FOAM is an invent of the company and means "Field Operation And Manipulation". We have modernized the entire configuration / compilation system of this software using CMake. In order to publish our improvements we have issued the software package under the name 'FreeFOAM', referring to the company, the original software and keeping all author rights in the existing files (http://freefoam.sourceforge.net/). We issued a new project because it already was widely known that OpenCFD refuses to include improvements, extensions etc of the code in their original releases unless the author will abandon all rights of his work. IMHO not needed nor allowed for GPL software. Thanks to this work, I have been able to debianize the software relatively quite easily and hope to get it into GNU/Debian soon once a formal FreeFOAM release has been issued and I have found a sponsor. Recently another user started the "OpenFOAM Documentation Project" (ODP) and promptly received a letter of thread to bring the project to court because of trademark infringement. Because of this and because the author of ODP had been threaded to be exiled from the user community forums, the ODP project was forced to go down. As we feel that FreeFOAM is now in a similar situation we also fear to receive a similar letter of legal thread of trademark infringement. My question is how to handle in such a situation? So far, We have different options: 1) Wait until we will receive such a thread. The advance is we can keep the FreeFOAM name that associates the project with the original OpenFOAM project and will not break-up its large user community. The drawback is uncertainty and fear. 2) Change the name of the project. Would this be sufficient to avoid trademark name infringement? 3) Or is it required to change the name of the project and all its libraries, binaries, file names etc. that include the word 'FOAM'? This would bring a lot of work and maintenance, among synchronization with the OpenFOAM project. Probably the history of the git repo will be (partly) lost. 4) Another option is to write the company asking for a letter of declaration it will not pose a thread against the FreeFOAM project because of trademark name infringement. Is this done before and, if so, what are the experiences? Will such a letter hold in court once the company will decide to pose a legal thread? Some other questions remain: Will the domain name for a software project give legal rights as primary owner of a (trademark) name? Or, to put it in other words: is legal trademark registration of GPL software required? If so, how to do this? What are the costs? Any recommendations or suggestions are welcome. Gerber van der Graaf -- To UNSUBSCRIBE, email to debian-legal-requ...@lists.debian.org with a subject of "unsubscribe". Trouble? Contact listmas...@lists.debian.org Archive: http://lists.debian.org/1290094288.6053.20.ca...@hamburg.upc.es
