Draft Version 0.0.1

Introduction

This document, the "Policy," outlines our policy for the use of our trademarks. While our software is available under a free and open source software license, a copyright license does not include an implied right or license to use a trademark. Trademarks provide assurance about the quality of the products or services with which the trademark is associated, but an open source license allows your unrestricted modification of the copyrighted software, we cannot be sure that your modifications to the software are ones that will not be misleading if distributed under the same name. Instead, this Policy describes the circumstances under which you may use our trademarks. In this Policy we are not trying to limit the lawful use of our trademarks, but rather describe for your what we consider the parameters of lawful use to be. Trademark law can be ambiguous, so we hope to provide enough clarity that you will understand whether we will consider your use of the trademarks either licensed or non-infringing.

The sections that follow describe what trademarks are covered by these Guidelines, as well as uses of the trademarks that are allowed without additional permission from us. If you want to use our trademarks in ways that are not described in this Policy, please contact us at [insert means of contact]. Any use that does not comply with this Policy or that does not have written authorization from us is not authorized.

Objective of the trademark policy

We want to encourage and facilitate the use of our trademarks by the community, but do so in a way that still ensure that the trademarks are meaningful as a source and quality indicator for our software and the associated goods and services; that the trademarks are not used in a way that creates confusion about the true origin of software or the related goods and services; and that the trademarks continue to embody the high reputation of the software and the community associated with it. This Policy therefore tries to strike the proper balance between: 1) our need to ensure that our trademarks remain reliable indicators of the qualities that they are meant to preserve and 2) our community members' desire to be full participants in the project, accurately describe their own relationship to the project and to the software, and discuss the project.

What trademark law is about

What is a trademark?

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. "Trade dress" or "get up" refers to the look and feel of the packaging, which in this context can include the layout, colors, images, and design choices in a web page. Throughout this Policy, the terms "trademark" and "mark" refer to both trademarks, service marks and trade dress.

What is "likelihood of confusion"?

There is trademark infringement if your use of a trademark has created a "likelihood of confusion." This means using a trademark in a way that will likely confuse or deceive the relevant consuming public about the source of a product or service using the mark in question. For example, if the "Foo" software extension removes all double spaces after periods, but someone else later creates "Foo" software that adds a third space after periods, consumers would be confused between the two and the newcomer will likely be a trademark infringer. As another example, if a company makes "Foobar' software and a third party offers training called "Foobar Certification," a person is likely to believe, wrongly, that the certification is being offered by the makers of Foobar software. The third party has likely misled consumers about the source of its training and is a trademark infringer.

What is "nominative" use?

So-called "nominative use" (or "nominative fair use"), which is the name of the doctrine under U.S. trademark law, allows the use of another's trademark where it is necessary for understanding. Other countries' trademark laws also have similar provisions For example, a car repair shop that specializes in a particular brand of automobile, VW for example, must be allowed to say that they repair VW cars. Here is what you should consider when deciding whether your use of a trademark is a nominative fair use:

• Whether you can identify the product or service in question without using the trademark;
• Whether you are avoiding a likelihood of confusion in the way that you have used the trademark; and
• Whether you have used only as much as is necessary to identify the product or service.

With our "Foobar Certification" example above, the person offering the certification would be allowed to say, under the nominative fair use doctrine, that she is offering "Maude's Certification for Foobar software."