Commentary:Use for Software

Commentary on Use for software

These guidelines have taken the view that any modification to the software from that found in the official repository requires a trademark license. Some open source software providers have had their product combined with malicious software, which negatively affects the reputation of the open source project. For this reason, any software that has been modified is considered non-authentic, perhaps counterfeit, software if distributed using the trademark.

Uses for which we are granting a license

U.S. law: A license is a defense to an infringement claim, i.e., but for the license the accused use would be a trademark infringement.

U.S. law: Limitations on when trademark may be used should be expressed as condition of license, not covenant, so that a failure to meet the limitation is a basis for a trademark infringement claim.

U.S.: Under current U.S. jurisprudence, it is unlikely that any use of a logo would be considered a nominative/referential fair use. Therefore, permission to use the logo may be found under the licensing provisions, not as a non-infringing use

Uses we consider non-infringing

U.S. Under U.S. law, resale of genuine goods is not an infringement as long as the goods are not “materially different” from the original.

Because the goods discussed in this section, software, are identical to the trademark owner's goods and the trademark is identical, any use outside the scope of the resale (or redistribution) of authentic (unmodified) goods would be an infringement. Distribution of modified software requires a license.