Commentary:Use for Software
Contents
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. This includes binary code that is created by a third party from source, i.e., the third-party created binary will be considered modified code. 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 is considered non-authentic if the modification is beyond what is permitted in the guidelines.
Uses for which we are granting a license
U.S: A licensee's use of a trademark on goods or services over which the trademark owner does not exercise adequate control may be considered a “naked license” and a form of abandonment of the trademark. In the U.S., this militates that the trademark owner must be able to argue that it has adequately exercised control over the quality of the goods and services with which its mark is used.
Although a license granted to unknown users where the quality is controlled solely by describing the attributes that the goods must has never been tested in court, this should be considered adequate control. Therefore, if the adopter of these Guidelines wants to allow the use of the Marks for modified software, the Mark owner must identify a limited number of changes that will not significantly affect the quality of the goods, so that it can say with certainty that any goods using the Marks are of a known quality with known features.
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.
Official Branding Flag?
I wonder if it is good practice to encourage software projects to build their software with a compile-time flag which makes it easy to include or exclude their trademarks? This would then allow the trademark policy to say "we as a project guarantee that if you don't enable this flag, then our trademarked logos and names won't be used in the package in a way which requires permission. And if we accidentally do include a logo in the non-branded version, we won't give you grief about it." That enables people to opt into or out of trademark use easily.
Mozilla software has a "--enable-official-branding" flag (so official branding is disabled by default) although I'm not sure we provide the guarantee in that form.
If we do want to encourage this practice, what's the best way to do it? Include sample text in the policy, and encourage projects to alter their software to make the text true?
-- Gerv (talk) 10:20, 25 March 2013 (EDT)
Media restrictions?
Is this section intended to restrict distribute only to "optical media, memory stick or download"? That sounds like a paragraph ripe for unintended technological obsolescence :-) There's already rotating magnetic media that you've missed out, and I'm sure people will invent new media forms.
-- Gerv (talk) 10:33, 25 March 2013 (EDT)
Porn problem?
What if a community wants to restrict the logo from being used in pornographic or other themes, skins or personas? Do we provide an option for that? On a more general question, there doesn't seem to be a non-disparagement clause anywhere. Do we intend to have one?
