Trademarks and FOSS: Entirely the Same and Entirely Different

The same body of trademark law applies to shoes and software, circus performing and consulting services. Even so, industries develop norms driven by their particular field of use; for example, in most industries using someone else's trademark at all is met with great suspicion, but in the software industry using other people's trademarks is commonplace because we need them to describe compatibility.

Trademarks for FOSS have yet another layer, which is that the trademarks are for a product that, unlike any other product in any other industry, is mutable by design. They are also used in a cultural environment that expects sharing and are often developed by a loose band of individuals rather than a formal entity. It gets complicated.

This session will discuss trademarks in FOSS both upstream and downstream. With respect to upstream, what are the limits, under the license or the law, if one is using another's trademark for modified or unmodified code? With respect to downstream, what can a company do to ensure that its trademark remains a meaningful representation of its brand when others will be modifying the software?

Reading Materials

• Who Owns The Project Name? - Pamela Chestek
• The Uneasy Role of Trademarks in Free and Open Source Software: You Can Share My Code, but You Can't Share My Brand - Pamela Chestek (access provided courtesy of the Oxford Journals)

To participate in this program, please select the Open Source Legal Training option during registration.