Re: [Audacity-devel] Finding a lawyer
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From: Nick L. <nj...@ec...> - 2003-11-21 12:42:56
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On Wed, Nov 19, 2003 at 08:59:56PM -0500, Dave Fancella wrote: > If you register a trademark, how will that affect people like Luxuriousity? > Specifically, by registering a trademark, does that require that he cannot > change the name of the software any longer? If his trademark existed before > yours, but you own the copyright on the software (easily demonstrated), can > your trademark invalidate his? IANAL The nature of Free Software is that we can't and don't want to prevent people from using some or all of the code and calling it something else. This might not agree with your sense of "fair play" but it's a necessary protection for everyone involved in development & use of the software. If a legal entity, let us call it "Free Audio Software Inc." owned a trademark on the name "Audacity" to refer to cross platform software for recording, editing and playing back audio then that entity would be entitled to control the use of the name "Audacity" to sell that software, prevent people from selling something similar called "Audacity" and so on. It couldn't prevent anyone from making a copy of Audacity, changing the strings to say "Elaine's Magical Music Recorder" and selling it as "Elaine's Magical Music Recorder", because the GPL permits such a change and trademark law isn't interested once you significantly change the name. It also couldn't prevent anyone from doing things which have no commercial character, such as giving out free CDs at school, or making tarballs available from a non-advertising web site. Trademark law is concerned solely with the use of identifying marks in trade, which brings me on to my main concern... I don't see an Audacity trademark stretching back to 1999. The USPTO will not be very interested in a sourceforge project, or a web page, or a nice screenshot. They want to see a _product_ especially for a naturally occuring (not $$$ registered) mark. If you don't buy and sell things then you have no use for, and no right to a trademark. [See the Linux trademark, the guy who tried to own "Linux" had no product so he lost his case. If he'd actually been selling something we might now be using "LignusOS" or something. ] So, outside of eBay sellers that don't actually work on the product, who actually has been buying or selling Audacity and therefore has some kind of claim to a trademark? And when did this buying / selling happen? That's what a lawyer will be interested in IMO. > Obviously it won't prevent him or anyone else from *distributing* audacity, > but does it give you the say into who can make money from it? Or is that > still covered by the GPL (which isn't supposed to address commercial > distribution, just distribution in general)? We have no power to prevent people from making money. It's not obvious what the use of such a power would be. Just to annoy people? We can prevent people from using "our" name without permission, but doing so may be expensive and time consuming. Nick. |