The Trademark Reporter®
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Global Trademark Resources

July-August, 2012 Vol. 102 No. 4 Back to TMR Main Page
The Uneasy Role of Trademarks in Free and Open Source Software: You Can Share My Code, But You Can't Share My Brand
Legal Context: In broad terms, free and open source software (FOSS) is software where the copyright in the code is licensed in a way that allows fairly unfettered use, reproduction and modification. There is, though, some tension – at least a perceived tension – between trademark law, which can be and is used to limit the distribution of software, and the freedom that is the heart of FOSS principles. This article briefly explores the relevant legal doctrines that guide use of trademarks for free and open source software.

Key Points: While FOSS licenses allow the copyright in the code to be freely shared, the same is not true of the trademark. The owner of a trademark for free and open source software has discretion, within limits, to decide the parameters of others' use of its trademark.

Practical Significance: The article will give the reader a better understanding of the free and open source software culture and the challenges a practitioner might face in counseling the FOSS trademark owner on trademark enforcement in the industry.
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