Subject: Re: Use of "open source"
From: Brendan Scott <lists@opensourcelaw.biz>
Date: Thu, 04 Jan 2007 09:11:51 +1100

Matthew Flaschen wrote:
> DShofi@atmi.com wrote:
>> While I agree that license proliferation makes it harder to consolidate 
>> code bases and determine license compatibility and while I understand the 
>> usefulness of the OSI certification mark program, it seems that the OSI is 
>> in no position to restrict anyone's labelling and use of a license as 
>> "open source" that satisfies all of the definitional characteristics even 
>> if it is not OSI approved.
> 
> No, it's not in such a position.  As I've said before on this list,
> "open source" is not trademarked.  Thus, anyone *can* use it to describe
> anything.  However, that doesn't mean it's *right* to do so.  I think
> OSI, and most everyone in the open source community, would prefer the
> term "open source" only be used with OSI-approved licenses.  Determining
> what meets OSD is after all very subjective, and it is OSI's primary
> purpose.

If you are selling oranges by mail order but you are advertising them as lemons (neither
of which is a registered trademark btw) the buyer will have a right of action against
you.  The question is whether "open source" has a meaning, not whether it is trademarked.

In Australia third parties who suffer no loss would also have standing to sue you under
consumer protection laws. 


Brendan