Subject: Re: GPL and trademarks and brandnames...
From: Russell Nelson <>
Date: 7 Nov 1998 04:26:51 -0000

William C. Cheng writes:
 > I see.  It's a little bit tricky now because my company is in the process
 > of acquiring the trademark.  May be we should wait until we get it
 > before we make a GPL'ed release.  Thanks!

In the U.S., you acquire trademark rights by engaging in commerce
using the mark.  The PTO is just a registry, and defers all
conflicting claims to the courts.  You can pre-register a mark with
the intent to use it, but you have no right to defend that mark until
you've actually used it.  And even then someone else can come along
and claim prior rights.  A registered trademark (R) is only slightly
better than a common-law trademark (tm).  All it means is that the
mark is presumed to be unique and valid.  Someone could still come
along and prove a prior claim.

Basically, if you claim a trademark and you're engaging in trade, you
have a trademark.  Not clear to me (translation: consult a highly-paid
trademark lawyer) how this interacts with gratis software, where there
is usually no consideration paid.  You'd have to consult the case law
to see if gratis software qualifies for trademark protection.  I know
of none.  That doesn't mean it doesn't exist, merely that I've never
heard of anyone defending a trademark on gratis software.

-russ nelson <>
Crynwr supports Open Source(tm) Software| PGPok |   There is good evidence
521 Pleasant Valley Rd. | +1 315 268 1925 voice |   that freedom is the
Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   |   cause of world peace.