Trademark Law and Free/Open Source Systems

Abstract

Free and Open source software have changed large parts of the software industry landscape in a few years period. Due to their peculiar nature, FOSS communities have created a new development model, whose core is represented by their aim of fostering a feeling of commitment and participation among members. Since individuals participate to these projects, they give their contribute to the community and begin to feel a sense of ownership about the project, including about their perceived right to use the communities’ trademarks. Therefore, a problem of FOSS projects lies in their controversial suitability to trademark law. As a matter of facts, in these projects, anyone can modify, release and distribute the source code, thus resulting in expectation of freely use of communities’ brand for developers. Therefore, the question here is how long unfettered use of a given software by its developers can be considered consistent with this scope? Thus, after an introductive definition of FOSS communities, their internal organization and nature, and after having briefly examined their history and evolution, this work is going to analyze in depth the issue of the interaction and suitability of FOSS systems with traditional trademark law, focusing on the issue of the ownership and the possibility of having joint ownership of trademarks. In furtherance, this paper will consider the conflict between the legal requirement for quality control, in order to accomplish trademark’s law criteria and the typical restrictions set-up by communities, for the use and the configurability of certification of their marks. Moreover, it will analyze the risk of genericide, dilution and naked licensing, which represent the main issues a trademark’s owner might face, also in FOSS projects. Lastly, this paper will also discuss the new forms developed by FOSS projects of creating voluntary and mutually agreed protocols for developing code released under their marks, and the main differences existing between FOSS’ trademarks licensing policy models and traditional trademark licensing principles applied to commercial companies’ marks.