Naming free software and avoiding trademark collision I have stumbled over a problem how I can safely name my software. I would like to have a name with a cultural reference, that is character names from older literature or folk tales. Now, there is the _____wood, which steals all names and trademark them as their own invention. So then, it may happen that Gretel becomes an illegal name like the English version Schneewittchen. However, I then see that Voldemort, owned by the Harry Potter franchise, is used by LinkedIn on opensource software, which seems strange in this context. My questions: Can I safely use this kind of names on my software? Does it matter where the software is used? I wish to put the software on GitHub. Does the home country of the developer matter? I am not from the US. Does the application purpose matter? Data storage is far from entertainment. However, what I am doing is some kind of game engine (not a game) that I use to learn about collision detection.
Speaking from a U.S. perspective (which may or may not generalize elsewhere), trademarks can be used by different companies when they operate in different industries. An answer on Avvo by Kurt Van Thomme captures the important question when using an existing trade name in a new industry: The question in these kinds of circumstances is often whether the goods or services offered by the two companies are sufficiently related such that a consumer would be likely to think a company providing the first product or service would be reasonably likely to provide the second product or service also. Kurt's answer includes an example where the name "Pioneer" is used by a seed company and an electronics company. The two products are unlikely to be provided by the same company, so there is low risk of consumer confusion. In my layman opinion, it seems unlikely that J.K Rowling or Warner Brothers would use the trade name Voldemort to market a software development tool (as it seems unlikely they'd market a software development tool at all, unlike a complete video game, which would be a more likely product), so you could legally use the name insofar as it is not likely to cause customer confusion. Note that you still might attract negative legal attention if the trademark holder is particularly litigious, so when I say "you could legally use the name" I mean that you could probably win a lawsuit (at whatever legal fee costs) if one were filed against you. However, some marks are regarded as "famous" or "well-known" in some jurisdictions. In that case, the mark is afforded much broader protection, and your ability to use it in a different industry is greatly diminished: Famous marks are those that enjoy a high degree of consumer recognition in a particular jurisdiction or in a specific field of commerce or industry. However, few trademarks enjoy the status of “fame.” Examples of marks held to be famous in certain jurisdictions are COCA-COLA, KODAK, WIMBLEDON and VIAGRA. For example, you could not start a business selling automobiles under the brand name "Coca-Cola" even though it is tremendously unlikely that the Coca-Cola Company would branch out into selling cars. The mark's status as "famous" would still allow the Cola-Cola Company to succeed in stopping you from using that mark in commerce, even in a vastly different industry. If the trademark holder of the name Voldemort succeeded in persuading a court that the mark met the jurisdiction's standard for a famous mark, then you could not use the name even for your software development tool. Note also that because trademark is intended to reduce confusion over the source of a good or service, trademark holders can lose their trademark by failing to defend it from confusing uses. Therefore, some trademark holders aggressively pursue even borderline cases to ensure they don't endanger their trademark.
There would be both copyright and trademark issues here. See U.S. Trademark Law - USPTO for law adn rules of practice related to US trademarks. See 17 USC for US copyright law. Trademark &quot;Monopoly&quot; is, I understand, protected as a trademark for a board game. It is currently owned by Hasbro. Any name which would be likely to confuse reasonable people into falsely thinking that the new game was authored or approved by the makers of the game Monopoly, or came from those makers would be trademark infringement (unless done by permission). However, a name can allude to another name as long as no market confusion nor any dilution results. Under 15 U.S.C. § 1066 a mark which is &quot;likely when used on or in connection with the goods or services of the applicant to cause confusion or mistake or to deceive.&quot; may be grounds for an interference which can prevent registration of the newer mark. 15 U.S.C. § 1125 provides that: (a) (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (a) (1) (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (a) (1) (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. ... (c) Dilution by Blurring; Dilution by Tarnishment.-- (c) (1) Injunctive relief.--Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. (c) (2) Definitions.--(A) For purposes of paragraph (1), a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following: (c) (2) (A) (1) (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (c) (2) (A) (1) (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (c) (2) (A) (1) (iii) The extent of actual recognition of the mark. (c) (2) (A) (1) (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. (c) (2) (B) For purposes of paragraph (1), `dilution by blurring' is association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following: (c) (2) (B) (i) The degree of similarity between the mark or trade name and the famous mark. (c) (2) (B) (ii) The degree of inherent or acquired distinctiveness of the famous mark. (c) (2) (B) (iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark. (c) (2) (B) (iv) The degree of recognition of the famous mark. (c) (2) (B) (v) Whether the user of the mark or trade name intended to create an association with the famous mark. (c) (2) (B) (vi) Any actual association between the mark or trade name and the famous mark. The word &quot;Monopoly&quot; as applied to games surely counts as a &quot;famous martk&quot; an so one must avoid confusion as well as &quot;Dilution by Blurring&quot;. A game called &quot;New Monopoly&quot; is obviously intended to refer or allude to the existing game. Moreover it seems &quot;intended to create an association with the famous mark&quot; Such a mark might well constitute Dilution by Blurring. It might be wise to choose a name that is not as similar to the trademarked game, and is not as clearly and directly associated with the existing game. It might be wise to consult an experienced trademark lawyer as to whether any such name was close enough to an existing mark, particularly a famous one, to run a risk of a dilution or an infringement action. One should note that a clear disclaimer, stating that a game is not affiliate with an existing game (or other product), and is not a product of that game's owners, nor approved or sponsored by those owners, can help avoid an infringement or dilution action. Previous Suit According to the Wikipedia article, &quot;Monopoly (game)&quot; (citations omitted): Economics professor Ralph Anspach published Anti-Monopoly in 1973, and was sued for trademark infringement by Parker Brothers in 1974. The case went to trial in 1976. Anspach won on appeals in 1979, as the 9th Circuit Court determined that the trademark Monopoly was generic and therefore unenforceable. The United States Supreme Court declined to hear the case, allowing the appellate court ruling to stand. This decision was overturned by the passage of Public Law 98-620 in 1984. With that law in place, Parker Brothers and its parent company, Hasbro, continue to hold valid trademarks for the game Monopoly. However, Anti-Monopoly was exempted from the law and Anspach later reached a settlement with Hasbro and markets his game under license from them Copyright The concepts and procedures of a game, the so-called &quot;game mechanics&quot; cannot be protected by copyright. Specifically 17 USC 102(b) provides that: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. So having a game in which tokens representing players move around a board, buying and selling properties, paying and collecting rents, and so on, is not protected by copyright. The artwork of any of the various editions of Monopoly would be protected by copyright, and may not be copied or imitated without permission. The layout of the board might be protected, depending on how original it is judged to be. However, the original version on Monopoly called The landlord's Game dates from 1903, and any copyright in it has expired. Only new, original elements first published in 1925 or later would still be protected by copyright. Most of the layout elements are probably now in the public domain. Visual elements of modern editions may well still be under copyright. Conclusion Creation a new game that has some resemblance to Monopoly can probably be done without infringing any IP rights, but care would need to be taken to make it visually distinctive from any protected edition of the game. A name thatr was not similar enough to the existign name to involved &quot;blurring&quot; the existing trademark would need to be chosen. I am doubtful if &quot;New Monopoly&quot; is sufficiently distinctive.
The creator of the software doesn't provide any warranty. If you feel confident in the quality of the software, nothing stops you from providing a warranty. If the software doesn't meet your guarantees, you will have to pay out because you provided the warranty, depending on the terms. Not the creator of the software because they explicitly didn't provide any warranty. If that's what you want to do, go ahead. I wouldn't. You don't have to republish under the BSD license, which you wouldn't. You must attach the license terms, which clarifies the role of the original creators, and that they don't give a warranty. Doing this allows you to copy the software. It doesn't mean you can't provide a warranty.
Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben &amp; Jerry’s”?
My gut response without really analyzing it (which is honestly what a lot of these cases boil down to in the end) is that the proposed name would imply an affiliation with the company that does not exist. A case challenging that name could be expensive and come out either way. Instead, "The [Wife's Name] Toy Museum" with descriptive material in brochures and on a website saying that the exhibits were manufactured by "Toy Company", which is a nominative use that does not imply an affiliation with the Company would be a wiser move.
united-states You are protected by copyright as a matter of law, even if you don't post a copyright notice, although you have slightly more procedural rights if you do post a copyright notice and there would need to be a filing with the copyright registrar (a division of the Library of Congress) before you brought suit. You can't really get any other intellectual property protections for it except possibly a trademark if you have a distinctive mark or name or logo for the app.
While not categorically illegal, there is a risk that using a trademark in an email name is something that is being done with a purpose to defraud people into thinking that you are affiliated with that company (and indeed, such emails are frequently used for that purpose as are misleading domain names). So, while it isn't outright forbidden, it is generally unwise.
Depending on your jurisdiction, such lists may be protected, but not by copyright. For example, in Germany there was a court decision that scanning all the country’s phone books and selling them on CD constituted “unfair competition” and was illegal, while hiring 1000 typists who would manually type in all this information would not be. Databases are protected in many jurisdictions, and a list of the 1000 most commonly used English words could reasonably be called a database.