4 ms·

All that matters is a likelihood of confusion as to the origin or affiliation of your project. It doesn't matter if your tool competes with or is similar to the

All that matters is a likelihood of confusion as to the origin or affiliation of your project. It doesn't matter if your tool competes with or is similar to the other project. -- 15 USC § 1125 (Lanham Act): (a) Civil action (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) 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 ... 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. -- You can't call things whatever you want to call them. That's what trademarks protect against. You can't name your new stuffed animal Microsoft Furry even though Microsoft doesn't make stuffed animals, as it's likely to cause confusion that Microsoft created or sponsored them.

feross 15y ago
So, let me get this straight. It's legal for me to blog about Microsoft (to rant, complain, commentate, etc.). It's also legal for me to compare my competing product to a Microsoft product on a webpage (2x faster than X, etc.). It's even legal for me to write "microsoft" a million times in a row on an otherwise blank webpage. But you're saying that it's illegal to both post code on a personal webpage (with authorship clearly marked) AND to include the word "microsoft" somewhere on the page? Are there people stupid enough to actually mistake this code for Microsoft Windows?
- dangrossman 15y ago
  You could include the word "microsoft" somewhere in the page. But not somewhere that might mislead people to think Microsoft created, sponsored, approved of or is affiliated with whatever the code is. Like the project name, for example. By doing so, you benefit from a perceived association that doesn't exist; you're trading on their good name. You have the text of the law right there.
malandrew 15y ago
Does maintaining a github repo constitute "commerce"? It certainly doesn't meet the dictionary definition of commerce, "the activity of buying and selling, especially at a large scale".
- dangrossman 15y ago
  The legal definition of commerce has little relation to the dictionary definition. A Webster's dictionary is useless in a court room. The definition of commerce used in the Lanham Act is explicitly "all commerce which may be regulated by Congress", which is extraordinarily broad, as the commerce clause of the Constitution is the basis of probably 90% of laws Congress passes. There doesn't even have to be interstate commerce involved, merely a substantial effect on it -- which is why Congress can regulate policy that affects businesses that engage in interstate commerce, even if the thing they're regulating isn't itself interstate commerce. They also regulate businesses that do not engage in interstate commerce but whose operation has an effect on interstate commerce as a whole. Suffice it to say, there are lots of ways you can create a piece of software that is not directly sold across state lines but has an effect on commerce, and that subjects it to the Lanham act and all other federal commerce regulations.
  - malandrew 15y ago
    Legal definitions are an incredibly murky area because they so often diverge from consensus. Thanks for your explanation. Learned something new today. :)

feross 15y ago

So, let me get this straight. It's legal for me to blog about Microsoft (to rant, complain, commentate, etc.). It's also legal for me to compare my competing product to a Microsoft product on a webpage (2x faster than X, etc.). It's even legal for me to write "microsoft" a million times in a row on an otherwise blank webpage. But you're saying that it's illegal to both post code on a personal webpage (with authorship clearly marked) AND to include the word "microsoft" somewhere on the page? Are there people stupid enough to actually mistake this code for Microsoft Windows?

dangrossman 15y ago
You could include the word "microsoft" somewhere in the page. But not somewhere that might mislead people to think Microsoft created, sponsored, approved of or is affiliated with whatever the code is. Like the project name, for example. By doing so, you benefit from a perceived association that doesn't exist; you're trading on their good name. You have the text of the law right there.

malandrew 15y ago

Does maintaining a github repo constitute "commerce"? It certainly doesn't meet the dictionary definition of commerce, "the activity of buying and selling, especially at a large scale".

dangrossman 15y ago
The legal definition of commerce has little relation to the dictionary definition. A Webster's dictionary is useless in a court room. The definition of commerce used in the Lanham Act is explicitly "all commerce which may be regulated by Congress", which is extraordinarily broad, as the commerce clause of the Constitution is the basis of probably 90% of laws Congress passes. There doesn't even have to be interstate commerce involved, merely a substantial effect on it -- which is why Congress can regulate policy that affects businesses that engage in interstate commerce, even if the thing they're regulating isn't itself interstate commerce. They also regulate businesses that do not engage in interstate commerce but whose operation has an effect on interstate commerce as a whole. Suffice it to say, there are lots of ways you can create a piece of software that is not directly sold across state lines but has an effect on commerce, and that subjects it to the Lanham act and all other federal commerce regulations.
- malandrew 15y ago
  Legal definitions are an incredibly murky area because they so often diverge from consensus. Thanks for your explanation. Learned something new today. :)