Trademarks and open source

The issue of trademark usage in open source software is noteworthy, particularly for idealistic projects like Debian.

Trademarks are primarily to protect consumers against passing off, so they don't buy Aspirin branded sugar pills or a Toyota branded Dacia. The conflict of trademarks does not seem, on its face, to be as contrary to innovation or freedom as the forthcoming patent issues. Nevertheless, it will be an issue.

As a matter of freedom, two issues are at hand:

1. Authors prohibiting "open source" software distribution by enforcing trademarks, and
   
2. Modifications to that free software make it different from what the author has trademarked.

The second problem came up with Jörg Schilling, where his cdrecord project was modified and distributed by Suse, but still called cdrecord. When users of Suse had problems with cdrecord, related to Suse's changes, they nevertheless went to Mr. Schilling for advice. As a matter of trademark, it should have been within his power to make Suse change the name of the software, as consumers were obviously confusing Suse's brand with his own work.

With respect to the first issue, an open source license shows an intention to not restrict distribution or modification. Prohibiting distribution by enforcing trademarks would be contrary to the intention laid out in this license, notwithstanding modification per the cdrecord example. As a matter of action, a trademark claim could possibly be estopped based on reliance upon the free software license.

As a matter of general goodwill, I suspect it unlikely that trademarks will substantially detriment the community. By virtue of open source software's freedom, the software can simply be renamed and redistributed.