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Comment by geofft | Hacker News Reader

In the US at least, you do not need to register a trademark to enforce it, just like you do not need to register a copyright, and one of the specific things trademark law lets you do is prevent people from misrepresenting the origin of a product bearing that name.

Neither the BSD or GPL license families grant a trademark license.

Therefore, Hyperbola should immediately cease distributing all software that doesn't have an explicit "You may use the name of this software for whatever you like" license and where the original authors might want to go into business with that software, on the grounds that such software is non-free, just the same as it would judge software with no copyright license as non-free. That Rust and Firefox have trademark policies does not make them less free than un-trademark-licensed names anymore than having a BSD license makes code less free than unlicensed code.

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"In the US at least, you do not need to register a trademark to enforce it... and one of the specific things trademark law lets you do is prevent people from misrepresenting the origin of a product bearing that name."

Unless you register, you cannot sue for damages and you are limited to state courts.

So how do you prevent people from using your mark?

You apply for an injunction. You would have to do this in every state where you want to enforce the mark. If you target multiple states, you would likely need multiple lawyers. How many of those free software authors will want to pay for this legal expense?

Until you succeed in getting your injunctions, and there is no guarantee you will succeed, there is no incentive for someone to stop using an unregistered mark. Whatever damage they cause cannot be recovered under a claim based on trademark law.

Sure, but free software projects typically do not work based on the principle of "What's the worst they can do in court" or "Are they really going to sue us," they work on the principle of "What are we actively and explicitly allowed to do." Otherwise they'd have no worries about incorporating clearly abandoned code, or incorporating code with an unclear license and not selling it knowing that they can always reply to a lawyer letter with "Oops, sorry." Otherwise Beerware and WTFPL and the JSON license would be free software licenses.

It's quite clear that Mozilla isn't interested in suing Hyperbola or any other free software distro for being a distro and doing distro things, and that in the worst case, they'd send a nice message first and Hyperbola could choose to discontinue distributing Firefox and Rust. Yet Hyperbola wants to take the "explicit permission" principle to an extreme and discontinue distributing them now, proactively. They should be consistent and cease distributing everything else.

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