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Comment by djbusby | Hacker News Reader

This is why it is important to trademark names in your FOSS projects

Very few non-corporate FOSS projects would have the funds to file a trademark, especially an international one considering one can be infringed from anywhere around the world. And time spent on filing would be time not advancing the actual project, unless a lawyer is hired, which makes it even more expensive.

Even fewer would have the resources to actually pursue legal action if the trademark is infringed upon.

This is probably not a realistic suggestion for all but a few hundred projects.

IANAL.

Trademarks don't need to be registered and many trademarks simply exist through active use.

However, your second paragraph is the key one. While trademarks don't need to be registered (and, in any case, trademark registrations are mostly on a country by country basis) it's pretty much on you to spend the money to defend your trademark if you want to do so. No one's going to do it for you.

It costs less than $2,500 to file trademarks in the US, EU and UK which is plenty of coverage. OBS has received hundreds of thousands in funding, from YouTube, Twitch and Facebook as well as smaller patrons.

Maybe $5,000 if you're talking about high-touch legal help or the trademarks are dicey.

$2,500 would be about the average monthly gross income of a person earning $15/hr. And in terms of expendable income, that's an order of magnitude away of what people can shell out.

It costs significantly more to defend your trademark. Registering your trademark is pointless if you can't also defend it.

Doesn't it at least protect you from someone else registering it and then suing you?

Not really. Registering, yes, but you can sue anybody at any time. You might lose but it doesn't prevent you from suing.

If you hold a trademark you are obligated to defend it. If you don't others can void it.

> but you can sue anybody at any time

This is enough of a problem that anti-SLAPP laws have been passed in several jurisdictions. Those laws only go so far, though (and you still need to mount a defence of some description)

OBS is the #10 most popular project on Open Collective[1] (plus other donations), so yeah, it is one of the top-earning FOSS projects that can afford it.

[1] https://opencollective.com/discover

When StreamLabs came out with SLOBS, OBS didn't even have an OpenCollective or Patreon. They were still getting off the ground.

Including $50,000 from the owners of Streamlabs, Logitech

For what it's worth, Logitech made that contribution well before they bought Streamlabs

Maybe they too were confused and thought they were cutting a cheque to a subsidary, not a different OS project? ;)

Interesting it was transferred in May 2019 and they bought Streamlabs in September 2019. I had not seen that.

Perhaps they were confused about the association between projects as well.

I would rather put the blame on Streamlabs for using the name without permission than on OBS for not having registered a trademark.

Yes, I mean even without Trademark this is fraud as they deceive the buyer of their product about what their product is.

OBS is probably well-known enough to have decent trademark rights just based on marketplace awareness [1]. You don't technically need a registered trademark if everyone recognizes your name (though it does help)

1: https://www.worldtrademarkreview.com/united-states-strong-ri...

For example, when someone would bundle OBS with a virus and create a fake website with OBS logo and everything, one could sue them for c̶o̶p̶y̶r̶i̶g̶h̶t̶ trademark infringement. They would still be allowed to do that with FOSS software, but would need to create their own reputation.

Edit: Not copyright -> trademark

I think you mean suing for trademark infringement (because FOSS has permissive copyright), or am I just confused?

FOSS doesn't really have permissive copyright though. You can't claim to be the author of a FOSS work that is not your own, even if it uses a permissive license. The license and the copyright are somewhat orthogonal.

Yes thanks, I fixed it :)

It’s not that easy, it only takes a few overzealous lawyers to end up with the drama we had with Firefox and Iceweazel.

The point of open source is that you can modify it. But can you modify it and still call it the same name? If so, how much can you modify it?

Plenty of open source license recognize this, e.g. from the zlib license:

> 2. Altered source versions must be plainly marked as such, and must not be misrepresented as being the original software.

True! But what does ‘altered’ mean? And what does ‘not be misrepresented’ mean?

If I patch the Linux kernel and compile it, can I call it the Linux kernel?

If Streamlabs patches OBS, can they call it Streamlabs OBS?

There really isn’t a straightforward answer.

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