Comment by freehorse
2 days ago
They were not using it commercially (if I understood correctly) and that was not the point of dispute. The point of this post is that under EU regulations free software can be trademarked, but as there is no reason or payment info to track locations of its users, it could not prove that it was actually used within the EU. The evidence issue was about the location of the users and whether an FOSS project in the EU can realistically have a trademark based on the rules that supposedly allow it to have.
The problem is that this way it seems like an impossible battle. Even if you get location data of stuff like downloads (which is not sth you normally get if for example one clones the repo anyway), you cannot prove the software is actually used, unless you use analytics in the software itself. This sounds important for FOSS in the EU.
The choice of a software license really doesn't have anything to do with whether or not you engage in commerce.
I'll give you an example:
Linus Torvalds has a trademark on Linux. It's GPL, but there is plenty of evidence of commerce to support that trademark.
Here's the Linux Foundation's financial statement for instance:
https://www.linuxfoundation.org/hubfs/Reports/lf_ar24_121524...
> In 2024 we are forecasting revenues of over $292M. In 2024, the Linux Foundation is forecasting to spend nearly $300M supporting our mission
That's some pretty solid evidence of commerce.
You are correct
If they had some invoices with that ™ commercial name I'd say it would be viewed differently
So, for a product to be trademarked, it requires some form of success, IIRC. If you make and try to sell a product in good faith, but nobody wants to buy it, you have no case for a trademark. That's weird.
I could see the reason if there's no evidence of (constructive) work being done (so a clear indication of someone holding on the trademark, ie. squatting, IIRC).
Now, if I had a forward looking business spirit, I could perhaps conceive the idea on combining a hobby of mine with trademark squatting to masquerade it, so perhaps this isn't so strange after all.
> nobody wants to buy it, you have no case for a trademark. That's weird.
It may seem weird if you're thinking about it from the perspective of a business owner trying to protect their brand. That's why a business would want one. But it isn't why they exist. The legal basis of trademarks isn't brand or business protection, but consumer protection.
The point of a trademark is to protect consumers from being fooled or misled. If there are no consumers, then there's nobody to protect.