On 10/28/05, Jean-Baptiste Soufron jbsoufron@gmail.com wrote:

After looking at it, they are clearly trying to induce confusion between their wiki offer, the gnu gpl software mediawiki, wikipedia, wiktionnary and wikiquote.

The text is a little bit confusing ("the new product" might sound like it's their product), but I see no reason for your "trying to induce" thing. And I really don't see any trademark violation here. Of course we have to defend our trademarks but we also should avoid trademark paranoia.

Just my 2 cents (IANAL)

-- Arne (akl)

Kelly Martin wrote:

On 10/28/05, Arne Klempert klempert@gmail.com wrote:

...

The text is a little bit confusing ("the new product" might sound like it's their product), but I see no reason for your "trying to induce" thing. And I really don't see any trademark violation here. Of course we have to defend our trademarks but we also should avoid trademark paranoia.

Don't take this advice; it's absolutely bad.

You absolutely must defend the mark by requiring them to insert "MediaWiki is a trademark of the Wikimedia Foundation" or other such content in that advert. Failure to do so will dilute the mark. This is a trademark violation in the sense that they used a trademark not belonging to them to advertise a commercial service without acknowledging that it's not their mark.

There's no such thing as "trademark paranoia". Failure to defend the mark against dilution will quite simply cause the loss of the mark.

Kelly

While I would agree that the Wikimedia Foundation needs to enforce the trademark here, this isn't that big of a deal. Other than not mentioning as a disclaimer that MediaWiki is a trademark of the foundation can this even be considered a problem and that can be cleaned up with just adding an asterix to the name and a short statement at the bottom of the web page.

All they are doing is offering MediaWiki hosting for their clients just as many ISP and web hosting services will also support MySQL hosting on their servers. In many ways, this shows the popularity and the progress of this piece of software and the foundation should take this as a compliment. It also shows that there is commercial demand for people who want to use the MediaWiki software to host Wiki services and not be trying to sneak onto Wikipedia or other Wikimedia project for free hosting. That would be a good thing all around, and indeed something we should be encouraging or even getting into a partnership with somebody over. Some sort of partnership where experienced admins and developers from the various projects offering technical assistance in setting up MediaWiki servers for a minor donation to the Wikimedia Foundation sounds like something that would benefit just about everybody here. Or heck, even get paid for the technical assistance where experience as an editor on Wikipedia would be worth something other than just a line of volunteer work on your resume.

Don't get mad at people like this... encourage them but try to help them with mistakes like failure to put a disclaimer on their use of term MediaWiki. This could be a real opportunity instead.

On Sat, 29 Oct 2005, Jean-Baptiste Soufron wrote:

Arne Klempert wrote:

...

On 10/28/05, Jean-Baptiste Soufron jbsoufron@gmail.com wrote:

...

After looking at it, they are clearly trying to induce confusion between their wiki offer, the gnu gpl software mediawiki, wikipedia, wiktionnary and wikiquote.

The text is a little bit confusing ("the new product" might sound like it's their product), but I see no reason for your "trying to induce" thing. And I really don't see any trademark violation here. Of course we have to defend our trademarks but we also should avoid trademark paranoia.

Well, a good first step would be mentioning that mediawiki is a registered trademark from another company, and clearly explaining that

I can't find any registered trademark regarding Mediawiki on the uspto.gov website. I know that trademark registration is not always mandatory but just wondering.

is a third party software that they did not develop.

If they fully comply with the GNU General Public License[1], I can't see the issue. It won't be the first time that a front-cover web page is trying to induce confusion regarding a free software (did you remember the Dansguardian issue ? (look at their download page)).

[1] Can someone make a verification that they comply with the GNU GPL ?

When you look here : http://www.cheaphostingdirectory.com/news-webhosting-provider-aplus-net-laun...

As you say he actual text is confusing, which is exactly the criteria for trademark violations. I don't say we should hurry to the courts, but we should ask them to be more precise.

Wouldn't be better to focus only on the GNU GPL compliance than "playing" with trademark stuff (as this is a different battle field ;-) ?

just my 0.02 EUR,

adulau

--- Dan Grey dangrey@gmail.com wrote:

All I see is a company offering to host pre-configured MediaWiki installations for customers under the terms of the GPL. Where's the problem?

Use of the term 'Media Wiki' as if it were their product or service. It is not. That degrades our MediaWiki trademark and must be defended against if we wish to keep control of that trademark.

All that is really needed is for somebody from the foundation to ask them to rewrite their adverts and other descriptions of their service to make it clear that they are offering a hosting service for installations of MediaWiki. Using the wording 'MediaWiki hosting' implies an official branding agreement. It is not.

This is the same reason why websites can't put a copy of Wikipedia content on their website and call it 'Wikipedia' or publish a bound copy with the word 'Wikipedia' and/or the Wikipedia logo on its cover. Doing so implies that their copy is an official publication by Wikipedia. Oh, and this is a separate issue from giving credit; doing so correctly does not present trademark issues.

-- mav

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--- Angela beesley@gmail.com wrote:

There are 30,000 Google hits for the phrase "MediaWiki hosting" and there are no official branding agreements, so I dispute the idea that the wording implies this. Is there really anything wrong with saying MediaWiki hosting if you are offering to host a site on MediaWiki?

This is what really caught my eye: "Webhosting Provider, Aplus.Net, Launches Media Wiki" along with the first sentence: "San Diego webhosting provider, Aplus.Net, has introduced a new offering to its customers - the Media Wiki." and "The new product is licensed under the GNU Public License, and is the same system that serves popular collaborative sites such as Wikipedia.org."

How can they launch MediaWiki when it already exists? MediaWiki is *not* a new product of Aplus.Net. *That* along with the other things I mentioned is confusing the brand ID.

Read the whole thing here: http://www.cheaphostingdirectory.com/news-webhosting-provider-aplus-net-laun...

-- mav

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On 10/31/05, Dan Grey dangrey@gmail.com wrote:

It was crystal clear to me the very first time I read it that the company are just offering MediaWiki installs in their hosting plans, which afaik they're perfectly entitled to do.

This is a fuss over nothing - if anything, we should be congratulating them!

But Dan, you and I both know what MeidaWiki is, the average (wo)man on the street doesn't.

I agree with you it's a good thing TM that they are using MediaWIki, but it did seem to me like they were trying to pass it off as thier own. Still i don't think it's that important.

paz y amor, -rjs.

-- DO NOT SEND ME WORD ATTACHMENTS - I *WILL* BITE! http://www.gnu.org/philosophy/sylvester-response.html

Hit me: http://robin.shannon.id.au [broken] Jab me: robin.shannon@jabber.org.au Upgrade to kubuntu linux: http://releases.ubuntu.com/kubuntu/breezy/ Faith is under the left nipple. -- Martin Luther

On 10/31/05, Daniel Mayer maveric149@yahoo.com wrote:

--- Dan Grey dangrey@gmail.com wrote:

...

It was crystal clear to me the very first time I read it that the company are just offering MediaWiki installs in their hosting plans, which afaik they're perfectly entitled to do.

Then you should read it again. It clearly says that they are launching Media Wiki <full stop>. They can't launch something that already exists.

-- mav

C'mon, you're talking about the headline. If you read the actual text it says that the software was "Created in 1995". Sure, they could add "MediaWiki is a registered trademark of the Wikimedia Foundation", except apparently it isn't. They could add "MediaWiki is software created by the Wikimedia Foundation", except that the Wikimedia Foundation is only *one* of the authors of the software (they certainly own the copyright on anything done by the lead developer as part of his duties as an employee). They could say that "The Wikimedia Foundation pays the main developer of MediaWiki", I suppose, but this is kind of excessive. I mean, they should be more clear about exactly what MediaWiki is, and I guess they could tweak the headline, but it's not really the huge deal people are making it out to be.

Mav also said: "I suggested the name as a play on the foundation's name; Wikimedia -> MediaWiki." Now there's something I never knew. What was the software called before it was called MediaWiki?

Rowan Collins said: "I know the two can be distinct, but since at no point has copyright in the software belonged even partially to the WMF" Actually, that's not true. WMF currently owns the copyright on anything created by its employees as part of their duties.

On 10/31/05, Daniel Mayer maveric149@yahoo.com wrote:

--- Anthony DiPierro wikilegal@inbox.org wrote:

...

C'mon, you're talking about the headline.

NOT just the headline, but the body text as well. The whole thing is so badly written that it confuses their offering (hosting that involves MediaWiki installs) with the software itself. That is the type of thing that dillutes a trademark and needs to be defended against if the foundation wishes to keep control of that mark.

I'm not very familiar at all with the laws against trademark infringement and dilution (I do know that they're different things, though). Anyway, yeah, if the foundation wishes to establish and/or maintain control of the mark they need to actively defend them in some way. Hopefully in this case that just means asking them to fix things, because if it involves actually getting legal on their ass the cost probably isn't worth the benefit.

Is there an officer who either is tasked with this type of thing or can appoint someone to be? A request really needs to come from someone acting as an agent of the foundation, and having it come from 50 different wannabies is going to be counter-productive.

They could add "MediaWiki is software created by the

...

Wikimedia Foundation", except that the Wikimedia Foundation is only

*one* of

...

the authors of the software (they certainly own the copyright on

anything

...

done by the lead developer as part of his duties as an employee).

This has never been made clear. IIRC, the informal guiding principle on Brion's paid work on MediaWiki is that he at least controls the copyright. This is certainly something that needs to be made clear (control and ownership may also be two different things).

Mav also said: "I suggested the name as a play on the foundation's name;

...

Wikimedia -> MediaWiki." Now there's something I never knew. What was the software

called

...

before it was called MediaWiki?

<horrid name> "Wikipedia Software Phase II" </horrid name> Once upon a time somebody suggested the name "PediaWiki", to which the developers and everybody in earshot ran away screaming from.

...

Rowan Collins said: "I know the two can be distinct, but since at no

point

...

has copyright in the software belonged even partially to the WMF" Actually, that's not

true.

...

WMF currently owns the copyright on anything created by its employees as part of their duties.

By default that is standard practice. But I don't know if that was the understanding between Brion and Jimmy. You'll need to ask them to make that point clear.

-- mav

According to the US Code, a work made by an employee within the scope of his employment is *always* a work made for hire. The copyright may have been transfered (and that transfer can be terminated after 35 years), but AFAIK you can't change the authorship of a work.

Of course, to further confuse things, WikiMedia may very well be a work of joint authorship, and in that case Brion is probably one of the joint authors along with the WMF.

On 10/31/05, Brion Vibber brion@pobox.com wrote:

1. I am not the sole author of MediaWiki, I'm just one of several people

who's worked on it.

2. My work on MediaWiki antedates my employment with Wikimedia, so

Wikimedia can make no claim on my prior contributions.

Of course.

3) The verbal agreement Jimmy and I made was that I would continue to

retain copyright to software contributions I make during my employment.

Copyright assignment must be in writing. If you really care about this, well, you can figure out what to do. Of course it almost surely doesn't matter.

4) As far as I know, the Foundation has no copyright interest in

MediaWiki. Some contributors have renounced their copyright interest, so fragments here and there may be public domain. ;)

Now that's interesting. The parts owned by the foundation *could* be permanently released into the public domain. At that point, if it were considered a joint work (you seem to suggest it would saying that you're not the only author), anyone could use *only the parts created by you as an employee* without a license, and the rest under the GPL. But I'm fairly sure that simply not having a copyright interest isn't enough to release something into the public domain, and that you have to explicitly do so.

Again this is mostly just interesting to think about and doesn't really matter for practical purposes. Copyright law is extremely screwed up, especially in the United States with fair use, public domain, cancellations of transfers, etc.

5) The Foundation may own the trademark on the name MediaWiki, which

postdates the creation of the software itself.

Yeah, I have no idea. They probably do, but that's just based on my extremely limited knowledge of trademark law. The case for MediaWiki being a famous mark subject to trademark dilution law is probably a bit less likely though.

6) A trademark registration for the mark was filed last year on behalf

of the foundation, though it hasn't totally gone through yet. (I'm not the person to ask for details on that.)

-- brion vibber (brion @ pobox.com http://pobox.com)

Well, if that gets granted it'll provide a lot of evidence toward the position that the WMF holds the trademark.

Anthony

--- Robert Scott Horning robert_horning@netzero.net wrote:

That is where the Wikimedia Foundation may be in some trouble with Wikipedia content as there are several places where the Wikimedia Foundation disclaims any copyright to content on Wikipedia and other Wikimedia projects. The Foundation really can't enforce a provision of the GFDL as a result if they don't have copyright ownership on any of the material.

That should be easy to fix. AFAIK, all we would need is to have a large group of users who have contributed a good deal of content to agree to allow the foundation to act on their behalf in cases that involve GFDL enforcement (the exact wording is in the never-enacted user agreement legalese). In short, the foundation would be a copyright enforcement agent for copyright owners who agree to allow that. I for one would allow this for my 40,000 or so edits and scores of pages of text I’ve contributed.

Besides, this would only be an issue for the rarest of cases that would require legal action. Softer tactics should be the rule anyway.

-- mav

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--- Anthony DiPierro wikilegal@inbox.org wrote:

Is there an officer who either is tasked with this type of thing or can appoint someone to be? A request really needs to come from someone acting as an agent of the foundation, and having it come from 50 different wannabies is going to be counter-productive.

Having an intellectual property officer was part of my platform in the first board election. This person would be the official point-of-contact for the foundation on these matters. I think it is high time we create such a position as part of the legal department. We *don’t* want to be trademark and copyright Nazis, but at the same time we do need to have somebody who is tasked with representing the foundation on these matters when needed (as a final step in the illegal mirror review process and as one of the first steps in the trademark protection process; of course, asking nicely at first, yada, yada).

According to the US Code, a work made by an employee within the scope of his employment is *always* a work made for hire. The copyright may have been transfered (and that transfer can be terminated after 35 years), but AFAIK you can't change the authorship of a work.

Perhaps. But my gut feeling is that only really applies when a specific work is commissioned... That is not the case with almost all of what Brion does. He is pretty much paid to do what he thinks is best (that itself, may or may not be legal). Either way, copyright ownership is a transferable asset, so if needed we’d just need to draw-up a contract whereby the foundation gives ownership of his paid copyrighted work as part of his compensation.

This is a very important point that we need to work out; if Brion’s work is owned by the foundation, then the foundation may need to account for that as an asset (this part of the law confuses me though since some types of software fall under it and others do not). Since I don’t yet know how to do that and I’m the CFO, I’d much rather have Brion retain ownership of all his work if it means less work for me. :-) I wonder how free/open source software companies do this. For that matter, how the FSF does this since they like to have GNU software copyright assigned to them (I don’t recall if that means transfer of ownership).

-- mav

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On 11/1/05, Daniel Mayer maveric149@yahoo.com wrote:

Having an intellectual property officer was part of my platform in the first board election. This person would be the official point-of-contact for the foundation on these matters. I think it is high time we create such a position as part of the legal department. We *don't* want to be trademark and copyright Nazis, but at the same time we do need to have somebody who is tasked with representing the foundation on these matters when needed (as a final step in the illegal mirror review process and as one of the first steps in the trademark protection process; of course, asking nicely at first, yada, yada).

I don't understand how you can expect to maintain a trademark without someone authorized to make decisions about what is OK and what isn't. I don't see how this type of decision can be made ahead of time because it is so dependent on the specific circumstances. Not allowing anyone to use the trademarks for any commercial purpose would obviously be unacceptable, and if you're going to let people do whatever they want, then there's no sense in having the trademark in the first place (and supposedly you'd lose it anyway). But I don't know. Jean-Baptiste Soufron is an IP lawyer, and thinks we don't need one, so I'd defer to his opinion. I should note though that he says it "can be easily done by any officer of the Foundation, or local chapter representative." So really I think the only question is whether to have someone dedicated to the task or someone who does it as one of his/her many duties. You could also have a bunch of people doing the same thing without having a single person tasked with coordinating things, which is probably what's being done now, and probably isn't a good idea.

According to the US Code, a work made by an employee within the scope of his

...

employment is *always* a work made for hire. The copyright may have been transfered (and that transfer can be terminated after 35 years), but

AFAIK

...

you can't change the authorship of a work.

Perhaps. But my gut feeling is that only really applies when a specific work is commissioned... That is not the case with almost all of what Brion does. He is pretty much paid to do what he thinks is best (that itself, may or may not be legal). Either way, copyright ownership is a transferable asset, so if needed we'd just need to draw-up a contract whereby the foundation gives ownership of his paid copyrighted work as part of his compensation.

Actually, I think there's probably a good argument that Brion isn't actually an employee. If he does whatever he thinks is best, sets his own hours, and uses his own tools (computers and such owned by him), then he's probably not an employee. But that just opens up a whole different can of worms, so forget I mentioned it. Anyway, Robert Scott Horning seems to disagree with me, but I don't see how you can read the law any way other than that work by an employee within his scope of employment is anything but a work made for hire, regardless of any agreement to the contrary.

This is a very important point that we need to work out; if Brion's work is

owned by the foundation, then the foundation may need to account for that as an asset (this part of the law confuses me though since some types of software fall under it and others do not).

I think the IRS did away with amortization of software which isn't acquired from another entity. But don't quote me on that. You'd have to do some research or talk to someone more knowledgable about that stuff.

Since I don't yet know how to do that and I'm

the CFO, I'd much rather have Brion retain ownership of all his work if it means less work for me. :-) I wonder how free/open source software companies do this. For that matter, how the FSF does this since they like to have GNU software copyright assigned to them (I don't recall if that means transfer of ownership).

-- mav

You can access the 990 for the FSF and most other non-profits at www.guidestar.org http://www.guidestar.org. It's free, but you need to set up an account. That'd give you a good idea how the FSF runs its books. Anthony

On 31/10/05, Anthony DiPierro wikilegal@inbox.org wrote:

Mav also said: "I suggested the name as a play on the foundation's name; Wikimedia -> MediaWiki." Now there's something I never knew. What was the software called before it was called MediaWiki?

Nothing, really, it just existed. My understanding is that its precursor was referred to simply as "the PHP script" (since it replaced UseMod, which is written in Perl) or "Phase 2"; the additional rewrite to produce what is now MediaWiki was done under the label "Phase 3". This is why the code lives in a module called "phase3" of a Sourceforge CVS repository called simply "wikipedia"; there's also a module there labelled "newcodebase", and I'm sure I've seen references to it as "PediaWiki" somewhere...

Rowan Collins said: "I know the two can be distinct, but since at no point has copyright in the software belonged even partially to the WMF" Actually, that's not true. WMF currently owns the copyright on anything created by its employees as part of their duties.

Heh. I stand corrected, though only on the "even partially" part, as far as copyright goes.

-- Rowan Collins BSc [IMSoP]

--- Dan Grey dangrey@gmail.com wrote:

I've read it several times, thanks. If one tries to misread it hard enough they'll come up with your interpretation; otherwise I think people (especially the vaguely web-savvy who are likely the only people who will see it) know exactly what they mean.

Sigh. The heading and first sentence says they are launching a new product called Media Wiki. The second sentence says that Media Wiki is a tool that allows online collaboration. The third sentence talks about the “new product” (sic Media Wiki) as if it were their own.

So - how can they launch a new product called Media Wiki when that already exists? MediaWiki is not a product they can launch as if it were their own. They can launch an ISP service that includes installations of MediaWiki though. I know that is what they are getting at, but contrary to what you said, somebody who is not familiar with MediaWiki already will, at best, be confused, and, at worst, think Media Wiki is their baby.

But if you care so much about this, have you written them a letter yet? Or who are you expecting to do what?

For one - for people like you to understand concepts like trademark law. For another, for somebody from the foundation to write them on behalf of the foundation. Sure - we should just be nice at this point and just ask for some clarifying wording.

-- mav

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Delirium wrote:

Daniel Mayer wrote:

...

Use of the term 'Media Wiki' as if it were their product or service. It is not. That degrades our MediaWiki trademark and must be defended against if we wish to keep control of that trademark.

This is what literally thousands of webhosts do when they advertise "MySQL hosting" without having a disclaimer "MySQL is a trademark of MySQL AB" or some sort of circumlocutory wording stating that they are only offering "hosting of MySQL installations", and nobody seems to mind that.

-Mark

I'm not sure where you are looking, but any time you use a trademark that isn't yours, you need to put a disclaimer in the advertisement or documentation that the trademark belongs to somebody else. It is also a case of pure ethics, regardless of law, that if you use something that belongs to somebody else, that you give proper credit to where you got it from. This is a form a plagerism in this case, to claim that MediaWiki is software that you wrote or established. The same goes with MySQL, where you ought to give credit to MySQL AB just as you've suggested above. And yes, MySQL AB does complain when people claim that they are hosting MySQL installations without using the disclaimer that the trademark of "MySQL" is a trademark of MySQL AB.

And as has been pointed out, you need to defend trademarks whenever you can and when you notice that the trademark usage is abused. Classic examples of Elevator and Asprin are good examples where they were once upon a time trademarks but became dilluted through misuse to become generic terms for the respective kinds of products. I have a hard time however seeing MediaWiki becomming a generic term for any sort of Wiki server software, but the use of the term "Wiki" certainly would qualify as a generic term that can't be trademarked by itself, or to claim "royalties" for the use of the term Wiki in a project or product name. That could be argued as a dilluted term and to describe a certain kind of web content editing software.

Delirium wrote:

Robert Scott Horning wrote:

...

I'm not sure where you are looking, but any time you use a trademark that isn't yours, you need to put a disclaimer in the advertisement or documentation that the trademark belongs to somebody else.

That's just preposterous, and there is no such legal requirement. If there were, we'd be already violating it on mediawiki.org, which uses the term "MySQL" numerous times without ever once disclaiming that "MySQL(r) is a registered trademark of MySQL AB".

-Mark

Perhaps "we" are violating trademark law here? Before you claim flat out there is no legal requirement, make sure you can quote chapter and verse on the subject. I'm also claiming that out of simple respect when it is a registered trademark, we should link to or at least make a simple disclaimer on similar pages. See, for example, a disclaimer I put on the 1911 Encyclopaedia Project for similar sorts of trademark usage:

http://en.wikisource.org/wiki/1911_Encyclop%C3%A6dia_Britannica%3AProject_Di...

Perhaps I'm being paranoid about this, but in this case I'm acknowledging that the trademark does in fact exist, and that it is not owned by the Wikimedia Foundation. On Wikipedia, when there are trademarks being used, it is usually directly tied to the article about the company who owns the trademark, with even web links to that company being very typical.

I know this is naval gazing, but if we are getting off in a huff about somebody abusing a Wikimedia Foundation trademark, maybe we need to also need to improve the trademark standard usage on Wikimedia projects as well?

On 31/10/05, Dan Grey dangrey@gmail.com wrote:

And anyway, has MediaWiki actually been trademarked? I know Wikimedia has, but someone earlier said they couldn't find a trademark for MediaWiki when they searched for it in where-ever you search for such things...

Just to clarify, terms don't have to "be trademarked" to become a trademark; they simply have to be decalred (and defended) as such. You *can* "register" a trademark, and that carries extra weight in various legal ways, but (as I understand it) something basically becomes a trademark as soon as you declare it to be one. [Hence superscript TM for trademark, as well as R in a circle for *registered* trademark]

I believe there *is* some ambiguity over the status of the term "MediaWiki", though - the place to look is http://meta.wikimedia.org/wiki/Wikimedia_trademarks, although I can't access it right now - since not all the developers (who collectively own the copyright to the software, and thus logically its name and 'brand') agree that the Wikimedia Foundation should be considered the owners of that mark. What that means in terms of "policing" the mark, I'm not entirely sure...

-- Rowan Collins BSc [IMSoP]

On 31/10/05, Kelly Martin kelly.lynn.martin@gmail.com wrote:

I would also add that copyright ownership of a piece of software need not have anything to do with ownership of the trademark. MediaWiki is published by and advertised by the Wikimedia Foundation; they're the senior user of the mark in trade and thereby entitled to own the mark.

This is incorrect: MediaWiki code is hosted on Sourceforge (under the outdated project name "Wikipedia", which of course *is* a Wikimedia trademark, but never mind: http://sourceforge.net/projects/wikipedia); it is "published" by its developers, using that service, and arguably "advertised" by whoever uses it.

Its development is certainly very much *aided by* the Wikimedia Foundation: they provide servers for the mailing lists, bug tracker, and wiki[s] (meta.wikimedia.org and, I think, mediawiki.org), and they drive much of its development, possibly even with financial rewards. They may be the "senior user of the mark" in the sense that they were the first organisation to use the software, but they don't "use it in trade" because they are not directly responsible for its creation or distribution. It was developed (albeit primarily *for* them) by independent coders.

I know the two can be distinct, but since at no point has copyright in the software belonged even partially to the WMF, I see no reason why the trademark would ever have transferred to their ownership either. The name has only ever been attached to the software, on its own, as developed by a group of independent coders on behalf of the WMF and any other interested users (of which there are now many). [In fact, I think it was named as a direct result of generalising the software for use *outside* Wikipedia]

Sorry to labour the point, but I wanted to make clear my reasoning.

-- Rowan Collins BSc [IMSoP]

On 31/10/05, Daniel Mayer maveric149@yahoo.com wrote:

--- Rowan Collins rowan.collins@gmail.com wrote:

...

drive much of its development, possibly even with financial rewards.

Not possibly. The foundation employs full time the lead developer of MediaWiki (and his primary duties are to do just that).

I meant "possibly" as in "I'm not sure", not as in "the fact itself is uncertain", so thank you for clarifying.

[In response to my comments about "using in trade"]

The foundation does not direct the creation of Wikipedia and is only one of many distributors of its content. What the foundation does do is act as the ISP for Wikipedia and her sister projects.

Hm, an interesting comparison; although, in relation to trademarks, the Wikimedia Foundation is the *only* distributor of a product called "Wikipedia" - that's exactly why they hold that trademark. While it is one of many distributors of the *content*, it is the *only* distributor of that actual product. In contrast, *any* copy of the MediaWiki code is still MediaWiki - wikitravel.org is no less a user of MediaWiki than wikipedia.org.

...

The name has only ever been attached to the software, on its own, as developed by a group of independent coders on behalf of the WMF and any other interested users (of which there are now many).

That is also true of Wikipedia (except for a tiny amount of extant text by Larry Sanger and Jimmy Wales that was transferred to the foundation when it was created).

But the name is not attached to the content *alone* - any reuse of that content is explicitly *not* Wikipedia, so there is something beyond the content which constitutes "Wikipedia" as an entity. That additional something is what makes it tied to the Wikimedia Foundation, in a way that the MediaWiki software is not.

Not that the above rules out the Foundation holding the "MediaWiki" trademark, but it *is* a very different situation to that of the term "Wikipedia".

...

[In fact, I think it was named as a direct result of generalising the software for use *outside* Wikipedia]

No. I suggested the name as a play on the foundation's name; Wikimedia -> MediaWiki.

This isn't exactly on-topic, but all I meant was that it only needed a name once it was decided that it could and should have an existence (and users) outside Wikipedia. I may be wrong about that - I wasn't around at the time, but I've come across old discussions which suggested that to me - but it's certainly not mutually exclusive to you having named it.

I then bought the .org and .com domains, donated them to the foundation and officially transferred all my rights to the name to the foundation.

Ah, now that I didn't know; I've no idea of the legal intricacies, but it does seem reasonable that, as the originator of the name, the trademark rights were yours to give away, in which case all other reasonings are irrelevant. Since the MediaWiki development team [I would presume] doesn't consitute a legal entity, I guess they couldn't claim you transferred it to them first, even if "they" wanted to.

-- Rowan Collins BSc [IMSoP]

Dan Grey wrote:

On 31/10/05, Robert Scott Horning robert_horning@netzero.net wrote:

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Before you claim flat out there is no legal requirement, make sure you can quote chapter and verse on the subject.

Please do! The entire US legal code appears to be on the web, so if there is such a requirement, it shouldn't be hard to find.

And anyway, has MediaWiki actually been trademarked? I know Wikimedia has, but someone earlier said they couldn't find a trademark for MediaWiki when they searched for it in where-ever you search for such things...

Dan

When dealing with the law, there are no absolutes. You "might" be permitted to do an activity or it may be illegal. Any attorney worth anything is always going to hedge his advise anyway and use terms that don't show absolute certainty, unless you do something stupid like killing somebody in a court room in front of a judge. Usually there are so many contradictory rulings on any topic that you can find some sort of legal precedence to support a legal argument one way or another. "Higher authorities" in U.S. courts like the U.S. Supreme Court, especially a more recent ruling than something from the 19th Century, gives a stronger argument and holds more validity for common law than some appellate court or even some case that was then never appealed.

The whole issue about putting on a disclaimer is mainly a "best practices" idea where you do it to avoid potential legal troubles in the future, and to acknowledge that the trademark is not yours, nor do you intend to treat it as such. This gives you some limited legal protection in case you (the person writing the disclaimer or using trademarks that don't belong to you) are involved in a trademark lawsuit. Without the disclaimer, it would be harder to prove that you weren't misusing the trademark and therefore liable for damages. And in the case with Wikimedia projects, it would be the author of the individual section who may be liable for the damages, not the Wikimedia Foundation. There are legal consequences to what you write and gets published on the internet, even on Wikis. How much the Wikimedia Foundation itself would be liable for infringement would be a contested point and hard to tell. Likely not much if any, but I wouldn't want to go to court to find out.

I'll take your challenge and find specific case law and stautory code to support this argument if you want. I just don't want to do the heavy research when I don't think it is necessary as well. It also gets back to my point: If we are expecting proper use of Wikimedia Foundation trademarks like MediaWiki, why should we not expect the same sort of standard for our own projects as official standards for usage? This is a two-edged sword that cuts both ways and is intellectually honest to expect proper disclaimers within Wikimedia projects when we are demanding others to do the same.

On 10/30/05, Robert Scott Horning robert_horning@netzero.net wrote:

Delirium wrote:

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Daniel Mayer wrote:

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Use of the term 'Media Wiki' as if it were their product or service. It is not. That degrades our MediaWiki trademark and must be defended against if we wish to keep control of that trademark.

This is what literally thousands of webhosts do when they advertise "MySQL hosting" without having a disclaimer "MySQL is a trademark of MySQL AB" or some sort of circumlocutory wording stating that they are only offering "hosting of MySQL installations", and nobody seems to mind that.

-Mark

I'm not sure where you are looking, but any time you use a trademark that isn't yours, you need to put a disclaimer in the advertisement or documentation that the trademark belongs to somebody else. It is also a case of pure ethics, regardless of law, that if you use something that belongs to somebody else, that you give proper credit to where you got it from.

If in fact corporations can own words, that's a matter of law, not ethics. Of course, corporations can't own words, so this is a bad argument anyway.

This is a form a plagerism in this case, to claim that

MediaWiki is software that you wrote or established.

They're not making that claim though (and plagiarism is much different from trademark infringement).

I looked at the ad, and it's confusing, especially due to the fact that they use the term "the Media Wiki" for the name of the software. Whether this amounts to trademark infringement, I don't know, and frankly it doesn't matter unless Wikipedia intends to engage in a long drawn out lawsuit over such a silly thing. It doesn't look like there's anything intentional going on, just an ad written by someone with poor writing skills.

Dori wrote:

On 10/28/05, Daniel Mayer maveric149@yahoo.com wrote:

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Webhosting Provider, Aplus.Net, Launches Media Wiki http://www.cheaphostingdirectory.com/news-webhosting-provider-aplus-net-laun...

I don't think they're diluting the mark, they even link to mediawiki.org in their FAQ: http://www.apluskb.com/scripts/search_kb.pl?catid=1&sid=4448582990&q...

They're just using it IMO

At worse, they misspelled the name by writing 'Media Wiki' instead of 'MediaWiki' as we use to do. Still a valid name to me.