[Juriwiki-l] Re: [Foundation-l] Trademark violation of our 'MediaWiki' mark

[Robert Scott Horning]

Dan Grey wrote:

>On 31/10/05, Robert Scott Horning <robert_horning at netzero.net> wrote:
>  
>
>>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.

-- 
Robert Scott Horning