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

[Rowan Collins]

On 31/10/05, Kelly Martin <kelly.lynn.martin at 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outdated project name "Wikipedia", which of course *is* a Wikimedia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]