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

[Daniel Mayer]

--- Rowan Collins <rowan.collins at gmail.com> wrote:
> 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.

Not possibly. The foundation employs full time the lead developer of MediaWiki
(and his primary duties are to do just that). The foundation does not, nor ever
has, employed anybody to work on Wikipedia. 

> 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.

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. 

> 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.

Copyright and trademark are two very different things that are treated *very*
differently in the law and are defended in *very* different ways. Mentioning
them in the same sentence just confuses matters. 

> 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). 

> [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. Erik Moeller liked the idea and, lacking any opposition from the
developers, made it so.  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. 

Now it may be a good idea to change the name of the software due to the fact
that so many people confuse the names ‘Wikimedia’ with ‘MediaWiki’, but from my
perspective and understanding of the law the foundation clearly owns the
trademark to the term ‘MediaWiki.’ Registration is in progress. 
 
-- mav



		
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