Trademark Policy

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Introduction

This document, the "Policy," outlines the Open Surge project's (the "Project") policy for the use of our trademarks. While our software is available under a free and open source software license, the copyright license does not include an implied right or license to use our trademark.

The role of trademarks is to provide assurance about the quality of the products or services with which the trademark is associated. But because an open source license allows your unrestricted modification of the copyrighted software, we cannot be sure that your modifications to the software are ones that will not be misleading if distributed under the same name. Instead, this Policy describes the circumstances under which you may use our trademarks.

In this Policy we are not trying to limit the lawful use of our trademarks, but rather describe for you what we consider the parameters of lawful use to be. Trademark law can be ambiguous, so we hope to provide enough clarity for you to understand whether we will consider your use licensed or non-infringing.

The sections that follow describe what trademarks are covered by this Policy, as well as uses of the trademarks that are allowed without additional permission from us. If you want to use our trademarks in ways that are not described in this Policy, please see "Where to get further information" below for contact information. Any use that does not comply with this Policy or for which we have not separately provided written permission is not a use that we have approved, so you must decide for yourself whether the use is nevertheless lawful.

This Policy is derived from the Model Trademark Guidelines, available at http://www.modeltrademarkguidelines.org., and used under a Creative Commons Attribution license. These guidelines are still evolving.

Our commitment to open source principles

We want to encourage and facilitate the use of our trademarks by the community, but do so in a way that still ensures that the trademarks are meaningful as a source and quality indicator for our software and the associated goods and services and continue to embody the high reputation of the software and the community associated with it. This Policy therefore tries to strike the proper balance between: 1) our need to ensure that our trademarks remain reliable indicators of the qualities that they are meant to preserve and 2) our community members' desire to be full participants in the Project.

Trademarks subject to the guidelines

Our trademarks

This Policy covers our trademarks: Open Surge™, Open Surge Engine™, Surge the Rabbit™, SurgeScript™, among others. These are trademarks of Alexandre Martins.

This Policy encompasses all trademarks and service marks, whether Word Marks, Logos, Characters or Trade Dress, which are collectively referred to as the “Marks.” Some Marks may not be registered, but registration does not equal ownership of trademarks. This Policy covers our Marks whether they are registered or not.

Universal considerations for all uses

Whenever you use one of the Marks, you must always do so in a way that does not mislead anyone, either directly or by omission, about exactly what they are getting and from whom. The law reflects this requirement in two major ways described in more detail below: it prohibits creating a "likelihood of confusion" but allows for "nominative use." For example, you cannot say you are distributing Open Surge when you're distributing a modified version of it, because people would be confused when they are not getting the same features and functionality they would get if they downloaded the software directly from us. You also cannot use our logo on your website in a way that suggests that your website is an official website or that we endorse your website. You can, though, say you like Open Surge, that you participate in the Open Surge community, that you are providing an unmodified version of the Open Surge Engine, or that you wrote a tutorial describing how to use the Open Surge Engine.

This fundamental requirement, that it is always clear to people what they are getting and from whom, is reflected throughout this Policy. It should also serve as your guide if you are not sure about how you are using the Marks.

In addition:

You may not use the Marks in association with the use or distribution of software if you are also not in compliance with the copyright license for the software.

You may not use or register, in whole or in part, the Marks as part of your own trademark, service mark, domain name, company name, trade name, product name or service name.

Trademark law does not allow your use of names or trademarks that are too similar to ours. You therefore may not use an obvious variation of any of our Marks or any phonetic equivalent, foreign language equivalent, takeoff, or abbreviation for a similar or compatible product or service. We would consider the following examples too similar to one of our Marks:

  • Any game character such as a rabbit, a hare, or similar animal, named "Surge"
  • Any mark with the text "Surge Engine"
  • Any mark with the text "SurgeScripting"

You agree that you will not acquire any rights in the Marks and that any goodwill generated by your use of the Marks inures solely to our benefit.

Use for software

See Universal considerations for all uses, above, which also apply.

Uses we consider non-infringing

Distribution of unmodified source code or unmodified executable code we have compiled

When you redistribute an unmodified copy of our software, you are not changing the quality or nature of it. Therefore, you may retain the Marks we have placed on the software to identify your redistribution -- whether that redistribution is made by optical media, memory stick or download of unmodified source and executable code. This kind of use only applied if you are redistributing an official distribution from this Project that has not been changed in any way. You can find files for the Logos and approved designs for packaging on our Logos and Designs page.

Distribution of executable code that you have compiled, or modified code

You may use the Marks to truthfully describe the origin of the software that you are providing, that is, that the code you are distributing is a modification of our software. You may say, for example, that "this software is derived from Open Surge."

Statements about compatibility, interoperability or derivation

You may use the Marks to truthfully describe the relationship between your software and ours. Our Marks should be used after a verb or preposition that describes the relationship between your software and ours. So you may say, for example, "A modification of Open Surge by Bob Labs" but you must not say "Bob Labs' Surge" nor "Bob Labs' Open Surge." Some other examples that may work for you are:

[Your software] is a modification of Open Surge
[Your software] is made with the Open Surge Engine
[Your software] is compatible with Open Surge version 0.5.0 or newer
[Your software] is powered by Open Surge
[Your software] is powered by the Open Surge Engine
[Your software] uses SurgeScript for scripting purposes

Use of trademarks to show community affiliation

This section discusses the use of our Marks for software such an application themes, skins and personas. The use of our Marks on websites is discussed below.

You may use the Marks in themes, personas, or skins for applications to show your support for the Project, provided that the use is non-commercial and the use is clearly decorative, as contrasted with a use that appears to be the branding for a website or application.

Uses for which we are granting a license

Distribution of non-commercial fan work under "fair use"

You may use the Marks for the distribution of a non-commercial "fan work" (e.g., a "fangame") under "fair use" and on the condition that you acknowledge promimently that you are using Marks from the Open Surge project, but not in any way that suggests that the Open Surge project or any of its contributors are connected to you, affiliated with you, endorse you or your use.

Note that the Universal considerations for all uses, above, still apply, specifically, that you may not use or register the Marks as part of your own trademark, service mark, domain name, company name, trade name, product name or service name.

Distribution of software preloaded on hardware

You may use use the Marks in association with hardware devices on the condition that the software installed on the device is modified only so far as necessary to operate on the hardware platforms and the essential functions of the software are unchanged, and that you do not suggest that the Project is the source of the hardware device itself but rather that the Marks are for a software incorporated into the device. In addition, you must not suggest in any way that the Open Surge project or any of its contributors are connected to you, affiliated with you, endorse you or your use or your product.

Note that the Universal considerations for all uses, above, still apply, specifically, that you may not use or register the Marks as part of your own trademark, service mark, domain name, company name, trade name, product name or service name.

Uses we may consider infringing without seeking further permission from us

We may consider using the Marks in a software distribution that merges our software with any other software program not officially used by the Project an infringement of our Marks. We would consider your software "merged" with ours if you create a single executable for both software programs, as well as if by installing our software it automatically installs yours (for example, installing a hidden malware). We would not consider your software "merged" with ours if it is on the same media but requires separate, independent action to install or execute it.

Use for non-software goods and services

See Universal considerations for all uses, above, which also apply.

Uses we consider non-infringing

Websites

You may use the Marks on your webpage to show your support for the Project as long as the site does not mislead customers into thinking that either your website, service, or product is our website, service, or product, and as long as the site does not suggest that you are affiliated with or endorsed by the Project. A clear and visible statement that you not are affiliated with or endorsed by the Project is helpful.

Publications and presentations

You can use the Word Marks in book and article titles, and the Logo in illustrations within the document, as long as the use does not suggest that we have published, endorse, or agree with your work.

Events

You can use the signage in the Logos and Designs page to promote the software and Project at events.

Promotional goods

"Promotional goods" are non-software goods that use the Marks and that are intended to advertise the Project, promote the Project, or show membership in the Project community.

You may make promotional goods for free giveaway at open source conferences and events using the designs found in the Logos and Designs page.

Note: we will likely consider using the Marks on promotional goods for sale an infringement of our Marks.

General Information

What to do when you see abuse

If you are aware of any confusing use or misuse of the Marks in any way, we would appreciate you bringing this to our attention. Please contact us as described below so that we can investigate it further.

Where to get further information

If you have any questions about this Policy, would like to speak with us about the use of our Marks in ways not described in the Policy, or see any abuse of our Marks, please contact Alexandre Martins.

General considerations about trademarks and their use

What trademark law is about

What is a trademark?

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. "Trade dress" or "get up" refers to the look and feel of the packaging, which in this context can include the layout, colors, images, and design choices in a web page. Throughout this Policy, the terms "trademark" and "mark" refer to both trademarks, service marks and trade dress.

However, the use of a word is "not as a trademark" when it is used functionally as part of the software program, for example, in a file, folder, directory, or path name. Use in this way is not a trademark infringement.

What is "likelihood of confusion"?

There is trademark infringement if your use of a trademark has created a "likelihood of confusion." This means using a trademark in a way that will likely confuse or deceive the relevant consuming public about the source of a product or service using the mark in question. For example, if the "Foo" software extension removes all double spaces after periods, but someone else later creates "Foo" software that adds a third space after periods, consumers would be confused between the two and the newcomer will likely be a trademark infringer. As another example, if a company makes "Foobar" software and a third party offers training called "Foobar Certification," a person is likely to believe, wrongly, that the certification is being offered by the makers of Foobar software. The third party has likely misled consumers about the source of its training and is a trademark infringer.

What is "nominative" use?

So-called "nominative use" (or "nominative fair use"), which is the name of the doctrine under U.S. trademark law, allows the use of another's trademark where it is necessary for understanding. Other countries' trademark laws also have similar provisions. For example, a car repair shop that specializes in a particular brand of automobile, VW for example, must be allowed to say that they repair VW cars. Here is what you should consider when deciding whether your use of a trademark is a nominative fair use:

  • Whether you can identify the product or service in question without using the trademark;
  • Whether you are avoiding a likelihood of confusion in the way that you have used the trademark; and
  • Whether you have used only as much as is necessary to identify the product or service.

With our "Foobar Certification" example above, the person offering the certification would be allowed to say, under the nominative fair use doctrine, that she is offering "Maude's Certification for Foobar software."