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I maintain a FOSS library as a hobby project. Does this count as using its name in commerce, or do I have to sell a copy to someone?

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    What is a FOSS library?
    – ohwilleke
    Commented Jul 25, 2022 at 21:02
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    @ohwilleke Free Open Source Software
    – Esther
    Commented Jul 25, 2022 at 21:21

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An exchange of money is not necessarily required for a trademark to satisfy the "use in commerce" requirement, and both for profit and nonprofit entities can obtain trademarks.

Simply maintaining a library, however, is generally not enough. You must show marketing materials that are used to bring awareness of the mark to a wider public. "Use in interstate commerce" is basically synonymous with either branding something that is distributed in more than one state, or marketing something in more than one state. Websites and anything done to promote a website with a logo, for example, might qualify.

Similarly, if every use of the FOSS library were accompanied by an email with a logo or catchy phrase on it, that might constitute "use in commerce."

This said, if one were suing for infringement of the mark, it might be hard to prove significant money damages, making it harder to justify the registration economically than a typical for profit mark registration.

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  • Is a use of the name in a GitHub repository README enough? Regarding damages, would it be possible to force a company that tried to use the name to rename their product/service even if I had no monetary damages?
    – Someone
    Commented Jul 25, 2022 at 22:46
  • @Someone "Is a use of the name in a GitHub repository README enough?" That would be pretty lame. Not impossible or a bright line rule, but scraping the bottom of the barrel. To have a trademark you have to create a "secondary meaning" in the eyes of the relevant public associating your mark with your service or product beyond its plain meaning. Hard to say that this does that. "Regarding damages, would it be possible to force a company that tried to use the name to rename their product/service even if I had no monetary damages? " Probably.
    – ohwilleke
    Commented Jul 25, 2022 at 22:49
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    Okay. So maybe I should write an "ad" for it and send it to a Discord server with lots of people in it (with moderator permission, of course)? That way there will be evidence recorded in the Discord logs. I've discussed it in the chat and recommended it to particular people for solving certain problems, but never posted a general advertisement for it. I could design a logo if that's necessary, but I'm really bad at graphic design.
    – Someone
    Commented Jul 25, 2022 at 22:53
  • @Someone words or logos can work, but it has to be catchy and pithy and not just descriptive. Ads sent to a Discord server are much, much better than a README in a GitHub repository.
    – ohwilleke
    Commented Jul 25, 2022 at 22:54
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    I don't want to say the name of the library because it's published under my real name, but it would be similar to writing a simple Web browser and calling it SWB.
    – Someone
    Commented Jul 26, 2022 at 0:18

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