Re: PHP non-free or wrongly named?

[Michael Below <mbelow@antithese.de>]

Hi,

I'm new to this list, so maybe I should introduce myself. I'm a Debian
user since 1.3 (or something like that, my first CD set is 2.0). I
live in Berlin/Germany, and I have studied law. Currently I am a
"Rechtsreferendar", that's something like a mandatory trainee phase
before one is allowed to work in legal professions in Germany.

Martin Schulze <joey@infodrom.org> writes:

> Here's the license except that left us wondering:
>
>   4. Products derived from this software may not be called "PHP", nor
>      may "PHP" appear in their name, without prior written permission
>      from group@php.net.  You may indicate that your software works in
>      conjunction with PHP by saying "Foo for PHP" instead of calling
>      it "PHP Foo" or "phpfoo"

When I read this last sentence I started wondering about packages like
phpbb, phpgroupware etc. As far as I know phpbb is an app for PHP, not
a derived work. But the trademark issue might remain.

I don't really know US laws for this, but in Germany one might argue
that PHP is a notorious trademark according to § 4 Nr.2 MarkenG. And
this could mean an exclusive right for the PHP group to use the PHP
mark and those that can be confused with their mark. This includes
marks that wrongly suggests a relation between a product and the
protected mark (§14 II Nr. 2 MarkenG).

So if the PHP group was enforcing their trademark, this could be a
potential problem, at least in Germany. (I have heard that in the USA,
there is a "common law trademark", this might lead to a comparable
issue.)

On the other hand, I did a quick search for registered trademarks
containing PHP, and there is quite a number of them, names like "PHP
Magazine", "Visual PHP", "PHPED". See http://oami.eu.int/CTMOnline/
for EU-wide trademarks. If a trademark owner doesn't act against such
uses of his mark, the trademark (PHP) is "watered down", so it isn't
that strongly protected anymore, because the relevant customers are
used to seeing products with a related name that are not issued by PHP
group.

So if the PHP group took the phpbb team to court in Germany, I could't
tell without further research who would win.

Maybe one should ask the PHP group to clarify if their claim only
applies to derived works, or if they are trying to enforce trademark
rights on any use of "PHP". If it's the latter, Debian might have to
worry about it...

Michael Below