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advice for free software package named almost identically to non-free software

Dear Debian Legal,

An upstream has named their GPL software almost identically to a
proprietary piece of software.  Both the free and the proprietary
software are developed in the U.S.A.  The upstream has confirmed that
the name is not a registered trademark in the U.S.A, but the
proprietary software unambiguously precedes the free version; thus, if
ever there is a dispute, the developer of the first version has the
"prior art" argument on their side.

The developer of the free software implementation has asked me if it
would be sufficient to ask permission from the author of the
proprietary developer to name his software similarly.  If this is
acceptable, would you please provide a template I can send to the
author of the free implementation?

The degree of similarity as close as "Quake" and "Quake-world".


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