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Can you fork a MIT licensed project, discard the code, and keep only the name?

Say I wanted to piggyback on top of a popular MIT licensed project name for marketing purposes, but not use any of its code. Is this possible?

ArtOfCode
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No. You can not. The project's name is protected by Trademark, which is a separate issue entirely from Copyright. The MIT license grants you, as a consumer, certain rights that would otherwise be unavailable because of the Copyright protection.

To keep it simple:

  • Copyright protects the code.
  • Trademark protects the name.
  • The MIT license affects what you can do with the code, not the name.
RubberDuck
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    Why do you say "No. You can not"? It's a separate issue, as you observed, from licensing. – Glenn Randers-Pehrson Oct 07 '15 at 14:07
  • @GlennRanders-Pehrson because the MIT license does not release any rights to the Trademark. – RubberDuck Oct 07 '15 at 14:13
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    OK, so say, "No, you cannot, if the project's name is trademarked." I have released software without getting a trademark, and others have changed its behavior and redistributed executables without changing the name or mentioning that they have changed the code. – Glenn Randers-Pehrson Oct 07 '15 at 14:27
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    @GlennRanders-Pehrson, you don't have to register your name with any official entity to enjoy trademark protection. Proprietary rights in relation to a trademark may be established through actual use in the marketplace. – RubberDuck Oct 07 '15 at 14:30
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    Thanks, I am not a lawyer and was not aware of that fact. – Glenn Randers-Pehrson Oct 07 '15 at 14:38
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    The "actual use" trademark protection doesn't exist in all jurisdictions. I can't find anything in the US trademark law (Lanham Act) about it. It does say you have to use the trademark to maintain trademark protection. – Glenn Randers-Pehrson Oct 07 '15 at 14:56
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    Ahah! found it at http://www.uspto.gov/learning-and-resources/trademark-faqs under the topic "What are "common law" rights?" – Glenn Randers-Pehrson Oct 07 '15 at 15:15
  • @GlennRanders-Pehrson: While these common law rights seem to exist in the U.S., as you have found, this still does not mean the answer "No. You cannot." sounds still more definitive than what it should be - after all, the default behaviour when creating a fork that I observe is indeed that the original name is kept (and amended, e.g. by appending "Tom's special edition" or "Sarah's variant"). – O. R. Mapper Oct 09 '15 at 20:13
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    Let us not forget that, aside from trademark concerns, it's also pretty reprehensible to rip off someone else's project name for marketing purposes, specifically benefiting from someone else's reputation in a manner intended to deceive users. – apotheon Oct 11 '15 at 02:17