Open source and trademarks

[Ihab Awad]

Hi folks,

What are the implications of trademark ownership regarding Open Source 
software? Say, for example, that I produce --

  HappySoft[tm] -- A program promoting happiness

and I reserve www.happysoft.org, and make a cool logo, and my Java package 
names (or C++ namespaces) start with --

  org.happysoft.* or org::happysoft::*

and my source code, documentation and other material contains a preamble --

  This file is part of HappySoft[tm], a program promoting happiness.

Somewhere out there, however, I have reserved the HappySoft trademark by (a) 
using it; and (b) publishing statements like --

  HappySoft and the "smiling person" logo are trademarks of the HappySoft
  Organization, and may not be used or duplicated without permission.

which, I figure, is to ensure that, even though people can reuse my code, they 
cannot claim that what they have produced is *the* true "HappySoft" program.

  *  *  *  *  *

Now, someone else wants to build a derivative work --

  YaySoft[tm] -- A program promoting celebration

based on HappySoft (which is ok, since HappySoft is Open Source). They come up 
with a new logo and new name, and they publish their work on a separate site 
called yaysoft.org, and they do *not* claim that their work is HappySoft 
(beyond perhaps acknowledging the lineage of the code). However, the 
restricted-usage HappySoft marks remain in the original source code (which, 
per the applicable license, they should not be required to modify in order to 
redistribute or include in their derivative work). And the code is still 
named "org.happysoft.*". So --

  1. Do the authors of YaySoft in this way infringe on trademark law,
     or, conversely --

  2. Do I as the author of HappySoft, by embedding restricted trademarks
     in the source code, violate the Open Source Definition?

Thanks a lot & peace,

Ihab

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