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Memtest86, a popular software for RAM diagnostics, was initially developed as open source (GPLv2). Version 3 was forked into a separate project, Memtest86+, also distributed under GPL terms. Source code of Memtest86 v4.3.7 is distributed inside the corresponding binary image.

However, Memtest86 v5.0 and up suddenly became closed-source software, property of PassMark Software Pty Ltd. How could this happen? Could Chris Brady (the original Memtest86 author) somehow give them exclusive rights to the code, or did they have to re-write the software from scratch? And if they did, how could they keep the name? Am I allowed to write my own closed-source version of e.g. grep, and distribute my program under the same name?

EDIT: It seems that grep is trademarked, but any name will do for the sake of argument. thttpd is clear, for example, and so is awk.

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Starting from MemTest86 v5, the code was re-written to support self booting from the newer UEFI platform. MemTest86's History

If you have written new code, then you own the copyright of that code and thereby the right to license that code however you want.

So it's really a question of how they can keep the name. It all depends on if the name of MemTest86 is trademarked or not:

  • If the name of MemTest86 is not trademarked...then anyone can use that name for their software. In the US at least, trademarks are not automatic. You have to register your trademark and then enforce it, usually by threatening and suing people who are also using your trademark. Since it cost time and effort to set up a trademark, I'm sure that most people won't really bother with it, giving you a free reign to produce software with similar names. If it got to a point where you have software that is popular and bad actors would be tempted to produce clones with similar names, then you want to start investing in a trademark (to protect your own IP).
  • If the name of MemTest86 is trademarked, then the trademark must have been transferred over to PassMark Software, allowing them to use the name to brand their own unique software.

Since there is an open-source fork of MemTest86 called MemTest86+, it is most likely that the name of MemTest86 is not trademarked at all.

So your final question of whether you can write a closed-source version of grep is simple. Find out whether grep is a trademark. I recommend hiring a trademark lawyer.

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    I got it that they transitioned from BIOS to UEFI in version 5, but that's only the startup code. Memory testing by itself is independent of UEFI.
    – Dmitry Grigoryev
    Jan 21, 2016 at 16:11
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    And regarding the trademark aspect, does it mean that PassMark Software, which now owns memtest86 trademark, can potentially force memtest86+ project to change their name?
    – Dmitry Grigoryev
    Jan 21, 2016 at 16:51
  • I don't know whether a "memtest86" trademark exist. But I doubt it does. If it did exist, then PassMark Software can force memtest86+ to change its name. The fact that PassMark hasn't done this action yet suggest that there is no trademark.
    – Left SE On 10_6_19
    Jan 21, 2016 at 17:36
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    So it turns out that there is a "memtest86" trademark, owned by PassMark. That being said, they seem to have no interest in enforcing this trademark against the memtest86+ project though. I suspect that the memtest86 trademark was registered after PassMark took over "memtest86" in 2013, and that the name was not trademarked before.
    – Left SE On 10_6_19
    Jan 21, 2016 at 23:00
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    OK, so basically every open-source project which didn't trademark their name is at mercy of software companies who can trademark that name and then enforce it if deemed necessary. That's good to know. Also, take note that links to uspto.gov don't work outside of your session.
    – Dmitry Grigoryev
    Jan 22, 2016 at 8:23

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