I can see how it *would* be interesting and important to open source projects that are derived from another project, as in this case. But I don't think I understand yet how any of the projects I'm familiar with, UQM and others, actually *have* any realistic level of legal independence and surety.
That question really revolves around whether trademark protection really is as expansive as Brad has suggested. If it is, then I'd be inclined to agree: Any open-sourced release of a game would need to forever fear litigation from its trademark rightsholder.
I'm not a lawyer, and we won't know the real answer to this question until it goes before a judge. However, I suspect that Brad's arguments are stretching the limits of what trademark is supposed to do. If that trademark argument gets shot down, open-source projects will be able to be reasonably confident in their independence as long as their copyright issues are in order, and they aren't clearly stepping on a name or mark used to establish the brand of their corporate originator.
if there was no alignment but the same fig leaf of "this totally isn't actually Star Control <wink><wink>", I think the resultant argument would be rather one-sided and brief.
I'm not so sure. Copyright, not trademark, is what prohibits distributing actual copies of digital works, and Stardock doesn't have the copyright. It kind of feels to me like the argument you describe would require stretching trademark law to make it do what copyright law is intended for.
To put it another way, trademark law is what stops another company from putting the Nike logo on a pair of shoes, regardless of what those shoes look like. But as long as the company doesn't use Nike's logo, it doesn't matter that the shoe is otherwise identical to what Nike sells. What Stardock is trying to do is like claiming that the tread, the weave, the color, and other functional aspects of the shoe are also covered by their trademark, and I don't think that's right (they could be covered by patents, but that's also not applicable here). But, as I said, we'll see what the court has to say when the time comes.