appropriate trademark licensing (was Re: GUADEC report)
Josh Triplett wrote:
> I believe the issue is that unlike patents and copyrights, unenforced
> trademarks become "diluted" and no longer enforcable.
Terminology confusion here; "dilution" is a separate concept from
enforcability. Look up "trademark infrignment" and "trademark dilution".
Indeed, an unenforced trademark may (or may not!) become "generic" and
thereby lose its trademark status; this has nothing to do with dilution, as
far as I can tell. If a trademark is unenforced for too long, someone else
may establish it as their trademark as well (and you would then be unable
to enforce it against them).
> To some lawyers
> (especially those not overly familiar with Free Software), a
> freely-licensed trademark might be seen as unenforced. However, given
> that most free licenses do place _some_ restrictions on the use of the
> trademark (much like many businesses have "trademark usage guidelines"),
> then I believe this fear is probably unfounded, as long as those
> restrictions are enforced. (IANAL, TINLA.)
Precisely what I think. Any lawyer who thinks that a trademarked item
licensed under a free copyright license inherently has an "unenforced"
trademark simply doesn't know what they're talking about.
Here are some possible trademark clauses; let's think about them and come up
with a model clause, OK? I think a model clause would go a long way; if we
had such clauses to present to people to present to their lawyers, the
lawyers would at least have to explain what they thought was wrong with
them.
(in copyright license)
"This copyright license does not grant any trademark license, express or
implied, in any trademarks."
(separate from copyright license)
"You may use the trademarks 'Foo', the Foo logo, etc. in the ways which are
allowed under trademark law; for instance, to refer to the original,
unmodified 'Foo' product. Any use which is resricted under trademark law
is prohibited (unless allowed under a separate trademark license)."
(as a separate trademark license, or as part of a copyright license)
"You may use the trademarks 'Foo', the Foo logo, etc., in any way which does
not constitute trademark infrignement; that is to say, any way which does
not create a likelihood of confusion, mistake and/or deception with the
public.
(This one would specifically permit trademark dilution)
IANAL, but any of these look OK with me.
--
There are none so blind as those who will not see.
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