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Re: Logo trademark license vs. copyright license

On Sat, 14 Apr 2007 20:29:09 +0200 Arnoud Engelfriet wrote:

> Francesco Poli wrote:
> > What I am proposing is just licensing under both laws, but with two
> > separate grants of permissions: a copyright license (Expat) and a
> > trademark license (the one we are trying to write).
> I understand that. It's certainly possible. But what happens if
> someone stays within the bounds of the copyright license, and
> strays outside the bounds of the trademark license? Which one wins?
> Your argument is that the trademark holder will win, because the
> licensee exceeded the trademark license. I am afraid someone will
> argue that the copyright license (from the same entity) should count
> for more than the trademark license, and that therefore he should win.

That is why (I think) the original proposal by Nathanael included the
sentence "but that is not a trademark license and should not be
construed as one".
Does this clarification prevent the misinterpretation you're afraid

> > I still fail to see how a copyright license could trump a trademark
> > restriction.
> The big question is, will a jury also fail to see that?

Heh, I've heard of a good number of absurd judgments.  I cannot be sure
a judge or jury will agree with me, but that holds for any other matter,
unfortunately...  :-( 

> My view is, if a restriction prevents someone from arguing an
> unlikely case, and does not hamper legitimate situations, go for it.

I see, but then why not adding other useless restrictions as well?
Licenses for Free Software should be legally sound, but also as simple
and easy to understand as possible.

> > You would receive the fish image with a copyright license and no
> > trademark license.
> > Suppose the copyright license stated that you cannot use the fish
> > image in commerce in such a way to cause confusion as to the
> > affiliation, and so forth, with the Debian Project and SPI.
> > Wouldn't it be awkward?
> Well, in a way I suppose. "What's that doing here?" 
> On the other hand, someone further down the road may remove the fish
> and recover the swirl-and-bottle, then put that on his own CD-ROMs
> with operating systems, which he then sells. Now what?

That same person could modify the fish into the logo of Red Hat, Inc.,
then put that on his own CD-ROMs with OSes, which he then sells.  Now
what?  Should we add a restriction to prevent this?  And then to prevent
the same with the logo of Sun Microsystems?  Of Microsoft Corporation? 
Of Adobe Systems Inc.?  Of ...?

> > I mean: it's true, but the same holds for any other entity.
> > You cannot use the fish image in commerce to cause confusion as to
> > the affiliation, and so forth, with Microsoft Corporation, either.
> That is true. But Microsoft had nothing to do with the image, so
> the license or origin of the image is irrelevant when it alleges
> trademark infringement. In this case, it would be more like
> Microsoft giving you an image, saying you could do anything you
> wanted with it, and then sued saying "oh wait we didn't mean you
> could do *that*". Would that look reasonable to a jury?

But companies do distribute images, and (only sometimes, sigh!) in a
DFSG-free manner.  Their licenses do not usually include a restriction
that prevents the licensee to derive a modified image that is
confusingly similar to the company logo (and then use it in commerce to
cause confusion as to the affiliation, etc.).

I mean: when the image is not confusingly similar to a logo, I think
it's awkward to add a restriction to the copyright license to prevent
trademark infringing uses of modified images...

> > As I said above, I think that none of them "wins".
> As I said above, you're now relying on a jury agreeing with you.
> I'm European,

So am I...

> so my opinion is based on hearsay, but in my opinion
> the last thing you want in a lawsuit is hoping the jury agrees with
> you.

I'm not sure I follow you here: what do you hope in a lawsuit?  That the
jury *disagrees* with you?

 Need to read a Debian etch installation walk-through?
..................................................... Francesco Poli .
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