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Re: Logo trademark license vs. copyright license

Francesco Poli wrote:
> On Sat, 14 Apr 2007 20:29:09 +0200 Arnoud Engelfriet wrote:
> > 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
> about?

Yes, I think so. Sometimes the simplest solution is best. 

> > 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 ...?

The reason I'm worried is because the copyright holder is the
same entity as the trademark holder. That is a special case.
If I give you an image and you turn it into a sign that's
confusingly similar to Red Hat's logo, you can't argue I gave
you permission to do that. But if I *am* Red Hat and let you
"do whatever you want", you *can* argue that. 

> 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.).

True. Again, it's a special case. You are giving people the logo
and telling them "do whatever you want" under copyright. Is
creating a confusingly-similar logo "whatever you want"?

> > 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?

You hope never to go before a jury at all. Settle if you can,
because all bets are off.


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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