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Re: The current Trademark License Agreement is unacceptable



Am Donnerstag, den 27.08.2009, 14:48 -0800 schrieb Jeff Spaleta:
> On Thu, Aug 27, 2009 at 2:24 PM, Christoph
> Wickert<christoph wickert googlemail com> wrote:
> > The problem is: Who can afford a lawyer? This is American trade mark
> > law, so you not only need a common lawyer but an expert for intellectual
> > property rights. Is Red Hat really expecting their community members to
> > pay for a lawyer if they want to contribute? That would be ridiculous.
> 
> More ridiculous than the level of mistrust over the stated intention
> to protect the trademarks against potential misuse?

I find the mistrust understandable if
      * someone wants me to sign a contract that I cannot fully
        understand
      * they refuse to provide a translation that I can understand
      * there are still questions not answered after half a year.

> Let me put it this way. Would you prefer that the Fedora brand be
> unprotected by trademarks so that anyone could use them for any
> purpose whatsoever even if they were deliberately attempting to cause
> confusion in the market?

No, but I think the current attempt to protect is counterproductive. We
all know that intentions are good (TM), so let's not look at the
intentions but at the results:
Robert is the owner of the domain fedora.de. He used it to mirror the
German parts of fedoraproject.org. Now with the TLA he can no longer do
this because the webpages at fp.o do not follow the standards set in the
TLA and the Logo Usage Guidelines. As a result he had to close down the
page. This is a loss for both Fedora and Robert.

> Either you believe the Fedora brand is worthy of protection or you do
> not. 

Sorry Jeff, I think the world is not only black and white and not all
questions can be reduced to a simple "ether... or". For me it's "Yes...
but...". I do believe the Fedora brand is worthy of protection, but the
current TLA is not a good way to protect it because it bears
unforeseeable risks for the community members but zero risk for the
trademark owner.

> I happen to think its worthy of protection against malicious use.
> I don't want a Microsoft or Apple shill being able to put up
> misinformation sites that use the Fedora trademarks. In order to
> prevent that, trademark law must be invoked and all trademark usage
> must be sanctioned.

Was this intended or a Freudian slip? You mean *mis*use must be
sanctioned, right? Currently I'm under the impression that "all
trademark usage must be sanctioned" fits better to the TLA.

> I also do not believe that you can satisfactorily write down a
> succinct  definition of all possible misuse that a licensee may engage
> in that would cause confusion in the market.

Agreed. But we are not talking about misuse here, at least the TLA does
not. The TLA clearly states "for any reason". If there was at least a
mention of the term "misuse" we could build upon that.

> If you don't trust Red Hat as the mark holder to do the right thing
> and to only exercise the legal power to terminate a license when a
> license holder is misusing the mark..then I'm not sure what to tell
> you as I don't think a satisfactory compromise could be reached that
> did not require scrutiny by legal representation for all
> parties..something you don't want to do. If you don't trust Red Hat to
> do the right thing..you'll be contacting a lawyer if there was ever a
> dispute.. so I don't understand the reluctance now.

Signing an agreement is not about trust. If we all trusted each other
there wouldn't be need for a written agreement. So basically signing a
contract is about what both parties are allowed to do within the room
for interpretation the contract leaves. And in my opinion this room is
way to wide and gives the licensor greater rights than the licensee.

Please note that I'm not declining the TLA as such but only certain
parts. I do agree that there should be a solid legal base for using the
trademarks, but I think the current TLA is only solid for one party but
not for the other.

> -jef"Would you feel any better if Red Hat signed over the marks to me
> personally?"spaleta

Regards,
Christoph"I don't think so."Wickert


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