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Re: The current Trademark License Agreement is unacceptable



On Thu, Aug 27, 2009 at 11:42 PM, Christoph
Wickert<christoph wickert googlemail com> wrote:
> Sorry Jeff, I think the world is not only black and white and not all

But trademark law IS black and white.

> 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.

Anyone using the marks right now...without a license from the marks
holder is already taking a risk. The TLA presents no additional risks.

>
>> 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.

No actually... All use must be sanctioned... some definitions of the
word sanction which apply:
"formal and explicit approval"
"approve: give sanction to"
"give authority or permission to"
"An approval, by an authority, that makes something valid"

Sanction, as in to give approval, is required for trademark.
Trademarks lose their protected status if they are allowed to go
unused without a license.   Yes it sucks...but that's how it works. If
a malicious person can point to unlicensed use of the mark, they stand
a much better chance of being able to invalidate the mark.  What you
perceive as a kindness to those showing good faith will actually make
it harder to keep those with malicious intent from using the mark in a
way that causes confusion.  Unlicensed use of the mark by anyone
weakens the ability of the mark holder to enforce the mark when it
needs to be enforced. I sort of wish software patents and trademarks
were reversed in this regard..but alas they are not.

>
>> 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.

Since you can't define misuse, it has no meaning in a legal document.

> Signing an agreement is not about trust. If we all trusted each other
> there wouldn't be need for a written agreement.
You are wrong. The legal system under which trademark exists requires
trademarks to be licensed regardless. Trademarks which are allowed to
be used unlicensed(unsanctioned use) lose their validity as
protectable trademarks.  By continuing to allow anyone..even
myself..to use the fedora marks in an unlicensed capacity risks the
protected status of the marks entirely.  I would love nothing more
than to be able to see unspecified good faith use going on without a
license having to be signed...but it doesn't work that way for
trademark.

> 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.

The licensor already has wider rights. If you want rights parity in
the agreement, I don't think you are going to be satisfied with any
license.  Sadly I fear that what is going to satisfy you ultimately is
a more sophisticatedly worded license that is less explicit about the
"any use" nature of the termination clause.

>
> 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.

Trademark law is not structured in a way that makes it possible to
give equal rights to both licensee and licensor.  No one has figured
out how to make a copyleft-like licensing vehicle that works inside
the structure of trademark law that still adequately protects the
mark.  Please do not let your layperson understanding of copyright and
how copyleft works misguide you into setting the wrong expectation for
what is achievable as trademark license agreement.

-jef


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