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Re: Red Hat Comments on License Agreement



Pam,

first of all, thank you for your detailed answer, which I really appreciate.
Let me comment your answer at the parts that were important for me.

> [Indemnification] Likewise,
> if the only reason you are in the lawsuit is because you are using the
> Fedora trademark, Red Hat has to pay the whole amount. That seems fair.

Just a question here: Does this part of the indemnification apply world-wide?

> There was a lot of concern that failure to follow the guidelines would
> mean that the contract was breached and would terminate. That's not true
> at all. As I mentioned above, the contract will only terminate for
> “material” breach of the contract, not minor ones. A law dictionary
> defines “material breach” as “violation of contract which is substantial
> and significant.” Things like forgetting to use the ® symbol would never
> be considered a material breach. [...] Even
> then, in the case of a “material” breach there is a cure provision; that
> is, before the agreement terminates we have to give you written notice
> of the breach and you have seven days to correct it.

This was a major concern for me, and it's good to know that a minor breach
would not violate the contract.

This is especially important for forums and comment areas, where visitors can
post freely. It would be a bad thing if a visitor's post would lead to the
termination of the contract. There should be a certain level of tolerance, for
example if someone posts "Fuhdora Project"...

> There was another comment about having an English-language trademark
> legend on a German site; that's also a good point and we can change it
> to say that the legend should be in the language of the site.

Allowing a legend in the site's local language would be very helpful for
everyone, I think. What would be the use of an English legend if the majority
of the visitors speak another language? :)

> The concept that marking the Fedora mark but not others' might expose
> the web site owner to liability is not something I am familiar with, but
> I'm happy to try to accommodate concerns like these once I understand
> where the problem lies.

Okay, it was me who said this. I hope I can explain what I mean...

If I would start to write "Fedora®", but would not write a trademark symbol
for (let's say) "Intel", a visitor could conclude that Fedora is a registered
trademark, and Intel is not. I am afraid I could then be a target for a
trademark infringement claim from Intel. :) (Remember: German law applies.)

So, once I'd start placing trademark symbols, I would have to do trademark
recherces for every word I use, to properly place all the trademark symbols
where required. I just cannot do that for obivous reasons.

Thus, on my site's imprint, I state that I do not use trademark symbols, and
the absence does not necessarily mean that there is no trademark existing.
This is a common practice in Germany, for example in computer literature.

> With respect to a concern that the agreement means you will have to
> cease using “Fedora” altogether if the license terminates, that is
> indeed what the agreement says, but that wasn't the intention and I will
> modify the agreement. The concept was that you would not have a license
> to use the trademarks, but you would still be able to use them in the
> same way that any other unlicensed person could use them under
> principles of fair use. I will change the sentence to read “The license
> to use the Licensor's Trademarks will cease immediately upon the
> termination or expiration of this Agreement.” I'll delete the remainder
> of the sentence. Will that be acceptable?

AFAIK there is no "fair use" concept in German law, but I know what you mean.
After all, it is no trademark infringement if, for example, a trademark is
used in a news report or a customer's post in a forum.

For me it is crucial that I am still allowed to publish my intellectual
property about Fedora, even if, for example, I terminate the contract because
I shut down the site for financial reasons.

> There was also a comment suggesting that those who signed the license
> were obliged to use the Infinity logo. That's not true; there is nothing
> in the agreement or the guidelines that requires use of a trademark.
> Instead, the agreement only says that if you use the Fedora name or
> logos, you have to use them properly.

Then it was a misunderstanding. I am glad to hear that.

Pam, your posting was the first one that really addressed my concerns, and I
am relieved that they can be resolved. Thanks again for your work, and for
joining the discussion.

-- 
Richard


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