Subject: RE: Followup on Exhibit B licences
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 6 Mar 2007 21:07:33 -0800

John Cowan wrote:
> I think this is an over-interpretation on your part.  In general,
> if X compels Y to do Z, X is estopped from also enjoining Y from
> doing Z, particularly in the same breath lik this.  In effect,
> the requirement to use the trademarks is tantamount to a limited
> license to use them.

Whether it is an explicit or an implicit trademark license, this results in
a very different legal problem. A trademark license that doesn't give the
licensor control over the quality of the downstream goods bearing that
trademark leads to loss of the trademark. Yet with open source, the licensor
cannot control the quality of derivative works. Oops! Legal contradiction!

An open source license cannot (should not!) contain a trademark license.

/Larry Rosen


> -----Original Message-----
> From: John Cowan [mailto:cowan@ccil.org]
> Sent: Tuesday, March 06, 2007 8:03 PM
> To: Rick Moen
> Cc: license-discuss@opensource.org
> Subject: Re: Followup on Exhibit B licences
> 
> Rick Moen scripsit:
> 
> > TenderSystem Public Licence 1.1, like the other "Exhibit B" licences,
> > (apparently by intention) impairs commercial reuse (thus violating
> > OSD#6) by requiring a trademarked logo + company name on "every user
> > interface screen" while simultaneously specifically denying a trademark
> > licence.
> 
> I think this is an over-interpretation on your part.  In general,
> if X compels Y to do Z, X is estopped from also enjoining Y from
> doing Z, particularly in the same breath lik this.  In effect,
> the requirement to use the trademarks is tantamount to a limited
> license to use them.
> 
> Furthermore, there is an analogue of fair use for trademarks.
> I can speak of drinking Coke, and a novelist can say that his
> protagonist drives a Ford, without stepping on trademarks.
> 
> And as for intention, "the devil himself knoweth not the mind of man"
> (Blackstone).  Legal intent must be judged by objective evidence.
> 
> --
> John Cowan    http://ccil.org/~cowan  cowan@ccil.org
> 'Tis the Linux rebellion / Let coders take their place,
> The Linux-nationale / Shall Microsoft outpace,
> We can write better programs / Our CPUs won't stall,
> So raise the penguin banner of / The Linux-nationale.  --Greg Baker