Subject: Re: GPLv3 Appropriate Legal Notices and Restrictive Trademark Grants
From: Rick Moen <rick@linuxmafia.com>
Date: Sat, 12 Jul 2008 00:38:14 -0700

Quoting Ben Tilly (btilly@gmail.com):

> No, but requiring mention of a trademark and denying the use of that
> trademark for certain commercial purposes would result in not meeting
> OSD #6.

I would say rather, that would be vexingly misleading:  Once again,
trademark law _completely fails_ to empower trademark owners to bar "use
for certain commercial purposes".  The only uses barred by trademark
law[1] are -- to repeat yet again -- ones making it likely that
competing goods or services are likely to cause confusion in the minds
of the trademark-owning firm's customers.  And that usage is certainly
in no way essential to OSD compliance.

The published "trademark policy" (or what-have-you) can say whatever the
firm's lawyers dream of being entitled to, but their real entitlement
tends to be radically less, and approximates the above.

> Depending on how the license is written, yes.

Quite so.  I regretted not having said that, so I thank you for doing it
for me.

> Ah yes.  There are the rights you have, and the rights you can
> *convince* other people you have.  Personally I would like to see a
> legal system where lawyers could be disbarred for trying to lead
> people to believe they didn't have rights that the lawyer should have
> known the person had.

{shrug}  Well, I've pointed out to many groups of open source users that
outrageous and unmerited legal threats -- especially trademark ones --
are a popular zero-cost gambit, particularly successful against open-source
software projects because of the latter's tendency to capitulate without
meaningful scrutiny [**cough** CentOS's webmaster **cough**].


[1] I'm speaking of the tort of trademark infringement, here, and not
getting into the separate torts of disparagement and dilution, about
which see your favourite references -- or my non-professional summaries,
if anyone considers them worthwhile.