discuss: license issues
Subject:
Re: license issues
From:
Rick Moen ####@####.####
Date:
28 Apr 2004 07:44:03 -0000
Message-Id: <20040428074400.GF19884@linuxmafia.com>
Quoting Mary Gardiner ####@####.####
> I've assumed throughout this discussion that what Doug is thinking is
> that:
>
> 1. The term "Creative Commons" is a trademark.
<sigh> A mark under trademark law can exist only within the specific
trade or industry in which it's established. (In the USA, there is a
post-1995 exception for the very most distinctive and famous marks,
which have been held to suffer "dilution" from _any_ third-party
commercial usage.) Thus, the existence of a Bud Sports Store (or
Bacardi Restaurant) doesn't infringe Anheuser-Busch's trademark rights
established within the liquor industry.
Please see: "Trademark Law" on http://linuxmafia.com/kb/Licensing_and_Law
> 2. Authors of documents under CC licences may therefore only use the
> two words "Creative Commons" in the context of licencing their document
> (as opposed to, for example, writing a CC licenced document that uses
> the two words "Creative Commons" in the context of writing nasty things
> about CC).
No, this vastly exceeds the scope of what trademark law actually covers.
Trademark law doesn't grant monopolies over words. It grants limited
monopolies over _the impression of brand identity_ resulting from
marks distinctively establishing those brand identities (marks that
distinctive phrases of a sufficiently non-generic nature) within
particular trades or industries.
I can sell "Rick Moen's 'Creative Commons Doesn't Make This Stuff' Lemonade"
all day long right outside CC co-founder Larry Lessig's office, and all
he can do is frown at me. ;-> CC's Attribution 1.0 licence states that
nothing in it conveys that right, but that's OK: It's a right that I
already have, by the fundamental nature of trademark law. (Why? Please
see below.)
> I don't know trademark law well enough to know under what circumstances
> using a trademarked term or phrase constitutes abuse of a licence to use
> that trademark.
Protected marks may not lawfully be used to sell commercial goods or
services in a manner likely to confuse the mark owner's customers into
thinking that the mark owner produced or endorses the third-party goods.
(The mark owner has an ownership interest in the public's impression of
"brand identity".) This is covered in the USA by the Federal Lanham
Act (15 U.S.C. ยงยง 1051 - 1127). _That_ is what must be demonstrated by
plaintiff in any regular trademark action. If plaintiff cannot
demonstrate all those required elements, then infringement has not
occurred.
(By "regular", here, I mean not counting specialised cases such as the
"disparagement" and "dilution" exceptions. See my knowledgebase article
for details.)
If mark owners condone[1] third-party uses in commerce without
permission, they risk a judge declaring them to have thereby become
"generic" and thus no longer ownable. Thus, owners of significant
trademarks always go to considerable lengths to
[1] Term denotes: Turn a blind eye to.
--
Cheers,
Rick Moen This space for rant.
####@####.####
