On Thu, Mar 29, 2012 at 1:07 PM, Daniel Gagnon <redalas...@gmail.com> wrote: >> First of all, one only has to police unauthorized use of the >> trademark. One can authorize its use under particular circumstances, >> and then those uses don't need to be policed to avoid losing the >> trademark. > > That's at the heart of trademark law. A trademark is a form of "Proof of > origin". If you see Mickey Mouse in a movie, you can assume it's Disney. > This is why you can lose trademarks. If you let people use it for whatever > they want then it's not a proof of origin any more.
You seem to be confusing "not policing the mark" with "explicitly licensing it for some uses". Only the former can result in losing the mark. >> Second, trademark law only covers "use in commerce". Use on a personal >> webpage would not be covered, and would not have to be policed or risk >> losing the mark. Use on a commercial site (which might be broadly >> inclusive of, for instance, pages with revenue-generating ads) might >> be another matter, if it's seen as implying an endorsement or a claim >> to be the product/service the mark names. But... > > No you can't. No, you can't what? Use it noncommercially? Sure you can. To prevail on a trademark infringement claim for a registered trademark, a plaintiff must establish that: "(1) it has a valid mark that is entitled to protection under the Lanham Act; and that (2) defendant used the mark; (3) in commerce; (4) 'in connection with the sale ... or advertising of goods or services' ... (5) without the plaintiff's consent." 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400, 406 (2d Cir. 2005) (citing 15 U.S.C. §1114(1)(a)). >> Third, use of the mark in a purely factual manner is not, to my >> knowledge, governed by law. So, a store needn't negotiate a license >> with Coca Cola Inc. to say they have Coca Cola for sale, at least as >> long as they aren't lying. Saying a site is powered by X, when it >> really is powered by X, may fall under the same rule, given that >> there's no implication that the site *is* X or is endorsed by X. > > It is actually the purpose of the law. If you see the Coca Cola logo in a > store, you can expect genuine Coca Cola. Likewise, it is the purpose of the law that if you see the Clojure logo on a web site you can expect genuine Clojure. Your point being? >> Identifying a noncommercial user group as a Clojure user group would >> be analogous to identifying a noncommercial Web site as powered by >> Clojure, to my mind. Trademark law would not apply, and Rich wouldn't >> risk losing the trademark by not sending a lawyer after the group. > > It absolutely would. Not to a noncommercial use. See above. >> However, an earlier post claimed Rich had *copyrighted* the logo, >> which is another kettle of fish. > > Copyright is automatic since 1976. All registration does is having the > copyright office they did see your work on a given date. It is by no mean a > requirement. It's a requirement to go after statutory damages for an alleged infringement. Without a registered copyright you might go after direct damages (probably zero in this case) or an injunction to stop the unwanted use but that's about it. Also, "copyrighted it" in this sort of context tends to mean "intends to actually use the copyright to control use". Most things with automatic copyright also have unenforced copyright because the copyright holder doesn't care. Mailing list messages like this one, for example. Generally the copyright gets registered if the holder intends to enforce it, so they can go after statutory damages if there's an infringement. > Using the logo seems fair use to me. However trademark and copyright laws > are independent. You can infringe one one while respecting the other. I didn't claim otherwise. >> Personally, I think it would be silly to block uses of the logo to >> refer to Clojure in circumstances that don't imply an endorsement that >> doesn't exist, but obviously Rich is not obligated to share my opinion >> of what would be silly. > > I think we would avoid lots of headaches and legal gray areas by having > official "powered by" logos. I agree. -- You received this message because you are subscribed to the Google Groups "Clojure" group. To post to this group, send email to clojure@googlegroups.com Note that posts from new members are moderated - please be patient with your first post. To unsubscribe from this group, send email to clojure+unsubscr...@googlegroups.com For more options, visit this group at http://groups.google.com/group/clojure?hl=en
