On 9/18/2013 4:08 PM, Ken Arromdee wrote:
On Wed, 18 Sep 2013, John Cowan wrote:
Sec. 4.3 strikes me as actually conceptually somewhat interesting,
inasmuch as many commercial lawyers have argued that this type of
clause is often implicit in software that contains a protect trademark
embedded in the software and not removed by a downstream licensee.
In this case, however, Section 4.2 prevents you from removing the
protected trademark. Taking the two clauses together, you are
effectively
prevented from making commercial use of the software without paying for
the trademark license, which obviously contravenes clauses 6 and 7 of
the OSD. So this license is on its face not Open Source.
It says:
4.3 - Commercial distribution of the Software requires a
trademark license agreement and you may be required to
pay. Using the Software within a corporation or entity is not
considered commercial distribution. This license does not grant
You rights to use any party's name, logo, or trademarks, except
solely as necessary to comply with Section 4.2.
Wouldn't the "except solely as necessary to comply with section 4.2"
clause
make it okay? Section 4.2 prevents you from removing the protected
trademark, and section 4.3 allows you to use the trademark under those
circumstances.
I believe the restriction in 4.3 violates the OSD, specifically OSD 5 or
6 (but you all have much more experience with how each of these are
interpreted, so perhaps you will disagree).
4.2 applies to the use of the trademarks in the software only, but 4.3
tries to restrict use of the trademarks more broadly in a commercial
context. As an example, trademark law allows the resale of genuine
product without any kind of license. So in the open source context, I
should be able to take unaltered software and state on my website and in
advertising materials that I am distributing the genuine software. It
appears to me that this provision tries to prohibit this lawful use by
contractually requiring a license for it. So it treats a commercial
enterprise differently from a non-commercial enterprise (whatever that
distinction is because I'm not sure); if I am non-commercial I can
advertise that I distribute the software but if I am commercial I can't
without paying for a trademark license.
In my opinion, if there is no statement in a license about trademarks
then the assumption should be there is no trademark license. Some
licenses, like the Apache license, say the same thing expressly, to
avoid any question (I think a good practice). What happens then in both
these cases is that use of the trademark by anyone is a matter of
whether it is a lawful use or not. But this license goes further than
that by arguably prohibiting lawful uses too.
Pam
Pamela S. Chestek, Esq.
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pam...@chesteklegal.com
www.chesteklegal.com
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