Subject: Re: For approval: Open Test License v1.1
From: "Rod Dixon, J.D., LL.M." <rdixon@cyberspaces.org>
Date: Fri, 9 Jan 2004 22:10:23 -0500

You are correct that a weak trademark will require vigorous enforcement to
avoid losing the distinctive quality of the mark; other than that, however,
I am at a loss to come up with a pertinent distinction - - in terms of the
size of the OWNER - - in how the job of enforcing your copyright license
differs from enforcing a trademark license.  You may want to undertake a
careful re-consideration of your goal for condition 3, and see if it can be
implemented in some other way. In the meantime, it sounds as if an existing
approved open source license might meet your needs nicely.

Rod

----- Original Message ----- 
From: "Alex Rousskov" <rousskov@measurement-factory.com>
To: "Rod Dixon, J.D., LL.M." <rdixon@cyberspaces.org>
Cc: <license-discuss@opensource.org>
Sent: Friday, January 09, 2004 7:59 PM
Subject: Re: For approval: Open Test License v1.1


:
: On Fri, 9 Jan 2004, Rod Dixon, J.D., LL.M. wrote:
:
: > it is not apparent - - not to me, at least - - why it is included in
: > your software license.
:
: Clause #3 is included to prevent serious violations and cheating when
: publishing standardized test results. Such publications often hurt
: OWNERs and tool image and credibility.
:
: > Have you considered protecting your "reputation" interest through
: > trademark?
:
: Yes, I have. AFAIK, the problem with trademarks is that they need to
: be constantly enforced to stay in force. This is difficult to do for a
: small, user-friendly company, informal development group, or an
: individual author.
:
: Imagine: every time somebody publishes a test result with your
: trademark in it, you have to contact the publisher, demand
: changes/corrections/removal of test results, and threaten them with a
: law suite if you think they even sightly violated the trademark usage
: rules. You most likely need to pay somebody to draft such complains as
: well.
:
: The publisher may be an innocent guy doing some simple testing that is
: unlikely to be visible enough to affect your reputation. Thus, you
: would not bother him, but you have to, because if you do not do that,
: then when a real violation happens, the violator (now a big company
: with lawyers, etc.) will tell you to go to hell with your trademark
: claims because they will point to 50 cases (archived on the web) where
: you failed to enforce the trademark. All those cases were minor
: violations by innocent, low-profile guys, but that does not matter,
: does it?
:
: Is my rough interpretation of the trademark law correct? Will the
: owner have to enforce the trademark all the time and every time? If I
: am wrong, trademarks would be the way to go, of course.
:
: Thanks,
:
: Alex.
:
: P.S. If trademarks do not work, I will try to give yes/no answers
:      to your original questions. It is difficult to do that because
:      your questions are using terminology and use cases that does not
:      match what we have in mind. That is why I tried to explain rather
:      than say yes/no.
:
:
: : 3. Publication of results from standardized tests contained within
: :    this software (<TESTNAME>, <TESTNAME>) must either strictly
: :    adhere to the execution rules for such tests or be accompanied
: :    by explicit prior written permission of <OWNER>.
:
: --
: license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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