Promotion of derived products, the Microsoft case (was: Scope of copyright on derivative works)

[Philippe Verdy]

From: Rick Moen [mailto:rick at linuxmafia.com]:
> Quoting Philippe Verdy (verdy_p at wanadoo.fr):
> > Alexander Terekhov [mailto:alexander.terekhov at gmail.com] wrote:
> > > - Neither the name of the <ORGANIZATION> nor the names of its
> > > contributors may be used to endorse or promote products derived from
> > > this software without specific prior written permission.
> >
> > This kind of statement is exactly the typical restriction that I was
> > speaking about the Microsoft's possible attempt to limit the use of its
> > licence name, because it would indirectly reference Microsoft itself
> without
> > permission for promoting a product distributed under the terms of one of
> the
> > proposed Microsoft licences.
> 
> No.  See below.
> 
> > So if this statement is enforceable, this means that such restrictions
> are
> > valid and enforceable, and so, unless such permission is explicitly
> provided
> > in the Microsoft proposed licences, the names of the licence will cause
> a
> > problem, given that the trademark "Microsoft" is effectively protected,
> and
> > obeys to its general usage policy explicited in the Microsoft web site
> or in
> > the EULA, or simply by law and in by official trademark registrations in
> the
> > various countries where it has been protected.
> >
> > I can't safely assume a "fair use" legal clause, simply because the
> "fair
> > use" exception does not apply to the case of promoting competing
> products,
> > and this is not even a citation (if software are considered as artistic
> > creations, in countries where this is applicable).
> 
> Wrong.  Philippe, _please_ go study some trademark law.  You mean well,
> but are wasting everyone's time.
> 
> Trademark law gives a limited monopoly right on _brand impression_, such
> that it is a tort (trademark infringement) to use someone else's mark in
> business, within the same trade or industry, for third-party competing
> goods (trademark in the strict sense of the term) or services (service
> marks), in such a fashion as to tend to create the misleading confusion
> in the mark-holders' less-sophisticated customers' minds that the
> mark-owner has produced or endorsed the competing goods or services.
> That is precisely the legal standard that would apply.  (That is the
> standard within systems derived from English common law, and yes, I'm
> well aware of the issue of international differences.  Please see below.)
> (...)


Sorry, I can't understand anything in what you wrote, and in the subtle
differences your want to make when exposing your examples. Most probably
this is because it uses a terminology that is too much specific to the US
legal system (for which I have absolutely no experience).

I'm no expert in Common Law, I just have some past experience in Civil Code
(but here again I'm not a lawyer, and the EU regulation is also complex and
subject to change, and difficult to interpret as it depends on its
implementation in the national laws of each EU member country, something not
trivial in EU because the Common Law and Civil Code both exist there, the
Civil Code being the most widely used except in UK and Ireland).

There are analogies, because many things have been imported from one system
to the other, but this is still not the case when interpreting licences and
contracts, and the identity of persons protected by law (this is complicated
by various personal status in Europe, these status being protected
constitutionally, and sometimes multiple in the same country).

The status of organizations is however much more unified (because they are
not so much protected by national Constitutions), the main differences being
related to their fiscal and accounting status (which depends on the way the
powers and money are distributed in the organization), or between the
public/governmental and private sector (for the competence of justice Courts
and the way they are publicly or privately controlled in their activities),
but not much related to their civil status for their juridical personality.

Things that are common between the two systems are the system of patents
(which seems to originate from rights granted or protected in the Civil
Code, before they were imported and adapted in Common Law terms). The status
of licences is derived from this shared system.

Things that differ significantly is the interpretation of contracts (which
have required written mutual agreements since almost ever in the Civil Code,
but not in Common Law which gives more freedom to contractors). But the
status of licences as been enforced since long in the Civil Code so that
they are now interpreted as contracts (this is not the case with Common Law,
however licences are progressively integrating many contractual features in
those countries, due to the convergence of laws after ratification of
international treaties that require implementation in national laws).

It has been historically difficult to make internationally valid licences
and contracts, but things are changing significantly during the last
decennial, due to the growing membership of countries to WCO and WIPO. The
terminology is then changing, or new equivalences are made according to the
ratification elements submitted by each country, but this also means that
the past jurisprudence must be used with extreme care, as it may not be
applicable after the many ongoing changes of interpretations in applicable
national legislations. It is expected that many trials will occur to "test"
the new legislation and fix the remaining ambiguities or conflicts by either
a newer jurisprudence or amendments of national laws if Courts can't decide
reliably.

That's why, in the European Union, more than 80% of changes in national laws
are coming now from the adaptation or implementation of EU regulation, or
from the ratification of worldwide international treaties (to which the EU
is also often a signatory party).