For Approval: Microsoft Permissive License

[Philippe Verdy]

Rick Moen [mailto:rick at linuxmafia.com]
> Quoting Chris Zumbrunn (chris at czv.com):
> > Putting a "Microsoft Public Licensed" sticker on the boxed version of
> > your open-source software would probably be pushing the envelope in
> > every country.
> 
> Your hypothetical looks precisely like straightforward nominative use to
> me -- which usage is specifically exempted from claims of trademark
> infringement, in US law.  (Well, it's an affirmative defence, which is
> to say it must be established in court by the defence, based on a
> showing of facts.)

This is not a hypothetical case. This use is also protected and covered by
another right, also covered by the trademark law, and that organizations
(Microsoft or others) are also protecting, by creating specific logos
derivered on the trademark, or specific labels protected by some national
law and limiting the unconditional usage within others.

Such system also protects mere designations of a product, and we can find
laws that is protecting consumers from fake designations in advertising. But
the problem is to be able to prove that the designation is fake: for example
if you, the consumer, are buying a pack of yoghurts that displays the text
"vanilla aroma" or even "natural vanilla aroma", you should know that it
does not contain any natural "vanilla" in it.

And makers or advertizers of these products are surfing on rights trying to
convince you that the yogurts do contain vanilla, when in fact the aroma was
manufactured in a process that does not even include any vanilla in it.

But with a licence named "Microsoft xxxxx Licence", the question about
whever it contains some Microsoft signature in it, and that Microsoft did
not authorize such use in its licence is much more debatable, given that
Microsoft DID write the licence.

If the name of the "Microsoft xxxx Licence" was not effectively covered by
the trademark law protecting the name "Microsoft", then I could immediately
write my own licence named "Microsoft xxxxx Licence", pretend that it is not
covered by trademark law, and then advertise the product in the same
conditions as the one used by makers and advertized of yoghurts (?with?)
vanilla.

Do you see the problem where it really is? What is meant is that the licence
name is also necessarily protected, owned by some exclusive right that must
remain exclusive and not transferred along with the licence that governs its
use by others. And in fact, this is the only way to make any licence
enforceable (from who ever it comes): the transfer of non-exclusive rights
through a licence can't exist and be valid without the protection of an
associated exclusive right which is not transferred by the act of licencing.

Another way to say it: licenced rights can't cover exclusive rights (so no
sentence in the licence saying that it grants you non-exclusive rights is
superfluous), and a licence is clearly not the same as a contract through
which exclusive rights can be definitely and completely transferred.

Licences are necessarily limited, otherwise they are contracts (which must
or should be balanced, but that's another question regarding their
validity...), which are the only possibility of really terminating all
ownership of exclusive rights from one party by transferring them
definitively to another party.