"Ryan S. Dancey" wrote:
> > If you want "Registered Trademark" to
> > unambiguously refer to all Registered Trademarks regardless of whether the
> > registrant ever contributed OGC then IMO the term "Registered Trademark"
> should
> > be defined as such in section 1.
>
> "Registered Trademark" is a term of art and requires no definition.
>
But whenever "Registered Trademark" is defined (implicitly or otherwise) in
statute, caselaw or administrative documents it is always with a reference to
"Trademark", another term that normally has an independent legal meaning. The
OGL explcitly diverges from the standard meaning given to the latter term.
Given that, I think a reasonable-but-not-great argument can be made that
"Registered Trademark" as used in s7 can be reasonably understood (by people not
privy to your clarifications on this mailing list, etc.) to mean a Trademark as
defined in 1(f) that has gone through the federal registration process outlined
in 15 USC s1051. The only thing that really undermines that argument IMO isn't
the fact that it's a "term of art", but the "or" in s7 that distinguishes
between "Trademark" and "Registered Trademark."
Add to that the predictable use of the license by non-professionals, absence of
actual bargaining between the parties, the rule that ambiguities are construed
against the drafter of the license and the apparent absence of caselaw covering
this contingency, IMHNLO it behooves you to clarify the point. Besides, it
costs you nothing (as opposed to the cost of litigating whether "Registered
Trademark" could rationally be understood by the reasonable person only in the
manner you intend) and would make the document more clear. But YMMV -
addressing the issue on an attached FAQ rather than the OGL proper probably
covers you (and downstream OGL users) legally.
My apologies for the somewhat pedantic nature of this post, but that's
unavoidable sometimes when the topic of conversation is a license agreement.
The above is not legal advice. Don't take legal advice from strangers on the
internet.
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