[Foundation-l] Trademarks

[Mike Godwin]

Anthony writes:

> What are you saying here?  Do you think free speech is promoted by  
> telling
> people "no" when they ask if they can use your trademark, but then  
> not doing
> anything when someone uses it without asking?

I'm trying to say that striking a humane balance between the  
requirements of trademark maintenance and the interests of freedom of  
speech is something I try to do, pretty much on a daily basis.  If you  
have experience with trademark lawyers in other contexts, you'll find  
that they're generally far more aggressive in policing trademarks than  
I am. One of my tasks is to preserve and maintain the value of our  
trademarks, but I try to inform that task with as much tolerance and  
support for freedom of speech as possible.

As for those who use our trademarks without asking, I try to focus on  
the larger-scale, commercial infringers.  Mostly this is a function of  
allocating resources -- we don't have infinite time and money to  
police trademarks, so we try to pick the worst offenders when we send  
cease-and-desist letters (with the possible followup of formal legal  
action), and this means we necessarily are going to let more minor  
infringers slide.  It turns out that recognizing and working within  
economic constraints is congruent with a more tolerant policy  
regarding unlicensed use, which I think is a reasonably felicitous  
result. (Often I proceed more informally against infringers, and that  
frequently is enough to stop the infringement.)

> Is that something they taught you in law school, or did you learn it  
> on your
> own?

I'm not sure I understand what additional information you are  
attempting to elicit with this question.  Are you genuinely curious  
about law school or about my experience?  If so, I'm ready to answer  
private inquiries, but the question itself -- taken at face value --  
doesn't seem germane to the subject matter of this public mailing list.

> I didn't make any points, I asked questions.  If you can think of a
> different way to phrase the questions while still obtaining the  
> answers to
> them, please feel free to rephrase them.

Perhaps I'm missing something, but it seems to me that the law-school  
versus on-your-own question was designed to be disparaging.

>  And my third question, which I suppose was the one
> considered "disparaging", was somewhat pre-emptive.  Mike has a  
> tendency to
> answer questions of this sort with an appeal to his status as a famous
> lawyer, and therefore as someone whose statements are (in his mind)  
> beyond
> question by us little people.

Good lord, this is quite a misreading of how I intended to be  
interpreted.  I was trying to suggest (as I elaborate above) that my  
experience as a free-speech lawyer informs my work on our trademark  
portfolio.  I hardly think "famous" has much to do with it. I don't  
think of you as "little people" -- I don't even know what you mean by  
that -- but if I thought my statements were "beyond question," then I  
wouldn't bother to respond to your messages.

I think you have to work very hard, mentally, to insert into my one  
sentence about "a free-speech lawyer" all this stuff like "famous" or  
"beyond question" or "little people."  Those words may inhabit your  
perception of me and my attitude, and I apologize if something I've  
said elsewhere has given you the impression that I think that way, but  
they're not there in the actual words I used.

I can't pretend to be inexperienced in dealing with either free-speech  
or trademark issues, but I don't expect you or anyone to defer to me  
simply because I'm purportedly an authority.

>  So I wanted to clarify in advance which parts
> of his statement he thought could be understood (and not just accepted
> without question) by those of us who decided not to go to law school.

I hardly ever condition my responses to this list on whether the  
person I'm responding to has gone to law school.  And, seriously, do  
you suppose that after decades online I could possibly every expect  
*anything I say in any context* to be "just accepted without  
question"?  You must think I'm as dumb as I look.

> It seems to me to be
> self-evident that telling people that they can't use your trademark  
> and not
> policing the use of your trademark are contradictory, and apparently  
> this
> seems self-evident to others on this mailing list as well (hence the
> accusations that I'm trying to make a point).

We're policing the use of the trademark.  Our efforts on this front  
are mostly invisible to most of you, and that is as it should be. And,  
as I have pointed out, we necessarily can't police all infringing  
uses, so (informed by the desire to be as tolerant as possible of non- 
harmful unlicensed uses), we try to go after the worst offenders.

Your reasoning suggests (by analogy) that prosecutors who don't  
prosecute every single offense, or policemen who don't arrest everyone  
who might have committed offense, are somehow "contradictory" to  
upholding the law.  But that's not how the legal system works.  We all  
have legal rights and responsibilities, but, *just as important*, we  
can choose where and when we will invoke them.  That's not  
"contradictory" -- that's at the very least prudence, and, one hopes  
in the long run, it may even approach humanity and wisdom.

> Yes, there
> are also possible negative outcomes, but we're supposed to assume good
> faith, aren't we?

The question about law school, plus the stuff about "just accepted  
without question" and "little people," did not strike me as informed  
by any assumption of good faith.  I hope you will find it in your  
heart to forgive me if I misread the good-faith assumption intended by  
your "little people" comment.


--Mike