[Foundation-l] Fair Use and Registered Trademarks

Mon Jul 18 16:09:42 UTC 2005

> [I wrote:]
> > [Of course, unlike
> > the Encyclopedia Britannica, you couldn't really use an image of
> > Mickey Mouse with the trademark removed, since Mickey Mouse *is* the
> > trademark]

Jean-Baptiste Soufron wrote: 
> Wrong... you could use a precise image of Mickey Mouse if this image
> is PD !

I think you misunderstood that sentence: I didn't say "You couldn't
use an image of Mickey Mouse." I said "You couldn't remove the
trademark [i.e. Mickey Mouse] from a picture of Mickey Mouse." I was
just pointing out that, if there *were* any possibility of a trademark
conflict, the Encyclopedia Britannica can be printed with the words
"Encyclopedia Britannica" removed to avoid that possibility; in
contrast, *if there were a need to* it would be impossible to use an
image of Mickey Mouse without it containing an image of Mickey Mouse.

> Once again, trademarks are a commercial system applying to commercial
> uses and unable to interfere with more legitimate rights. 

This doesn't make much sense to me - what are "more legitimate rights"
exactly? By its very existence, a legal enforcement of trademarks
removes the rights of one party in favour of another - it loses me the
right to market software as "Microsoft", for example - which without
trademark law would be perfectly "legitimate".

However, taking the gist of what I think you were saying, I will
defend my position by quoting myself:

> > I really don't know
> > what you could and couldn't do once Mickey Mouse was no longer
> > *copyrighted*, but still considered a *trademark*. 

In other words: I plead ignorance, your honour. I *don't know* in what
circumstances the trademark status would come into play. But I very
much doubt that a trademark expires completely and incontrovertibly as
soon as something containing that trademark enters the public domain.

-- 
Rowan Collins BSc
[IMSoP]