Bryan J. Smith wrote:
> On Tue, 2005-08-23 at 19:03 -0500, Mike McCarty wrote:
>
>>I was responding to the original question, which IIRC
>>was whether GPL requirements possibly conflict with
>>the trademark limitations.
>
>
> Does the software require the trademark to run?
> In the case of "Linux," maybe.
>
> As such, Linus could not enforce the trademark down to the anal power
> (again, assuming he could under existing law, which I seriously doubt).
> But he can claim a trademark and he can enforce it where it does not
> conflict with the GPL.
>
>
>>No. I tried as specifically as possible to point out
>>that this was privately held, non-published, trade
>>secret, not distributed code. The source was never
>>intentionally divulged to anyone, except for contractors
>>who signed NDAs.
>
>
> No, you missed mine and it's the _crux_ of this debate.
>
> What I said was that your company had a written agreement for that
My company had no such agreement for its own code.
> source code. I've seen many of these and the licenser _explicitly_
> requires the licensee to _edit_out_ all trademarks. That is an
> additional, legal detail that you were bound to because the original
> licenser does not want your developers blaming them for changes you
> might make.
We seem to be talking around each other, so just to make things
very very clear, here is the state of affairs at the time:
Company A created, from scratch, a bunch of source code.
In the source code created by Company A was used, in comments,
a certain term. It also used that term in certain pulished
documents and in product names.
The source code created by Company A did not license the use
or divulge the source it had created to any other person,
corporate or otherwise, except under NDA, considering all
information about that source to be trade secret.
Company A did license the executable, for execution only on
proprietary hardware which it designed and manufactured.
Company B later came along and trademarked the term mentioned
above.
Company B's lawyers informed Company A's lawyers that all
use of the now trademarked term belonged solely to Company
B, and that any use of Company B's now trademarked term
must cease.
Company A's lawyers informed all personnel in Company A that
all such terms must be removed from all documentation.
After the engineers complained that there would be a massive
editing effort to modify *comments*, the lawyers of Company A
and Company B got together, studied the law, and concluded
that, to comply with the law, Company A must perforce modify
all documents, including non-disclosed proprietary trade
secret source, even in comments, so that the now trademarked
term did not appear anywhere.
The engineers gritted their teeth, and did a massive search
and edit to modify the source.
> This has nothing to do with the public licenses where there are not
> written contracts. Linus can prevent you from using his mark in the
> trade, but he cannot enforce you to remove any reference to Linux in
> source code without an additional, written agreement.
That is not what the corporate lawyers concluded, and the company
spent many $$$ to comply, belive me.
[snip]
Perhaps now that the situation is more clear, we can be talking
on the same page. (Unless we already were :-)
Mike
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