jonmac wrote:
>
> -----Original Message-----
> From: Michael D. Porter <mdporter@rt66.com>
> To: jonmac <jonmac@ndirect.co.uk>; triumphs@autox.team.net
> <triumphs@autox.team.net>
> Date: 15 June 1999 11:49
> Subject: Re: Copyright
>
> >
> >
> >jonmac wrote:
> >>
> >> Michael Porter raises an interesting point when he says:
> >>
> >> So, likely, BMW would have to note the copyright infringement, show proof
> >> that they legally owned the rights, contact the courts and Ken Bertschy
> >> and issue him a cease and desist order, and prosecute for damages if he
> >> failed to comply, all of which are unlikely.
>
> I'm obliged to "my learned friend's" <g> definition of the interpretation of
> what constitutes trademark infringement within US legal statutes.
Perhaps I need to clarify a bit, as well. The law here, as in Great
Britain, regarding registered trademarks (logos, etc.), forbids use of
that symbol without permission of the owner. Registered names, however,
can be referenced, as long as there is an indication of name ownership
(some indication of trademark), and no assertion is made of endorsement
by the name holder or that the product or service is that of the name
holder, unless specifically authorized to do so. Names, apparently, in
the high court's legal definitions, are communication, and as such,
references to them which meet the general "fair use" definitions are
legally acceptable. Borrowing a registered trademark symbol for one's
own use is not.
I am much surprised by Rover's recalcitrance regarding the use of, for
practical purposes, a defunct logo. This almost sounds to me as if one
just got the wrong person to ask, on the wrong day. We typically get a
few requests a year from customers to put our books into electronic form
for their own purposes (usually for inclusion in automated maintenance
programs) and not for profit, and I have taken the quasi-legal steps of
insisting only that the electronic copies will not be resold, that the
customer hold us harmless for any unauthorized changes they may make in
the electronic publication, and that they give me written notice of
changes made, and that I get a letter from a responsible official in
their organization agreeing to those terms. Someone at Rover was likely
just being pissy.
Nevertheless, the same thing can happen here. We were forced to accept
some contractual terms which made us responsible to supply vendors'
manuals on CD as part of a bus order. Most of the manuals were not
available from the principal vendors in that form. We were left with the
only possibility available to us--scan the paper manuals and put them on
CD, and get the vendors' permission to supply their manuals to our
customer in that form, without any other alteration. I got the runaround
for months from the publications departments of those vendors. We had no
choice but to say to our customer, "they don't have CDs, and they
haven't given us relief from copyright infringement, so we can't do it
on our own. We can't provide you that contractual item because it is
illegal to do so."
In the case of the difficulties with Rover, the request was made of the
patents and trademarks department, which is a bit like talking to
lawyers, hypothetically <smile>. Typically, that sort of request is
immediately denied--it's altogether easy to say no if one's in control.
I try, whenever possible, to deal with the publications department of
the company, and let them consider the request for rights. At least in
some cases, the company's publications manager understands the
difficulty and will try to accommodate, because (particularly in the
automotive trade) he's probably borrowed the copyrighted text of a
vendor for his own manual, because the vendor's product is installed.
Often best to let them make the decision, or let them approach the legal
people with the request. In some instances, I've even had vendors offer
to provide me with catalogs using our art to make it easier for us to
incorporate their parts catalogs into ours--in such an instance, there
is a clear economic incentive for the vendor to do so.
And, sometimes, it is just quicker and simpler to call the publications
people and say, our non-profit group would like to use this logo for
this legitimate and not-for-profit purpose, and we offer a one-time
nominal payment for that right. Sometimes that works, sometimes not.
Cheers, John.
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