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  • From: Glenn Otis Brown <glenn AT creativecommons.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: cc licenses on trademark?
  • Date: Thu, 3 Mar 2005 13:37:46 -0800

this is really helpful, btw
On Mar 3, 2005, at 12:41 PM, Peter Brink wrote:

Kevin Shrieve skrev:
Peter,
Would you be so kind as to give a brief summary of what you think are the most interesting implications of these cases?

The reason I mentioned the Trademark directive in the first place was to point out that if one is contemplating a CC style trademark license one cannot offer less rights than is already offered by the law. The Trademark directive is implemented in all countries in the EU, all Europeans are allowed to use marks as described in article 6 of the directive. A CC trademark license thus needs to match or beat the EU trademark directive in terms of the rights offered to the user for it to be of any use for us in the EU. Designing a license which is only useful in an US context seems to me to be a waste of both time and resources.

In the BMW case the ECJ sheds light on how to understand the rules in article 6.c. The court ruled that a company who imported and sold BMW cars was allowed to use BWS's logo in its marketing material and also to call it self a "BMW specialist". Neither of these uses of BMW's mark were an infringment. Both were necessary to indicate to consumers that the company sold BMW cars and that they had specialist skills in maintaining and repairing such cars. The case thus gives an example of "honest practices" when a company indicates the intended purpose of a product or service.

The court also discusses how to balance the interests of the trademark owner, competing companies and the consumers interests of having many different products to choose from. The Gillette case will shed even more light on how this balance should be struck.

The BMW case should btw be covered in any decent textbook on European Trademark law, such as "Intellectual Property — Patents, Copyrights, Trademarks and Allied Rights" by Cornish and Llewelyn.

/Peter





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Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
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