Commentary:Use for Non-Software - Revision history

47.25.38.193: /* United States */ 704263391

2026-04-17T01:54:05Z

‎United States: 704263391

Pam: Update EU law

2013-06-22T13:38:48Z

Update EU law

Pam: Added rulings for Silberquelle and Verein Radetzky-Orden

2013-06-21T19:45:51Z

Added rulings for Silberquelle and Verein Radetzky-Orden

Pam: /* Commentary on Use for non-software goods and services */

2013-06-20T15:34:25Z

‎Commentary on Use for non-software goods and services

Pam: /* Commentary on Use for non-software goods and services */

2013-06-20T15:24:54Z

‎Commentary on Use for non-software goods and services

Pam: /* Commentary on Use for non-software goods and services */

2013-06-20T15:09:53Z

‎Commentary on Use for non-software goods and services

Pam: Added heading

2013-06-20T15:07:59Z

Added heading

Pam: Added first discussion to page

2013-06-19T21:04:25Z

Added first discussion to page

Pam: added opening paragraph

2013-03-26T18:49:41Z

added opening paragraph

Pam: Moved content to draft 0.0.1 discussion page

2013-03-26T18:29:42Z

Moved content to draft 0.0.1 discussion page

@@ Line 17: / Line 17: @@
 There nevertheless is still a duty to exercise quality control, so there should be some effort to have standards that will ensure consistent quality, like the use of vendors authorized by the project or specifications of level of quality for the promotional product.
-There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free.
+There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free.Megan crain And God
 === Other jurisdictions ===

@@ Line 22: / Line 22: @@
 ==== European Union ====
 Case C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH: "Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, where the proprietor of a mark affixes that mark to items that it gives, free of charge, to purchasers of its goods, it does not make genuine use of that mark in respect of the class covering those items."
 Case C‑442/07, Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’: "Article 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be construed as meaning that a trade mark is put to genuine use where a non-profit-making association uses the trade mark, in its relations with the public, in announcements of forthcoming events, on business papers and on advertising material and where the association’s members wear badges featuring that trade mark when collecting and distributing donations."

@@ Line 23: / Line 23: @@
 ==== European Union ====
-In Case C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH, the ECJ decided a case where a TM owner use his TM only for promotional goods that had no connection whatsoever to the goods the TM was registered for (they were used on free softdrink samples, while the TM owner actually had a clothing business). In that scenario, the ECJ said that there was no genuine use with regard to clothing (there would have been genuine use for softdrinks, if the mark had been registered for those goods, which it wasn't).
+Case C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH: "Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, where the proprietor of a mark affixes that mark to items that it gives, free of charge, to purchasers of its goods, it does not make genuine use of that mark in respect of the class covering those items."
-In Case C‑442/07, Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’, the ECJ said that it is irrelevant whether or not goods are sold, as long as giving away the products has a sufficiently close connection to a commercial activity of the TM owner. I.e. I can genuinely use my TM on promo samples and in sponsoring if my ultimate aim is to increase my commercial market share.
+Case C‑442/07, Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’: "Article 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be construed as meaning that a trade mark is put to genuine use where a non-profit-making association uses the trade mark, in its relations with the public, in announcements of forthcoming events, on business papers and on advertising material and where the association’s members wear badges featuring that trade mark when collecting and distributing donations."

@@ Line 23: / Line 23: @@
 ==== European Union ====
-In Case C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH, the ECJ decided on a case where a TM owner use his TM only for promotional goods that had no connection whatsoever to the goods the TM was registered for (they were used on free softdrink samples, while the TM owner actually had a clothing business). In that scenario, the ECJ correctly said that there was no genuine use with regard to clothing (there would have been genuine use for softdrinks, if the mark had been registered for those goods, which it wasn't).
+In Case C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH, the ECJ decided a case where a TM owner use his TM only for promotional goods that had no connection whatsoever to the goods the TM was registered for (they were used on free softdrink samples, while the TM owner actually had a clothing business). In that scenario, the ECJ said that there was no genuine use with regard to clothing (there would have been genuine use for softdrinks, if the mark had been registered for those goods, which it wasn't).
 In Case C‑442/07, Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’, the ECJ said that it is irrelevant whether or not goods are sold, as long as giving away the products has a sufficiently close connection to a commercial activity of the TM owner. I.e. I can genuinely use my TM on promo samples and in sponsoring if my ultimate aim is to increase my commercial market share.
-In C 127/09 – Coty Prestige Lancaster / Simex and C-324/09 – L'Oréal / eBay, the ECJ decided on cases where promotional goods were given to vendors with the explicit condition that they may not be sold to third parties. The ECJ held that if those goods are then nevertheless sold, the rights of the TM owner are not exhausted, the goods have not been placed on the territory of the EU with consent of the owner, and thus the TMs can still be enforced against whoever sells the goods.
+In C 127/09 – Coty Prestige Lancaster / Simex and C-324/09 – L'Oréal / eBay, the ECJ decided on cases where promotional goods were given to vendors with the explicit condition that they may not be sold to third parties. The ECJ held that if those goods are then nevertheless sold, the rights of the trademark owner are not exhausted, the goods have not been placed on the territory of the EU with consent of the owner, and thus the trademarks can still be enforced against whoever sells the goods.

← Older revision		Revision as of 15:24, 20 June 2013
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	==== European Union ====		==== European Union ====
		+
		+	In Case C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH, the ECJ decided on a case where a TM owner use his TM only for promotional goods that had no connection whatsoever to the goods the TM was registered for (they were used on free softdrink samples, while the TM owner actually had a clothing business). In that scenario, the ECJ correctly said that there was no genuine use with regard to clothing (there would have been genuine use for softdrinks, if the mark had been registered for those goods, which it wasn't).
		+
		+	In Case C‑442/07, Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’, the ECJ said that it is irrelevant whether or not goods are sold, as long as giving away the products has a sufficiently close connection to a commercial activity of the TM owner. I.e. I can genuinely use my TM on promo samples and in sponsoring if my ultimate aim is to increase my commercial market share.
		+
		+	In C 127/09 – Coty Prestige Lancaster / Simex and C-324/09 – L'Oréal / eBay, the ECJ decided on cases where promotional goods were given to vendors with the explicit condition that they may not be sold to third parties. The ECJ held that if those goods are then nevertheless sold, the rights of the TM owner are not exhausted, the goods have not been placed on the territory of the EU with consent of the owner, and thus the TMs can still be enforced against whoever sells the goods.

← Older revision		Revision as of 15:09, 20 June 2013
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	==Commentary on Use for non-software goods and services==		==Commentary on Use for non-software goods and services==

		+	See [[Commentary:Use for Software]] for additional discussion of trademark law principles as they relate to FOSS projects.

	=== United States ===		=== United States ===

← Older revision		Revision as of 15:07, 20 June 2013
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	There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free.		There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free.

−	=== European Union ===	+	=== Other jurisdictions ===
		+
		+	==== European Union ====

← Older revision		Revision as of 21:04, 19 June 2013
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	==Commentary on Use for non-software goods and services==		==Commentary on Use for non-software goods and services==
		+
		+
		+	=== United States ===
		+
		+	The standard for control over promotional goods is probably more relaxed than for core goods:
		+
		+	<blockquote>If a licensee uses the trademark of a beer or soft drink manufacturer on clothing or glassware, for example, prospective purchasers may be unlikely to assume that the owner of the trademark has more than perfunctory involvement in the production or quality of the licensee's goods even if the manner of use clearly indicates sponsorship by the trademark owner. On the other hand, if the licensee's use is on goods similar or identical to those produced by the trademark owner, purchasers may be likely to assume that the goods are actually manufactured by the owner of the mark. Greater control by the licensor may then be necessary to safeguard the interests of consumers who may purchase the goods on the basis of the licensor's reputation for quality.</blockquote>
		+
		+	Restatement (Third) of Unfair Competition § 33, cmt. c (1995); ''see also'' ''Experience Hendrix, LLC. v. Elec. Hendrix, LLC.'', No. C07-0338 TSZ, 2008 WL 3243896 at *7 (W.D. Wash. Aug. 7, 2008) ("The type of quality control required to prevent abandonment varies with the circumstances").
		+
		+	There nevertheless is still a duty to exercise quality control, so there should be some effort to have standards that will ensure consistent quality, like the use of vendors authorized by the project or specifications of level of quality for the promotional product.
		+
		+	There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free.
		+
		+	=== European Union ===

← Older revision		Revision as of 18:49, 26 March 2013
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−	Commentary on Use for non-software goods and services	+	The "Commentary" pages are are explanatory material relevant to those adopting the Model Trademark Guidelines, like Reporter's Notes for a Restatement or advisory committee notes for model laws. They provide information to the end users of the guidelines about the legal, practical and ideological rationale embodied in the guidelines.
		+
		+	If you want to discuss what's on the Commentary page, use the "Discussion" tab for the Commentary page.
		+
		+	==Commentary on Use for non-software goods and services==

← Older revision		Revision as of 18:29, 26 March 2013
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	Commentary on Use for non-software goods and services		Commentary on Use for non-software goods and services
−
−	~~===Domain Names===~~
−
−	~~You write "top or second level domain name"; I suspect you mean "Public Suffix + 1" - http://www.publicsuffix.org/. But perhaps it's better to say "in any label in a domain name".~~
−
−	~~-- [[User:Gerv\|Gerv]] ([[User talk:Gerv\|talk]]) 10:38, 25 March 2013 (EDT)~~
−
−	I was permitting for third level and directories, but query whether that should be allowed. I also never heard of "Public Suffix" before, so I'm not sure that readers will know what it means. A link to Wikipedia for the definition?
−
−	I chose top and second level because the cases fall along the lines that those are source identifying locations, and directories and tertiary don't tend to be. But we can exclude altogether if you think that's cleaner and/or better.
−
−	~~Pam~~
−
−	* The point is that "top" and "second" level don't actually mean what you want them to mean. I live in the UK, which has the ".uk" TLD. However, unlike ".com" and friends, it's currently subdivided into "co.uk" (companies), "org.uk" (organizations) and so on. So if you say "second level", you mean "co.uk", when actually you want to mean things like "foo.co.uk" (which is third level). The Public Suffix List is the data repository which provides a "map" of the DNS and shows where the "dividing lines" are between public and private registrations, because those dividing lines are in different places depending on where you are in the DNS. The PSL does have a Wikipedia page <http://en.wikipedia.org/wiki/Public_Suffix_List>, but you could also link directly to the publicsuffix.org site.
−
−	~~-- [[User:Gerv\|Gerv]] ([[User talk:Gerv\|talk]]) 11:41, 25 March 2013 (EDT)~~
−
−	~~Ah, I see what you mean -- correct that top and second don't always work. Your approach makes more sense; I'll try to find a way to make it understandable for those of us less informed.~~
−
−	~~Pam~~
−
−	I'm going to move this to the "Discussion" page for the draft. The Commentary pages are meant to be sort of "Reporter's Notes," information for adopters of guidelines on what the parameters of what they might want to change or what legal judgment calls have been made. I realize the structure isn't entirely clear and I'm trying to figure out how to make it clearer. Basically, I wanted the Discussion pages to be about things like this, and the Commentary to be annotations.
−
−	~~===Membership Fees===~~
−
−	~~Some user groups charge membership fees for the purposes of venue hire, etc. Can we be a little more flexible than "no membership fees at all"?~~
−
−	~~-- [[User:Gerv\|Gerv]] ([[User talk:Gerv\|talk]]) 10:38, 25 March 2013 (EDT)~~
−
−	~~Absolutely! I was just trying to keep out profit-making. Suggestions for revision?~~
−
−	~~Pam~~