On not using (r) and (tm)

[Paul Hoffman <paul.hoffman at vpnc.org>]

At 11:52 PM +0100 2/6/05, Simon Josefsson wrote:
> But why should all trademarks in a document necessarily be marked?

A good question. I have asked trademark lawyers every five years or 
so, "if I am talking about a trademarked name in a document I'm 
writing, and I don't acknowledge the trademark, what damage can be 
done to me". The answer has consistently been, in essence, "none 
unless you are doing it to purposely diminish the trademark owner's 
property rights".

If we believe that legal advice, only in pathological cases do we 
need to acknowledge trademarks in Internet Drafts and RFCs. 
Pathological cases (such as SSH) happen, but so rarely that we are 
safer not creating rules and dealing with those cases only when they 
rear their ugly heads.

> I grep:ed for "Windows" in RFCs, and it is used in several documents.
> Windows is a trademark, and probably even a widely known one.

An excellent point. Further, there are probably a dozen or more 
similar examples where we do not mark or, even worse, inconsistently 
mark.

> My point is this: Identifying and acknowledging trademarks waste time,
> don't do it.

Agree.

>   When someone want to force their way to add identifiers
> or acknowledgments, put the onus on them and have them do work by
> filing IPR statements.

Agree.

Please note that there is a downside to acknowledging a trademark 
that is quite similar to acknowledging a patent: you are asserting 
that the trademark/patent is valid even though you haven't done the 
legal research to validate that. If I come into a WG and say "I have 
a trademark on WhizzyFoo" and wave around a paper issued to me by my 
local government, that has about the same validity as me saying "I 
have a patent on this process" and waving around a similar paper from 
similar over-burdened bureaucrats.

And, of course, the fact that I have a trademark on WhizzyFoo issued 
by Freedonia, who issues trademarks (and patents) liberally, should 
be taken into account somehow in our deliberations on whether or not 
to say if a term is trademarked. Slope->slippery++

The IETF's policies for the two kinds of IPR should be as nearly 
parallel as possible.

--Paul Hoffman, Director
--VPN Consortium

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