Re: Asking Permission (was Re: trademark question)

IANAL, but I don't understand how asking permission does not somehow imply that asking permission may be necessary. If the point is that copyright is moving too much towards rightsholders, which is my understanding of the earlier poster, then isn't it important for the general public to use the rights that they do have, under the law? My impression is that rights that don't get used, get lost.
Freya

At 12:46 PM 9/24/02 -0400, you wrote:
>----- Original Message -----
>From: "carol" <carol[_at_]drogon.com>
>Subject: Re: trademark question
>
>
> > >Herman Sutter [mailto:hsutter[_at_]st-agnes.org] wrote:
> > >Oh, for heaven's sake, please don't ask permission where permission
> > >isn't necessary.
>
> > [snip] my instinct, esp. for kids, is to say get permission.
>
>I agree with Carol. Having dealt many times with this issue from both sides
>of the coin, its my view that its almost always better to ask permission, if
>done correctly. Here is why I think so:
>
>1. Case law encourages it (its not an admission to ask for permission, even
>if you believe the other party has no exclusive rights)
>
>2. The purported rights holder almost always will look more favorably on an
>infringement after a request for permission than after an infringement
>without a request (often, the response from the rights holder about the
>concerns can actually assist the user in suggesting ways to modify the use
>to make it more of a fair use or non-infringing).
>
>3. Often, permission is granted under reasonable terms and in some cases,
>more formal sponsorship and assistance is offered by the rights holder. In
>at least one case I worked on, a profitable business relationship resulted.
>
>4. If permission is denied and the claim is ever later made, this may have
>a positive impact on the publicity, court and the opposing rights holder.
>
>5. If done correctly, the permission request letter will not provide a
>basis for a pre-emptive suit.
>
>6. If you really believe that the rights holder would not sue due to
>adverse publicity (as in the specifics of this case), I cannot conceive a
>reason not to ask permission. Certainly, the mere moral belief that a
>particular use would be non infringing or a fair use is not enough of a
>basis to justify not asking first.
>
>7. If you believe the rights holder will sue anyway and are prepared to
>fight it, asking permission can actually have some procedural advantages.
>For one, it puts the rights holder on notice of the proposed use, and
>failure to timely respond to that may constitute estoppel, laches, implied
>consent etc. Also, to the extent the case is both injunctive and monetary,
>unless the rights holder acts quickly, obtaining an injunction might be
>difficult.
>
>The exceptions where I would not ordinarily advise to ask permission -
>though there are even exceptions to these exceptions - are:
>
>A. Where there is no practicable way to give notice without possibly
>prompting a preemptive suit (the exception here might be to first file a
>preemptive Declaratory action where the rights holder has made public
>statements it will prosecute all infringers)
>
>B. Where the rights holder has lost a similar case and the matter is res
>judicata or collateral estoppel.
>
>C. Where the rights holder has pre-consented (don't laugh, read
>www.apple.com - unless they changed it, they have a public statement about
>when you always have rights to use their trademarks)
>
>D. Where the rights holder might be on the fence about suing, and providing
>permission might just give them notice of the infringement, and where the
>rights holder possibly does not monitor its marks and copyrights, such that
>the use would fly under radar. This one requires a serious disclosure to
>the client taking this advice.
>
>Anyway, the question of whether to ask permission is pretty complex, though
>I agree that in the case of a school using a trademark in a parody-like
>manner on shirts and not selling them for commercial gain is a no brainer
>(fair use or non infringement), and would be a bad publicity move for the
>rights holder. Nevertheless, based on the very abbreviated facts given,
>this would fall into my default rule of asking for permission.
>
>best regards, mike oliver
>
>++++++++++++++++++++++++++++
>Michael D. Oliver, Esq. Member,
>Bowie & Jensen, LLC
>29 W. Susquehanna Ave.
>Suite 600
>Towson, Maryland 21204
>oliver[_at_]bowie-jensen.com
>http://www.bowie-jensen.com/
>++++++++++++++++++++++++++++
Received on Wed Sep 25 2002 - 17:14:59 GMT