[aktiur]

You are right this particular case would not necessary pass the test for nominative use. But there are other legal protections available, especially in the case of commentaries or criticisms, that could protect even in the case where the logo was used.

See section "Commentary and criticism" on the page below

http://www.dmlp.org/legal-guide/using-trademarks-others

[chc]

Yes, but I don't see how you'd think any of that would apply here. Right from that page: "you should never festoon your website with a company's logo".

The fact that you are engaged in commentary or criticism does not automatically protect you from claims of infringement. If this had just been an entry on a blog, that would be one thing, but instead it was a standalone website where the only branding was the name "Fix Ubuntu" and the Ubuntu logo, and no attempt was made to disclaim the association. Surely you can see why Canonical might be concerned.

(Again, none of this is meant to constitute legal advice — I'm just explaining why I don't think Canonical was being unreasonable.)

[aktiur]

A trademark is a recognizable sign that identifies goods or services from a particular from those of others. Protection was thus created to make unlawful any use of the trademark that would be confusing for customers, for example if you displayed one of your competitors' trademarks on your product - that would be a trademark infringement[1]

The protection for trademarks is thus much more lax than the one that you have with copyrights: trademarks are protected only for limited purposes, whereas the protection is broader for copyrights.

The protection was extended in 1996 to forbid some uses of trademarks that however would not be confusing to customers. The owner of the trademark is able to sue someone that use its trademark in such a way for trademark dilution - and not infringement. However, this dilution statute does not apply to noncommercial uses of a famous trademark, such as for news reporting, criticism, commentary, and parody.[2]

As fixubuntu.com doesn't sell any goods or services, there is no trademark infringement. In addition, as it does not show ads nor link to commercial websites, a court would most likely recognize it as non-commercial. If it is still seen as a commercial venture, it would still be protected by the "commentary or criticism" protection.

The fixubuntu.com website could hardly be said to be "festooned" with the logo considered it was used only once. But removing it, despite what I said earlier, was still prudent. Indeed, the problem with trademark law is that even if you're not infringing or diluting, it is really hard to get a trademark lawsuit dismissed quickly, and you could easily get dragged in a long litigation you have the financial situation to fight.

For full disclaimer, IANAL, but I have a strong interest in law, have an education in French public law (which is VERY different from american law) but follows regularly the debate on the popehat.com website on free speech related litigations.

[1] http://www.law.cornell.edu/uscode/text/15/1114 As you can see in the definition of the trademark infringement for registered trademarks, the use of the trademark has to be in relation with the sale of a product.

[2] http://www.dmlp.org/sites/citmedialaw.org/files/15USC1125.pd... See (a)(1) for the definition of trademark dilution and (a)(3)(A)(ii) or (a)(3)(C) for the exceptions for non-commercial use; I think the fixubuntu case would work for both.

[chc]

> As fixubuntu.com doesn't sell any goods or services, there is no trademark infringement.

If this rule actually existed, anyone could set up an Apple-branded site dedicated to ranting about Jewish conspiracies. Do you actually believe that sort of false endorsement would fly?

[aktiur]

> If this rule actually existed

I gave the link to the specific federal statutes oO

As for the case you're bringing, the criterion would be: it the website tyring to get people to believe it is actually endorsed by Apple to injure its reputation? In this case it is criminal impersonation, which is a usually a state criminal offense unrelated to trademark law.

Otherwise, if it's only criticizing the participation of Apple in a jewish conspiracy, to use your example, it is pretty safe on the trademark front (and even more if the webmaster was careful not to show ads or to link to a commercial website).

However, depending on the actual content of the website, it could still constitute defamation and Apple could thus sue, but again not in relation with its trademark.