Behold the following:
Nothing in this agreement gives either party a license or other right to use the trademarks …
If the idea is that neither party is allowed to use the trademarks in the specified manner, say so:
Each party shall not use the trademarks …
For one, it’s shorter. And second, if you say “Nothing in this agreement gives” whichever party whatever right, that leaves open the possibility that that right might arise through some other mechanism.
Good point; other things being equal, it’s better to nail down the intent.
Of course, the drafter might be contemplating precisely the situation you describe in your “second” remark, namely that, either then or later, the parties might enter into some other agreement that does allow trademark use. (That’s an especially-salient consideration when drafting language for use in a template or other form document.)
The language you quote is specifically meant to avoid any doubt as to licenses being granted as opposed to placing contractual restrictions. Arguably it is not necessary if the agreement is already well drafted so as to not imply any trademark licenses, but it doesn’t seem to hurt. As D.C. said, it is possible the parties may have other agreements with trademark rights, or it is possible the parties want to retain their rights to use each other’s Trademarks in a way that doesn’t require a license.
Whatever the circumstance, it could be addressed more clearly, no?
Fair point. Probably better to replace “gives” with a statement that the nothing in the Agreement implies a license to use the trademark.
I think you changed the meaning of the original clause. Under the first example, a person could use the other party’s trademark in a manner that doesn’t require a license or other contractual right. For example, normative fair use. Under the second example, any use of the trademark would ostensibly be a breach of the agreement.
I understand that the rules don’t prefer “for avoidance of doubt”-like clauses (which the first example is a version of, even if not explicitly so), but the courts recognize implied IP licenses and look to clauses like this to clarify the parties’ intent.
If the intended meaning is as you suggest, it would be a good idea to make that explicit.
Why “Each party shall not….” instead of “Neither party shall….?”
See my exchange with A. Wright Burke.
To focus on another aspect, ‘each party shall not’ is an awkward bird imported to avoid ‘no party shall’, which is humanspeak but violates the justly famous ‘disciplined use of ‘shall'”.
I favor ‘no party shall’ plus a brief interpretive rule to the effect that it means ‘each party has a duty not to’.
I just put beans in my ears, so I can’t hear Ken’s screams.
You know me too well! But it goes beyond failing the “has a duty” test.
If you’re expressing prohibition, you have to use Each party shall not. If you use Neither party …, you’re expressing absence. Absence of what? Not duty, because absence of duty still leaves discrection, so don’t use shall. Instead, I suggest that you’re expressing absence of discretion, so you’re better off with Neither party may.
You force my hand.
‘Neither party may’ indeed expresses lack of discretion but fails to say whether the thing about which there is no discretion is required or forbidden, so that’s no good.
‘Neither party shall’ expresses prohibition when it is defined to express prohibition.
Here’s the interpretive rule (what some oddly call ‘a provision stating a drafting convention’) I favor:
In this contract, ‘shall’ expresses a duty of a party, except that ‘neither party shall’ and ‘no party shall’ express a duty not to do what follows ‘shall’.
Those 28 words (1) make the disciplined use of shall explicit, and (2) by a judicious exception, keep contract language closer to everyday language with no loss of precision.
Beans back into ears, quick!
Hmm. One might as well say “Puppies” expresses prohibition when it is defined to express prohibition.
If I were to say “Neither child may eat ice cream,” exactly zero sane English-speakers would suggest that that leaves open the possibility that the children are required to eat ice cream. Obviously, the same goes for “Each child may not eat ice cream.” We know that “may not” conveys three possible meanings, but none of them is “Each child shall eat ice cream.”
In other words, one ignores the expectation of relevance at one’s peril!
So your, uh, provision specifying drafting conventions should be gently but firmly escorted off the stage!