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<blockquote data-quote="pemerton" data-source="post: 8917470" data-attributes="member: 42582">It's an odd example. Because you're talking about evidence of practice to interpret a condition. You're also raising the issue of remedy (ie damages for loss caused) rather than mere liability (for trespass).Whereas in the example you gave about trademarks, you're positing that B infers PF isn't protecting its trademarks just because no one is protecting the D&amp;D trademark. That's not about remedy, and nor is about evidence of practice. It's about drawing an inference about one trademark from another. I don't see how that can be reasonable - assuming that reasonableness is even a defence in the context of passing off, which I don't know but would not be certain about.If you're talking consumer contracts, those are heavily regulated in most contexts. Likewise employment contracts (perhaps even in the US - though I understand that US employment law is quite libertarian compare to other jurisdictions).If you're talking commercial contracts like the OGL, then I don't see how dealings between A and contracting parties are relevant to dealings between B and its parties. Unless you're trying to establish some sort of evidence of industry practice, or trying to establish some sort of estoppel given the commonality of the &quot;bad actors&quot; between A and B.I think the sorts of examples you're making up are mostly spurious. They rest on assumptions that commercial actors don't take steps to understand their private rights and contractual obligations. In the real world, commercial actors often do take those steps.</blockquote>

[QUOTE="pemerton, post: 8917470, member: 42582"] It's an odd example. Because you're talking about evidence of practice to interpret a condition. You're also raising the issue of remedy (ie damages for loss caused) rather than mere liability (for trespass). Whereas in the example you gave about trademarks, you're positing that B infers PF isn't protecting its trademarks just because no one is protecting the D&D trademark. That's not about remedy, and nor is about evidence of practice. It's about drawing an inference about one trademark from another. I don't see how that can be reasonable - assuming that reasonableness is even a defence in the context of passing off, which I don't know but would not be certain about. If you're talking consumer contracts, those are heavily regulated in most contexts. Likewise employment contracts (perhaps even in the US - though I understand that US employment law is quite libertarian compare to other jurisdictions). If you're talking commercial contracts like the OGL, then I don't see how dealings between A and contracting parties are relevant to dealings between B and its parties. Unless you're trying to establish some sort of evidence of industry practice, or trying to establish some sort of estoppel given the commonality of the "bad actors" between A and B. I think the sorts of examples you're making up are mostly spurious. They rest on assumptions that commercial actors don't take steps to understand their private rights and contractual obligations. In the real world, commercial actors often do take those steps. [/QUOTE]

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