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While I maintain that implication is a valid way to give permission, and thus a valid way to infer permission; I have to agree with the_logos in that the examples provided in the link about implied licenses don't seem to bolster such a defense very much in this specific case.
Now, the article did say that the extent of implied license is as of yet undecided. Nevertheless, the examples provided all seemed to be instances in which the owner of the copyright couldn't reasonably expect their original intentions to be followed without the violation of that copyright.
Thus, it would seem that Traithe needs evidence (though not absolute proof) that his project goes along with Tolkein's wishes (not merely their disapproving tolerance) in such a way that Tolkein Enterprises couldn't reasonably expect him to follow those intentions without violating the copyright. For this, Traithe would not need permission specifically about his own project, but he would need at least some type of broad, supportive statement about TE's intentions on the matter or a closely related matter.
Even if Tolkein Enterprises can be said to intend to have an extremely active fanbase, fanatics who talk about LoTR ceaselessly and name all their children and pets Frodo, I doubt it can be said that one cannot reasonably be expected to follow those intentions without violating the copyright. That would be different for, say, a mud which someone at Tolkein Enterprises specifically requested to be built.
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On the other hand, even if it is technically illegal, it could still be moral, or at least not immoral. Just because a person didn't intend something doesn't mean they wouldn't wish it. Still, it would be advisable to seek more evidence that this is such a case. A secondary source's claim on something as ambiguous as "tolerance" really isn't all that much.
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