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Not for trademarks, it isn't. Fair use of trademarks extends primarily to "nominative use". That is, we get to use your name when we're talking about you. Any other attempt to profit from the mark is controlled by the company. It should be fairly clear that you can use "Foo(tm)" to declare that "Foo(tm) Sucks", but if there's a chance of consumer confusion between your use of the mark and the company's, you get into murky legal waters. The court literally ends up having to decide, on a case-by-case basis, whether the joke is actually funny.

As with everything else in law, there are about a million complications, caveats, and such like. A good article on the subject:

http://www.cll.com/articles/trademark-parody-statutory-and-nominative-fair-use-under-the-lanham-act#PARODY%20AS%20FAIR%20USE

This is part of an ongoing dispute between the Harry Fox Agency, the RIAA, and the ringtone industry over compulsory licenses.

The recording industry in the US has a statutory deal in the Copyright Act which allows them to re-record previously published songs (i.e. issue "cover albums") by paying a fixed royalty determined by Congress and the Librarian of Congress. This is called a "compulsory license". Most music publishers are represented by the Harry Fox Agency, which actually issues the "compulsory license" on request and collects and redistributes the royalties.

Then came ringtones. The Harry Fox Agency, in 2004, took the position that the compulsory license required by law does not cover ringtones. This was a bogus position, and on October 16, 2006, the Registrar of Copyrights ruled that ringtones are subject to the compulsory license. The Harry Fox Agency is taking this badly; "This decision has no effect on HFA's existing policy that DPD licenses ... do not cover ... ringtones or mastertones. The RIAA is sueing them, and HFA is probably going to lose this one.

This is really a very obscure issue even in the music industry. In the end, ringtones might get cheaper, and we may see the end of that silly distinction in the cellphone world between downloaded tracks and ringtones.

http://www.cll.com/articles/article.cfm?articleid= 22
Dr. Seuss v. Penguin Books.
"...concluded that the work at issue was not a parody of the Seuss original because it did not ridicule or criticize the prior work, but merely copied the work's best known elements..."

" [T]he substance and content of The Cat In the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with new expression, meaning or message, the infringing work's commercial use further cuts against a fair use defense.15"

What I don't get is why Sun have such a hissy fit over supposed Java incompatibilites introduced through forking of free licensed code. What's to stop them preventing people from calling derivitive versions 'Java'? Sun could implement strict compliance testing, a-la UNIX, to ensure that derivitives are compatible, and can license the 'Java' trademark for use by those compatible versions. Problem solved.

Am I the only one who is reminded of Larry Ellison whenever I read about Michael Robertson? (The former is the CEO of Oracle and the latter is the founder and CEO of Lindows / Linspire.)

Both run tech companies. Both have personalities (based on reports and news stories) that could be categorized as "dickhead."

And both appear to be redeemable for the sole reason that they seem to really enjoy pissing in Bill Gates' Cheerios.

- Neil Wehneman

P.S. Since this topic is on trademarks, it should be noted that Cheerios is a registered trademark of General Mills, and my reference to it is in the non-trademark use of the mark. (Reference)

Mmmm... decisions decisions.

Do I trust a random slashdot poster or a law firm specialising in IP?

What if another law firm also involved in IP disagrees with the random slashdot poster?

Trademark law does not have a "fair use" doctrine.

That's not true. It does. Here's a quick link from google for example. Or another.

If you think about it, a trademark would have no value whatsoever if Joe Gucci can sell watches down at the corner and call them "Gucci", and the Gucci company couldn't do anything to stop it.

If they are Gucci watches, the Gucci Company indeed can't do anything to stop it. Likewise, SCO can keep calling Linux "Linux". It feels bizarre to be defending SCO here, but c'mon.

Do you believe this claim is correct in all US jurisdictions, or do some state laws allow licenses like the GPL to be revoked by the copyright holder?

You know, parody is a fair use defense for trademarks as well. You can't say for certain what the outcome of a trial in this particular case would be.

However, I can say with nearly 100% certainty what the outcome is of a cease and desist letter from a large, well-funded corp sent to some guy running a silly site: he will shut down and whatever point he was trying to make will be lost, regardless of the merits.

Granted, it's much more defensible if you *change* the logo, but on the other hand, *noncommercial* parody use is generally more protected since TRADE-marks are used for business purposes.

The point is, you can't just say he used the logo, therefore he's infringing the trademark, it's more subtle than that, just like most First Amendment cases.

The enforceability of EULAs has been in question for years. The courts have decided both ways. The main case supporting the enforceability of EULAs is , which is a wierd case.

this posting is directed at Slashdot's editors as much as to the throng. the editors could steer the topic toward a little bit more solid ground since it is too much, being realistic, to ask that everybody become expert.

It is not just trademark infringement to "steal" a trademark, but also to "tarnish" or "disparage" a one. Trademarks, it should also be noted, only cover commercial use of a name for the owner, but once a trademark exists in the commercial realm, talking about that word may be considered commercial speech and subject to restrictions. Again, I am not a lawyer, and I'm especially not familiar with the history of eToy, but it occurs to me that this is what the law may attempting to decide:

1. eToy did not have a registered trademark. They were using the name first, yes, and that does give them some rights, yes, but it's not clear (esp. to me) that were engaging in trade.
2. eToys came along and grabbed more or less the same name. It is very important whether they exercised "due diligence" in doing this. The law requires that they take reasonable steps to ensure that others are not already using the name commercially, but words that are already in use non-commercially are available as trademarks. But, once they get the name, they are both allowed and required to defend it against both dilution and disparagement.
3. I think the question that is important to answer is: did eToy change its behavior in response to eToys "existence"? If eToy's web "art" said "fuckfuckfuck" before and after, ok it's free speech, but if it said "flowersflowersflowers" before and "fuckfuckfuck eToys.com" after, that's not "innocent" free speech.

A quick search of the web found me this page which looks good but I didn't read it in detail.

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