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Web Ad Trademark Law To Be Retested
scubacuda writes "News.com et al report that The Ninth Circuit U.S. Court of Appeals on Wednesday found Playboy Enterprises can pursue charges that Excite and Netscape Communications violated its trademark by selling banner advertisements triggered by the terms 'playboy' and 'playmate.' The decision reverses a district court ruling that dismissed the suit without a trial in 2000. Playboy 'clearly holds the marks in question, and defendants used the marks in commerce without (its) permission,' a split three-judge panel wrote in its majority decision." This is a shame, because the first judge to look at this case seems to have pretty much gotten it right: "Although the trademark terms and the English language words are undisputedly identical, which, presumably, leads plaintiff to believe that the use of the English words is akin to use of the trademarks, the holder of a trademark may not remove a word from the English language merely by acquiring trademark rights in it."
Google has sent our company a number of emails saying they have disabled keywords we use in our Adwords campaign because they are trademarked. At first, the company with the trademark had to complain, but now it seems like the are actively searching for trademarked keywords and disabling them.
Check out this article over at Slate: slate.msn.com/id/2089879
I think your confusing marketing techniques with purpose of marketing. Yes, marketing departments put in many hours to figure the best way to present a product to an audience they will have the most success with, but we've reached a point with Playboy and Playmates that blur brand recognition with the product. Do want me to xerox that document? Will that runny nose require a kleenex? When products domainate and earn name recognition they deserve it not to be trampled on by some marketing flunky looking for a shortcut.
THe entire concept of trademarks is about the use of the 'word' in a context that takes advantage of the 'image' said company has built. ( or bought )
Its not about 'taking words out of the language'.
That just shows the judge isnt comptent to see this case.
---- Booth was a patriot ----
But what they failed to notice is that Freecraft was using that word pattern, established through the marketing dollars of Blizzard, in the promotion of its own product which was a direct competitor to Blizzard's products.
The parent post is right, the spirit of trademark law is to prevent piggybacking on established product names by competitors. "Freecraft" was against that spirit. So is hijacking "Playboy" and "Playmate" to benefit Playboy's competitors. Whether these things are against the letter of the law is up to the courts to decide, but we shouldn't hide unethical behavior behind the letter of the law when we lambast Microsoft, RIAA, etc for doing the same thing.
I'll just point out that this decision was from the 9th Circuit, i.e. The "Silly" Circuit. This group of judges gets overturned at a rate of 92% for those cases accepted for appeal.
In the quick research I just did - they are over turned about 30% more than any other circuit in the US. Heck - they even overturn themselves. First the CA recall is off, then its on...
Life is always entertaining out here on the Left Coast!
Have you compiled your kernel today??
And all this time I thought it was named for the company founder Henry Ford. Learn something new everyday.
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