AmEx vs. rec.humor.funny

An anonymous reader writes "I worried that Brad Templeton's humorous reply in rec.humour.funny to the MasterCard threat might put an end to my daily read. I never heard the outcome, but since the column continues and he is using the same response to a suit from American Express, it must have been OK. This guy has more b*lls than I."

Comments

He's safe

[PingKing]

I'm not a lawyer but I'd bet the guy is pretty safe. Satire is protected from accusations of copyright infringement and IMO there's not a judge in the land that wouldn't view the AmEx parodies as just that.

Re:He's safe

[moviepig.com]

Indeed, an obvious instance of parody, and therefore equally obviously protected.

Why, then, is there no mention of any counterclaim against MasterCard for a frivolous lawsuit (which, I think, covers such plainly deliberate harrassment)?

(I'm no trial-judge, but I pay one on TV...)

Re:He's safe

[Aneurysm9]

There's a great case on the issue where Jerry Fallwel sued Hustler for a parody of a Compari ad suggesting that Fallwel's "first time" (not explicitly referencing sex, but this was Hustler) was in an outhouse with his mother and a goat. Hustler was found to be protected because it was parody, the ad said it was parody, and anybody with half a brain reading it could tell that it was a parody and did not really intend to state factually that Jerry Fallwel had sex with his mother and a goat in an outhouse.

We in the U.S. also have these lovely distinctions to be made between "public officials" "public figures" and "private individuals" that affect the standards a publisher must adhere to in order to avoid libel charges. Basically, in the case of a public official or public figure, all you have to do is not wantonly and willfully disregard the truth or falsity of what your publishing. Even if it isn't true but you had some reason to think it might be, you're probably ok.

Hell Yeah!

[kwpulliam]

Let's here it for Simple and To the point legal arguments. Both the Amex and the MC responses are great (Though the MC Response was better)

What to do? What to do?

[StateOfTheUnion]

Are there any site that give advice on how to react to a situation like this? Most that I have seen basically say IANAL and to consult a professional . . . it seems if you don't have money, its hard to get good advice . . .

Re:Brad needs a lawyer

[ptomblin]

Many lawyers will write stuff like this for free. Some years ago the Canadian Olympic Committee sent Orienteering Ontario a letter saying that the logo we were using for our sport infringed the stick figure logos that they'd been using since 198x. Well, what they didn't count on was that one of the members of the Canadian national Orienteering team was a lawyer, so he wrote back a letter that basically said we got the logo from the World Orienteering Championships of 197x, and they could stuff their claim up their collective asses, and we never heard from them again. So they went after some guy named Olympus for calling his pizza restaurant "Olympic Pizza" instead.

Black Friday?

[chendo]

Accordingly, we demand that you confirm immediately and no later than Friday, April 13, 2001, that you will remove the Infringing Material from the web site www.netfunny.com and that there will be no further publication of the Infringing Material or any other material which infringes MasterCard's rights as set forth above.

Is it just me, or is it just a coincidence that day is a Black Friday? ;o

Re:Brad needs a lawyer

[jdifool]

True enough.

But the real power of his answer is that he made a parody of this cease-and-desist letter, hence making the point even clearer.

It's just like asking them to stick their fist in their ass instead of only one finger... :/

Regards,
jdif

Re:Brad needs a lawyer

[jratcliffe]

From what I've heard, Fox (and particularly their General Counsel's office) knew that the suit didn't have a snowball's chance in hell, knew that they'd lose, and knew that they'd look like idiots if they went forward. They were forced to do it by Bill O'Reilly. Probably shouldn't blame the lawyers on this one, sometimes, as an attorney, you're forced to argue something you don't believe for a second.

Re:Both sites already slow, here they are

[blair1q]

Brad's okay, even if he did take pecuniary advantage of Usenet and has a somewhat spotty sense of humor for a guy who runs a newsgroup with "funny" in its name.

But he's pissing in the wind. And that's all it is, wind.

Trademark holders must threaten everyone who coopts their mark, even when it seems like it's almost certain to be legitimate fair-use. If they don't make a sincere effort to protect the trademark, the failure to do so becomes evidence against them in cases the bring where the mark has actually been abused. Trademarks have been lost that way.

Same deal with Mattel suing over Barbie songs, Sony suing Sony's cafe, etc. The bad part is when they end up having to go through with the case and the big guy's lawyers beat up the little guy's lawyers and create new case law that erodes fair-use.

Brad's response that he'll bring up Parody and Satire is enough for them to argue that they didn't see value in fighting, but since they don't fight it doesn't create case law, and everyone has their asses covered. And it'll end there, just like the MasterCard threat did.

It's kind of odd that Brad doesn't get this right off the bat, seeing as he's also the guy who wrote the first real position paper on intellectual-property laws for the Internet.

N.B., IANAL, (but if the bar exam wasn't all about fiddly bits in real estate and divorce law and trial procedure I probably would be). I just like arguing with them and winning on the net.

Re:Brad needs a lawyer

[BenBenBen]

IMO, most lawyers are just looking for an easy settlement anyways. Use a 'bot to dig the internet for 'infringements', send out 10K letters, get 5 settlements for 25K each?

It's ironic that you are describing spam-onomics, and the first ever spam was sent by a firm of lawyers.

What's the point of IANAL disclaimers?

[roystgnr]

Or more specifically, what's the point of the "I am a lawyer, but this is not legal advice unless you're paying me" disclaimers that I've seen? I had always assumed that such disclaimers were necessary because there was some law that could make lawyers liable for giving bad legal advice otherwise, but if that is the case why hasn't anybody used such a law to counterattack one of these "Your parody is illegal" C&D letters?

I mean, if lawyers can put grossly inaccurate legal threats in writing and get away with it, why would lawyers giving out accidentally inaccurate advice have anything to fear?

Re:Both sites already slow, here they are

[Anonymous Coward]

The parent links to the wrong joke. The offending one is about the shootings at Columbine. Columbine Joke

Re:Both sites already slow, here they are

[sir_cello]

Under UK trademark law, if you send a letter threatening legal action for trademark infringement, and turns out that there was no infringement, you can sue the trademark owner for "threats action". What the trademark owner can do is send a "nice" letter "simply" stating the presence of trademark rights and so on.

Re:Both sites already slow, here they are

[raju1kabir]

McDonald's lost the right to use their famous golden arches in South Africa because another local South African company beat them to it.

In Iraq, too?

In Australia, Burger King is called Hungry Jack's for exactly the same reason.

Re:Both sites already slow, here they are

[RazzleFrog]

Genericide is not a legal term but a marketing term. The case you quote has to do with a company not policing its trademark when it is used in business by other businesses. We discussed that already. That has nothing to do with this case.

A joke is never commerce. Your example is a joke. A comedian using a trademark name in an act in no way would confuse people to think that that joke is a product of the company holding the trademark. That might be the lamest argument I have ever read. Do you think that every stand up comedian gets permission from every company that it jokes about. Absolute nonsense.

Policing a trademark means not allowing other businesses to use the trademark in business. How many times do I need to repeat this?

Copyright on the other requires no such policing. It is in no way similar to Trademarks. It is covered under different laws and maintainted by the Library of Congress not the US Patent and Trademark Office.

You have made no substantial rebuttals to any of my points. Policing trademarks has nothing to do with people using a trademark in a conversation. It is an abuse of the system to even suggest it.

And learn how to format your posts.

Re:As an aside...

[amber_of_luxor]

By the way, two figure years are quite legitimate, they could be years AQ {Age of AQuarius},

Why not just use Thelemic Dates. That would also allow one to include the time.

XX xii Sun in Aries Moon in Aquarius Ascendent in Sagitarius.

Wind under thy Wings

Amber

YOU'RE FIRED![tm]

[Nom du Keyboard]

Your unauthorized use of AMERICAN EXPRESSWAY ... is likely to cause consumers to be confused, mistaken, or deceived as to the source of origin of your services.

1: Does AmEx really want consumers that dumb to start with? They might get confused and send all their payments to MasterCard instead.

2: Does AmEx want lawyers this stupid? The bad publicity over this is truly priceless.

3: To steal another trademarked phrase: AmEx to their lawyers: YOU'RE FIRED!

(Ring, ring. "Hello, please hold for The Donald, who wishes to have a word with you...")

Re:Both sites already slow, here they are

[jonadab]

> Other than people citing Kleenex as an example of a lost trademark, I've
> never heard anyone refer to a tissue as a Kleenex.

Other than on the internet, I've only one time in my life ever heard anyone
call a kleenex a "tissue". I remember it vividly because it took me a long
time to figure out what she meant.

Around here (central Ohio), tissue is an art supply, a sort of really thin
brightly coloured paper used for children's crafts and stuff, a bit like
crepe paper only thinner, and it comes in square or rectangular sheets rather
than long skinny rolls. kleenex are things you wipe your nose with. (While
we're at it, soda is an ingredient in cookies. No, I'm not going to start
calling it "sodium bicarbonate" all the time just so you can call pop "soda";
it's not; there's no soda in it, and there never was. That's carbonation
that makes it fizz, not soda. If it fizzed because of soda, it would taste
quite utterly nasty.)

The most popular brand of kleenex is Puffs. About one out of every five
people actually knows that Kleenex is technically a brand name also, and
*nobody* as far as I am aware reserves the term for only referring to that
brand (in speech, I mean; in print is another matter, since editors are
taught how to cleanse writing of trademarks prior to publication).

As far as I'm aware, Kleenex has not lost their trademark, because they've
managed to keep people from using it generically *in print* (or of course
in advertising), which seems to be key for trademark law. But it is so
much the dominant term in speech that I can't think of a synonym, unless
you count the phrase "facial tissue", which nobody actually uses except in
situations where they legally can't get away with calling a kleenex a kleenex,
such as in print or in advertising.

So, _legally_, Kleenex is a trademark, but informally, it's used as a word.

Jello is in *almost* the same boat, except that Jello has a viable synonym
("gelatin", which is what Jello was short for in the first place). But
nobody ever calls it "gelatin" except in print when the editor says they
can't call it "jello". Thermos is in _exactly_ the same boat as Kleenex;
there's no other word, no suitable synonym for "thermos", so if you're in
a situation where you have to avoid the trademark, you end up describing
the thing's function or its physical characteristics in order to communicate
what sort of thing it is that you're talking about. "I had a Thermos full
of soup" becomes "I had an insulated container full of soup in my lunchbox",
which is awkward in the extreme. It would be nice if there were a legal
precedent for the government to purchase a trademark from a corporation in
order to liberate it for the good of everyone, in cases where there's no
real synonym. It wouldn't be right to just confiscate the mark (well, not
in cases like Kleenex and Thermos where the word was nonsense before the
company created the product; Windows and Office are another matter), but
the English language could really use the word. With all the tax money
we spend on stupid stuff, I'd be quite happy to have the government shell
out a couple hundred million to buy the word kleenex out of trademark hock;
that would be something genuinely useful, and Kleenex or their parent
company or whoever could spend the money advertising a new brand name;
a couple hundred million ought to buy quite a strong brand recognition
for them, methinks -- stronger than "Kleenex", which is in serious danger
of being considered generic by a lot of people.

As far as trademarks that have actually been lost, I don't know, but the
legal departments of corporations seem to consider it a real possibility.