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

Pft, wrong threat

[Skyshadow]

The power to sue a website is insignificant compared to the power of the /. effect.

Re:Pft, wrong threat

[mirko]

Do you mean Slashdot got paid by Mastercard to close netfunny its own way ?

Re:Pft, wrong threat

[RLW]

Oh, that's insidious.
Step one, Send threatening letter to web site
Step two, get story posted on slash dot.
Step three, wait and watch as web site goes down faster than a pending injunction.

slashdotted

[Karamchand]

link1
link2

Both sites already slow, here they are

[Anonymous Coward]

Mastercard threatens rec.humor.funny over satire
bt@templetons.com (Brad Templeton)
http://www.templetons.com/brad

(topical, chuckle, true)

Two years ago, rec.humor.funny published a sick satire of the Mastercard "Priceless" ads (There are some things money can't buy, for everything else there's Mastercard) based around the Columbine tragedy. I won't repeat it here, since it was pretty sick and offensive, though you can find it on the web site at:

http://www.netfunny.com/rhf/jokes/99/Apr/columbi ne .html

Today we received a "cease and desist" letter from Mastercard's lawyers demanding that the parody be removed from our web site, falsely claiming it violates their trademarks and copyrights, in spite of the well established rules protecting satire and parody from such attacks.

The letter can be found at

http://www.netfunny.com/rhf/price.html

Here, however, is my response...

Web site hosting for anybody: $10/month and up

Threatening letters to people who satirize you, hoping
they won't know the law: $500

Reputation as giant corporation required to intimidate
small publishers: $billions

Supreme court decisions protecting parody and
satire from accusations of copyright and
trademark infringement... Priceless

There are some rights money can't buy. For everything else, there's Mastercard's lawyers.

============

April 13, 2004
American Express threatens me over joke on web site

On my rec.humor.funny web site, I maintain the newsgroup archives, including this 13 year old joke entitled American Expressway.

Today I got one of those bullying "cease and desist" letters from American Express's law firm, ordering me to take down the joke for trademark infringement. Here's the text of the cease and desist

Do these guys know who they are trying to bully? I guess not, here's my response to them:

You can "Screw More" with an American Express Lawyer

Do you know me?

I built a famous company with a famous name, and then satirists made fun of me by taking advantage of the constitutional protections afforded parody when it comes to trademark law?

That's why I retained Leydig, Voit & Mayer, Ltd, the "American Express Lawyers." Should you ever feel your reputation lost or stolen by free speech and satire, just one call gets LVM to write a threatening cease and desist letter -- usually on the same day -- citing all sorts of important sounding laws but ignoring the realities of parody. Most innocent web sites will cave in, not knowing their rights. LVM will pretend it has never read cases like L.L. Bean, Inc. v. High Society and dozens of others. There's no preset limit on the number of people you can threaten, so you can bully as much as you wish.

After all, Being Giant and Intimidating has its Privileges.

American Express Lawyers: Don't leave your home page without them.

For more examples of such games, check out our joint project with the Berkman center to document them: Chilling Effects Clearinghouse. And yes, Mastercard pulled the same stunt several years ago.
Posted by Brad at April 13, 2004 03:17 PM | TrackBack

Re:Both sites already slow, here they are

[slackerboy]

And the text of the actual joke that AmEx is complaining about is google cached here.

Re:Both sites already slow, here they are

[sjames]

Actually, that's just what expensive corporate lawyers would like you to believe.

It is true that a trademark can be lost if it is not vigorously protected from infringement. However, since satire isn't an infringement, there is nothing to protect it from when satire happens.

The various bullying C&D letters sent out are nothing more or less than willful bullying.

If there is any doubt about the nature of a trademark's use, the various lawyers could just as easily send out a letter noting the existance of the parody, and reminding the author or publisher of the parody that while parody is perfectly legal, they should take steps to assure that they do not cross the line by going into (for example) the banking and credit business using that parody. There is no need to threaten gloom and doom or willfully ignore important portions of trademark law other than to bully the recipiant of the letter.

Re:Both sites already slow, here they are

[RazzleFrog]

First - That's a load of bullshit. There is no such thing as protecting your trademark. As long as you continue to use it in the course of business it is protected. It is an urban legend, an old wives tales, general bullshit. There has never been a case where a company failed to protect its trademark and lost.

Second - Trademark infringement can only come when another company uses your trademark in business. Just using the name of a company in a joke is not trademark infringement any more than me typing MasterCard right here is not infringement.

Third - Contrary to the moron AC below Kleenex still holds its trademark. You will never see Scotties Kleenex - they are called Scotties Tissues. People can refer to common items (like band aids, kleenex, vasoline, etc) but when a company sells a similar product they can not use that name. Just go to a grocery store and that is plain to see.

Fourth - This has nothing to do with trademarks. this is about Copyrights. You don't trademark a commercial. It is copyrighted. Parody is allowed under copyright law and this is surely a parody.

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.

A little slow...

[bbrazil]

Web site hosting for anybody: $10/month and up

./ed after just one comment: Priceless

Re:A little slow...

[gandalf013]

Nope, getting the "spelling" of /. incorrect: priceless :)

This guy has more b*lls than I.

[dexterace]

Soon, he will much have less b*ndwidth...

B*lls??

[Seekerofknowledge]

This guy has more b*lls than I.

What, can people not say balls now? If not, could someone please say why?

Oh, maybe he means bills, as in dollaz. Meaning, he can afford the law suit?

Either way...

Re:B*lls??

[CaseyB]

This guy has more b*lls than I.

What, can people not say balls now? If not, could someone please say why?

It looks to me like he was just saying that the guy has more lls, blls, bblls, or bbbbbbbbbblls than himself.

you're right!

[arpy]

"This guy has more b*lls than I."

Judging from his tendencey to get sued, he certainly would seem to have more bills than you.

Posting a funny parody...

[Frennzy]

Posting a funny parody...free.

Getting a C&D letter from MC/AmEx...free.

Having /. do more to take away your free speech than MC or AmEx could ever dream of....priceless.

Larry Flynt

[Mazzie]

Billion dollar companies still struggling to overcome protections championed by a pornographer: priceless

obligatory

[dj245]

10/month hosting at a craptastic company: $10
Writing an article about trouble with the law: $0
Bandwidth overage charges from being slashdotted: $260
Being parodied in a slashdot posting because your lawsuit stems from the fact that you made a parody of a commercial: Priceless

There are some rights money can't buy. For everything else, there's google cache.

Paying the lawsuit penalties

[AtariAmarok]

What if the guy loses the suit and pays for it with his American Express card?

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.

Re:He's safe

[Mazzie]

Also you have to look at the other side of the coin. Can you imagine this country, in this day and age, if true satire/parody was not protected?

Trademark for "Priceless"

[tiny69]

Word Mark PRICELESS
Goods and Services IC 036. US 100 101 102. G & S: Financial services, namely, providing credit card, debit card, charge card and stored value smart card services, prepaid telephone calling card services, cash disbursement, and transaction authorization and settlement services. FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75658792
Filing Date March 11, 1999
Current Filing Basis 1A
Original Filing Basis 1A
Published for Opposition November 30, 1999
Registration Number 2370508
Registration Date July 25, 2000
Owner (REGISTRANT) MASTERCARD INTERNATIONAL INCORPORATED CORPORATION DELAWARE 2000 Purchase Street Purchase NEW YORK 105772509
Attorney of Record COLM J DOBBYN
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE

Re:He's safe

[R2.0]

In order for speech to be "slander", it must be untrue. Since parodies don't purport to be truth, they are not covered.

Oh, and you are really talking about libel, which is written. Slander is verbal.

Please get your terminology straight before talking out of your ass.

Did the lawyers actually look at the website?

[91degrees]

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.

...In addition, your continued use of these marks constitutes a deceptive business practice and unfair competition in violation of state law.

Considering that he's not running a business, claiming to run a business, or using these terms for advertising a business, these statements seem rather curious. Did they just use a search engine and automatically send out a nastigram based on the results? Would my writing "American expression, Membership has its Privileges" in this post result in Slashdot getting a letter? (If so, sorry guys)

It's not the the result which matters in America

[Moderation abuser]

It's the cost of the process itself. For individuals It doesn't really matter whether you'll win or not. The process itself is so long, slow and expensive that it'll bankrupt you.

Re:Brad needs a lawyer

[ptomblin]

which is somewhat unlikely

Back when Fox News tried to C&D Al Franken's book, I assumed, like everybody else in the world, that Fox's lawyers were actually graduates of law schools that teach things like that, but we were all wrong. Fox, being one of the largest media conglomerates in the world, evidently has a legal staff who all got their law degrees at Joe's Garage and Lawer Stuff Skool. You should hear Al Franken's own description of what happened when they went to court - the judge literally laughed when he told that not only don't they have a case, but if they persist they're very likely to find out that "Fair and Balanced" isn't trademarkable.

Re:Brad needs a lawyer

[Mazzie]

Law schools are pumping out more lawyers than the economy can support. I think the new trend of sending out thousands of cease and desist letters is the law firm form of telemarketing, phishing, or even spamming.

I think they look for a mega-response. If they get a response from a company written by a big law firm it tells a lot about what the company has to lose, and how big their bank account is.

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?

Re:Brad needs a lawyer

[AndroidCat]

Every time the Olympics come to a city, they have lawyers run around threatening all the long-established Greek restaurants, travel companies, etc. Anyone know how they managed to obtain obtained such an overarching trademark/ownership on that word? I understand Zeus wants a word with them.

Re:He's safe

[BrynM]

Can you imagine this country, in this day and age, if true satire/parody was not protected?

Mybe I'm becoming a cynical slashdotter, but I really expected the typical slashdot finish to this sentence:

Can you imagine this country, in this day and age, if true satire/parody was not protected? ...oh wait.

The Amex Joke (they sued over this?!?)

[Tolvor]

The MC joke was tasteless, and i can see MC execs wanting to kill the joke, as it simply isn't funny. The Amex joke below seems almost complimentary, as it implies that having the AmEx card gives you special privilages. I suppose that if a popular celebrity gave them a free endorsement, they would issue a cease-and-desist letter. No wonder AmEx is the card chosen by the select few who don't want their card to be accepted in many stores.

You are invited to become a member of the American Expressway, one of the newest and most innovative road systems in America. There are many advantages to the American Expressway over the standard tollways, parkways, highways and freeways but by far the biggest advantage is:

No Preset Speed Limit!!!!!!!!!!!!!!!!!!!!!!

Instead your personal speed limit is determined by your vehicle, your personal resourcefulness and your past speeding patterns. When you enter the expressway your personal id number is transmitted to Central Control to tabulate your tolls and record your initial speed (all AE members may travel at 55 with no restrictions). If you decide to pursue a greater speed then an authorization will be sent to Central Control and our highly specialized, non deterministic and little understood AI algorithm will decide if you are approved for your new speed. If you are not then a Service Technician (formally known as a State Trooper) may stop you to ask a few questions to verify that you were capable of handling your new limit (Do you increase throttle to induce oversteer in a decreasing radius turn?), that you have adequate resources (Is that a Crosley Wombat V16?) and that you are not too far out of your previous speeding pattern (Have you ever driven at 180 mph before?).

Membership has it's Privileges

To apply for membership call 1 800 HAUL ASS

Brad Templeton

[maggard]

For all of those who don't know who Brad Templeton is (and judging from all the posts so far none do) Brad was the Founder, CEO, and Publisher of ClariNews, the first public-subscription online newswire (via NNTP). He's also the author of the fantastic "10 Big Myths about copyright explained" so yeah, he knows his rights. Oh, and he's Chairman of the Board of the EFF . In short he knows what he's doing and AmEx's lawyers definately tangled with the wrong perosn.

Brad *doesn't* need a lawyer

[maggard]

Brad needs a lawyer

Uh, no.

As I pointed out elsewhere Brad is well aware of his rights (early online publisher, author of "10 Big Myths about copyright explained", Chairman of the Board of the EFF ), rather folks need to be more aware of their own rights.

Also for all the lip service paid to EFF on /. it's pretty telling that this story was up for an hour, your posting was +5, and nobody here had a clue as to who Brad is...

Let jAmEx/MasterTard know you hate 'em!

[infochuck]

Everybody reading this thread should contact AmEx and let them know they'll be cutting up their card(s), or never getting one.

I also suggest calling/emailing everyone you can at MasterCard for their consistent badgering of parodies - most recently (and notably) Ralph Nader's ad.

Here's some MC contact info. Anybody got some for AmEx?

Tell 'em you don't appreciate companies that attempt, over and over again, to bully others into compliance with THEIR wishes, against the letter and spirit of the law, and you won't stand for
it. Call 'em again and again. They like hearing from irate consumers.

Some folks are claiming this is "old news", but it's been going on for some time, and resurfaces every once in a while - send these folks a message NOW, and maybe they'll finally figure it out.

MasterCard Executive e-mail addresses:
Sharon Gamsin Vice President, Global Communications
sgamsin@mastercard.com
Phone: 914.249.5622

Chris Monteiro Vice President, Global Marketing Communications
chris_monteiro@mastercard.com
Pho ne: 914.249.5826

Ayde Ayala Global Communications Coordinator
ayde_ayala@mastercard.com
Phone: 914.249.5388

Marc Levy Director, Global Marketing Communications
marc_levy@mastercard.com
Phone: 914.249.3233

PR/Media Inquiries:
Christina Costa
Ph: +1 914 249 4606
Email: christina costa@mastercard.com

North America:
Michael Madden
Tel: +1 914 249 1354
Email: Michael Madden@mastercard.com

(Media Contact only)
MasterCard International
Christina Costa
1-914-249-4606
christina_costa@mastercard. com