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Activists May Use Their Targets' Trademarks
lee1 writes "Sometimes political activists use a company's trademark as part of a campaign to embarrass it or call attention to an issue. And sometimes the company sues, claiming that they own the mark and its satirical use is prohibited. Now a Utah court has ruled that such suits must fail because the parodic use of the mark is not commercial and is a form of protected speech."
The companies in question should be forced to accept arbitration instead of lawsuits.
Seven puppies were harmed during the making of this post.
..for free speech. I completely shocked that this came out of Utah.
I got here through a series of tubes
...I doubt that ICANN is going to be taking this ruling into account in deciding a company can take your domain away, and are willing to pay ICANN $300 to assert a trademark.
Ryan Fenton
I can't wait for the BigCoSucks Federation* (*funded by Mega Incorporated) and MegaIncSuxx2** (**funded by Big Company) duke it out.
===
Any resemblance between Big Company and Mega Incorporated and any real entity is purely satirical and is not intended for commercial purposes. My lawyer made me say that.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
On behalf of Exxon/Mobil, I'd just like to say that it's about god damn time.
I'm sure this didn't have any corporate involvement at all. It was definitely to protect the rights of the people.
Don't worry. I'm sure the judge has twelve wives and seventy children under the age of 18.
The world's burning. Moped Jesus spotted on I50. Details at 11.
The National Association of Marlon Brando Look-Alikes is already working on its appeal.
MSIE: The world's most standards-complaint web browser.
Hmmm, touchy Mormon with mod points.
The world's burning. Moped Jesus spotted on I50. Details at 11.
Well, that isn't going to affect much.
But it probably does mean that if you have a web site hosted in Utah and a shell company also in Utah that you can claim your use of a trademark isn't infringing based on this ruling. Because that is all it would take.
This then opens the door to a shell company and hosting being used by literally anyone to denigrate products. I wonder how much Pepsi would be willing to pay for a trademark-laden anti-Coke site? Or a Toyota-bashing site offered to GM? There has to be some significant money available here.
Obviously, the requirement for the shell company would be to make the web site completely non-commercial. Maybe just a couple of links to the "good guys" - the ones paying for the web site with heavy emphasis about them being the "good guys".
Do you know why the Internet isn't polluted with such sites today? Well, maybe because this rather transparent ploy would be clear to enough people that there would be a lawsuit. Except obviously this judge never thought about that. I guess he was under the impression that people are just out there doing good things and only "spawn of the devil" or whatnot would ever consider using his opinion as the basis for a moneymaking scheme.
HBGary left the "we never forgive, we never forget, expect us" message on Sony's servers.
Does this mean I can register apple-bites.com ?
You were modded off topic, not Troll/Flamebait
Isn't satirical work basically the definition of fair use?
the wives were each at least 18 when they married him.
*cue touchy FLDS member with mod points*
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Unexpected good news is always welcome and always refreshing. Nice to see the courts doing something right for the people.
In some counties in the Bible Belt there are no legal alcohol sales at all, except perhaps private clubs.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
With defamation there has to be lying involved.
If you tell the truth about the corporation, then no they cannot sue you for defamation. Or they could, but as long as you didn't go bankrupt in the process you'd win.
You are entitled to your own opinions, not your own facts.
...is fair play. Thia also means the "Big Corps" can likewise use the tradmarks/tradenames of the activists.
Chaos maximizes locally around me.
Nowadays, you cannot sue for defamation without invoking the Streissand effect.
There are a lot of idiots who buy a product or service, use it improperly or break it, and then claim it doesn't work and start blogs whining about the fact that the BigBadCorp won't give them a refund.
Jerkasses
No sig for the moment.
This ruling gives Al some breathing room. I'm really glad the judge had some sense in this case.
Don't tell me to get a life. I'm a gamer; I have LOTS of lives!
While I cheer the outcome of this ruling, the reasoning behind it is, IMHO, not the correct one to decide the issue if applicability of a trademark. The reasoning should be based on the fact that an established trademark is the reference to a specific party in trade (e.g. a company, or even an individual where that applies). Normally we expect that the reference is made by that party itself. However, reference can be made by another party ... as long as the reference is the correct one.
The names of companies like Apple and Google, and the products of companies like Ipod or Windows, are trademarks that are established. As long as a reference to "Ipod" refers to the Apple product, and a reference to "Windows" refers to the Microsoft product, then they are correct usage of trademark. If I say "I own an Ipod", then I have committed no violation of that trademark (because I really do own one unit of that Apple product). If I blog about how "Windows is totally insecure", I may or may not be telling a truth about its security, but I'm still referring to the Microsoft product. It's not a trademark violation.
What I cannot do is make a misreference, especially if I am doing so as part of commerce. But it is already commonplace to make reference to competing products in a commercial context. It does get fuzzy here, because merely using the trademark icon may get out of context and be considered something that is attracting. If Pepsi were to put the CocaCola logo on the Pepsi web site in a very large image, and in smaller letters say "that product is not as good as ours", it could be mistaken as a use of the trademark to identify its own products. But if they keep the logo very small, especially with other soft drink logos around, and say things like "independent taste tests of all these products rank ours number one" then it can be clearly a statement of fact (which, if untrue, may be an issue of defamation ... but is not a trademark violation).
The above opinions are NOT a statement of how the law in the USA is, but rather, how I believe it SHOULD be, and how I hope judges would rule to make it be so, if we can't get rid of the Republicans in Congress to make the right statutes.
now we need to go OSS in diesel cars
Unless you say something un-flattering about Michelle.
And if he wants to, a mistress and a pet goat he blows every night.
As long as he metes out sensible judgements, he's still a good judge in my books.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Ever ate that stuff? I tell you, when you sit on the can, you KNOW that this acronym is apt!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
But let's be frank here, the fallout usually drops on their head, then.
Or how do you feel about the lady that sued McD for hot coffee after spilling it on her lap by being DUMB enough to hold it there while driving? Or the microwaving-the-poodle incident?
The Streisand-Effect only works on companies that actually do something wrong. If they get sued by people too stupid to find their own ass with both hands, you'll usually see these people bearing the brunt.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
I don't care about bad taste jokes, being a South Park fan, but get your facts straight if you're going to make a joke. Plural Marriage has been banned in the Church of Jesus Christ of Latter-day Saints since 1890 and those choosing to ignore this ban (very rare) are subject to excommunication.
wink wink nudge nudge
If Slashdot were chemistry it would look like this:Cadaverine
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Same Dale Kimball?
A shame he did not have a sudden break out of common sense during the SCO fiasco...
Wow. Twelve wives under the age of 18? That's pretty impressive....
But enough about why commas can sometimes be useful for adding clarity. I'm wondering what impact this decision will have with regards to the URS process discussion.
Check out my sci-fi/humor trilogy at PatriotsBooks.
I don't care about bad taste jokes, being a South Park fan, but get your facts straight if you're going to make a joke. Plural Marriage has been banned in the Church of Jesus Christ of Latter-day Saints since 1890 [wikipedia.org] and those choosing to ignore this ban (very rare) are subject to excommunication.
wink wink nudge nudge
Say no more.
From the article:
In 1988, Flynt won an important Supreme Court decision, Hustler Magazine v. Falwell, after being sued by Reverend Jerry Falwell in 1983 over an offensive ad parody in Hustler that suggested that Falwell's first sexual encounter was with his mother in an out-house. Falwell sued Flynt, citing emotional distress caused by the ad. The decision clarified that public figures cannot recover damages for "intentional infliction of emotional distress" based on parodies.
Insert Generic Sig Here:
You have a digestive issue with pita bread? It's bread. Perhaps you meants to joke about some other food?
Collectible Senators and Representatives!
Wizards of the Coast Likes This.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
mods = GOP members with no sense of humour.
not everywhere. and the burden of proof is on the defendant.
in Australia, truth is flat-out not a valid defense. you can still defame someone if you simply publicize something they're known to have done.
Read up on this. You're the dumb and/or uninformed one here.
--Jeremy
Jesus was a liberal
I am shocked that this is news to anybody. Satirical, parodical, and critical uses have traditionally been protected by the courts. Nothing new there are all. The only thing that surprises me is that this needed yet another court to decide it, just as so many other courts already had in the past.
Now a Utah court has ruled that such suits must fail because the parodic use of the mark is not commercial and is a form of protected speech.
People need to be careful about this distinction. The judge has clearly supported noncommercial parody's. But a for profit company like the Onion may still be at risk.
CIA is going to love this ruling It means they can pretend to be anyone they want. Now all their False Flag operations are totally legal. Yeah if you think about it this ruling is stupid. It is only satire when the audience understands that the source is not the thing being made fun of. Anything else is deceit.
I thought if it was OBVIOUS then you couldn't sue, but if it wasn't obvious that it was satire, there could be problems. And yet TFA seems to imply that people actually confused the "satire" with the actual company, and actually revoked their membership with the company! These seems like a perfectly legal thing to sue over. The Summary claims "use of the mark is not commercial" yet it sure seems commercial to me when your fraud and libel causes a monetary lose to someone else.
To back up scot4875 'they' have recently attempted to rehabilitate this stupid old woman and her shister.
You are all expected to change your opinion about this case immediately and stop using words like 'shister'. Don't say you haven't been warned.
The coffee was hot. Don't you understand, it was too hot to drink immediately. That's unheard of. She had no responsibility not to spill a hot drink on herself and no reasonable person ever expects coffee too hot to drink.
The lawyer involved was a public servant (even though he was an ambulance chasing scumbag...forget I said that).
It is funny how the same talking points come up on the partisan streams. MSNBC reports DNC news releases as straight news. FOX does the same for the RNC. Then you can go onto the net and find all the astroturfers repeating it.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
He might be, but his point is pretty much valid. So the woman wasn't driving - she still dumbly spilt hot coffee on her own lap and then sued McDonald's. It's like purchasing an anvil, tripping, hitting your head on it and then suing the manufacturer for making the steel too hard.
Corporations will use this ruling. They will use it the next time they want to break up a union or shut someone up. The ruling is a double edged sword. They don't care that you don't think this applies to them. Dumbass.
Make movies of submachine gun wielding cartoon characters (whose images have been jealously guarded) kicking in suspected file sharers doors and hosing down the grandmas and children with bullets!
...will have to cough it up for the commie?
Table-ized A.I.
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I agree with the court decision in this case.
What I would find really interesting is how this works with books, magazines and websites and such.
If a computer magazine uses something along the line of "First pictures of the new iSomething". They basically use an apple product name to sell their product without paying for the brand name.
Or a tabloid paper. Normally if you want a famous person to attach their name to your product it will cost you a ton of money because those names are basically products. Tabloids and similar use all those names without permission.
Perhaps he meant "sitting on the can (which he keeps his bread in)"?
It wasn't that simple. For example, it turned out that the McDonald's coffee was a lot hotter than ordinary coffee, which made the burns much more severe than they needed to be, and that McDonald's were aware, through their own marketing research, that their coffee was often drunk in the car.
I'm not saying the damages were reasonable, but the case wasn't as simple as people make it out to be.
Oh, is this the new version of:
1. Bush is responsible for war crimes.
2. Oh, because Clinton isn't, you Clinton-lover!
?
Just want to make sure I'm up to date on my political strawman arguments.
Same thing in Sweden. For example, a man was convicted(*) for defaming a woman, because he was spreading around a video where they had sex, which caused the woman to receive snide remarks from her friends and acquiantances. The crucial factor the court takes into account is the damage to someone's reputation. It's not necessarily justified because it's true.
(*) Defamation can be a criminal offense here, and doesn't need to be handled through a lawsuit.
According to TFA, the company tried to stop the activist group by suing for trademark infringement. That failed.
That doesn't mean it's suddenly ok to impersonate a person or company and make defamatory statements in their name. The ruling only concerned trademark infringement. The laws against slander and libel still hold, and anyone who pulls off a prank like this still needs to justify it as a legitimate criticism of the person or company. They just can't be sued for trademark infringement.
If the court had ruled in favour of the trademark infringement claims, it could very easily have been used to stop anyone from using a company's name in legitimate criticism.
There were even more ludicrous claims made by the company, including suing for computer fraud. Basically, the company was trying to claim that if you take information that's freely available on a web site, and use the information in a way the site owner doesn't approve of, you've committed computer fraud. They're saying using information from a web site in a way the site owner doesn't approve of, is equivalent to hacking into the site.
This ruling is not only sane from a free speech perspective, it's sane from a legal perspective. The judge simply applied the laws as they were intended.
and I had a sister who's fraternity (yes, it was a fraternity, and yes, the membership was a female) had it's own still & bottling process going on in the basement--
every day http://en.wikipedia.org/wiki/Special:Random
The coffee was hot. Don't you understand, it was too hot to drink immediately. That's unheard of. She had no responsibility not to spill a hot drink on herself and no reasonable person ever expects coffee too hot to drink.
As an almost totally unrelated rant, I get served coffee too hot to drink pretty much everywhere. I assume this is due to the coffee being made at a temperature based on it being contaminated with (cooler) milk or cream, rather than being served as the good Lord intended :)
they're loving it.
This is not a real reply, I am just trying to shape the indents in the full reply set.
Still shaping...
Nobody else seems to be looking anything up, so I won't either.
IIRC, the woman bought a cup of coffee, and held it between her legs while parked. She removed the lid to add white liquid (probably not cream) and/or sugar, and the cup collapsed. The burns resulted in substantial medical bills, which she asked McDonald's to pay.
The critical factor here was that the cup was deemed to be too flimsy, and that McDonald's was negligent in not providing unusually hot liquids in cups that could stay intact once the lid was removed. The heat of the coffee is of interest only in that it resulted in greater scalding, although the hotter the liquid the more important that the cup hold it.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
I wonder if this is going to factor into the case of North Face versus South Butt. All the South Butt guy would have to do is form a PAC.
Ifn ya ain't from this neck o'th woods ya may not know that the "blue laws" and dry laws were a cooperative effort between the moonshiners and the preachers. Hell, many of the large fine churches in the Old South were built with moonshine or latter legal liquor money! Even small congregations often had a "sugar daddy" in the booze business that they would turn to when times were hard and they had to meet the mortgage on the church.
Then why was the result that you can only get lukewarm coffee at McD now instead of cups that can stay intact when held at the side with the top removed (since they STILL can't!)?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Civilized societies don't combat peaceable demonstrations with baseball bats.
They combat them with larger peaceable demonstrations and education.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.