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Court Finds "Pinning" On the Internet To Be Fair Use (docketalarm.com)

Posted by timothy on from the such-language dept.

speedplane writes: Pinterest has always aggressively defended their trademarks, but in 2013, they launched a trademark lawsuit against Pintrips, a travel planning startup that allows users to "pin" and share information about flights. Yesterday, however, a federal court issued a major ruling against Pinterest finding that "pinning" is a feature, not a trademark, and therefore is fair use. This seems to bode well for the many other "pinning" sites on the internet.

53 comments

  1. Pin??? by mwvdlee · · Score: 4, Insightful

    How is "pinning" any different from any other type of hyperlink?

    --
    Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
    1. Re: Pin??? by jonbryce · · Score: 4, Insightful

      It is a trademark case, not a patent case. They wouldn't have complained if they had used another word to describe it. By the way, fair use relates to copyright, so the court almost certainly didn't rule it was fair use, they probably ruled that "pinning" is a generic word.

    2. Re:Pin??? by dslauson · · Score: 2

      The contention comes from the verbiage. Pinterest doesn't like other companies calling their links "pins".

    3. Re: Pin??? by Anonymous Coward · · Score: 0

      I use certificate pinning everywhere I can.

      Ultimately how is a tweet any different from any other post (other than limited character count)?

      It's all just naming conventions and certain greedy individuals trying to make money from litigation. On the other hand, for most of us litigation is the only lottery we have a chance of winning.

    4. Re:Pin??? by JustAnotherOldGuy · · Score: 1

      How is "pinning" any different from any other type of hyperlink?

      Shhhhhhh, don't speak out against our Corporate Masters and the Benevolent Commercial Guardians of common words, Citizen!

      --
      Just cruising through this digital world at 33 1/3 rpm...
    5. Re:Pin??? by gmack · · Score: 5, Insightful

      Too bad for them. I've been "pinning" locations on maps since I was a child in the 80s.

    6. Re: Pin??? by speedplane · · Score: 5, Informative

      fair use relates to copyright, so the court almost certainly didn't rule it was fair use

      There is fair use in trademark too. Here's the quote from the judge (page 35):

      After weighing the evidence presented at trial and considering the arguments made by the parties, the Court concludes that Pintrips satisfies the first two elements of the fair use analysis in that it uses the term pin “otherwise than as a mark” and “only to describe [its] goods or services.” 15 U.S.C. 1115(b)(4).

      --
      Fast Federal Court and I.T.C. updates
    7. Re: Pin??? by JustAnotherOldGuy · · Score: 1

      Ultimately how is a tweet any different from any other post (other than limited character count)?

      It's not, but shhhhhhhhhh- don't make the Twitter lawyers come after you.

      --
      Just cruising through this digital world at 33 1/3 rpm...
    8. Re:Pin??? by Anonymous Coward · · Score: -1

      Your post contained the letters "r","a","p" and "e" which just triggered me.

      Please refrain from such microaggressions in the future!!

    9. Re:Pin??? by Anonymous Coward · · Score: 0

      The story is about the word, not the action. The action however often isn't just a hyperlink, but involves copies (screenshots, etc.) hosted separate from the original server.

    10. Re:Pin??? by Anonymous Coward · · Score: 0

      Here is the real news: It is a slow news day.

    11. Re:Pin??? by willworkforbeer · · Score: 2

      Here in the south, we still use 'em fer writin'. Them that can write, I mean.

      --
      Pretending this is my office full of bitter coworkers..
    12. Re:Pin??? by TuringTest · · Score: 1

      How is "pinning" any different from any other type of hyperlink?

      It uses a metaphor, so its basic usage is inherently easier to understand.

      Non-developers greatly benefit from applying metaphors to computing elements in order to get how they are expected to be handled, and what are the implications of their extended . "A pinboard with clips of web pages" is much more intuitive than "a database of hyperlinks", even if they're technically the same.

      --
      Singularity: a belief in the "God" idea with the "demiurge" relation inverted.
    13. Re:Pin??? by zlives · · Score: 1

      yes but you weren't using a computer to do it ;)

    14. Re:Pin??? by Anonymous Coward · · Score: 0

      How is "pinning" any different from any other type of hyperlink?

      Because a hipster invented it. Not surprising, given what hipsters think of themselves.

    15. Re:Pin??? by fahrbot-bot · · Score: 1

      yes but you weren't using a computer to do it ;)

      I do, but my monitor now has little holes all over it...

      --
      It must have been something you assimilated. . . .
    16. Re: Pin??? by Theaetetus · · Score: 4, Interesting

      It is a trademark case, not a patent case. They wouldn't have complained if they had used another word to describe it. By the way, fair use relates to copyright, so the court almost certainly didn't rule it was fair use, they probably ruled that "pinning" is a generic word.

      Both trademark and copyright have fair use doctrines, though I agree with you that I believe Subby meant the copyright one, in error. At the least, it's somewhat misleading because it implies that the court ruled that putting a snippet of something online was fair use from copyright infringement, which wasn't an issue.

      In trademark, fair use is what allows us to say "Playboy Playmate Jenny McCarthy, noted anti-vax denier" - we're using Playboy's trademarks, but only to name the source and in a minimal way.

      Here, this was really about whether "pinning" is a merely descriptive term for providing links and snippets. And yeah, it goes back to scrapbooking and certainly is just a descriptive term.

    17. Re:Pin??? by amicusNYCL · · Score: 1

      Nothing secures a pin in a map like a couple whacks from a 20 pound monochrome laptop.

      --
      "Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
    18. Re:Pin??? by Anonymous Coward · · Score: 0

      "All the little chicks with the crimson lips go
      Cleveland rocks! Cleveland rocks!
      Livin’ in sin with a safety short, straight, stiff piece of wire with a blunt head and a sharp point, used especially for fastening goin'
      Cleveland rocks! Cleveland rocks!"
      Screw "Pinterest".

      BTW, Screw Developers. If you are going to Trademark a word, understand _exactly_ what narrow a scope a Trademark provides.
      What the "Pinterest" Developers _should_ have done is is either choose an already obsolete Word ("Snee(tm)" would be excellent in this case.), or create an entirely new word, like "Ppin(tm)": "People-Pin".
      Trademarking current Metaphors is fucking lazy.

      And don't even get me started on how Developers have ruined the otherwise perfectly descriptive word: "Deprecate".
      Bad Developers. Bad.

    19. Re: Pin??? by Anonymous Coward · · Score: 0

      Loved this article. I totally BLONKERATED it :)

    20. Re:Pin??? by GuB-42 · · Score: 1

      LCDs made this possible. Pinning on CRTs was much too hard.

    21. Re: Pin??? by i.r.id10t · · Score: 1

      But can a verb have its "use by others" legally restricted ? (copyright/patent/trademark/whatever)

      I can understand a slight possibility if it is a term that becomes a verb (ie, googling) but pinning has been in use for ages as a "stick something in place somewhere" type word/action ...

      --
      Don't blame me, I voted for Kodos
    22. Re:Pin??? by sabbede · · Score: 1

      I hadn't noticed, but now that you point it out the OP is clearly threatening to rape us both!

  2. Seems like the right call by Fire_Wraith · · Score: -1, Offtopic

    Any sort of patent or term that basically boils down to "X with a computer/ X on the Internet" should not be valid. This is a concept that relates directly to a physical action (pinning something to a board). It's not in any way original or novel.

    Now, certainly the code of HOW you go about implementing that is worthy of protection to some degree, but the entire concept? That's idiotic.

    1. Re:Seems like the right call by DRJlaw · · Score: 4, Informative

      Any sort of patent or term that basically boils down to "X with a computer/ X on the Internet" should not be valid. This is a concept that relates directly to a physical action (pinning something to a board). It's not in any way original or novel.

      This has nothing to do with patents. This has to do with trademarks. There is no requirement that a trademark be original or novel. Simply that the owner is the earliest to make continuous use of a distinctive symbol (logo, word, color, sound, etc.) as a source identifier for a good or service (and for a federal trademark, use them in interstate commerce).

      If you have priority in the mark, then others cannot use a mark in a way that causes a likelihood of confusion in the relevant public. The coding and implementation of your product has nothing to do with it. The brand identify and consumers' interest in ensuring that there are not a dozen different counterfeit Nike businesses selling athletic shoes has everything to do with it.

      The surest way to have your opinions dismissed out of hand as irrelevant babblry is to demonstrate that you have literally no idea what sort of property is involved, what the legal standards are, and how it the rights are used in the real world. You've hit the trifecta.

    2. Re:Seems like the right call by Dragonslicer · · Score: 4, Insightful

      You should probably spend a little time reading and understanding the law (or possibly English) before spouting random words. Patents are not mentioned anywhere in the summary.

    3. Re:Seems like the right call by Anonymous Coward · · Score: 0

      There is no requirement that a trademark be original or novel. Simply that the owner is the earliest to make continuous use of a distinctive symbol... as a source identifier for a good or service

      Forgive me, but that doesn't seem to follow. Isn't a requirement to be the earliest use by definition the same as a requirement to be original? I mean, effectively what this court found was the trademark was not novel enough.

    4. Re:Seems like the right call by DRJlaw · · Score: 2

      Forgive me, but that doesn't seem to follow. Isn't a requirement to be the earliest use by definition the same as a requirement to be original? I mean, effectively what this court found was the trademark was not novel enough.

      Incorrect. If you abandon use of a trademark for a sufficient period of time, anyone else can come along and adopt the same trademark for the same goods or services. The statutory presumption (Federal law) is abandonment after non-use for 3 years.

      There are instances where a famous mark with residual goodwill, repair service activity, etc. has been deemed to still belong to the original owner even after more than 10 years of non-use, but those are exceptions based on odd circumstances (e.g. Ferrari trademarks for particular models of cars).

      For an example of an entirely unoriginal trademark, see the Love beverage trademark dispute.

      Note that I did not say first use. I said earliest continuous use. I meant that.

    5. Re:Seems like the right call by Anonymous Coward · · Score: 0

      You supplied us with the updated information. Why is it necessary to be a fucking dick on top of that? The surest way to be thought of as a fucking dick is to be a fucking dick. I'd rather hang out with the guy who was wrong. Non-fucking-dicks don't expect people to be accurate all the time and don't try to tear them a new asshole like we're personally mad at them for expressing a mistaken opinion.

    6. Re:Seems like the right call by DRJlaw · · Score: 1

      You supplied us with the updated information. Why is it necessary to be a fucking dick on top of that?

      There was no updated information. It was clearly stated in the summary and linked decision. It was necessary to be a dick because my 6 year old has better reading comprehension, and it was a blatant topic-jack to bitch about his personal peeve instead of the subject at hand.

    7. Re:Seems like the right call by cyborg_monkey · · Score: -1

      spoken like a true cunt.

  3. Strange by Anonymous Coward · · Score: 0

    Pretty obvious result. "pin" is a descriptive term rather than a trade mark, even if Pinterest started the use of it. Not sure why Pinterest even tried with this case. Maybe they thought the other company would back down rather than challenge them.

    1. Re: Strange by Anonymous Coward · · Score: 0

      A descriptive term would be an adjective or adverb. Used here it is a verb... an action.

    2. Re:Strange by Wycliffe · · Score: 1

      Not sure why Pinterest even tried with this case.

      My guess is they tried this case because pin-trips sounds an awful lot like pin-terest (pin-trist). My guess is that they thought they had a good chance of winning the first and were hoping that they could get a more general ruling that gave them full control of the word "pin". Basically, they lost because they got greedy. If they just went after pintrips because it was one letter sound away from their trademark pintrist -> pintrips they probably would have won.

  4. Complaining about "Pin" was a stupid thing to do by Anonymous Coward · · Score: 2, Insightful

    Setting aside whether trademarks actually advance anything but the lawyers' wallets, Pinterest should have simply focused on "Pintrips", and complained about the similar name of the site, instead. That probably would have got them somewhere.

  5. I like it by Anonymous Coward · · Score: 0

    Maybe Pinterest should allow their users to "Like" some of the
    special things they pin. Then they could "Tweet" about them to
    other users of the site. Just new features.
    But they should never "Crow" about their good taste!

  6. I'm pining for the fjords by WillAffleckUW · · Score: 1

    Meanwhile, Windows declared Open Source.

    --
    -- Tigger warning: This post may contain tiggers! --
  7. As opposed to ? by Anonymous Coward · · Score: 0

    Pegging ?

    1. Re:As opposed to ? by Anonymous Coward · · Score: 0

      and the captcha was "testicle"

  8. Curious... by Anonymous Coward · · Score: -1

    Why is "pinning" ok but if you link to another site's pages you get thrown in jail?

    1. Re:Curious... by Anonymous Coward · · Score: 0

      Oh, I dunno, maybe because that never happened.

  9. Drudgereport by Anonymous Coward · · Score: 0

    Maybe this will have take some wind out of the sails of this...

    http://dailycaller.com/2015/10/13/congressional-review-of-copyright-law-may-threaten-drudge-report/

    Considering "pinning" is basically hotlinking a direct sample of someone elses content, and the "copyright review" entails some additional level of creativity by creating your own headline or providing your own review of the linked article.

    The sky seems to stay put for as much as it's falling.

  10. All is well on the Pinternet. by Anonymous Coward · · Score: 0

    Pinteresting Parpra Prystand Peffects.

    (Sorry, I couldn't really do much with that.)

  11. Copyright? by voidstin · · Score: 3, Informative

    Does anyone else find it ironic that a site that is all about grabbing content from others (that may or may not actually own the content to begin with) going to court to defend a copyright on a standard english word?

    1. Re:Copyright? by colinwb · · Score: 1

      Well said.

      Also: I don't know how well known the late playwright Harold Pinter is on Slashdot. There is an adjective "pinteresque".

      Definition of Pinteresque in English: adjective - Of or relating to Harold Pinter; resembling or characteristic of his plays. Pinter's plays are typically characterized by implications of threat and strong feeling produced through colloquial language, apparent triviality, and long pauses.
      Origin: 1960s; earliest use found in The Times. From the name of Harold Pinter, British playwright + -esque.

      Note the similarity of the sounds of "pinteresque" and "pinterest". Surely a creative lawyer could make something of that?

    2. Re:Copyright? by Anonymous Coward · · Score: 0

      Not really, given the safe harbor provisions of the DMCA.

    3. Re:Copyright? by tehcyder · · Score: 1

      Well said. Also: I don't know how well known the late playwright Harold Pinter is on Slashdot. There is an adjective "pinteresque". Definition of Pinteresque in English: adjective - Of or relating to Harold Pinter; resembling or characteristic of his plays. Pinter's plays are typically characterized by implications of threat and strong feeling produced through colloquial language, apparent triviality, and long pauses. Origin: 1960s; earliest use found in The Times. From the name of Harold Pinter, British playwright + -esque. Note the similarity of the sounds of "pinteresque" and "pinterest". Surely a creative lawyer could make something of that?

      I can't really see how a site called "Pinteresque" is going to overlap with "Pinterest" much. Fans of Harold Pinter probably aren't going to use "Pinteresque" to post links to cookie recipes and knitting patterns.

      --
      To have a right to do a thing is not at all the same as to be right in doing it
    4. Re:Copyright? by Anonymous Coward · · Score: 0

      "Fans of Harold Pinter probably aren't going to use "Pinteresque" to post links to cookie recipes and knitting patterns."
      No, they get The Servant to do it for them.

  12. PINterest by Anonymous Coward · · Score: 0

    It is only just now that I have consciously read it as PINTerest and not PEE-Interest.

    Yep. Time to sleep. Forever.

  13. Re:Complaining about "Pin" was a stupid thing to d by Anonymous Coward · · Score: 0

    I agree. Pintrips is one sound away from pintrist which is presumably how pinterest would be pronounced even though personally I prefer p-interest.

  14. Pinning fair enough, but the company name? by 91degrees · · Score: 1

    Pintrips and PInterest do seem at least similar enough that I could imagine some people assume they're related. Granted, we'd be getting pretty close to the "moron in a hurry" which seems to be the test, but I don't think we're quite at that level.

  15. Feature? by sabbede · · Score: 1

    I'm pretty sure it's a verb...

  16. Re:Complaining about "Pin" was a stupid thing to d by sabbede · · Score: 1

    Good point. Plus, it gets to the heart of what trademarks are for - unique and reliable identification of a business or brand. Had the article not been how I learned about Pintrips, then based on the name I would have assumed Pinterest expanded their business. Especially if the sites looked similar.