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"Pez" Forbidden in Meta Tags
Ex Machina writes "According to the legal jargon on Pez.com:
"You may not embed Metatags (hidden text used by web search engines to find websites) into your website using any of the registered or
unregistered trademarks of Pez Candy, Inc. or its affiliates, in particular the PEZ® mark. Any such use of Metatags will be considered trademark infringement and will be prosecuted to the fullest extent of the law. "
Is there a precident for this case? I do believe this would fall under fair use--- for example, product reviews could be blocked if this was legitimized by a court. I fear lawyers. "
>First of all, WTF is an "unregistered
>trademark?". How can you know if you're
>violating an unregistered trademark or not?
>Maybe someone could clear up what they mean
>by this - but it sounds like nonsense.
Of course its not nonsense. A trademark is a name or symbol that, through usage and/or tradition, has become associated with or symbolic of a company or a product. Whether or not a trademark is registered has nothing to do with whether or not it is symbolic of a company. For example, in the US, if I say the words "Pink Panther" and "Fiberglass," most people will think -- without pause -- "Owens-Corning". What makes the trademark is that association in the mind of the consumer. The registration is just some red tape that affects what remedies you can or can not sue for.
And as for the originator of the thread, who asked if this wasn't protected by "fair use" -- my god, man, if I asked a question like "Hey, can't I distribute my specially modified Emacs as binary-only because it's protected by the BSD license?" you would jump all over me for being ignorant, stupid, and making statements about things I didn't bother to research. Fair Use is a limited exception (actually, an affirmative defense) to (American) Copyright law. There is no fair use defense to trademark law. Nor should there be.
The key question in trademark law is "Does the use of the trademark cause confusion in the consumer?" If the answer is yes, I've infringed. If it is no, I haven't. For example: "Coke is it!" is a trademark of the Coca-cola company. If in a skit in a movie about cocaine abusers, I snort a HUGE line of cocaine, look into the camera, grinning madly, saying "COKE IS IT!" that is probably not an infringement because no one is confused or thinks Coca-Cola (inc) produced the cocaine. On the other hand, if I am a small soda producer, and I put "Coke is it!" on the cans of my orange-flavored soda, a reasonable consumer might think that perhaps Coke produced the soda. That would be trademark infringement (actually, in my first example I might be liable for trademark dilution but that's another issue entirely.)
Pez's point of view is obviously that if someone types "Pez" into a search engine and they get back a bunch of links, a reasonable person might think that the returned sites might be somehow affiliated with Pez. Perhaps they're wrong, but I don't think its unreasonable of them to make the argument.
Aren't we violating the stupid page by putting "PEZ®" everywhere on slashdot, as well? :)
Jolly hope so. Kick ass.
~Tim
--
Rushing on down to the circle of the turn
Only if you are a competitor selling candy and you are trying to get more visitors to your site by using the Pez trademark, then a court can stop you from doing this.
Things like product reviews are no trademark infringements and therefore allowed, regardless of what they say in their legal blurb.
An interesting related article is http://www.fenwick.com/html/free_ride_.htm
Tell your friends about xenu.net
When someone types "pez" into a search engine, what is it they are looking for?
The answer is, clearly I hope, the second. The problem is that corporates don't see the world this way. The thought that people might search for their name, but go to their multi-million dollar, often content-void site but instead go to the place where the information they actually want may be found, leaves them dizzy.
Meta-tags are a mechanism which allows the author of a page to specify some keywords which describe the content. It works reasonably well. It is not intended, and does not function as a mechanism for identifying the official site relating to a trademark.
As a non-lawyer, and in an utterly non-advice-giving manner, I'd suggest that attempting to use trademark law to prevent other people saying "my site talks about Pez too!" is probably asking the courts to go too far. But then I'd have said suing mcdonalds when you spill coffee on yourself was unlikely to succeed either.
If the law sides with the corporates on this, then it can only be because they don't understand what search engines are for (You want information, not marketing). And they will have made the wrong decision.
It can be very hard to respect the law sometimes, so I've given up on doing so for the time being...
U.S. law allows for "fair use", meaning that practically any word or phrase can be used within certain contexts. This prevents the hobbling of free speech.
Playboy has had less luck in their case against ex-playmate Terri Welles. The C|Net article states "[T]he judge found in favor of Welles, stating she is entitled to 'fair use' of the trademarks, and that her site was not 'diluting' Playboy's trademarks."
To show the patent (ack!) absurdity of Pez's position, look at this example.
You've written an online history of candy companies, including several mentions of Pez. You add the word Pez to your metatags. This is clearly fair use as you are not attempting to deceive people by implying that you represent the Pez company.
Think about it. Metatags are nothing new. They are nothing more than the internet equivalent of a book's index.
It is interesting to note that the guy who created e-bay got the idea for the company while trying to sell/trade pez dispensers. If Pez were the schmucks they are way back, there might have never been an e-bay. Taste the bitter candy of censorship as our freedoms are dispensed with.
The law in this area is complex and rather unsettled at the moment, though we are seeing more and more decisions on point every month.
You infringe a trademark when you use a mark in commerce in a manner that would create a likelihood of confusion or a likelihood of deception as to source, origin, affiliation, etc. These are all essential elements. However, the ownership of a trademark is not the same as ownership of a word: the word, generally speaking, remains available for denominative use. (That is, I can still be a playboy if my wife will let me, but I cannot sell Playboy-brand services that would give rise to a likelihood of confusion)
Confusing things further is that use of a competitor's trademark in a truthful and non-misleading comparative ad is (in the US, not everywhere) a blessed activity, protected by trademark policy as well as the first amendment. By its nature, such an ad does not create confusion, but to the contrary, makes stark contrast between the advertiser's goods and the trademark-owner's goods.
But it is odd that an ad on a website which slams to, but not over the brink, of honesty a product by name is blessed, while informing users via metatags or iNet portal keyword purchases that their interest in a competitor's product implies they should look at their different product. And thus, this may not be, and is probably not, the law.
But the devil is in the details -- cases swing 180 degrees depending upon subtle facts -- and the Courts are just now beginning to articulate how we distinguish between fair competition and unlawful infringement, between fair "hey, look at me when you look at them" competition, and "hey, buy my stuff because I'm them" free-riding on another's goodwill.
I wish I could report simple, bright-line rules to govern conduct in this arena today, but they don't exist as I write this. Just as in plain, published prose, some uses of a trademark of another in a metatag may be infringing, while other uses may not be. The particular facts of each case, including the particulars of the mark itself, will determine the result.
More seriously, this is ridiculous.
Also, the leagalese says all feedback becomes their property. I couldn't find a feedback link...
When I first got involved with the web, it was with a news-like organization. We produced some material, it was legitimately copyrighted. And we felt the impulse to ensure that nobody stole it and used it on their web site.
Of course, this was impossible, right or wrong. And no matter how many lawyers we had, and even if they worked for free (one did), there was simply no way to efficiently eliminate all traces of copyright violation. There are too many millions of people with the ability to copy something, and it took too much effort to even warn them about copyright violation.
Yes, copyright and trademark still exist on the web; nobody can effectively copy your site wholesale, nobody can get away with selling phony products under your name for very long, nobody can use your trademarks to direct people to their own site. Those sorts of major violations are easy enough to counter, just as they have always been. But when you talk about a zillion little violations... like fans using your name in their metatags... let it go. You can't win. All you'll accomplish is to piss off your loyal customers.
That said, I understand the need for these disclaimers; if they were actually chasing down minor violators, that would be quite annoying. A better idea is to protect a trademark by specifically allowing it to be used in certain ways, and having the lawyers chase down only the worst abusers.
The web works under a sort of de facto copyright law: if it can be done below the radar of the lawyers, then you might as well condone it, because you can't stop it.
This is not directly related to the PEZ case, but very relevent to the tradmmark discussion in general. A lot of the comments here refer to the fact that Trademarks are only valid when used in association with the appropiate trade section, eg Bills Fruit and Apple store has nothing to fear from Apple Computers.
However, this is not the case in the UK where the 1994 Trade Marks Act extended that protection to dissimilar products. but it has not been effective because companies have argued successfully that they had a valid reason to adopt the name. According to a Story in the Financial times Visa successfuly blocked the use of their trademark in regard to a unrelated product (Condoms, in this case)
This could have a worse precedent than the PEZ case
--
Exigo spamos et dona ferentes
Since each of the strings "PEZ", "Pez", "pez", etc will come up about once in 16.7MB of random 8-bit data, we have all probably violated it in "some way, shape, or form." Compressed data is pretty random but not so predictable as encrypted data where the once-per-16.7MB rule would hold pretty true.
;)
At least I don't put encrypted or compressed data in my meta tags or they'd probably have sued me by now.
Geeky modern art T-shirts
--
The problem there is you don't know their IP address unless it's clear from the logs who they are. To solve this problem here is a neat trick. Most people uses a mail reader that supports HTML encoding. You can embed an small one pixel image or perhaps a business card in your email. It should be embedded as an external image with no actual data in the mail.
Assuming they are using a mail reader that will fetch the image (Outlook will), you will have your IP address as soon as they read their mail. Outlook uses IE to fetch such images, so even if they are going through a proxy you'll know the right IP. This is also a useful trick to learn the exact time someone has read your mail... it can also be used to learn where someone lives, by using a traceroute to their IP address. hehe.
If they are using a web-based mail account this won't work of course, but most businesses don't.
-- Virtual Windows Project
Der Idiot hat offenbar viel zu viel Kölsch getrunken ...
(The idiot obviously had way too much Kölsch[1] Beer to drink.)
While I am normally against the death penalty, it does seem uniquely well suited for people like this, who not only try to get a free ride using someone elses work, but do so with deliberate, malicious intent to harm the communal good as widely as possible. Parasites of the lowest order. *sigh*
[1]Kölsch is a type of beer brewed in Cologne, the hometown of the fool trying to trademark "@"
The Future of Human Evolution: Autonomy
Would be a moot point if 10,000 slashdotters put this tag in their sites:
When the going gets weird, the weird turn pro. [H.S.T.]
IANAL.
As I understand it, for it to be illegal in UK law, it must be shown that the user is genuinely trying to confuse people about their identity with regard to the trademark in question.
If I produce candy similar to the PEZ product, and then put PEZ in the meta tags there is probably some grounds for prosecution, since I am hoping to fool some people into thinking I sell genuine PEZ.
If I run a (commercial) site about market penetration of various candy products, and put trademarks like 'mars' 'PEZ' 'polo' 'smarties' in my metatags - that's probably OK.
And of course a private non-profit site should be pretty safe.
In all cases you'd probably need to acknowledge the trademark ownerships.
-----
There is a case Playboy Enterprises, Inc. v. Calvin Designer Label where the court ruled that Calvin could not use Playboy in its metatags. The court's decision suggests that metatags may constitute infringement even though they are invisible to a viewer of the infringing user's web site.
Tell your friends about xenu.net
Quick searches for "Pez" at Lycos, Altavista and Google yield a number of private pages by Pez fans and dispenser collectors ("PEZheads") -- "What's New in the World of Pez", "Dale's House of Pez", "Planet Pez", "Museum of Pez Memoribilia" and on and on. There's dozens of them. That's not too surprising -- any hobby, no matter how weird, has got a home page somewhere. And a lot of these pages have "pez" in the Meta-tags.
I am astonished at the idea that Pez might actually prosecute these people. I can't see how they'd have a case, since they're not appropriating the term to sell a product, they're just using it to help the other PEZheads find them. The problem, of course, is that when you get a threatening letter from a lawyer, you're going to have to fight back at great expense, or cave in.
But worst of all, these are people who like this company and buy its products! "Prosecute to the full extent of the law", they say. They're threatening to ruin their most loyal customers, on legal grounds that may be wholly spurious! There may be a worse way for a company to shoot itself in the foot, but right now I can't think of any. Imagine the David v. Goliath stories in the press about a stunned PEZhead under attack from the company he thought he loved. Have these people lost their minds?
Always keep a sapphire in your mind
From what little I could decipher, it looks like their intent is to have a tool they can use to stop the Pez traders and speculators if they want (some of those folks can give the manufacturer a bad name by misrepresenting themselves or screwing customers) - and taking them off the web is a handy way to do so. But they are going about it in a brain-damaged way by trying to paint the whole web with this brush. Their policy also has the effect of (in theory) banning fan sites, legitimate dealers of Pez, reviewers, and news sites from mentioning the name. Trademarks can, AFAIK, be policed for appropriate usage, and precedent has been made on the issue of META tags (thanks to Playboy, if I recall), but Pez's policy goes overboard and would be likely to get smacked down in court.
When it comes to trademarks, I believe it goes something like this:
Referring to Xerox as a copier company: OK
Talking about "making xeroxes of that paper": BAD (Xerox is a trademark, not a term - the "correct" reference would be to "making copies")
Putting "Xerox" as a META tag in your page: Gray area - but probably not OK
Writing about Xerox (the company or the products)in your website: OK!
Selling Xerox products over the web, by name: Probably OK, depending on your reseller agreement and if it allows Net sales by your company. Definitely OK if you have no agreement but have the products.
Substitute "Pez" for Xerox above and you're pretty close to an AUP for Pez as well (except it would sound weird to say "I'm going to go down and make some pezzes of this report", wouldn't it?)
I've got a feeling Pez is in for a bit of a Net spanking...
- -Josh Turiel
-- Josh Turiel
"2. Do not eat iPod Shuffle."
53579 documents found - 0.0040 seconds search time
Just had to respond here...
My name is Peter Pezaris (ironic, eh?), and
for about 20 years now people have referred
to me as Pez.
When I first got involved with the web in 1995
I thought about registering pez.com, but opted
against it fearing a law suit down the road.
-Pez
I'n guessing this would also apply to XML tags.. ;-P Hopefully, that PEZ Collectors shop didn't want to create an XML interface to their sales system.. DoH!
-- I'm the root of all that's evil, but you can call me cookie..
In Spanish, pez means fish (and has two other lesser meanings) so if I do a website about fishing or aquaria, I will use pez in the metatags, as it is not the pez(R) trademark but a common word instead.
Is there some joke I don't know about? Is PEZ some crazy geek icon like Spam? Who the hell embedded "PEZ" in their code?
There are a number of people who collect PEZ (Oh, Pez people please don't sue me for using it here!!!) much like people collect Beanie Babies. They trade and sell them rampantly on the net (no, I have no link, I don't care).
I have a feeling this is what the Pez people are mad about.
Hmm, maybe I should try a google search of "Pez is more evil than Satan himself"
Ok, these people are insane. Then again, they probably think I'm insane for collecting computers nobody else wants (Hey, dumb terminals!).
Actually, I just got an old Sun 3/80 workstation. All I need now is a cable to connect the monitor and an ethernet x-ceiver...
Actually, I don't think this will hold any water, else Hormel would have gotten really pissed long ago due to the negative connotations associated with the word "spam."
First of all, WTF is an "unregistered trademark?". How can you know if you're violating an unregistered trademark or not? Maybe someone could clear up what they mean by this - but it sounds like nonsense.
Secondly, the point of trademark law is to stop company B passing itself off as company A by using the same or a similar name. So if your company has spent the last twenty years making "Miracle Widgets" and has gained a great reputation, you would be entitled to take action against a new company called "Miracles Widgets" who might be trying to pass themselves off to customers as you. On the other hand, your reputation as a widget maker would be irrelevent to, say, advertising, so "Miracle Advertising Consultancy" would probably not be considered to be passing off.
If I create a "Widget World" web site for discussion and news on the widget industry, I am perfectly at liberty to use the name of Miracle Widgets, even though it's a trademark, as long as there's no way someone looking at the site would think that my site was actually run by Miracle Widgets. It's this right that allows news sites, fan sites, etc, etc to exist. Just think how long ZDnet would last if they weren't allowed to use any trademarked names.
So the question is this; does trademark law in the US, either in statute or precedent, go beyond this simple protection of a business's name from any unscrupulous competitors who might try to deceive the public?
If it does, it's broken.
I fully appreciate that the law probably is much more complex than that. But it shouldn't be.
Let's assume for the moment that the law upholds the above principles, but doesn't go any further. (Laws that don't go far enough are a bad thing; laws that go too far are generally worse.) Let's look at the meta tags issue.
If I have a site which regularly discusses Miracle Widgets, then it would be entirely appropriate to use "Miracle" in the meta tags - the site would be a source of information about Miracle Widgets. As long as I don't actually try to sell people widgets, I'm fine.
Note that this doesn't mean I can't make money from the site. It doesn't matter if it's commercial or non-commercial. I'm allowed to discuss Miracle Widgets on the site in good or bad terms, as often as I like, as long as I never attempt to make them think I *am* Miracle Widgets. It's up to a court to decide whether I am engaging in legitimate discussion, or whether I'm trying to deceive the public. Simply using the word "Miracle" does not place me in breach of trademark.
Having a site which discusses Pez Candy is not in breach of their trademark unless I try to pass myself of as Pez Candy. I can set up a trading site for Pez Candy. I can write good or bad things about it. I can make money out of doing so. As long as I don't infringe their trademark (which means a lot more than just using the word) there's nothing they can do about it.
Does the law work this way? If not, why not? Doesn't it seem remarkably... fair?
Finally, the landsharks give up, and present a huge bill for all that wasted time to Pez.
Farfetched? Wishful thinking? Not at all. I personnally managed to keep E*Trade's lawyers busy during almost three weeks using such silly games until they finally gave up.
Totally a knee-jerk, uninformed reaction. Read their press release and use your brain to understand what it means. Pez are taking a proactive step to keep porno sites (and others) from hijacking their web site by misappropriating their trademarked name in the hijacker's meta tags.
The hijacker is in effect representing themselves as Pez in order to obtain traffic otherwise destined for Pez's site. If someone put up a billboard on the side of the road that said "Free Pez, call 1-900-NAUGHTY-BITS", I doubt anyone would think poorly of Pez if they sent their lawyers crawling up the pornographers proverbial butt.
This is absolutely no different. In a very specific, defensible way, they have said that misrepresenting yourself as Pez on the Internet by using Pez's trademarks will be considered an infringement and will be prosecuted.
And a note for the armchair lawyers here, "fair use" applies to copyrights, not trademarks. And the current trademark law REQUIRES that a trademark holder defend infringements on their mark or risk losing it to the public domain. Any responsible business SHOULD do this. I think Pez has chosen a completely acceptable approach to a problem that afflicts a huge number of sites. I hope they follow through and actually sue some of the hijackers.
Or do you think that porno sites *should* be able to hijack traffic otherwise bound for businesses by using a trademark they don't hold in the meta tags of their site?
Shut up and eat your vegetables!!!
Here is my approximate (TM) translation.
(5.10.99) The editors had a great laugh. Six months ago, Volker Jungbluth, opportunities-contributor to the industry periodical C'T, wanted to deny the internet world the phrase "Site Promotion". Editors could report on the best way to publicise a web page only using a "TM" after the phrase.
Despite being ignored by the internet community, it was an issue for web [content?] providers. Some companies advertising on the web using phrases like "webspace", "explorer" or "site-promotion" were mercilessly threatned, often by the notorious Munich lawyer Gravenrueth.
Today a new absurdity came across the editors' desk: the 43year old entrepeneur from Cologne Norbert Helling stated through his lawyer Hans-Jürgen Amend that the @-sign had patent protection for printed products. Attached was a copy of "Design patent book 12", dated 25.6.1999
In this, Hellig didn't even bother to design a single @-sign. The patent description concerned a letter in the font "Times". The figure is described as "letter a". Our lawyer will have a look at the documentation. We will keep you up to date on the soundness of potential warnings from this.
In fact, the so-called legal docuement doesn't just try to forbid use of 'meta' tags. It tries to totally exclude certain phrases from the English language:
IANAL, but I'm sure that this is unenforceable bullshit. You can mention any trademark, as long as you acknowledge the owner (eg, Pez is a trademark of Pez Corporation). You just can't make a similar product under the same name. (In the UK, you can't make a dissimilar product if consumers might be confused or it's thought that you're trading on the name - eg yesterday the Trade Marks Registry prohibited the sale of 'Visa' condoms.)
Given that they stick in a lot of rubbish about not mentioning their trademarks, it wouldn't be unreasonable to assume that their prohibition of 'meta' tags is also without legal weight. (Again, IANAL.)
Besides, you never signed that document - you don't have to abide by its terms.
-- Ed Avis ed@membled.com