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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. "
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.
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...
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.
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."
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.
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.
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