The following are cross-posted from Cyberia-L. My apologies for cross-posting, but I thought Shashdot might appreciate these comments, too . . . (1)________________________ If Pez even thinks about going after you (or sends a cease-and-desist letter), please do give me a call. This is one I'll enjoy. Eric (2)___________________ Martin Simon mentioned the "Bally" case: The Bally citation is certainly helpful. But why deal execusively with the easy cases (critical websites, general "candy" subject meta-sites, official PEZ licensees, or even poetry about PEZ)? What PEZ knows and is trying to cash in on is that a secondary market has developed for classic PEZ dispensers. Not that PEZ hasn't tried to foster and encourage the self-same secondary market. Not that they haven't profited from increased consumer-market sales becuase this secondary market exists. Nevertheless, someone in their legal department must have stumbled upon the bright idea "hey, why don't we try to charge a trademark license fee every time someone tries to auction one of those darn things on Ebay." The idea is simply obscene. Imagine if people had to pay a trademark license fee every time someone posted a classified advertisment in the newspaper offering a used Ford or Honda for sale. Even if you advertise the car is in "mint" condition and still has the dealer sticker in the window (and even if you publish a photograph of the car along with the ad), the secondary market transaction is hardly a trademark infringement. Of course PEZ may still have legitimate trademark (or trade dress) rights in cases such as the mass sale of counterfeit PEZ dispensers. I remember Wizards of the Coast had a problem with something similar a few years back concerning their game "Magic -- the Gathering." But ordinary secondary-market transactions involving PEZ dispensers (even if they command OBSCENELY high prices) simply should not be the subject of trademark enforcement. Just another example of how some trademark interests have gone completely overboard with litigation and the threat of litigation. Regards, Eric > -----Original Message----- > From: Law & Policy of Computer Communications > [mailto:CYBERIA-L@LISTSERV.AOL.COM]On Behalf Of Martin Samson > Sent: Thursday, October 07, 1999 2:05 PM > To: CYBERIA-L@LISTSERV.AOL.COM > Subject: Re: "Pez" Forbidden in Meta Tags > > > In Bally Total Fitness Holding Corp. v. Andrew S. Faber, 29 F.Supp.2d 1161 > (C.D. CA. Nov. 23, 1998), the court held that the creator of a > non-commercial "consumer complaint" site could use the Bally trademark in > the meta tags of his website to attract users. Said the court: > > The average internet user may want to receive all the information > available > on Bally. The user may want to access the official Internet site > to see how > Bally sells itself. Likewise, the user may also be apprised of > the opinions > of others about Bally. This individual will be unable to locate sites > containing outside commentary unless those sites include Bally's marks in > the machine readable code. The machine readable code is the > hidden part of > the Internet upon which search engines rely to find sites that contain > content which the individual user wishes to locate. The basic > mechanics is > that the web page designer places certain keywords in an > unreadable portion > of the web page that tells the search engines what is on a particular page > upon which search engines rely. Prohibiting Faber from using Bally's name > in the machine readable code would effectively isolate him from > all but the > most savvy of Internet users.
Slashdot Mirror
The following are cross-posted from Cyberia-L. My apologies for cross-posting, but I thought Shashdot might appreciate these comments, too . . . (1)________________________ If Pez even thinks about going after you (or sends a cease-and-desist letter), please do give me a call. This is one I'll enjoy. Eric (2)___________________ Martin Simon mentioned the "Bally" case: The Bally citation is certainly helpful. But why deal execusively with the easy cases (critical websites, general "candy" subject meta-sites, official PEZ licensees, or even poetry about PEZ)? What PEZ knows and is trying to cash in on is that a secondary market has developed for classic PEZ dispensers. Not that PEZ hasn't tried to foster and encourage the self-same secondary market. Not that they haven't profited from increased consumer-market sales becuase this secondary market exists. Nevertheless, someone in their legal department must have stumbled upon the bright idea "hey, why don't we try to charge a trademark license fee every time someone tries to auction one of those darn things on Ebay." The idea is simply obscene. Imagine if people had to pay a trademark license fee every time someone posted a classified advertisment in the newspaper offering a used Ford or Honda for sale. Even if you advertise the car is in "mint" condition and still has the dealer sticker in the window (and even if you publish a photograph of the car along with the ad), the secondary market transaction is hardly a trademark infringement. Of course PEZ may still have legitimate trademark (or trade dress) rights in cases such as the mass sale of counterfeit PEZ dispensers. I remember Wizards of the Coast had a problem with something similar a few years back concerning their game "Magic -- the Gathering." But ordinary secondary-market transactions involving PEZ dispensers (even if they command OBSCENELY high prices) simply should not be the subject of trademark enforcement. Just another example of how some trademark interests have gone completely overboard with litigation and the threat of litigation. Regards, Eric > -----Original Message----- > From: Law & Policy of Computer Communications > [mailto:CYBERIA-L@LISTSERV.AOL.COM]On Behalf Of Martin Samson > Sent: Thursday, October 07, 1999 2:05 PM > To: CYBERIA-L@LISTSERV.AOL.COM > Subject: Re: "Pez" Forbidden in Meta Tags > > > In Bally Total Fitness Holding Corp. v. Andrew S. Faber, 29 F.Supp.2d 1161 > (C.D. CA. Nov. 23, 1998), the court held that the creator of a > non-commercial "consumer complaint" site could use the Bally trademark in > the meta tags of his website to attract users. Said the court: > > The average internet user may want to receive all the information > available > on Bally. The user may want to access the official Internet site > to see how > Bally sells itself. Likewise, the user may also be apprised of > the opinions > of others about Bally. This individual will be unable to locate sites > containing outside commentary unless those sites include Bally's marks in > the machine readable code. The machine readable code is the > hidden part of > the Internet upon which search engines rely to find sites that contain > content which the individual user wishes to locate. The basic > mechanics is > that the web page designer places certain keywords in an > unreadable portion > of the web page that tells the search engines what is on a particular page > upon which search engines rely. Prohibiting Faber from using Bally's name > in the machine readable code would effectively isolate him from > all but the > most savvy of Internet users.