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AmEx vs. rec.humor.funny 423

Posted by timothy
from the humorlesson dept.
An anonymous reader writes "I worried that Brad Templeton's humorous reply in rec.humour.funny to the MasterCard threat might put an end to my daily read. I never heard the outcome, but since the column continues and he is using the same response to a suit from American Express, it must have been OK. This guy has more b*lls than I."
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AmEx vs. rec.humor.funny

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  • by Skyshadow (508) on Wednesday April 14, 2004 @09:58AM (#8859245) Homepage
    The power to sue a website is insignificant compared to the power of the /. effect.
    • by mirko (198274) on Wednesday April 14, 2004 @10:01AM (#8859274) Journal
      Do you mean Slashdot got paid by Mastercard to close netfunny its own way ?
    • The power to sue a website is insignificant compared to the power of the /. effect.
      truly, this is the most creative way to comply with a cease and desist letter. post your site on slashdot and get slashdotted to death.

      talk about falling on your sword... :)

  • slashdotted (Score:5, Informative)

    by Karamchand (607798) on Wednesday April 14, 2004 @09:58AM (#8859247)
    link1 [google.com]
    link2 [google.com]
  • by Anonymous Coward on Wednesday April 14, 2004 @09:59AM (#8859253)
    Mastercard threatens rec.humor.funny over satire
    bt@templetons.com (Brad Templeton)
    http://www.templetons.com/brad

    (topical, chuckle, true)

    Two years ago, rec.humor.funny published a sick satire of the Mastercard "Priceless" ads (There are some things money can't buy, for everything else there's Mastercard) based around the Columbine tragedy. I won't repeat it here, since it was pretty sick and offensive, though you can find it on the web site at:

    http://www.netfunny.com/rhf/jokes/99/Apr/columbi ne .html

    Today we received a "cease and desist" letter from Mastercard's lawyers demanding that the parody be removed from our web site, falsely claiming it violates their trademarks and copyrights, in spite of the well established rules protecting satire and parody from such attacks.

    The letter can be found at

    http://www.netfunny.com/rhf/price.html

    Here, however, is my response...

    Web site hosting for anybody: $10/month and up

    Threatening letters to people who satirize you, hoping
    they won't know the law: $500

    Reputation as giant corporation required to intimidate
    small publishers: $billions

    Supreme court decisions protecting parody and
    satire from accusations of copyright and
    trademark infringement... Priceless

    There are some rights money can't buy. For everything else, there's Mastercard's lawyers.

    ============

    April 13, 2004
    American Express threatens me over joke on web site

    On my rec.humor.funny web site, I maintain the newsgroup archives, including this 13 year old joke entitled American Expressway.

    Today I got one of those bullying "cease and desist" letters from American Express's law firm, ordering me to take down the joke for trademark infringement. Here's the text of the cease and desist

    Do these guys know who they are trying to bully? I guess not, here's my response to them:

    You can "Screw More" with an American Express Lawyer

    Do you know me?

    I built a famous company with a famous name, and then satirists made fun of me by taking advantage of the constitutional protections afforded parody when it comes to trademark law?

    That's why I retained Leydig, Voit & Mayer, Ltd, the "American Express Lawyers." Should you ever feel your reputation lost or stolen by free speech and satire, just one call gets LVM to write a threatening cease and desist letter -- usually on the same day -- citing all sorts of important sounding laws but ignoring the realities of parody. Most innocent web sites will cave in, not knowing their rights. LVM will pretend it has never read cases like L.L. Bean, Inc. v. High Society and dozens of others. There's no preset limit on the number of people you can threaten, so you can bully as much as you wish.

    After all, Being Giant and Intimidating has its Privileges.

    American Express Lawyers: Don't leave your home page without them.

    For more examples of such games, check out our joint project with the Berkman center to document them: Chilling Effects Clearinghouse. And yes, Mastercard pulled the same stunt several years ago.
    Posted by Brad at April 13, 2004 03:17 PM | TrackBack
    • by slackerboy (73121) on Wednesday April 14, 2004 @10:19AM (#8859390)
      And the text of the actual joke that AmEx is complaining about is google cached here [google.com].

    • by blair1q (305137) on Wednesday April 14, 2004 @11:06AM (#8859922) Journal
      Brad's okay, even if he did take pecuniary advantage of Usenet and has a somewhat spotty sense of humor for a guy who runs a newsgroup with "funny" in its name.

      But he's pissing in the wind. And that's all it is, wind.

      Trademark holders must threaten everyone who coopts their mark, even when it seems like it's almost certain to be legitimate fair-use. If they don't make a sincere effort to protect the trademark, the failure to do so becomes evidence against them in cases the bring where the mark has actually been abused. Trademarks have been lost that way.

      Same deal with Mattel suing over Barbie songs, Sony suing Sony's cafe, etc. The bad part is when they end up having to go through with the case and the big guy's lawyers beat up the little guy's lawyers and create new case law that erodes fair-use.

      Brad's response that he'll bring up Parody and Satire is enough for them to argue that they didn't see value in fighting, but since they don't fight it doesn't create case law, and everyone has their asses covered. And it'll end there, just like the MasterCard threat did.

      It's kind of odd that Brad doesn't get this right off the bat, seeing as he's also the guy who wrote the first real position paper on intellectual-property laws for the Internet.

      N.B., IANAL, (but if the bar exam wasn't all about fiddly bits in real estate and divorce law and trial procedure I probably would be). I just like arguing with them and winning on the net.
      • by sjames (1099) on Wednesday April 14, 2004 @11:33AM (#8860234) Homepage

        Actually, that's just what expensive corporate lawyers would like you to believe.

        It is true that a trademark can be lost if it is not vigorously protected from infringement. However, since satire isn't an infringement, there is nothing to protect it from when satire happens.

        The various bullying C&D letters sent out are nothing more or less than willful bullying.

        If there is any doubt about the nature of a trademark's use, the various lawyers could just as easily send out a letter noting the existance of the parody, and reminding the author or publisher of the parody that while parody is perfectly legal, they should take steps to assure that they do not cross the line by going into (for example) the banking and credit business using that parody. There is no need to threaten gloom and doom or willfully ignore important portions of trademark law other than to bully the recipiant of the letter.

        • >The various bullying C&D letters sent out are nothing more or less than willful bullying.

          Corporate executives are often lawyers themselves, and if they caught their legal staff billing hours for unnecessary actions and destroying the company's public relations for no tangible or intangible benefit, it'd be open season on trussed-up corporate shysters for the ivory-tower clan.

          Too many companies have been burned by this for it to be something they don't know will burn them.

          So either they're plug st
        • Under UK trademark law, if you send a letter threatening legal action for trademark infringement, and turns out that there was no infringement, you can sue the trademark owner for "threats action". What the trademark owner can do is send a "nice" letter "simply" stating the presence of trademark rights and so on.
      • by RazzleFrog (537054) on Wednesday April 14, 2004 @11:39AM (#8860295)
        First - That's a load of bullshit. There is no such thing as protecting your trademark. As long as you continue to use it in the course of business it is protected. It is an urban legend, an old wives tales, general bullshit. There has never been a case where a company failed to protect its trademark and lost.

        Second - Trademark infringement can only come when another company uses your trademark in business. Just using the name of a company in a joke is not trademark infringement any more than me typing MasterCard right here is not infringement.

        Third - Contrary to the moron AC below Kleenex still holds its trademark. You will never see Scotties Kleenex - they are called Scotties Tissues. People can refer to common items (like band aids, kleenex, vasoline, etc) but when a company sells a similar product they can not use that name. Just go to a grocery store and that is plain to see.

        Fourth - This has nothing to do with trademarks. this is about Copyrights. You don't trademark a commercial. It is copyrighted. Parody is allowed under copyright law and this is surely a parody.
        • by Aneurysm9 (723000) on Wednesday April 14, 2004 @12:57PM (#8861137)
          First - a trademark can be lost through a process known as "genericide," which happens, among other ways, when a mark is not protected against uses other than those by the owner identifying a good or service sold in commerce. See The Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95 (2d Cir. 1989) ("In finding a lack of genericness, the district court was influenced by Murphy's efforts at policing it's mark"). It is only when a mark has "entered the public domain beyond recall" that policing is of no consequence. See King Seely Thermos Co. v. Aladdin Indus., Inc., 321b F.2d 577, 579 (2d Cir. 1963). Second - It is using a trademark in commerce in such a way that creates a likelihood of confusion as to the source of goods or services that constitutes trademark infringement. 15 U.S.C. 1114. [cornell.edu] Because "commerce" has such a broad definition thanks to Congress and the courts wanting to include everything under the sun in the Commerce Clause power, telling a joke could constitute using a mark in commerce if, for example, it was told by a comedian at a performance for which he was receiving money. Third - Kimberly-Clark still holds a valid trademark on Kleenex because they have policed the mark. You will notice that they are never simply "Kleenex," but always "Kleenex brand facial tissue." Just like the old "You can't Xerox a Xerox on a Xerox but we don't mind at all if you copy a copy on a Xerox copier" ad. It's all about ensuring that the mark is associated with a particular source of a type of product and not the type of product in general. Fourth - If MasterCard and AmEx have registered trademarks, they need to assert trademark infringement as much as they would need to assert copyright infringement related to the style and structure of the ads. I think it highly unlikely that any copyright theory would succeed given the history of parody and fair use in the copyright jurisprudence. Given the Mattel v. MCA decision about that well known "German street walker" (er, Barbie) I doubt that a trademark claim would succeed either. That doesn't mean that neither of them should at least be brought to the attention of the potential infringer. Remember, fair use is an affirmative defense. When you plead fair use you are, in essense, saying, "yeah, I did infringe, but you can't hold me liable because what I did is protected." If your argument doesn't fly with the judge, you're going to be liable.
          • by RazzleFrog (537054) on Wednesday April 14, 2004 @01:25PM (#8861471)
            Genericide is not a legal term but a marketing term. The case you quote has to do with a company not policing its trademark when it is used in business by other businesses. We discussed that already. That has nothing to do with this case.

            A joke is never commerce. Your example is a joke. A comedian using a trademark name in an act in no way would confuse people to think that that joke is a product of the company holding the trademark. That might be the lamest argument I have ever read. Do you think that every stand up comedian gets permission from every company that it jokes about. Absolute nonsense.

            Policing a trademark means not allowing other businesses to use the trademark in business. How many times do I need to repeat this?

            Copyright on the other requires no such policing. It is in no way similar to Trademarks. It is covered under different laws and maintainted by the Library of Congress not the US Patent and Trademark Office.

            You have made no substantial rebuttals to any of my points. Policing trademarks has nothing to do with people using a trademark in a conversation. It is an abuse of the system to even suggest it.

            And learn how to format your posts.
  • by bbrazil (729534) <brian.brazil@gmail.com> on Wednesday April 14, 2004 @10:00AM (#8859258) Homepage
    Web site hosting for anybody: $10/month and up
    ./ed after just one comment: Priceless
  • He's safe (Score:4, Interesting)

    by PingKing (758573) on Wednesday April 14, 2004 @10:00AM (#8859260)
    I'm not a lawyer but I'd bet the guy is pretty safe. Satire is protected from accusations of copyright infringement and IMO there's not a judge in the land that wouldn't view the AmEx parodies as just that.
    • Re:He's safe (Score:3, Interesting)

      by moviepig.com (745183)
      Indeed, an obvious instance of parody, and therefore equally obviously protected.

      Why, then, is there no mention of any counterclaim against MasterCard for a frivolous lawsuit (which, I think, covers such plainly deliberate harrassment)?

      (I'm no trial-judge, but I pay one on TV...)

    • by Moderation abuser (184013) on Wednesday April 14, 2004 @10:25AM (#8859441)
      It's the cost of the process itself. For individuals It doesn't really matter whether you'll win or not. The process itself is so long, slow and expensive that it'll bankrupt you.

    • Re:He's safe (Score:5, Informative)

      by K8Fan (37875) on Wednesday April 14, 2004 @10:34AM (#8859517) Journal

      As the Supreme Court majority opinion in "2 Live Crew vs. Rose-Acuff Music" said:

      Parody, even witless and stupid parody, is deserving of the highest level of protection.
      • Re:He's safe (Score:3, Informative)

        by Aneurysm9 (723000)
        That was Campbell v. Acuff-Rose Music, 510 U.S. 569 [cornell.edu] (1994). It should be read by anyone commenting on copyright and parody before posting as it is the seminal parody case currently controlling U.S. law.
    • Re:He's safe (Score:5, Informative)

      by esme (17526) on Wednesday April 14, 2004 @10:46AM (#8859655) Homepage

      i can't read the linked story now b/c it's slashdotted...

      but, there's an interesting wrinkle in the protection of satires: there was a case in the nineties (an o.j. simpson parody in the form of 'cat in the hat'). the case hinged on the fact that satire only lets you use the work you are parodying. i.e., you can't use one work to parody something else.

      now, parodying the mastercard stuff is probably ok, since it's the stupid, touchy-feely nature of the ads that's being parodied. but it's important to know that satire isn't a magic wand that lets you do anything you want.

      -esme

      • Re:He's safe (Score:3, Informative)

        by _Sprocket_ (42527)

        ...i.e., you can't use one work to parody something else.


        For example, Penny Arcade's parody [scalzi.com] of American McGee and Strawberry Shortcake.
  • by ptomblin (1378) <ptomblin@xcski.com> on Wednesday April 14, 2004 @10:00AM (#8859261) Homepage Journal
    What Brad needs, instead of writing sarcastic responses himself, is to get a lawyer to write a letter pointing out to these pinheads that satire is constitutionally protected, and if they don't want to make asses of themselves and get laughed out of court like Fox News did against Al Franken, they should shut the fuck up.

    Preferably in those exact words.
    • by jdifool (678774) on Wednesday April 14, 2004 @10:04AM (#8859290) Homepage Journal
      Well, this is what he did, basically, though with slightly different words... :)

      You don't need a lawyer when your common sense is enough to protect you... or at least you shouldn't need it.

      Regards,
      jdif

      • by ptomblin (1378) <ptomblin@xcski.com> on Wednesday April 14, 2004 @10:13AM (#8859350) Homepage Journal
        Many lawyers will write stuff like this for free. Some years ago the Canadian Olympic Committee sent Orienteering Ontario a letter saying that the logo we were using for our sport infringed the stick figure logos that they'd been using since 198x. Well, what they didn't count on was that one of the members of the Canadian national Orienteering team was a lawyer, so he wrote back a letter that basically said we got the logo from the World Orienteering Championships of 197x, and they could stuff their claim up their collective asses, and we never heard from them again. So they went after some guy named Olympus for calling his pizza restaurant "Olympic Pizza" instead.

    • by lukewarmfusion (726141) on Wednesday April 14, 2004 @10:06AM (#8859304) Homepage Journal
      Nah, I don't think he's willing to take them that seriously. He's right that these letters are not all that serious themselves, but mostly scare tactics.

      All he has to do is demonstrate knowledge/awareness of the law, his rights, etc. and they'll back off. He's done nothing wrong and they know it - so their threats are empty and he calls them on it.
    • by Ami Ganguli (921) on Wednesday April 14, 2004 @10:06AM (#8859308) Homepage

      You're probably right, but think there's something wrong when you're compelled to spend money on a lawyer every time somebody makes a stupid threat.

      If he's confidident enough about his position to write the response himself then more power to him.

    • If he should do it in those exact words, he doesn't really need a lawyer now, does he?

      What was your fee, anyway?

      ::Colz Grigor

    • by Gulik (179693)
      What Brad needs, instead of writing sarcastic responses himself, is to get a lawyer to write a letter pointing out to these pinheads that satire is constitutionally protected...

      This presumes that the aforementioned pinheads really don't know that his parody is constitutionally protected, which is somewhat unlikely. They know that the charges in their C&D are groundless, but figure that he will be cowed just because he got a letter from a lawyer. He's disabusing them of that notion.

      Now, if they're
      • by ptomblin (1378) <ptomblin@xcski.com> on Wednesday April 14, 2004 @10:27AM (#8859458) Homepage Journal
        which is somewhat unlikely

        Back when Fox News tried to C&D Al Franken's book, I assumed, like everybody else in the world, that Fox's lawyers were actually graduates of law schools that teach things like that, but we were all wrong. Fox, being one of the largest media conglomerates in the world, evidently has a legal staff who all got their law degrees at Joe's Garage and Lawer Stuff Skool. You should hear Al Franken's own description of what happened when they went to court - the judge literally laughed when he told that not only don't they have a case, but if they persist they're very likely to find out that "Fair and Balanced" isn't trademarkable.
        • by jratcliffe (208809) on Wednesday April 14, 2004 @11:05AM (#8859910)
          From what I've heard, Fox (and particularly their General Counsel's office) knew that the suit didn't have a snowball's chance in hell, knew that they'd lose, and knew that they'd look like idiots if they went forward. They were forced to do it by Bill O'Reilly. Probably shouldn't blame the lawyers on this one, sometimes, as an attorney, you're forced to argue something you don't believe for a second.
    • by Mazzie (672533) on Wednesday April 14, 2004 @10:27AM (#8859462)
      Law schools are pumping out more lawyers than the economy can support. I think the new trend of sending out thousands of cease and desist letters is the law firm form of telemarketing, phishing, or even spamming.

      I think they look for a mega-response. If they get a response from a company written by a big law firm it tells a lot about what the company has to lose, and how big their bank account is.

      IMO, most lawyers are just looking for an easy settlement anyways. Use a 'bot to dig the internet for 'infringements', send out 10K letters, get 5 settlements for 25K each?
      • by BenBenBen (249969)
        IMO, most lawyers are just looking for an easy settlement anyways. Use a 'bot to dig the internet for 'infringements', send out 10K letters, get 5 settlements for 25K each?
        It's ironic that you are describing spam-onomics, and the first ever spam was sent by a firm of lawyers.
    • by maggard (5579) <michael@michaelmaggard.com> on Wednesday April 14, 2004 @11:13AM (#8860007) Homepage Journal
      Brad needs a lawyer
      Uh, no.

      As I pointed out elsewhere [slashdot.org] Brad is well aware of his rights (early online publisher, author of "10 Big Myths about copyright explained [templetons.com]", Chairman of the Board of the EFF [slashdot.org] ), rather folks need to be more aware of their own rights.

      Also for all the lip service paid to EFF on /. it's pretty telling that this story was up for an hour, your posting was +5, and nobody here had a clue as to who Brad is...

  • by dexterace (68362) on Wednesday April 14, 2004 @10:00AM (#8859262)
    Soon, he will much have less b*ndwidth...
  • B*lls?? (Score:5, Insightful)

    by Seekerofknowledge (134616) on Wednesday April 14, 2004 @10:00AM (#8859263)
    This guy has more b*lls than I.

    What, can people not say balls now? If not, could someone please say why?

    Oh, maybe he means bills, as in dollaz. Meaning, he can afford the law suit?

    Either way...
  • Can't check the link in the article, but I guess it's about this post [google.com]. (Message-ID: )
  • Hell Yeah! (Score:3, Interesting)

    by kwpulliam (691406) <kevin.pulliamNO@SPAMgmail.com> on Wednesday April 14, 2004 @10:01AM (#8859273) Journal
    Let's here it for Simple and To the point legal arguments. Both the Amex and the MC responses are great (Though the MC Response was better)
  • by arpy (587497) on Wednesday April 14, 2004 @10:04AM (#8859295) Journal

    "This guy has more b*lls than I."

    Judging from his tendencey to get sued, he certainly would seem to have more bills than you.

  • by Frennzy (730093) on Wednesday April 14, 2004 @10:04AM (#8859298) Homepage
    Posting a funny parody...free.

    Getting a C&D letter from MC/AmEx...free.

    Having /. do more to take away your free speech than MC or AmEx could ever dream of....priceless.
  • by StateOfTheUnion (762194) on Wednesday April 14, 2004 @10:07AM (#8859309) Homepage
    Are there any site that give advice on how to react to a situation like this? Most that I have seen basically say IANAL and to consult a professional . . . it seems if you don't have money, its hard to get good advice . . .
    • by abb3w (696381) on Wednesday April 14, 2004 @11:04AM (#8859894) Journal
      As I understand it, the reason that most sites giving basic advice add "IANAL/consult a professional" is threefold. First, laws vary from state to state; good advice in California may be very bad advice indeed in Massechusetts. Second and similarly, sometimes the big picture hangs very heavily on a couple of very small but important details; lawyers are well practiced at straining at gnats and swallowing camels, and knowing which is which is not something for an amateur off death row to try. (If you're on death row, what else do you have to do with your time?)

      The third reason, however, is the most important. As I understand it, if you give someone legal advice, it both makes you civilly liable for any bad consequences of taking it (IE, you get sued next if they lose the case), and may constitute the criminal offense of practicing law without a license if you are not admitted to the Legal Bar for the jurisdiction your advisee is in. I've heard Arizona is an exception to the second half of that, but I don't know the truth of this.

      Many lawyers offer a free initial consultation; if you have a problem, taking advantage of that sounds like a good place to start.
  • Larry Flynt (Score:5, Insightful)

    by Mazzie (672533) on Wednesday April 14, 2004 @10:07AM (#8859314)
    Billion dollar companies still struggling to overcome protections championed by a pornographer: priceless
  • obligatory (Score:5, Funny)

    by dj245 (732906) on Wednesday April 14, 2004 @10:08AM (#8859319) Homepage
    10/month hosting at a craptastic company: $10
    Writing an article about trouble with the law: $0
    Bandwidth overage charges from being slashdotted: $260
    Being parodied in a slashdot posting because your lawsuit stems from the fact that you made a parody of a commercial: Priceless

    There are some rights money can't buy. For everything else, there's google cache. [google.com]

  • by AtariAmarok (451306) on Wednesday April 14, 2004 @10:11AM (#8859335)
    What if the guy loses the suit and pays for it with his American Express card?
  • The Joke (Score:3, Informative)

    by Manip (656104) on Wednesday April 14, 2004 @10:13AM (#8859346)
    200 rounds of ammo: $70 Two ski masks: $24 Two black trench coats: $260 Seeing the expression on your classmates' faces right before you blow their heads off -- priceless. There are some things money can't buy, for everything else there's MasterCard.
  • by swingheim (771227) on Wednesday April 14, 2004 @10:14AM (#8859353)
    Not to say what you should do with it... *cough* just noted that it was at the bottom of his letter.
  • Black Friday? (Score:3, Interesting)

    by chendo (678767) on Wednesday April 14, 2004 @10:14AM (#8859359)
    Accordingly, we demand that you confirm immediately and no later than
    Friday, April 13, 2001, that you will remove the Infringing Material from the web site www.netfunny.com and that there will be no further publication of the Infringing Material or any other material which infringes MasterCard's rights as set forth above.
    Is it just me, or is it just a coincidence that day is a Black Friday? ;o
  • by shamir_k (222154) on Wednesday April 14, 2004 @10:19AM (#8859394) Homepage
    Google Cache of original mastercard joke [216.239.57.104]. I can't believe MasterCard sent a C&D over a scik joke.
  • by tiny69 (34486) on Wednesday April 14, 2004 @10:20AM (#8859399) Homepage Journal
    Word Mark PRICELESS
    Goods and Services IC 036. US 100 101 102. G & S: Financial services, namely, providing credit card, debit card, charge card and stored value smart card services, prepaid telephone calling card services, cash disbursement, and transaction authorization and settlement services. FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200
    Mark Drawing Code (1) TYPED DRAWING
    Serial Number 75658792
    Filing Date March 11, 1999
    Current Filing Basis 1A
    Original Filing Basis 1A
    Published for Opposition November 30, 1999
    Registration Number 2370508
    Registration Date July 25, 2000
    Owner (REGISTRANT) MASTERCARD INTERNATIONAL INCORPORATED CORPORATION DELAWARE 2000 Purchase Street Purchase NEW YORK 105772509
    Attorney of Record COLM J DOBBYN
    Type of Mark SERVICE MARK
    Register PRINCIPAL
    Live/Dead Indicator LIVE
    • by Anonymous Coward
      FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200

      Would that be the 0th day of February, or the 2nd day of Nomonthuary?

  • by Jugalator (259273) on Wednesday April 14, 2004 @10:23AM (#8859426) Journal
    - Humorless lawyers suing attrition.org [google.com] (includes reply to their letter)
    - Humorless lawyers suing Ralph Nader... and losing [salon.com]

    Should you laugh or cry at this?
    TESS Info for trademark #2370508 [uspto.gov]
  • by 91degrees (207121) on Wednesday April 14, 2004 @10:23AM (#8859427) Journal
    Your unauthorized use of AMERICAN EXPRESSWAY ... is likely to cause consumers to be confused, mistaken, or deceived as to the source of origin of your services.

    ...In addition, your continued use of these marks constitutes a deceptive business practice and unfair competition in violation of state law.


    Considering that he's not running a business, claiming to run a business, or using these terms for advertising a business, these statements seem rather curious. Did they just use a search engine and automatically send out a nastigram based on the results? Would my writing "American expression, Membership has its Privileges" in this post result in Slashdot getting a letter? (If so, sorry guys)
  • by DougMackensie (79440) on Wednesday April 14, 2004 @10:30AM (#8859486)
    I'll say Mr. "anonymous reader"
  • by CGP314 (672613) <CGPNO@SPAMColinGregoryPalmer.net> on Wednesday April 14, 2004 @10:37AM (#8859547) Homepage
    This guy has more b*lls than I.

    Either have the balls to use the word balls or pick a different word. Writing b*lls is just stupid. Allow me to demonstrate:

    On slashdot I can say: I thought that anonymous coward was a fucktard.

    Relaying the same information to my mother in an email I would say: I thought that anonymous coward was an idiot. Not I thought that anonymous coward was a f*cktard.


    -Colin [colingregorypalmer.net]
  • by Tolvor (579446) on Wednesday April 14, 2004 @10:37AM (#8859548)

    The MC joke was tasteless, and i can see MC execs wanting to kill the joke, as it simply isn't funny. The Amex joke below seems almost complimentary, as it implies that having the AmEx card gives you special privilages. I suppose that if a popular celebrity gave them a free endorsement, they would issue a cease-and-desist letter. No wonder AmEx is the card chosen by the select few who don't want their card to be accepted in many stores.

    You are invited to become a member of the American Expressway, one of the newest and most innovative road systems in America. There are many advantages to the American Expressway over the standard tollways, parkways, highways and freeways but by far the biggest advantage is:

    No Preset Speed Limit!!!!!!!!!!!!!!!!!!!!!!

    Instead your personal speed limit is determined by your vehicle, your personal resourcefulness and your past speeding patterns. When you enter the expressway your personal id number is transmitted to Central Control to tabulate your tolls and record your initial speed (all AE members may travel at 55 with no restrictions). If you decide to pursue a greater speed then an authorization will be sent to Central Control and our highly specialized, non deterministic and little understood AI algorithm will decide if you are approved for your new speed. If you are not then a Service Technician (formally known as a State Trooper) may stop you to ask a few questions to verify that you were capable of handling your new limit (Do you increase throttle to induce oversteer in a decreasing radius turn?), that you have adequate resources (Is that a Crosley Wombat V16?) and that you are not too far out of your previous speeding pattern (Have you ever driven at 180 mph before?).

    Membership has it's Privileges

    To apply for membership call 1 800 HAUL ASS

  • by Whatthehellever (93572) * on Wednesday April 14, 2004 @10:58AM (#8859819) Homepage
    Hustler Magazine, Inc. et al. v. Jerry Falwell

    http://www.bc.edu/bc_org/avp/cas/comm/free_speec h/ hustler.html

    No. 86-1278

    SUPREME COURT OF THE UNITED STATES

    485 U.S. 46

    Argued December 2, 1987

    Decided February 24, 1988

    Syllabus

    Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement "parody" which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. The jury found against respondent on the libel claim, specifically finding that the parody could not "reasonably be understood as describing actual facts . . . or events," but ruled in his favor on the emotional distress claim, stating that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed, rejecting petitioners' contention that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U. S. 254, must be met before respondent can recover for emotional distress. Rejecting as irrelevant the contention that, because the jury found that the parody did not describe actual facts, the ad was an opinion protected by the First Amendment to the Federal Constitution, the court ruled that the issue was whether the ad's publication was sufficiently outrageous to constitute intentional infliction of emotional distress.

    Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted. "Outrageousness" [47] in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Pp. 50-57.

    797 F. 2d 1270, reversed.

    REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, AND SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 57. KENNEDY, J., took no part in the consideration or decision of the case.

    CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

    Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of [48] privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation cl
  • Brad Templeton (Score:5, Informative)

    by maggard (5579) <michael@michaelmaggard.com> on Wednesday April 14, 2004 @11:00AM (#8859840) Homepage Journal
    For all of those who don't know who Brad Templeton is (and judging from all the posts so far none do) Brad was the Founder, CEO, and Publisher of ClariNews [clari.net], the first public-subscription online newswire (via NNTP). He's also the author of the fantastic "10 Big Myths about copyright explained [templetons.com]" so yeah, he knows his rights. Oh, and he's Chairman of the Board of the EFF [eff.org] . In short he knows what he's doing and AmEx's lawyers definately tangled with the wrong perosn.

  • Or more specifically, what's the point of the "I am a lawyer, but this is not legal advice unless you're paying me" disclaimers that I've seen? I had always assumed that such disclaimers were necessary because there was some law that could make lawyers liable for giving bad legal advice otherwise, but if that is the case why hasn't anybody used such a law to counterattack one of these "Your parody is illegal" C&D letters?

    I mean, if lawyers can put grossly inaccurate legal threats in writing and get away with it, why would lawyers giving out accidentally inaccurate advice have anything to fear?
    • Attorneys' speech is protected by the "litigation privilege" when advancing a client's interests. Generally, this immunity covers acts and statements made in connection with the pursuit of litigation (in particular, it protects attorneys from suit for things such as liable and defamation). Depending on the particular jurisdiction, as well as on the specific circumstances, the privilege may be qualified or absolute.

      The privilege may not exist in the circumstances you describe, hence the disclaimer.

      (Note

    • by Chiasmus_ (171285) <ayatollah_hyperbole.yahoo@com> on Wednesday April 14, 2004 @03:42PM (#8863102) Journal
      I had always assumed that such disclaimers were necessary because there was some law that could make lawyers liable for giving bad legal advice otherwise, but if that is the case why hasn't anybody used such a law to counterattack one of these "Your parody is illegal" C&D letters?

      IANAL, but I am a paralegal, and I can answer this one, although obviously this is not legal advice.

      The "this is not legal advice unless you're paying me" disclaimer is there to avoid malpractice liablity. If you, as a lawyer, give someone some bad or misleading legal advice, and that person suffers financial harm, they can sue you.

      It's exactly the same reason all online doctors post little more than "see your doctor immediately." If you said "I slept funny and I'm having some minor neck pain," and a doctor replied, "Ah, that's nothing, take two Asprin," and you ended up paralyzed because you hadn't fully described your symptoms... that doctor may well be liable for malpractice. And you can sue.

      However, it is *not* malpractice to make a legally unfounded threat. A threat is not considered legal advice. There's a huge legal difference between saying "Put on a pink dress or I'll sue you!" and "As a lawyer, I advise you to wear a pink dress to your court appearance." The first is protected speech; the second is an actionable tort.
  • by MojoRilla (591502) on Wednesday April 14, 2004 @11:14AM (#8860025)
    This is a baseless complaint, one that any ethical lawyer would not file. Are there any avenues to pursue with the state bar of the lawyers state?
  • by infochuck (468115) on Wednesday April 14, 2004 @11:43AM (#8860342)
    Everybody reading this thread should contact AmEx and let them know they'll be cutting up their card(s), or never getting one.

    I also suggest calling/emailing everyone you can at MasterCard for their consistent badgering of parodies - most recently (and notably) Ralph Nader's ad.

    Here's some MC contact info. Anybody got some for AmEx?

    Tell 'em you don't appreciate companies that attempt, over and over again, to bully others into compliance with THEIR wishes, against the letter and spirit of the law, and you won't stand for
    it. Call 'em again and again. They like hearing from irate consumers.

    Some folks are claiming this is "old news", but it's been going on for some time, and resurfaces every once in a while - send these folks a message NOW, and maybe they'll finally figure it out.

    MasterCard Executive e-mail addresses:
    Sharon Gamsin Vice President, Global Communications
    sgamsin@mastercard.com
    Phone: 914.249.5622

    Chris Monteiro Vice President, Global Marketing Communications
    chris_monteiro@mastercard.com
    Pho ne: 914.249.5826

    Ayde Ayala Global Communications Coordinator
    ayde_ayala@mastercard.com
    Phone: 914.249.5388

    Marc Levy Director, Global Marketing Communications
    marc_levy@mastercard.com
    Phone: 914.249.3233

    PR/Media Inquiries:
    Christina Costa
    Ph: +1 914 249 4606
    Email: christina costa@mastercard.com

    North America:
    Michael Madden
    Tel: +1 914 249 1354
    Email: Michael Madden@mastercard.com

    (Media Contact only)
    MasterCard International
    Christina Costa
    1-914-249-4606
    christina_costa@mastercard. com

  • by btempleton (149110) on Wednesday April 14, 2004 @02:25PM (#8862286) Homepage
    Some have asked why I respond to them with more humour instead of a more formal response, and whether they have to do this to protect their trademark.

    As some of you know, I am with the EFF, and so I don't lack for legal advice on cyberspace free speech issues. That's not the question.

    This letter is an example of a new phenomenon I call "spammigation." Automated bulk legal action. I suspect Amex told their lawyers to just threaten everybody using an Amex trademark on a web page without authorization. Or perhaps the lawyers convinced Amex this was a good idea. In worse cases, DirecTV sues everybody who bought a smart card writer, and the RIAA sues hundreds of Kazaa users at once.

    They send threats or sue because they know they are the big guy and the little guy will almost always cave in. It's easy and cheap. For a typical web site owner, it's too expensive to even figure out if you are within your rights, certainly too expensive to get a lawyer. So people just take their web sites down.

    Every so often they get somebody like me who knows his rights, and I predict they have no desire to fight me once they see who I am and that I can defend my rights. So I'm not in much danger personally. The people in danger are the other people who got this letter and didn't know the truth.

    So I make fun of them to ridicule them, to point out what they are doing, and to inform people that they don't have to give in to impressive sounding threats on their parodies. By doing it in an amusing way, people pay more attention to it.

    They do need to defend their mark, but parodies are not infringing so they don't need to send C&D letters on those. They do it because they are lazy, or because they want to be very sweeping, or perhaps because the lawyers want to bill the client for more hours, who knows? It's a foolish strategy, but they do it.

    And another reason for the publicity is that it teaches them to be more careful, and not to just threaten willy-nilly. I want it to come back and bite them. Last time, Mastercard got people cutting up their mastercards, and the law firm doesn't want the client calling to say "what the hell did you do, customers are cancelling accounts!"

    So write Amex if you don't like them bullying. Tell them and the lawyers there is a cost to bullying in the modern age.

    (If you don't get /.ed. My pages have been /.ed before and handled it fine but for some reason not today. The server is up and furiously spitting out pages but obviously not fast enough.)

  • YOU'RE FIRED![tm] (Score:3, Interesting)

    by Nom du Keyboard (633989) on Wednesday April 14, 2004 @03:45PM (#8863127)
    Your unauthorized use of AMERICAN EXPRESSWAY ... is likely to cause consumers to be confused, mistaken, or deceived as to the source of origin of your services.

    1: Does AmEx really want consumers that dumb to start with? They might get confused and send all their payments to MasterCard instead.

    2: Does AmEx want lawyers this stupid? The bad publicity over this is truly priceless.

    3: To steal another trademarked phrase: AmEx to their lawyers: YOU'RE FIRED!

    (Ring, ring. "Hello, please hold for The Donald, who wishes to have a word with you...")

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