Wikipedia Threatens Artists For Fair Use 235
Hugh Pickens writes "Can a noncommercial website use the trademark of the entity it critiques in its domain name? Surprisingly, it appears that the usually open-minded folks at Wikipedia think not. The EFF reports that Scott Kildall and Nathaniel Stern have created a noncommercial website at Wikipediaart.org intended to comment on the nature of art and Wikipedia. Since 'Wikipedia' is a trademark owned by the Wikimedia Foundation, the Foundation has demanded that the artists give up the domain name peaceably or it will attempt to take it by legal force. 'Wikipedia should know better. There is no trademark or cybersquatting issue here,' writes the EFF's Corynne McSherry. 'Moreover, even if US trademark laws somehow reached this noncommercial activity, the artists' use of the mark is an obvious fair use.' It is hard to see what Wikipedia gains by litigating this matter, but easy to see how they lose."
Re:Wikia (Score:5, Informative)
Yet the Wikipedia didn't bat an eyelash when Jimbo started Wikia using 'wiki' in the name. Double standard.
In case you didn't know, "wiki" is a word that wikipedia borrowed from elsewhere, i.e. "WikiWikiWeb", aka "WardsWiki", which is available at http://c2.com/cgi-bin/wiki.pl [c2.com] . So no, this isn't a double standard.
Besides, there are no rules against the same organisation using the same trademark in two different ways, so even if the word "wiki" was a Wikimedia invention, it wouldn't be a problem that they operated two different sites that had it in their names.
Re:Wikia (Score:3, Informative)
Yet the Wikipedia didn't bat an eyelash when Jimbo started Wikia using 'wiki' in the name. Double standard.
Wikipedia didn't invent the term "wiki".
Re:Wikipedia's Perspective (Score:5, Informative)
Ok, not to defend them but just to get you thinking about their perspective, they are attempting to protect their name. Not profits or anything really evil, just their name.
What would you say if I wrote a mischievous program and hosted it at iwikipedia.org? Wouldn't you want them to be able to go after me and shut me down?
Actually, your second paragraph isn't even necessary. If I understand Trademark law correctly, either they actively defend their trademark, or they lose it altogether.
Re:fair use? (Score:3, Informative)
Fair use is a term of art in trademark law as well.
Since this is about wikipedia: http://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law) [wikipedia.org]
Or if you don't like wikipedia...
http://www.law.cornell.edu/uscode/15/1115.html [cornell.edu]
b(4) is the section that is referred to as "fair use" by the Supreme Court in rulings.
Re:One-line explanation of Wikipedia's behavior. (Score:2, Informative)
I've heard this on Slashdot, but I read otherwise (ironically, on Wikipedia)
Wikipedia: Trademark rights [wikipedia.org]
It is not necessary for a trademark owner to take enforcement action against all infringement if it can be shown that the owner perceived the infringement to be minor and inconsequential.
Seems like a letter stating the above would be sufficient.
Re:It does seem like trademark and cybersquatting! (Score:4, Informative)
What about Best of Youtube" [bestofyoutube.com] Does that step on YouTube's trademark?
No, because it's clearly using the "YouTube" name to refer to the real "YouTube". This is considered fair use.
In the Wikipedia Art situation, the EFF is arguing that they're using the "Wikipedia" name to refer to the real "Wikipedia". However, that's not really clear from the name. "Wikipedia Art" sounds to me like it's actually a sub-site of Wikipedia, rather than a site about Wikipedia. It's a bit ambiguous, and that's the problem.
Re:Wikipedia's Perspective (Score:5, Informative)
Still they can take the same approach as Linden Labs did (in case of "firstlife" parody site, which used their logo): send a "Permit and proceed letter" - a one-time non-transferable free license to use the "infringing" trademarks.
By "protecting" the law means only "don't infringements leave unattended". Not "don't let anyone else use it, ever".
Statement by Mike Godwin, General Counsel of WMF (Score:5, Informative)
Read the answer by Mike Godwin [wikimedia.org] (Gerneral Counsel of the Wikimedia Foundation) to reproaches by the EFF [eff.org].
Re:Wikipedia Review? (Score:4, Informative)
Of course it's not Fair Use (Score:5, Informative)
Re:Statement by Mike Godwin, General Counsel of WM (Score:4, Informative)
Trademark law forces trademark holders to litigate at the slightest hint of dilution. If they don't do it, then they won't have standing to file suit later when it's more serious. Don't blame Wikipedia, it's how the law is written.
Re:Statement by Mike Godwin, General Counsel of WM (Score:5, Informative)
Re:Open-minded folks at Wikipedia? (Score:4, Informative)
Add to that the fact that you have to show some form of competition (i.e. the potential for tricking people into using a product not affiliated with the trademark holder) by using said trademark.
I can use the trademarked term "Microsoft Windows" in any way I want, as long as I am not convincing people to use my product because it is Microsoft's by associating myself with their trademark.
For example, a website called mswindowssucks.com which promotes the downloading and installing Linux is not infringing on the trademark. However, a website called mswindowsrocks.com that sells "MS Windows" for $9.99 and gives you a copy of Linux re-branded to look like Windows would definitely be infringing.
Then you have borderline cases, like Lindows, which was similar enough to be confused with windows by uniformed users. They either lost outright settled, I don't remember which, but they didn't get to use the term Lindows any more.
All this is fine and dandy, except if you can show a trademark wasn't vigorously defended at every turn then the trademark gets nullified. That's a HUGE risk, so companies with a trademark must sue at the drop of a hat, even if they themselves might think it is rediculous. It isn't worth losing the trademark down the line.
For an example of what happens when you don't defend your trademark, look at the WWE, formerly the WWF for 20+ years. They lost it to the World Wildlife Fund because they didn't defend it sufficiently. The WWE lost an incredible amount of mindshare and brand awareness because of it. I don't even like pro-wrestling and WWE sounds dumb to me compared to WWF. It's that kind of thing Wikipedia has to defend against. Hopefully though this is just a token defense so they can say they defended it if it comes up again.
Re:Lock (Score:1, Informative)
Read the EFF's defense. They say that the rules are different when the trademark is being used in (1) a non-commercial manner or (2) in a case of fair use. They go on to say this falls under both categories.