Forgot your password?
typodupeerror
The Courts Your Rights Online

Activists May Use Their Targets' Trademarks 203

Posted by CmdrTaco
from the small-mercies dept.
lee1 writes "Sometimes political activists use a company's trademark as part of a campaign to embarrass it or call attention to an issue. And sometimes the company sues, claiming that they own the mark and its satirical use is prohibited. Now a Utah court has ruled that such suits must fail because the parodic use of the mark is not commercial and is a form of protected speech."
This discussion has been archived. No new comments can be posted.

Activists May Use Their Targets' Trademarks

Comments Filter:
  • Also (Score:5, Insightful)

    by Dunbal (464142) * on Tuesday May 10, 2011 @05:19PM (#36087712)
    The companies in question should be forced to accept arbitration instead of lawsuits.
  • ..for free speech. I completely shocked that this came out of Utah.
    • by nurb432 (527695) on Tuesday May 10, 2011 @05:21PM (#36087726) Homepage Journal

      Im shocked it came out of a US court at all.

      • by AliasMarlowe (1042386) on Tuesday May 10, 2011 @05:25PM (#36087740) Journal

        Im shocked it came out of a US court at all.

        You may not have to endure that shock for long.
        An appeal may be forthcoming, with a properly prepped judge.

        • That seems to be more in line with our bought and paid for legal system, especially in Utah of all places
          • Re: (Score:2, Insightful)

            by cpu6502 (1960974)

            Where's all this Utah hate coming from? I spent a year there, and didn't think the culture was any different from any other US state (except possibly california).

            • Re:A big victory... (Score:5, Informative)

              by Cwix (1671282) on Tuesday May 10, 2011 @05:54PM (#36087952)

              The culture is extremely different. You could make a plausible case that the state was founded as a theocracy, and that those roots are still very much there.

              Just note the state's rules on alcohol.

              The state has no open-door saloons. Full liquor service is available only to dues-paying members of "private" social clubs or at the 470 restaurants with liquor stocks they cannot advertise, display or even mention unless a customer asks first.

              The state's 121 taverns can pour only "light" beer, or 3.2 percent alcohol, and no other alcoholic drinks. No membership is required at taverns. Grocery stores can sell only light beer, too.

              Wine, hard liquor and heavy beer can be purchased at 36 state-run liquor stores - if you can find them. Typically they are tucked away in warehouse districts and off major thoroughfares.

              A quota limits the number of private clubs to one per 7,000 Utah residents, or 295 clubs concentrated primarily in Salt Lake County and Park City. Minimum club dues by law are $12 a year, though visitors can buy a two-week membership for $5. Or visitors can ask the guy on the next barstool to sponsor them as guests.

              I grew up in the bible belt and WE weren't even that strict.

              • Re: (Score:2, Insightful)

                by Anonymous Coward
                And a theocracy would want to protect the interests of big business because... ?
                • I guess the conflation of bible thumping and big business comes from rolling them into one party.

                • by LanMan04 (790429)

                  And a theocracy would want to protect the interests of big business because... ?

                  Because they're run by the same damn people? Controlling the prols and sucking down their money is a common goal...

                • by Pharmboy (216950)

                  Not insightful. The point is that where ever you find "very religious people", you find "republicans" and the GOP has traditionally been more generous to big business. It may not be causation but there certainly is a documented correlation. The more religious a state is, the more likely it is a red state.

                  • by desertfool (21262)

                    Remember that the Pledge of Allegiance was written for the youth group of the "Christian Socialists" way back when. It wasn't always this way.

                  • by metacell (523607)

                    Organised religion is usually value conservative; it embraces traditional values and structures like family and morals. Liberalism and socialism, on the other hand, want to break up traditional structures, because they believe they can redesign society in a better way. This often causes value conservatists and economic conservatists to become allies against liberalism or socialism.

                • by sjames (1099)

                  Hard to imagine, but the fundies did throw in with the Republicans for some reason.

              • It's a bit of a straw man to point out Utah's liquor laws. Alcohol has nothing to do with free speech. In any case, Utah has opened up a lot recently with its alcohol practices.
                • by Cwix (1671282)

                  I was pointing out that the culture is extremely different then the rest of the country.

                  Are you saying its not?

              • by Zorque (894011)

                Most of that info is out of date as of last June, just FYI.

                For instance, bars are no longer required to be private clubs; and I can think of 6 liquor stores within 2 miles of me, none of which are the least bit "tucked away".

            • I spent a year there, and didn't think the culture was any different from any other US state...

              Then you weren't paying attention. I spent ten months there... it was the longest ten years of my life! Ba dum shhhh!

            • Re:A big victory... (Score:5, Informative)

              by LunaticTippy (872397) on Tuesday May 10, 2011 @06:18PM (#36088106)
              My father grew up in a small mining town in Utah. His family was not Mormon, and it made life much harder than it needed to be. My grandpa, uncle, and father were passed over for promotion, harassed, excluded, refused service at businesses, charged extortionate prices for services such as funerals, contractors, automobile repair, etc.

              They were pressured to join the Mormon church. The relatives I have who stayed there all caved in and now toe the line. They gripe and mock in private, but they go to meetings and tithe.

              It is better in SLC (or as I've seen it humorously abbreviated SL,UT) - it is easy for tourists or short term visitors to forget they are in the beehive state. Things take a darker turn if you are perceived as wanting to become a permanent resident.
        • by Wyatt Earp (1029)

          And then the losers can appeal all the way to the USSC where it's anyones guess what'll happen.

          • For the current SCOTUS it goes: Corporations, States/Feds, "People". This is most akin to Corporation vs. people, so this ruling will be overturned.
    • Then you don't know Utah. Utah is one of the strongest supporters of free speech.
  • ...I doubt that ICANN [slashdot.org] is going to be taking this ruling into account in deciding a company can take your domain away, and are willing to pay ICANN $300 to assert a trademark.

    Ryan Fenton

  • I can't wait for the BigCoSucks Federation* (*funded by Mega Incorporated) and MegaIncSuxx2** (**funded by Big Company) duke it out.

    ===
    Any resemblance between Big Company and Mega Incorporated and any real entity is purely satirical and is not intended for commercial purposes. My lawyer made me say that.

  • Finally! (Score:3, Funny)

    by davidiii (1983894) on Tuesday May 10, 2011 @05:33PM (#36087792)
    On behalf of Exxon/Mobil, I'd just like to say that it's about god damn time.
  • Well, that isn't going to affect much.

    But it probably does mean that if you have a web site hosted in Utah and a shell company also in Utah that you can claim your use of a trademark isn't infringing based on this ruling. Because that is all it would take.

    This then opens the door to a shell company and hosting being used by literally anyone to denigrate products. I wonder how much Pepsi would be willing to pay for a trademark-laden anti-Coke site? Or a Toyota-bashing site offered to GM? There has to be

    • Satire != Slander

      Satire pointedly accuses of some misdoings or other transgressions that the satirized actually committed. It might exaggerate certain traits or aspects, but it does not pull accusations out of its ass and tries to "pointlessly" ruin the reputation of someone, and it never does so with the intent to benefit from it other than from the attention it gets. Satire never tries to redirect the affection of the spectators to other, competing products and companies.

  • HBGary left the "we never forgive, we never forget, expect us" message on Sony's servers.
    • by mug funky (910186)

      i would LOVE to see anonymous sue anybody for trademark infringement :)

      or, perhaps i should register "anonymous" as a trademark and then sue random IPs?

  • Does this mean I can register apple-bites.com ?

    • You could have registered apple-bites.com anyway. Just make it your blog about Granny Smiths and Red Delicious and you'd be fine.

  • by loufoque (1400831) on Tuesday May 10, 2011 @05:54PM (#36087948)

    Isn't satirical work basically the definition of fair use?

    • Re:Fair use (Score:4, Interesting)

      by PRMan (959735) on Tuesday May 10, 2011 @06:01PM (#36087992)
      No, parody is. Satire would be Wayne Gretzky using a picture of Mickey Mouse to say that the New Jersey Devils are a "mickey-mouse" organization. Parody would be a comedy show using the New Jersey Devils logo in a comedy piece on the matter. Actually, they could probably get away with a picture of Mickey Mouse at that point as well.
    • Re:Fair use (Score:4, Informative)

      by jfengel (409917) on Tuesday May 10, 2011 @06:09PM (#36088038) Homepage Journal

      Not for trademarks, it isn't. Fair use of trademarks extends primarily to "nominative use". That is, we get to use your name when we're talking about you. Any other attempt to profit from the mark is controlled by the company. It should be fairly clear that you can use "Foo(tm)" to declare that "Foo(tm) Sucks", but if there's a chance of consumer confusion between your use of the mark and the company's, you get into murky legal waters. The court literally ends up having to decide, on a case-by-case basis, whether the joke is actually funny.

      As with everything else in law, there are about a million complications, caveats, and such like. A good article on the subject:

      http://www.cll.com/articles/trademark-parody-statutory-and-nominative-fair-use-under-the-lanham-act#PARODY%20AS%20FAIR%20USE [cll.com]

  • Unexpected good news is always welcome and always refreshing. Nice to see the courts doing something right for the people.

  • ...is fair play. Thia also means the "Big Corps" can likewise use the tradmarks/tradenames of the activists.

    • Sure, why not?

      Somehow I can't see how any corporation could or why they would satirize their activist counterparts. As far as I can tell, corporations don't want to give them more exposure than they already get for protesting.

    • by omfgnosis (963606)

      That's not really a huge issue. Coca-cola isn't in the habit of drawing attention to the fact that there are coalitions of people exposing their use of paramilitary fighters to intimidate or kill union organizers... and so on.

  • This ruling gives Al some breathing room. I'm really glad the judge had some sense in this case.
    • by Kelbear (870538)

      I was under the impression that he generally obtains permission of the artists he parodies before releasing his work.

      Not that I follow him too closely, but I recently noted an article on Google News about miscommunication between Weird Al and Lady Gaga's manager. He'd created a parody of "Born this way" and complained that she had refused to give him permission to release it. Lady Gaga responded that she'd never seen the request and that she'd love to have a Weird Al parody of one of her songs. The implicat

    • IIRC he always asks whether the artist had any problems with a parody, even though fair use doesn't require him to, and he refrains from using material from artists who don't want to be parodied.

      I guess he would be the one that profits the least from the ruling of all the people who might be affected. I mean, be honest, given his popularity, being parodied by him is maybe the best kind of advertising you could possibly have, exposing you to an audience that would otherwise not have heard about your song. I,

  • by Skapare (16644) on Tuesday May 10, 2011 @06:24PM (#36088160) Homepage

    While I cheer the outcome of this ruling, the reasoning behind it is, IMHO, not the correct one to decide the issue if applicability of a trademark. The reasoning should be based on the fact that an established trademark is the reference to a specific party in trade (e.g. a company, or even an individual where that applies). Normally we expect that the reference is made by that party itself. However, reference can be made by another party ... as long as the reference is the correct one.

    The names of companies like Apple and Google, and the products of companies like Ipod or Windows, are trademarks that are established. As long as a reference to "Ipod" refers to the Apple product, and a reference to "Windows" refers to the Microsoft product, then they are correct usage of trademark. If I say "I own an Ipod", then I have committed no violation of that trademark (because I really do own one unit of that Apple product). If I blog about how "Windows is totally insecure", I may or may not be telling a truth about its security, but I'm still referring to the Microsoft product. It's not a trademark violation.

    What I cannot do is make a misreference, especially if I am doing so as part of commerce. But it is already commonplace to make reference to competing products in a commercial context. It does get fuzzy here, because merely using the trademark icon may get out of context and be considered something that is attracting. If Pepsi were to put the CocaCola logo on the Pepsi web site in a very large image, and in smaller letters say "that product is not as good as ours", it could be mistaken as a use of the trademark to identify its own products. But if they keep the logo very small, especially with other soft drink logos around, and say things like "independent taste tests of all these products rank ours number one" then it can be clearly a statement of fact (which, if untrue, may be an issue of defamation ... but is not a trademark violation).

    The above opinions are NOT a statement of how the law in the USA is, but rather, how I believe it SHOULD be, and how I hope judges would rule to make it be so, if we can't get rid of the Republicans in Congress to make the right statutes.

    • by blair1q (305137)

      No, if this ruling had failed, you could call a spade a spade, but you couldn't use their spade-shaped logo on your website. The logo is not the company name, it's a created image that belongs to the company. The company name is public record. The company's logo is company property.

      This ruling says you can use company property to mock the company. Should have been obvious, but needed a court test for some legal reason. Now it's precedent. Yippee...

      • by metacell (523607)

        The company name is also part of the trademark. Both the name and the logo are protected by trademark law. Both can be used to reference a company, for example, in a newspaper article about the company, but may not be used commercially in a way which causes confusion with a competing product.

        The logotype may also be protected by copyright law, but generally it's considered fair use to use a copyrighted logotype in a newspaper article or criticism of the company.

    • by metacell (523607)

      What I cannot do is make a misreference, especially if I am doing so as part of commerce.

      Why should it be illegal to use a trademarked name incorrectly in non-commercial use? That'd be like legislating against incorrect grammar.

      Slandering an organisation by impersonating it and making ludicrous statements in its name is already covered by slander and libel laws. In this case, there wasn't enough grounds to sue for slander and libel, so the company tried to hit them with trademark infringement. The judge ruled against the trademark infringement claims, but that doesn't mean it's always okay to i

  • Same Dale Kimball?
    A shame he did not have a sudden break out of common sense during the SCO fiasco...

  • I really thought that "The People VS Larry Flynt," had decided this.

    From the article:
    In 1988, Flynt [wikipedia.org] won an important Supreme Court decision, Hustler Magazine v. Falwell, after being sued by Reverend Jerry Falwell in 1983 over an offensive ad parody in Hustler that suggested that Falwell's first sexual encounter was with his mother in an out-house. Falwell sued Flynt, citing emotional distress caused by the ad. The decision clarified that public figures cannot recover damages for "intentional infliction

  • I am shocked that this is news to anybody. Satirical, parodical, and critical uses have traditionally been protected by the courts. Nothing new there are all. The only thing that surprises me is that this needed yet another court to decide it, just as so many other courts already had in the past.
  • by JumperCable (673155) on Tuesday May 10, 2011 @08:37PM (#36089294)

    Now a Utah court has ruled that such suits must fail because the parodic use of the mark is not commercial and is a form of protected speech.

    People need to be careful about this distinction. The judge has clearly supported noncommercial parody's. But a for profit company like the Onion may still be at risk.

  • Make movies of submachine gun wielding cartoon characters (whose images have been jealously guarded) kicking in suspected file sharers doors and hosing down the grandmas and children with bullets!

In every non-trivial program there is at least one bug.

Working...