![It's funny. Laugh. It's funny. Laugh.](http://a.fsdn.com/sd/topics/humor_64.png)
![Your Rights Online Your Rights Online](http://a.fsdn.com/sd/topics/yro_64.png)
Penny Arcade vs. American Greetings Revisited 601
Jojo writes "After American Greetings got some lawyers to bring down a Penny Arcade strip (M
i r r o r) last week, PA is now striking back.. IANAL, but I fear their latest strip might get them into real trouble this time." As always, PA cracks me up, but these are scary events. The banned strip is clearly a work of parody, which I believe is still legal in this country, unless that too changed recently.
Admirable pluck... (Score:5, Funny)
Re:Admirable pluck... (Score:2)
Go calculate [webcalc.net] something
Re:Admirable pluck... (Score:5, Insightful)
Are you offering to foot their legal bills?
Didn't think so. The image has been archived and mirrored, and nothing AG's laywers can do will be able to stop people from finding the image, even if it's not at the PA site.
Gabe and Tycho might win a legal battle after spending lots of time and money they don't really have or want to spend, but that seems like a Pyrrhic victory to me, and to them, I think. Tycho said as much in the latest post.
Re:Admirable pluck... (Score:5, Informative)
If you truly do want to help, go to the Club PA [penny-arcade.com] section of their site and contribute. It's real money like this that pays the bills folks. Plus you get cool stuff every month for being a member!
I am in no way affiliated with PA. I just love the site.
Re:Admirable pluck... (Score:5, Insightful)
Attitudes like yours are exactly why rights get trampled. People who can't be bothered, don't want to raise fuss, don't want to become targets for the authorities, etc...
Penny Arcade did nothing to violate the copyrights or tradmark rights of American Greetings - like mentioned earlier, parody is permitted, and the strip was clearly a parody. Imagine if Mad Magazine had rolled over the first time they were threatened with legal action, or if SNL stopped their knock-off commercials because of a couple complaints from lawyers. Today they target Penny Arcade, tomorrow they're after Craig Kilbourne... once it starts, where does it stop? Comedic impersonators dropping their trade because they're threatened with libel suits? Florida exiling Dave Barry for defamation of state character?
Re:Admirable pluck... (Score:3, Interesting)
http://www.somethingpositive.net/arch/sp08202002.
I don't think they ever had to stand up for their rights.
Re:Admirable pluck... (Score:5, Interesting)
Ghastly's Comic [keenspace.com]
V.
Re:Polymer City (Score:4, Informative)
Polymer City Chronicles [polymercit...nicles.com] is doing it too...
Most Admirable... (Score:3, Funny)
C'mon...Smurfette--a lone girl smurf amongst a community of 99 boy smurfs? "They're only a couple apples tall but it's still one big blue bang"
Lawsuit (Score:2, Funny)
hahahah /lame
Clearly Parody, But.... (Score:5, Insightful)
It's clearly a parody, and would certainly hold up in court (IANAL), but the problem is that the PA guys don't have money to spend defending themselves in court. So it's another case of the "big guy" successfully squashing the "little guy" with the thread of a baseless lawsuit, because the cost of fighting is beyond the little guy's reach.
Re:Clearly Parody, But.... (Score:5, Insightful)
But most people will just back down, Am Greets is counting on it. Hope the PA guys get some backbone.
Re:Clearly Parody, But.... (Score:5, Interesting)
Just a few problems here...
Re:Clearly Parody, But.... (Score:5, Insightful)
Fortunately you are not a lawyer (Score:5, Insightful)
The question isn't about parody and fair use, but whether Strawberry was parodied. I personally don't see it in the work. In fact, if I were PA I'd simply remove the cartoon and revise it such that a far better case could be made that it parodies both McGee and whatever character that best adopts to these legal requirements.
Mike and Jerry have been fairly quiet about the particulars of it themselves, having been wisely told by legal advisors with more wisedom than yourself, or at least more current experience. The only thing they do say is that it isn't very clear -cut, and they're right.
Re:and neither am I (Score:3, Insightful)
Re:and neither am I (Score:3, Insightful)
I don't like that, simply because it mandates form in order to qualify for protection as a parody. Why does it have to be like a bad political cartoon where everything is explicitly labeled just so that any retard can see that you're trying to make a statement? I can see the exact remark you are suggesting be plastere
Re:and neither am I (Score:3, Informative)
Parody doctrine on the bar exam? (Score:3, Interesting)
Really? They don't have parody doctrine on the bar in my state, and I can't think of many law schools which require a First Amendment course.
Re:Parody doctrine on the bar exam? (Score:3, Interesting)
There are only 3 states that don't use the national standardized bar exam. Among other things, this exam includes a section on constitutional law.
So, a required constitional law class would actually be highly sensible (along with torts, civil procedure & such).
BTW, Ohio isn't one of the 3.
The issue is Strawberry Shortcake, not the style. (Score:5, Informative)
According to the USPTO website, [uspto.gov] the Strawberry Shortcake mark is owned by "Those Characters From Cleveland, Inc." Those Characters From Cleveland appears to license their marks to American Greetings or is a subsidiary. I haven't found a page that explicitly mentions their relationship. (Note: I think USPTO query links 'expire.' You can always search again using TESS. [uspto.gov]
According to this link, [arb-forum.com] it looks like American Greetings, Those Characters From Cleveland, and Rinda Vas have previously gone after alleged violations of their marks. (In the linked page, the case appears to be a reasonable attack against a domain squatter.)
--JoeRe:Clearly Parody, But.... (Score:5, Interesting)
Re:Clearly Parody, But.... (Score:5, Informative)
Re:Clearly Parody, But.... (Score:5, Insightful)
1. The C & D letter was probably just a empty threat. Would they really take them to court over that?
2. PA's response to this pufferfish threat was to do something that really could get them in trouble.
The PA guys stumbled on both points here. There were clearly more sensible ways to deal with this problem.
Re:Clearly Parody, But.... (Score:3, Insightful)
Re:Clearly Parody, But.... (Score:5, Funny)
Re:Clearly Parody, But.... (Score:3, Insightful)
Re:Clearly Parody, But.... (Score:3, Insightful)
IANALE (either), but there is some basic test to parody, which is that you can't use other people's trademarks or copyrights in your parody if you aren't targeting them.
Re:Clearly Parody, But.... (Score:4, Informative)
Re:Clearly Parody, But.... (Score:3, Insightful)
If McGee had done a version of Strawberry Shortarse... sorry...cake, exactly as the PA cartoon, it would be parody, legal, all quite legit.
If PA does exactly the same cartoon, it's illegal???
But that would make the law a complete and utter ars[ouch!]
Oww.... it hurts when you hit reality, running.
American Greetings.. (Score:4, Funny)
"American Greetings.. you will never find a more wretched hive of scum and villainy." sorry.. watched Star Wars last night.
Who was the target? (Score:5, Informative)
For the record though, I love PA and hope they make it through ok. And you just have to respect em for making a stink even if they did pull the offending strip originally. They're as subtle as a heart attack
Re:Who was the target? (Score:3, Insightful)
Re:Who was the target? (Score:2, Interesting)
Isn't it possible that they were actually parodying both? That's the impression I got from the comic. They were making fun of both American McGee's game style and of Strawberry Shortcake. If this is the case then there is no way American Greetings would win a lawsuit unless Penny Arcade couldn't pay to represent themselves.
How is it not a parody of Shortcake? (Score:5, Insightful)
In the post along with the strip the PA people went out and said that they were parodying McGee. But whether they said it or not, they're also parodying Strawberry Shortcake, playing on her goody-goody image.
The guy on PA makes a good point in his post on their site. Strawberry Shortcake is part of the American lexicon. Just like Gargamel or GI Joe or Speed Racer.
Referencing these characters shouldn't be trademark infringement.
Re:Who was the target? (Score:5, Insightful)
As far as I can tell, showing the characters as the exact opposite of everything they are marketed as is a pretty clearcut case of parody.
Re:Who was the target? (Score:4, Informative)
What the hell are you talking about? This is absolutely and completely wrong! Can you even cite one case that fits your description?
You are wrong (Score:3, Insightful)
Whether or not someone makes money has absolutely nothing to do with whether something can be used under the parody exemption.
Mirror of the new strip (Score:5, Informative)
Another mirror of the new strip (Score:2, Informative)
Welcome to America... (Score:5, Insightful)
Trouble (Score:3, Funny)
Can someone explain? (Score:3, Interesting)
I'm not being dumb here, it is just completely unobvious to an international reader what the issue is.
Re:Can someone explain? (Score:5, Informative)
So American Greetings is essently protecting their copyrights to Strawberry Shortcake. Groundlessly, because as the article stated, it's a work of parody. The funny thing is, it's *supposed* to be a poking fun at American McGee. I'm sure PA was prepared for any backlash from them. Getting hammered by a greeting card company probably surprised PA quite a bit.
And, to top it off, PA is now getting hit with a slashdotting, as if PA didn't already have bandwidth problems!
But isnt the name trademarked? (Score:3, Informative)
Re:But isnt the name trademarked? (Score:5, Insightful)
Re:But isnt the name trademarked? (Score:4, Informative)
The US Copyright Laws have NOTHING to do with US Trademarks.
The US Copyright laws allow for the parody of content. That is fine and not in question.
The US Trademark laws doesn't have such an allowance. Any use of the trademark not aligned with your company/entity is considered dilution of your trademark and those dilutions must be fought off(ie, defend your trademark) or you will lose your trademark.
With Copyright laws, there is no such dilution clause.
The reason why AM is threatening PA is because of the use of the term "Strawberry Shortcake" in their comic strip. The Parody of the concept is defended. However, the use of the trademarked name is not.
To split it even further, just because something is Copyrighted does not mean it is Trademarked. However, in the case of AM and Strawberry Shortcake, the material is copyrighted and AM holds the trademarks on the "Strawberry Shortcake" name/phrase.
Note that trademarks are not universal. Unless AM registered the Trademark for all goods(including use in comics), they may not be able to defend their trademark. Check out the USPTO (www.uspto.gov). A Trademark needs to be registered under particular classes of possible uses for it to be protected under that use. They probably have it covered under publication via electronic and printed means though.
Re:But isnt the name trademarked? (Score:5, Informative)
Re:But isnt the name trademarked? (Score:5, Insightful)
IANALBICUG (I am Not a Lawyer but I Can Use Google):
So it seems to be risky but possible.
Re:But isnt the name trademarked? (Score:3, Funny)
What can you do? Join the CBLDF (Score:5, Informative)
"Clearly" a parody? Banned? (Score:3, Insightful)
And, "banned"? How so? This is yet another case of lawyers writing a cease-and-desist, and the recipients capitulating. Nobody got "censored" here, nobody's free speech was infringed.
wow (Score:2)
If I were a big corporation
hehe. that's a funny picture.
Censorship there is (Score:4, Insightful)
Thus you have no choice. Temporair ruin and blocking of asset (if oyu win AFAIK you get your money back) or take back your opinion/strip/whatever.
Censorship isn't only governemental and law enforced, and you do not need a gun to force censorship on somebody. Merely inconvenience them to the extrem, put them in a difficult position, which nmight make their life a hell and most except idealist will bow. This is also censorship.
Re:Censorship there is (Score:5, Insightful)
So if I tell you to stop talking under threat of me shooting you, I'm not really censoring you since you always have the option of dodging the bullet. That you can't dodge bullets is a different issue.
I'm sorry, but in the case of theory (they could fight it in court) versus reality (they don't have the resources to fight it, even if they would eventually win), reality is what determines if censorship is taking place.
The mentality that something being technically possible is equivalent to it being possible has been used in the past to remove peoples' rights. Literacy tests in the south were used to prevent blacks from voting, even though technically they still had that right. Just like that was found to be an illegal restriction on their right to vote because of the reality that virtually no blacks were allowed to vote, this is a case of censorship.
Or in short: Free speech that costs more than you can afford to exercise isn't free, is it?
Opposite feeling (Score:5, Insightful)
However, because they're using a third party's intellectual property in the context of the parody, it's a little fuzzier. Spaceballs parodying Star Wars is cool
The more recent strip, however, is clearly a criticism of American Greetings' policies, and seems more obviously "safe" under various free-speech umbrellas than the first one. It's not even using any of their IP.
I also think it's funnier, but that's just me
Re:Opposite feeling (Score:3, Funny)
Re:Opposite feeling (Score:2)
On the other hand, it's a piece of intellectual property the owners haven't done anything with for, what, 15 or 20 years?
Re:Opposite feeling (Score:4, Funny)
You're confusing them with the Four Teletubbies of the Apocalypse.
I am become Tinky-Wink, destroyer of worlds.
Sorry.
k.
Re:Opposite feeling (Score:3, Interesting)
> intellectual property in the context of the
> parody,
But they raise a good point in the text-based update, which the slashdot story didn't link to.
Basically there's certain icons that are corporate brands which have, basically, become integral parts of our society today. Mickey Mouse, McDonald's, Microsoft.. I mean the list is infinite in length, an encompasses things from niche appeal to mass appeal. Almost EVERYTHING we identify with in this day
Re:Opposite feeling (Score:4, Funny)
Gabe and Tycho surely don't want Pizza to send out for them!
Re:Opposite feeling (Score:2)
It was clearly a mockery of the sweetness and light part of Strawberry Shortcake.
Spaceballs parodying Star Wars is cool
Spaceballs didn't just parody Star Wars. I'm sure the IMDB has a complete list, but it took a swipe at Aliens (in the diner scene), as well as Rambo and the Planet of the Apes.
I also think it's funnier, but that's just me
The new one seems like it's just an atta
Penny Arcade captures America's sentiment.... (Score:2)
Real fucking mature (Score:2)
Easy Boycott Idea (Score:3, Interesting)
Horrible Boycott Idea (Score:5, Insightful)
What a lame ass thing to take a stand on.
Comment removed (Score:4, Insightful)
unless i'm mistaken (Score:2)
Hasn't this been tested already? (Score:2, Insightful)
The most common place that the general public would've been exposed to this ruling would be in The People vs. Larry Flynt [imdb.com].
Is there something about this case that makes the ruling used for Flynt inapplicable?
<rant>
Comic Book Legal Defense Fund (Score:5, Informative)
How to fight lawsuit abuse in general (Score:5, Informative)
Re:How to fight lawsuit abuse in general (Score:5, Funny)
Ohhhhhh, tort, torte, I see....
-Sean
It's all been done... (Score:2)
-R
Penny Arcade is, unfortunantely, not protected (Score:2, Interesting)
The traditional protection of a work of parody does not, in this instance, protect Penny Arcade. The protections of parody and satire only protect the material being parodied. In this case, the subject of the parody was no Strawberry Shortcake, but rather, American McGee's Alice and Oz games. American Greeting's property was being used to parody something else. Therefore, it's not protected.
This test has been held up in a number of cases, ma
Re:Penny Arcade is, unfortunantely, not protected (Score:3, Funny)
Anybody who mods legal advice from an Anonymous Coward is an idoit.
Register suck-sites. (Score:2)
Another proper response is to register sucks-sites for both the prosecuting party and their lawyers.
Remember, Gifford-Krass-Grohsprinkle sucks. [giffordkra...esucks.com]
These firms are and represent the scum of the earth. Why? Because they take money from their clients in cases where they know they have no legal standing. They're just bullies for hire, and quite possibly they even fool their clients into thinking they have a real complaint. Scum.
See also MichaelSavageSucks.com also nastygramed by radio show lawyers [politechbot.com]
NOT clearly a parody (Score:2, Interesting)
In his own comment on April 21, 2003 [penny-arcade.com] Tycho provides a link to other court cases [tklaw.com] and specifically mentions "Dr. Seuss Enterprises Vs. Penguin Books" on page three as possible
Is it just me.... (Score:2)
-Restil
Puck Off! (Score:2)
"We're late Por our meeting". "She's a Pucking Nazi!"
heh (Score:2)
No biggie (Score:5, Insightful)
My thoughts? I don't like the strip - I find it tasteless. But one of the tenets of free speech is to defend even those who you don't like - because if they censor them, it's only a matter of time before they censor you. As such, I'd hate to see these guys go down like this.
woah there (Score:3, Informative)
Email from American Greetings (Score:5, Informative)
Email sent Wed. 4/23--
there is no legal action against them
-----Original Message-----
From: RV Rinda Vas (1328)
Sent: Wednesday, April 23, 2003 9:32 AM
To: Subject: RE: Trademark infringement, misuse
Thank you for your immediate attention to this matter. We note that the
cartoon has been removed.
I am receiving a good amount of e-mails from the penny-arcade subscribers
asking why American Greetings asked you to pull the cartoon. Unfortunately I
do not have the resources to respond to them individually so I am passing
the answer on to all of you. On April 17, 2003, American Greetings received
a complaint about the cartoon namely that it was "creepy" and "offensive."
Thereafter, we asked you to remove it.
Note that the target audience for Strawberry is young females (indeed young
children). And we do receive complaints from parents and the like over
cartoons like yours.
So there you have it.
-----Original Message-----
From: Ryan
Sent: Wednesday, April 23, 2003 3:55 PM
To:
Subject: Please Cease and Desist
Dear Rinda Vas-
I am writing to you, as I am sure are many others, to implore you to stop
your legal action against Penny Arcade and its creators. As you may or may
not be aware, the actions your company has taken against Penny Arcade has
already publicized the original event much more than the comic's web site
ever would have. Furthermore, several websites have made note of this
issue, spreading the issue to more people, not usually associated with the
normal Penny Arcade crowd. Feel free to read the articles posted on
http://slashdot.org, and other such sites. At Slashdot, you will see the
forum that follows every article. Within said forum, you will note a
resoundingly negative response to your decision to take legal action. There
is even a petition out to boycott your company. The last time I checked
that site, the petition was drawing near the 10,000 mark, and climbing.
I am not going to threaten you, or swear at you, as I am sure many others
are doing, regarding this issue, but I have to advise you that, from all
evidence available, what you are doing does not seem like a smart move. I
think you might do well to look into options for reaching a quiet agreement
with the owners of Penny Arcade. I am sure they will be happy to make this
legal action go away with as little public notice as possible. My advice to
you is to try to save face, as your company stands to lose a large amount of
business and public appeal by pursuing this petty issue. Thanks for your
time.
Ryan
Re:Email from American Greetings (Score:5, Insightful)
Here's the problem with America: people have no sense of responsibility for themselves. If you have an issue with a PA comic, complain to PA, don't complain to American Greetings so they will fight your battle for you.
AG should have no say over what PA posts on their site unless it legally has no right to be there. You can't hold one group accountable for another group's opinions.
Re:Email from American Greetings (Score:3, Insightful)
If I see a picture of Ronald McDonald used in some nasty cartoon that my kids should never see anyways, I'm not going to complain to McDonalds about it. That's totally misguided.
Also, RV hasn't responded
CAD letter? (Score:3, Insightful)
$.02, ok , let's do it! (Score:3, Interesting)
Said it before: simple boycott (Score:4, Informative)
If you don't normally buy cards anyway, well good for you, you don't need to reply to this telling me about how you're superior because of it. Maybe you'd like to buy a Hallmark card anyway, just so that AGC's market share as a percentage of money spent on greeting cards this month falls, maybe not, up to you. But for those of you who were planning on buying a card for your mother anyway, how about checking the brand on the back first?
Scalzi's Take (Score:3, Interesting)
American Greeting's argument here could be that Penny Arcade's image is using the Strawberry Shortcake name to parodize American McGee's tendency to appropriate young female literary characters for his dark and bloody video games, not Strawberry Shortcake herself. Therefore, using Strawberry Shortcake for that purpose is not covered under parody. It's an interesting assertion.
However, I wonder if this line of reasoning, if indeed it is the one American Greetings is using, is as strong as it might appear initially. This line of reasoning works only to the extent that Strawberry Shortcake herself does not fit the rubric that the Penny Arcade is parodizing, namely that Strawberry Shortcake is not a young female literary character. In fact she is, the main character in dozens of books: Strawberry Shortcake: Meet Strawberry Shortcake, Strawberry Shortcake at the Beach, Strawberry Shortcake: The Berry Big Storm, and Happy Halloween, Strawberry Shortcake are just some of the titles in her oeuvre. And in an interesting literary note, in several of these titles, Strawberry Shortcake is either planning or having a party of some sort or another, which makes her activity in the parody (planning a party with her friends) not an atypical activity for her. Although to be fair she's not typically whipping her friend Plum Pudding at those parties. But that's part of what makes it a parody.
I don't know if this point holds any water, legally speaking, but it's interesting. You can read the rest of the article here [scalzi.com]
-Spyder
Call Larry Flynt (Score:5, Interesting)
Anyway, one quick phone call or email should end this matter real quick. How many people have seen this online strip, vs. how many people would see similar strips in that magazine? How much money is AG willing to spend to harrass a couple small-time artists, vs. how much money is it prepared to spend defending itself from a company that's successfully argued Freedom of Speech cases before the Supreme Court?
Call me crazy, but I don't see a lot of crossover in the consumers of <i>Hustler</i> and sappy greeting cards so the magazine can fight hard and fight dirty if AG wanted to fight them. Hell, I wouldn't put it past them to launch their own lines of parody greeting cards (real greeting cards, not just jokes in the magazine). I mean, where else are you going to find the perfect Valentine card for the girl who dumped you for your best friend, or for your former boss?
Amer. Grtngs: P.A. Series (Score:5, Funny)
That said Cease and Desist
So we give you "The Finger (TM)"
(we couldn't resist)
The "Red Bitch" has been mirrored
Like DeCSS
We just thought we'd share
(or is it confess)
.
.
.
.
.
.
.
.
Fuck You
This has also happened to Nmap ... AG must chill (Score:4, Funny)
Yet I didn't sue. I just got a chuckle at the sick mind who would create such a thing! AG should take note.
-Fyodor
Concerned about your network security? Try the free Nmap Security Scanner [insecure.org]. Version 3.27 was released today
Hang on a minute (Score:3, Insightful)
Thousands of extra eyeballs saw their strip thanks to Slashdot. Even if a tiny percentage of those viewers went to the official site, and a similarly tiny percentage spent some money, I would expect that Penny Arcades page impressions, clickthroughs (they have such amazingly discreet advertisements, other sites could learn a lot from them), and subscriptions have boomed at least a little bit.
Worse for Am Greetings, they failed miserably at supressing the image. It's available to anybody who looks for more than a minute or two, google is returning mirrors to it now - so AG managed to burn up some more customer goodwill without achieving anything positive.
Why bother trying to sue them to get permission to repost the picture? A victory like this can't be awarded by the courts, it takes several million slashdot readers to make such a win possible
Congrats to Gabe and Tycho for a top-notch site. I'm not affiliated with it in any way, but I read it just about daily. I hope they gained a lot from this little event.
Re:This is one for the lawyers to decide (Score:2)
Re:This is one for the lawyers to decide (Score:3, Interesting)
B: For stealing a game idea before he had a chance
to license the character from American Greetings.
IMO, the funniest thing about the SS parody was;
in an age when Grand Theft Auto and Postal 2 can
generate interest among gamers, a naughty
Strawberry Shortcake might actually sell.
Re:They deserve it. (Score:4, Informative)
This only applies if the user attemtps to pass their own work off as the original. US Copyright law permits the parody of works as long as the derivative can be easily seen as a parody. And since this strip wasn't intended to be seen by Strawberry Shortcake's prime audience (little girls), I don't think American Greetings has an actual case here.
of course the usual disclaimer: ianal but have seen them on tv
Re:Would have more sympathy of it was actually fun (Score:3, Informative)
American McGee's "Alice" was released a couple years ago. It was Alice in Wonderland (a sweet, charming, etc childhood story), but much MUCH darker. Like, the part of max payne where he goes crazy darker.
A couple weeks ago, American McGee's "Oz" was annonced. It's going to be the same dark style as Alice, but based on the Wizard of Oz (another sweet childhood story). So American McGee is a brand that makes dark c
Re:Bah (Score:5, Funny)
I think the author of Family Circus would like to have a word with you.
Re:American McGee didn't make PA's "mistake" (Score:4, Insightful)
I think this is a perfect example of you how Disney's lobbying for de facto indefinite copyrights has destroyed what copyright was supposed to be about in the first place.
Baum had the opportunity to profit off of his Oz works back in the early 1900s. His books were popular, and now the stories have fallen into a place where they have literally become a staple fairy tale, As far as I know the original stories and concepts themselves are now PUBLIC DOMAIN, where they SHOULD BE.
But now things that should enter public domain will never be, thanks to Disney. Whenever Mickey is in danger of becoming public domain (like he should be right now), Disney will pay off some congressmen to extend the copyright laws again.
If this continues, 100 years from now people we will have no NEW stories like Oz or Alice in Wonderland that they can work with freely. Everything will still be copyrighted because the copyrights will now continue to be extended. Every story people grew up with will be still be owned by Disney or another faceless media corporation.
Re:Isn't Strawberry Shortcake a dessert (Score:3, Insightful)
pretty sure people were calling that delicious dessert "strawberry shortcake" way before AG invented that stupid character.
It's all about context. You can use the same words as trademarks in different contexts without any overlap. For example, once upon a time there were VAX vaccuum cleaners and VAX computers, and there was no legal problem there, since