Dear Google: Parody Is Not Trademark Infringement(eff.org)
eff.org
Dear Google: Parody Is Not Trademark Infringement
https://www.eff.org/deeplinks/2014/05/dear-google-parody-not-trademark-infringement
9 comments
The included pdf has this link cited:
http://terranova.blogs.com/terra_nova/2007/01/proceed_and_pe...
Pretty interesting and funny.
Pretty interesting and funny.
People did get confused by the original site, see HN comments: https://news.ycombinator.com/item?id=7710205
Also don't trademarks get forfeited if you don't enforce them? there are at least 2 of them being misused in this instance.
Edit: not quite sure why my comment is getting downvoted.
Also don't trademarks get forfeited if you don't enforce them? there are at least 2 of them being misused in this instance.
Edit: not quite sure why my comment is getting downvoted.
Parody is a specific legal defense against trademark infringement. The idea that trademark holders are always required to 'defend' their trademark regardless of context is simply false.
Given that the use here is noncommercial (Peng! is not selling a product in Google's area of business), it's almost certainly the case that Google is under no obligation to engage in any legal action. Even commercial parody can be protected, though the criteria are somewhat more complex.
Interestingly, it's easier to legally parody stronger trademarks because of public recognition of the parody - see Louis Vuitton v Haute Diggity Dog for an example. Google certainly qualifies as a strong trademark, although the parody name here isn't as memorable as 'Chewy Vuiton'.
Given that the use here is noncommercial (Peng! is not selling a product in Google's area of business), it's almost certainly the case that Google is under no obligation to engage in any legal action. Even commercial parody can be protected, though the criteria are somewhat more complex.
Interestingly, it's easier to legally parody stronger trademarks because of public recognition of the parody - see Louis Vuitton v Haute Diggity Dog for an example. Google certainly qualifies as a strong trademark, although the parody name here isn't as memorable as 'Chewy Vuiton'.
It can still count as parody even if some people got genuinely confused. Consider that some people get fooled by articles from The Onion.
A more apt comparison would be if someone was fooled by an Onion article on the domain http://www.cnn-news.com that had CNN at the top of the page. I'd imagine the vast majority of people would simply assume that was CNN.
Exactly. I still remember this Onion article from a few years back being confused as actual news.
http://www.cnn.com/2012/09/28/world/iran-news-agency-duped/
http://www.cnn.com/2012/09/28/world/iran-news-agency-duped/
> not quite sure why my comment is getting downvoted.
Kneejerk responses.
You're entirely right that Google at least has to legally take some action, as otherwise others can point at the precedent when doing actual attacks on Google trademarks.
Kneejerk responses.
You're entirely right that Google at least has to legally take some action, as otherwise others can point at the precedent when doing actual attacks on Google trademarks.
It's worth pointing out that this view, while common, is a misconception. IANAL, but as I understand it a company need only address blatant, public infringement. If it could be reasonably argued that this is a parody (and that can at least be argued, even if you disagree), it wouldn't be considered for the purposes of abandoned trademarks.
And a minor point - "precedent" is commonly used to mean simply "that which came before" but it has a very specific legal definition (generally just decisions issued by a court) that doesn't apply here.
And a minor point - "precedent" is commonly used to mean simply "that which came before" but it has a very specific legal definition (generally just decisions issued by a court) that doesn't apply here.
Has anyone ever provided an example of a brand losing its trademark status for not aggressively addressing minor/maybe/kind-of/sort-of infringement? It seems like a scary story designed to keep IP lawyers fully employed.
I actually want a Google Bee. That sounds great.
A parody does not confuse the viewer as to the source of goods and services. In a parody, it is clear that the goods or services, or speech, are from a different source than the original.
If one makes a product as a "parody" and pretends to be the original source, while acting purposely foolishly, I don't think that would be defensible.
For instance, if you are opposed to people eating meat sold by Foster Farms, then making deliberately disgusting meat, and handing it to pedestrians in a city, while making fun of meat, does not constitute parody of Foster Farms. It damages the brand of the original.
A parody would be using Google's names and symbols in some transformative action that is clearly not sourced from Google.
If one makes a product as a "parody" and pretends to be the original source, while acting purposely foolishly, I don't think that would be defensible.
For instance, if you are opposed to people eating meat sold by Foster Farms, then making deliberately disgusting meat, and handing it to pedestrians in a city, while making fun of meat, does not constitute parody of Foster Farms. It damages the brand of the original.
A parody would be using Google's names and symbols in some transformative action that is clearly not sourced from Google.
To be clear, I'm pretty sure that Peng! wasn't actually selling drones, insurance or hugs. There are no goods or services. They were not making a product.
So to adjust your example, if a group had a political complaint against Foster Farms and made a website claiming to sell obviously foul products, that would be a rich example of parody. "Damaging the brand" is pretty much the goal in an action like this.
So to adjust your example, if a group had a political complaint against Foster Farms and made a website claiming to sell obviously foul products, that would be a rich example of parody. "Damaging the brand" is pretty much the goal in an action like this.
Lets think about this for a moment. Is it a legitimate action to pretend to be another party and to damage their brand? What if I take to the streets to pretend to be you, to damage the brand of your start up? What if I defame minorities, release foolish and buggy products, and plaster the pseudo-wares with racist pronouncements? Is it enough for me to say that I disagree with you, and that my intentions are parody, for such action to be pardonable?
I don't think pretending to be another entity should ever be permissible. The integrity of communications should not be compromised. Nor is that the intention of the parody-based fair use principles in IP law. The intention of the parody exception to liability is to give artists an opportunity to make fun of the high and mighty. Not to pretend to be them.
If we allow fraudulent messaging to come under the umbrella of parody protection, then this same exception will be abused by parties to malign their competitors. It will be difficult for consumers to know or trust the source of messaging, goods, or services.
It is no excuse to say no goods or services were actually produced, because to advertise a shitty bundle of goods in the name of another is enough to cast doubt on the good sense of that other.
A proper parody makes no pretense of its source. It proudly proclaims itself a form of protest. It doesn't dissemble and try to corrupt the flow of information/communication in commerce.
I don't think pretending to be another entity should ever be permissible. The integrity of communications should not be compromised. Nor is that the intention of the parody-based fair use principles in IP law. The intention of the parody exception to liability is to give artists an opportunity to make fun of the high and mighty. Not to pretend to be them.
If we allow fraudulent messaging to come under the umbrella of parody protection, then this same exception will be abused by parties to malign their competitors. It will be difficult for consumers to know or trust the source of messaging, goods, or services.
It is no excuse to say no goods or services were actually produced, because to advertise a shitty bundle of goods in the name of another is enough to cast doubt on the good sense of that other.
A proper parody makes no pretense of its source. It proudly proclaims itself a form of protest. It doesn't dissemble and try to corrupt the flow of information/communication in commerce.
I wonder if you looked at the site? It's pretty evident that it's a form of protest and not some racist sockpuppet rant, competitor's defamation or the like. For instance:
While we cannot always protect information about you, we can help protect you. Google Trust offers you the world's first model for data insurance.
It's completely free, you pay with your data. The more Google products you use, the higher your insurance payout will be in case of data misuse through secret service or private criminals. Your policy will be automatically offered to you, based on our assessment of your risk.
If that's not "making fun of the high and mighty" I don't know what is.
While we cannot always protect information about you, we can help protect you. Google Trust offers you the world's first model for data insurance.
It's completely free, you pay with your data. The more Google products you use, the higher your insurance payout will be in case of data misuse through secret service or private criminals. Your policy will be automatically offered to you, based on our assessment of your risk.
If that's not "making fun of the high and mighty" I don't know what is.
Again I don't agree with your very narrow definition of parody. Take http://arcticready.com (from the "Yes Men"). For me, it's a parody criticizing shell oil.
You can also read more here: http://www.greenpeace.org/new-zealand/en/blog/shellfail-insi...
In my opinion this clearly classifies as parody.
You can also read more here: http://www.greenpeace.org/new-zealand/en/blog/shellfail-insi...
In my opinion this clearly classifies as parody.
One should think of the consequence of a rule in all cases, not just when the rule is applied to defend those that mock those you oppose.
Imagine the same standards being applied when someone is pretending to be you and maligning your name in public with foolish declarations.
Imagine the same standards being applied when someone is pretending to be you and maligning your name in public with foolish declarations.
Yes of course, I do. Yet, again, I cannot agree with your statement. First, I neither "oppose" Shell nor Google (actually I think Google is a pretty cool company). Still, I find the parody funny and it raises some interesting questions.
Next, in the examples not an individual is "impersonated" but a faceless, anonymous corporation. I would have way more problems with the parody if an individual (independent to if I like them or not) would be impersonated or ridiculed.
If somebody makes similar fun of my employer, I would not mind at all.
Next, in the examples not an individual is "impersonated" but a faceless, anonymous corporation. I would have way more problems with the parody if an individual (independent to if I like them or not) would be impersonated or ridiculed.
If somebody makes similar fun of my employer, I would not mind at all.
I don't agree. The strength of some parodies or hoaxes is that you use the companies name, this is important to make people think (I believe). Under your definition groups like "The Yes Men" would not be considered parody. http://en.wikipedia.org/wiki/The_Yes_Men
I don't want to go into the example you brought up with Foster Farms, you should realize that this comparison is pretty much flawed.
I don't want to go into the example you brought up with Foster Farms, you should realize that this comparison is pretty much flawed.
> Under your definition groups like "The Yes Men" would not be considered parody. http://en.wikipedia.org/wiki/The_Yes_Men
With a few exceptions, The Yes Men do not do parody. Hoaxes and parody are quite different things.
With a few exceptions, The Yes Men do not do parody. Hoaxes and parody are quite different things.
see the comment above: I would classify Adbusters also as parody (spoof). Depends on your definition.
https://www.adbusters.org/spoofads
It is not required to disguise yourself as another to make people think.
Parodies in the past did not depend on fooling people as to the source of words. It is enough to conjure up a thought of the parties parodied, through use of similar symbols/words/methods. One doesn't have to actually pretend to be them in an exact way for parody to hit its mark. Nor in the past have I seen great parodies do this.
Parodies in the past did not depend on fooling people as to the source of words. It is enough to conjure up a thought of the parties parodied, through use of similar symbols/words/methods. One doesn't have to actually pretend to be them in an exact way for parody to hit its mark. Nor in the past have I seen great parodies do this.
It depends on the type of parody. Your definition seems to stick to literature parody only. If you extend the definition over literature and text, I think it's important to use the same visuals and pretend to be the company or individual ... see also: https://www.adbusters.org/spoofads (they classify for me also as parody and they are spoofs, pretending to be the original source).
A parody is often also called spoof, which in this case fits better I think.
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There is an interesting pattern here I think.
Before the general context and behavior of big companies was very serious. You know you had your GE, IBM, Ford, I don't know P&G, big serious companies that wear ties and white shirts. And you make a parody of them and becomes kind of obvious. Oh look "Big Brother Inside" logo for Intel. Ok clearly a parody.
However, I feel, there is this movement toward lightheartedness and humor in the new style of PR. Google is the prototypical company here. Bright childish colors. "Oh look the rainbow! Blue, green, red colorful beach balls in every office!". That was their initial image. "We are just big kids playing and building cool stuff". Or say, April 1st comes, and here is Google making fun of their products. Releasing something like "Google Fiber over Toilet Plumbing" (get it, get it, fiber, toilet, ..., make sure to tweet it!). Something like that. So that is all jolly good, except that by using lightheartedness and parody as a standard PR tool, now it is not easily differentiated from other parody out there. Maybe environmentalists make a site about Google's Fiber Toilet Plumbing. Now it is kind of harder to tell the difference.
Anyway, this is too much drivel. Not defending or taking sides, just pointing out what seems like an interesting pattern developing.
Before the general context and behavior of big companies was very serious. You know you had your GE, IBM, Ford, I don't know P&G, big serious companies that wear ties and white shirts. And you make a parody of them and becomes kind of obvious. Oh look "Big Brother Inside" logo for Intel. Ok clearly a parody.
However, I feel, there is this movement toward lightheartedness and humor in the new style of PR. Google is the prototypical company here. Bright childish colors. "Oh look the rainbow! Blue, green, red colorful beach balls in every office!". That was their initial image. "We are just big kids playing and building cool stuff". Or say, April 1st comes, and here is Google making fun of their products. Releasing something like "Google Fiber over Toilet Plumbing" (get it, get it, fiber, toilet, ..., make sure to tweet it!). Something like that. So that is all jolly good, except that by using lightheartedness and parody as a standard PR tool, now it is not easily differentiated from other parody out there. Maybe environmentalists make a site about Google's Fiber Toilet Plumbing. Now it is kind of harder to tell the difference.
Anyway, this is too much drivel. Not defending or taking sides, just pointing out what seems like an interesting pattern developing.
Leave it to internet companies to turn a fun day with small hidden easter eggs into a day of cringeworthy bad jokes plastered all over the web.
Ten aprils fools. That's ten days. It took ten days to run a perfectly fun day into a day where a lot of people would rather stay to listen to Rush Limbaugh read the phonebook than go on any website, at any point of the day.
I think it's inherently impossible for an megaentity existing purely for monetary gain to seem lighthearted and human. I wish they'd stop trying.
Ten aprils fools. That's ten days. It took ten days to run a perfectly fun day into a day where a lot of people would rather stay to listen to Rush Limbaugh read the phonebook than go on any website, at any point of the day.
I think it's inherently impossible for an megaentity existing purely for monetary gain to seem lighthearted and human. I wish they'd stop trying.
Damn, I just think creating a domain name like: trademark1-partnerstrademark.com such as google-nest.com is trademark infringement and that the eff is wrong. I am sure I'm not alone in this.
The content itself is fine (there's an archive.org link below). It's the domain I suspect they had a problem with.
The content itself is fine (there's an archive.org link below). It's the domain I suspect they had a problem with.
Don't Be Evil should imply Have A Sense Of Humor.
I'm pretty sure by now they've dropped the "Don't".
It was actually transferred to dont have a sense of humor.
This brings to mind another silly requirement for parody in the Google ecosystem, requiring "(Parody)" after an account name. Consider the case of Jesus H. Christ on G+: http://goo.gl/6UEsEj.
Is the letter legit? It claims the Google Nest parody went so far as to create fake Google employee profiles on social networking sites, used false Whois info (listing Google as the registrant and contact), and featured a (working) Google "Sign In" button.
The last one is the most concerning (and confirmed by mirror sites, e.g. http://google-nest.codewing.de/ ). That's more like what I'd expect from a phishing site; a parody page should have no need for it.