Google modifies its logos to honor holidays or famous individuals. Last week it created a logo that alludes to (but, Google alleges, did not copy), Joan Miro’s work, in honor of Miro’s brithday. The Miro estate complained, and Google, without admitting wrong-doing, pulled the logo by noon.
Some reaction was, in effect, gimme a break, either because there was no cause of action, or the use was de minimis, or the resulting press will be bad for the Miro estate.
With regard to trademark, consider whether there is confusion as to endorsement. If the user is aware of Google’s commemorative logo pattern, then confusion seems unlikely. However, not everyone is aware, and Google is pretty cryptic about it. In fact, I think part of the allure of the commemorative logo is that it functions somewhat as a puzzle.
Consider the copyright fair use analysis. In a case such as Ringgold v. Black Entertainment Television, Inc. 126 F.3d 70 (2d Cir. 1997), the owner of copyright in a poster argued that using a poster seen for 27 seconds as a decoration on a set of a TV show, was not de minimis use. Furthermore, plaintiff argued that were use of its poster to be deemed fair use, it would destroy any potential market for licensing its poster for set design usages. Is there a market for the Miro estate to license Miro-style fonts, and what effect might Google’s use have on such a market?
How is Google using the artwork? It seems clear that Google could clearly state that such and such a day was a great artists’s birthday, and then display a thumbnail image of that artist’s work as a link to information on that artist, searchable through Google. Its commemorative logo makes that point much more elegantly and subtly; however it leaves it vulnerable to the charge that it is appropriating a third-party’s copyrightable designs in order to decorate its home page.
Good exam question.
UPDATE: An anonymous reader advises that there has been a dispute in the past regarding use of MIRO-style fonts.
2d UPDATE: PRof. Patry weighs in heavily in favor of Google, in a post entitled “How Copyright is Getting a Bad Name.”
IP Dragon, a blog about IP law in the PRC, written by an anonymous dragon.
If eight copyrighted works are infringed by one unauthorized compilation, then plaintiff may be entitled to eight, not one, awards of statutory damages. If thirteen copyrighted words are infringed by seven unaothrized compilations, then plaintiff may be entitled to thirteen, not seven, awards of statutory damages. More, including text of decision, on the WB Music case from Prof. Patry.
TTABlog reports that the TTAB may have stopped granting Stoller extensions.
When discussing the allocation of state corporate names, I meant to but didn’t mention that in addition to the minimal ‘identity search,’ states impose various restrictions that loosely constitute consumer protection laws. For example, terms such as BANK or INSURANCE are restricted.
Here’s an example. Franchise Law Blog reports on Rhode Island enforcing a law that liquor stores may not use a name suggesting that they are part of a franchise.
That was fast. As far as I can tell, an entity received a quick registration for PST in the Benelux. While another entity with an older PST registration is moving to cancel this Benelux registration, as far as this .EU dispute goes, a valid registration is a valid registration. I encourage EU practitioners to email me and set us straight.
Mark Cuban discusses the definition (and extent) of click fraud. He gives several examples:
“[Click Fraud is] a click by a system or person on a page designed to circumvent the advertiser’s intent. In otherwords, advertisers are spending their money in order to get results. They have directed money to PPC advertising to get click throughs from their intended audience, to their intended destination.
If a kid on myspace says “click on the ads” to help me pay for XYZ, and they do, that’s click fraud.
If an ad shows up on a splog and the advertisers doesn’t want their ads on splogs. That’s click fraud.
If an ad shows up on a parked domain and the advertiser doesnt want their ads on parked domains. That’s click fraud.
If an ad shows up on a page thats part of an arbitrage scheme (buy clicks from a cheap PPC company, sell them using a more expensive PPC provider), that’s click fraud.”
Friend of the Blog Anne Mason writes to tell us that:
“Out of the venerable Middle District of Florida comes Montana Prof Sports LLC v. Leisure Sports Mgt. Inc., 2006 US Dist Lexis 7218 where the Kissimme Kreatures professional indoor football team was busted for its name change to the Osceola Outlaws by the Billings Outlaws, registered trademark owners. Injunction issued. I frankly like the Kreatures moniker better…”
More on indoor football here.
I suppose a more modest title would have been “Columbia Law Review Article Discusses ‘Disparaging’ Trademarks.’ (See Footnote 42). TTABlog is cited as well.
I hear this every so often, usually in the context that the corporate lawyer who created a legal entity told the client that the name of the business was available, which meant that it was available as a corporate name in that state, but which the client understood to mean, simply, available.
The problem is that a corporate name is the name that the Secretary of State (which oversees incorporation in a state), allocates to a legal entity, after conducting an idential or near-identical search of the name, in that state. The availability of a corporate name means only that there is no other legal entity by that name in that state, and there is no trademark significance to this fact (a Secretary of State will apply some other restrictions to naming, usually relating to words associated with regulated entities such as banks or insurance, but thats besides this particular point).
Sometimes the Secretary of State will prohibit you from incorporating under an obviously problematic name, such as Coca Cola LLC, but the state will not conduct a likelihood of confusion analysis for corporate names. And they search the registry in their state, not all states. They are only concerned that tax bills and process gets served on the right corporation. Note: I am not referring to state trademark registries – I am talking about state corporation registries.
So you may be the only Acme Widgets, Inc. in California, but if there is a Rhode Island entity (incorporated or unincorporated) that started selling ACME brand widgets before you did in interstate commerce, you may have problems (and that you incorporated as Acme Widgets, Inc. two years ago will be no defense).
The good ‘how to start your business’ literature does address the corporate name/trademark distinction. I have only anecdotal evidence about how widespread is the misperception (and, to steal a saying I heard recently, the plural of anecdote is not data). I would imagine that lawyers who do a fair amount of incorporation work know to advise that unless a trademark search is performed, they are not clearing a name for trademark use (a disclaimer that a client may forget three years later when they get the demand letter). BLATANT PITCH TO CORPORATE LAWYERS – CONTACT US FOR YOUR TRADEMARK CLEARANCE AND FILING NEEDS.
I’m in favor of more education on this point, directed to the clients and the corporate law bar and the Secretaries of State, because it will lead to fewer nasty surprises and of course because it will lead to more clearance work for trademark lawyers.
The Australian Government has started addressing this issue. It has issued a report on the conflict between business names and trademarks here. Its proposals are discussed by Warwick Rothnie here.
Update: As I said, the good ‘how to start a business’ literature discusses this: ‘What Do You Mean I Can’t Use My Corporate Name‘ from Riker Danzig.