Ben Edelman of Harvard (see prior references) has been tracking the Chinese government’s attempts to block access to Google.  The latest turn in this saga is that the PRC government, it appears, is re-directing traffic intended for Google to other search engines.  Ben has produced a report with screen shots which I undertand to be results of attempts to access Google from within the PRC.  The address bar displays the URL of Google’s home page but the page returned is clearly that of another company’s search engine.

I  do not know if Google owns Chinese trademark registrations but China is certainly supposed to grant protection to famous marks.  Google should easily fall within that rubric for these purposes.  In a situation like this, I would normally say to a client: “Seems worthwhile to retain PRC counsel to confirm that this is infringement.”

 If the PRC wishes to argue that it has the right to block Google for internal security reasons, that is an argument not worth getting into (at least for those of us not in Congress or the State Department).

However, this apparent government-sponsored passing off and this mis-appropriation of the intellectual property of Google has no apparent justification under security or other grounds.  The most populous nation on Earth seems like just another knock-off artist.  The re-direction represents a flaunting of China’s contempt for the treaties it has entered (and makes me regret noting China’s progress in trademark protection earlier this month).

How to respond?  Let’s start with a discussion of whether ICANN should still hold its upcoming meeting in October in Shanghai.

UPDATE:  This from an article via idg.net:

“It is in violation of the universal approach, changing the DNS system. When you type in a URL, from anywhere in the world, you expect to get to that address,” said Bruce Tonkin, chief technology officer at Melbourne IT and chair of the Names Council of the Domain Name Supporting Organization at the Internet Corporation for Assigned Names and Numbers.

For Chinese users and Google alike, there may be little available recourse, however. “China has not signed any agreement [not to tinker with the DNS system inside China]. No government has. There is no legislation, no mechanism to stop them,” Tonkin said.”

Well, yes, and no.  If you take the view that the U.S. is in a detente with the PRC, then the mechanism is contract (in this case, international treaties such as TRIPS) and respect for that contract.  And you waive a breach through silence.

 

AFLAC is of the view that a white duck quacking functions as its trademark.  While annoying, the AFLAC duck is a big success and does good works.  Via AP, we learn that AFLAC has protested the use of a white duck quacking on a website at www.taftquack.com promoting the candidate opposing Governor Taft of Ohio.

Here is an animation featuring Osama Bin Laden and the AFLAC duck

Here is a letter to AFLAC from an animal rights group named the United Poultry Concern protesting AFLAC’s treatment of ducks in its commercials.  I think that this letter is legitimate, but I can’t tell for sure.

Here is a link to my Sept. 6 blurb with links to relevant cases on the use of trademarks in political speech.

p.s.  I would provide links to aflac.com, but the homepage keeps crashing my browser today.

 

 

The latest affirmation from the Federal Circuit that single titles of books do not function as trademarks.  Even though a party sold a million copies of THE CROSSWORD COMPANION to Walmart in 1993, 1993 would only serve as its date of first trademark use of the term if it published another book in a series named THE CROSSWORD COMPANION within a reasonable time (which the party did not).  Via Finnegan Henderson’s website.

 

Via cnn.com, a minor league baseball franchise, the Calgary Cannons (a Marlins affiliate), is moving to New Mexico, where it will be re-named the Albuquerque Isotopes, in honor of Homer Simpson’s favorite team, the Springfield Isotopes, which, in Episode 15, Year 12 of  The Simpsons, was moved by its owner, Duff Beer, from Springfield to Albuquerque.

In 1996, Fox, which owns both the Simpsons property and a competitor of  the Marlins named the Los Angeles Dogers, successfully enjoined the sale of Duff Beer in Australia, under Australian passing off law.

This is Ebay. 

This is eGray, a site which comments on Californa Governor Gray Davis and California politics. 

This is Dr. Seuss Enterprises v. Penguin, the “Cat Is Not In The Hat” decision, in which the author mimicked Dr. Seuss’ literary and artistic style to comment on the O.J. Simpson case.  Defendantwas NOT entitled to the parody defense because it did not parody or comment upon Dr. Seuss, but merely appropriated the intellectual property of Dr. Seuss’ estate, to comment upon something else.  

This is a commercial in which Ralph Nader mimics MasterCard’s “Priceless” advertising campaign in his race for President in 2000. This is a law.com account of the denial of Mastercard’s motion for a TRO against Nader, in which the judge accepts the argument that the ad was a parody of Mastercard (as well as a comment on campaign financing.)

The LA Times reports that Ebay has protested eGray’s use of the Ebay name and graphics (subscription site, so no links).

Initial Interest Confusion doctrine is an important concept and I had hopes when I saw that Posner, J. was sitting on a panel hearing such a case.   Unfortunately, he didn’t write the decision and all we received was a somewhat simplistic endorsement of a controversial doctrine.

Equitrac competes with Promatek’s COPITRAK product.  At the urging of its web designer, who wasn’t a careful speller, Equitrac put the term COPITRACK (sic) in its metatags.  Saving us a few paragraphs of discussion, the parties stipulated that Equitrac had intended to spell its competitor’s product name correctly.  After receving a demand letter, Equitrac removed the offending metatag.  However, Promatek still pursued and received a preliminary injunction under which Equitrac had to disclaim any connection with Promatek.

Equitrac appealed the order, arguing, apparently with a straight face, that the ordered disclaimer, identifying the competitor’s website, would encourage people to go to that website

Apart from the chutzpah of that argument (chutzpah being an old Native American word for gall), the decision is noteworthy for the Seventh Circuit’s endorsement of Initial Interest Confusion doctrine in the metatag context. A definition of initial interest confusion is the unauthorized duplication of the mark allowing the defendant to encounter the consumer, but where confusion is dispeled prior to purchase.  I call you up, say I’m from Reputable Company A, sweet talk you, and at some point, acknowledge that I am really from Company B.   Kind of like a mis-named website which has a disclaimer.  The dishonest “foot in the door” diverts traffic from the trademark owner and is thus actionable.

As the judge in Promatek puts it:

Cusotmers believing they are entering the first store rather than the second are still likely to mill around before they leave.

 

Now, initial interest confusion is an incredibly important concept in policing trademarks on the Internet.  Many attempts to “game” Internet navigational systems (domain names, search engines and keyword systems) rely on diverting the searcher from his or her most likely intended destination.  This is something I realized six years ago when I typed in amazom.com rather than amazon.com and got an ad for Barnes and Nobles. 

In my view, people like the web designer who told Equitrac to put the name of its competitor in its metatags, and typosquatters, and pornographers who buy expired domain names, impliedly agree withthe Seventh Circuit – people are likely to mill around before they leave.

But how good is this analogy?  The more difficult aspect of applying initial interest confusion doctrine to the Internet is analogizing “customers” and “entering the first store” to users who access a web site.  A UK judge in case involving AVNET took the position that the public are not idiots, and were at least capable of reading abstracts on search engine results.  Thus they could discern search engine hits for sites in which they had no interest.

On the other hand, the judges in the MOVIEBUFF case had a dimmer view of Internet users as befuddled motorists as the Court analogized deceptive metatags to highway signs that induce you to leave the Interstate at the wrong exit, with offers of another’s gas, food and lodging, and stay off to buy something.

Personally, I think that some motorists are idiots and some are like those savvy veterans of the Long Island Expressway, who have been taught them to Expect Delays and use Alternate Routes.

So I cannot agree that the use of another’s trademark in a metatag should be some sort of per se violation.  I agree with the commentator on the INTA listserv who argues that any deception reproduction of another’s trademark is likely actionable (that’s almost tautological), but, as the Seventh Circuit acknowledges, Equitrac is allowed to advertise that it can service Promatek’s customers and can make comparison claims.  Why is using the competitor’s name in a metatag different?  I have my own theories, but I wanted Judge Posner to go first.