Dear Google: Parody Is Not Trademark Infringement

https://www.eff.org/deeplinks/2014/05/dear-google-parody-not-trademark-infringement

by anaphor • 12 years ago

99 31 12 years ago

hatelibs• 12 years ago

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.

Mithaldu• 12 years ago

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.

couchand4• 12 years ago

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.

yew• 12 years ago

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'.

om2• 12 years ago

It can still count as parody even if some people got genuinely confused. Consider that some people get fooled by articles from The Onion.

ateeqs• 12 years ago

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/

wutbrodo• 12 years ago

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.

Sir_Cmpwn• 12 years ago

https://web.archive.org/web/20140507171628/http://google-nes...

josephschmoe• 12 years ago

I actually want a Google Bee. That sounds great.

TheMagicHorsey4• 12 years ago

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.

kgarten5• 12 years ago

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.

SeanLuke• 12 years ago

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.

TheMagicHorsey4• 12 years ago

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.

couchand4• 12 years ago

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.

TheMagicHorsey4• 12 years ago

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.

kgarten5• 12 years ago

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.

rdtsc• 12 years ago

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.

scrollaway• 12 years ago

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.

readme• 12 years ago

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.

coldcode• 12 years ago

Don't Be Evil should imply Have A Sense Of Humor.

couchand4• 12 years ago

I'm pretty sure by now they've dropped the "Don't".

ASneakyFox• 12 years ago

It was actually transferred to dont have a sense of humor.

dartonw• 12 years ago

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.

asadlionpk• 12 years ago

The included pdf has this link cited: http://terranova.blogs.com/terra_nova/2007/01/proceed_and_pe...

Pretty interesting and funny.

yohui• 12 years ago

Someone elsewhere posted an image of the actual Google email: https://imgur.com/Km8tYbH

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.

Dear Google: Parody Is Not Trademark Infringement

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