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Parody and commenting about something and humor and so forth is protected as fair use even under our horrendously fucked up "intellectual property" system. Now

by CPops 16y ago

Parody and commenting about something and humor and so forth is protected as fair use even under our horrendously fucked up "intellectual property" system. Now, I think Facebook has the right to block whatever links they want to block on their own website. It's their website and they should do what they want that they feel is in their own self-interest. Casting this as Lamebook doing something that violates Facebook's trademark is incorrect without any actual evidence that they are indeed violating Facebook's trademark. Merely having a name that rhymes with Facebook isn't enough to call that a violation of Facebook's trademark.

jerf 16y ago
You cited defenses against copyright infringement. There is no parody exemption that I have ever heard of that applies to the active use of a trademark. You can certainly create yourself a "Lamebook" to use in, say, a web comic, and make it even look exactly like the actual Lamebook page, and nobody would blink, just like nobody blinks at a Sorny in a web comic. But you're not allowed to actually do business as Sorny! I have evidence that Lamebook is violating Facebook's trademark. There's the name. There's the fact that their logo is clearly a Facebook hand, only reversed. There's the fact they're in the same basic industry and a realistic chance that Lamebook could be reasonably confused to be connected to Facebook by a normal person. I'm not sure what other evidence you're expecting, a signed affidavit from John Roberts?
- _delirium 16y ago
  There's some recognition of a parody defense in U.S. trademark law, though it isn't that clear, and I don't think there are any definitive Supreme Court cases on it. There are a number of law-review articles trying to make sense of the subject, though: http://scholar.google.com/scholar?hl=en&sciodt=2000&q=%22trademark+parody%22 http://scholar.google.com/scholar?hl=en&sciodt=2000&...
- noglorp 16y ago
  >There's the fact they're in the same basic industry and a realistic chance that Lamebook could be reasonably confused to be connected to Facebook by a normal person. The basic industry is the web? That is a stretch. Does that mean anything else is in the basic industry of "physical things"? Facebook is in the industry of social networking, while Lamebook is a 'lolpics' site targeted at funny things FROM Facebook. It seems like they are clearly doing what Facebook says they are (attempting to piggyback on brand recognition), using satire as a hook to get away with it. Whether they will succeed I think depends on Facebook's ability to show that this use will harm their name / confuse their customers, and that seems doubtful. In a similar instance, Toys `R' Us successfully forced Guns `R' Us to change names; the case was made that parents would think that Toys `R' Us had a chain of gun stores!
  - jerf 16y ago
    http://avvo.com/legal-answers/can-i-trademark-a-similar-name-in-a-different-indu-69533.html http://avvo.com/legal-answers/can-i-trademark-a-similar-name... , just to yank something out of Google very quickly. The law is not unfamiliar with your objection. In point of fact it has dealt with this question rather frequently. And no, your made up pathological case has no ground in the law, and no, I do not think the law would slice and dice Facebook and Lamebook into separate industries. Separate industries are, as the link says, things that can not possibly be confused for each other, like a tax service and a farming implement company, not "a web-based social network" and "a web site for satirizing social networks". Taking your point to its logical conclusion, two companies always differ on some irrelevant dimension; the ability to find some trivial difference will not protect you. It's the usual thing I think we computer programmers tend to forget when arguing about law... you have to convince a judge you're not in the same industry. It's not a computer algorithm that can be gamed with a bit of pathological input and a loudly-yelled "TAKE THAT!", despite how it may sometimes appear. Though your last paragraph entirely confuses me; you express doubt about the court case going in Facebook's favor, then cite an example that I think is actually sillier than the idea that Facebook might spin off a site or two?

by CPops 16y ago

jerf 16y ago

You cited defenses against copyright infringement. There is no parody exemption that I have ever heard of that applies to the active use of a trademark. You can certainly create yourself a "Lamebook" to use in, say, a web comic, and make it even look exactly like the actual Lamebook page, and nobody would blink, just like nobody blinks at a Sorny in a web comic. But you're not allowed to actually do business as Sorny! I have evidence that Lamebook is violating Facebook's trademark. There's the name. There's the fact that their logo is clearly a Facebook hand, only reversed. There's the fact they're in the same basic industry and a realistic chance that Lamebook could be reasonably confused to be connected to Facebook by a normal person. I'm not sure what other evidence you're expecting, a signed affidavit from John Roberts?

_delirium 16y ago
There's some recognition of a parody defense in U.S. trademark law, though it isn't that clear, and I don't think there are any definitive Supreme Court cases on it. There are a number of law-review articles trying to make sense of the subject, though: http://scholar.google.com/scholar?hl=en&sciodt=2000&q=%22trademark+parody%22 http://scholar.google.com/scholar?hl=en&sciodt=2000&...
noglorp 16y ago
>There's the fact they're in the same basic industry and a realistic chance that Lamebook could be reasonably confused to be connected to Facebook by a normal person. The basic industry is the web? That is a stretch. Does that mean anything else is in the basic industry of "physical things"? Facebook is in the industry of social networking, while Lamebook is a 'lolpics' site targeted at funny things FROM Facebook. It seems like they are clearly doing what Facebook says they are (attempting to piggyback on brand recognition), using satire as a hook to get away with it. Whether they will succeed I think depends on Facebook's ability to show that this use will harm their name / confuse their customers, and that seems doubtful. In a similar instance, Toys `R' Us successfully forced Guns `R' Us to change names; the case was made that parents would think that Toys `R' Us had a chain of gun stores!
- jerf 16y ago
  http://avvo.com/legal-answers/can-i-trademark-a-similar-name-in-a-different-indu-69533.html http://avvo.com/legal-answers/can-i-trademark-a-similar-name... , just to yank something out of Google very quickly. The law is not unfamiliar with your objection. In point of fact it has dealt with this question rather frequently. And no, your made up pathological case has no ground in the law, and no, I do not think the law would slice and dice Facebook and Lamebook into separate industries. Separate industries are, as the link says, things that can not possibly be confused for each other, like a tax service and a farming implement company, not "a web-based social network" and "a web site for satirizing social networks". Taking your point to its logical conclusion, two companies always differ on some irrelevant dimension; the ability to find some trivial difference will not protect you. It's the usual thing I think we computer programmers tend to forget when arguing about law... you have to convince a judge you're not in the same industry. It's not a computer algorithm that can be gamed with a bit of pathological input and a loudly-yelled "TAKE THAT!", despite how it may sometimes appear. Though your last paragraph entirely confuses me; you express doubt about the court case going in Facebook's favor, then cite an example that I think is actually sillier than the idea that Facebook might spin off a site or two?