6 ms·
It feels like the outcome boils down to this: if you build a business around making your product look exactly like another business’s trademark, you’re not prot
by macintux 3y ago
It feels like the outcome boils down to this: if you build a business around making your product look exactly like another business’s trademark, you’re not protected from a lawsuit.
That doesn’t feel like the end of the world. (Obligatory IANAL.)
- idopmstuff 3y agoWhy did people buy the dog toy? Pretty sure it's because it looked like JD, which is highly recognizable. If it was just a generic bottle that said "liquor" on it, I would guess that sales would have been lower. I agree with you - seems pretty clear that they're profiting off JD's image, and it's tough to call this any meaningful kind of parody that deserves protection.
- dec0dedab0de 3y agoI think it's just as meaningful of a parody as a weird al song. And this is just trademark not copyright. You're supposed to be able to use and reference trademarks as long as it can't be confused as the original. Just like you can use a famous person's name to make fun of them. Does this mean it is now illegal to make a red and white dildo and call it Cock-a-cola? What if politicians start trademarking their names and faces and start suing people for talking shit?
- loeg 3y agoFYI: Weird Al isn't a useful point of comparison, because he licenses the songs he parodies from the rights-owners.
- smt88 3y agoHow is a dog toy a parody of Jack Daniels? What is the content of the speech/commentary? If you look at the actual toy, it's just an exact replica of a Jack Daniels bottle with a few words changed. It doesn't make fun of Jack Daniels or drinking culture or anything at all.
- macintux 3y ago> What if politicians start trademarking their names and faces and start suing people for talking shit? I think if you start a business and trademark a slightly distorted version of their face for your business, yes, you’ll face problems. The 1st amendment protections for being able to talk shit about a politician seem in no danger from this ruling.
- kemayo 3y agoTo wildly generalize, my understanding is that one of the (legal) components for parody is that you need to be actually commenting on the thing you're parodying. Just referencing something that exists in pop culture doesn't mean it's protected parody. I.e. this dog toy wasn't saying anything about Jack Daniels. It was just a dog toy that looked like a dog-poop themed bottle of Jack Daniels. If it was part of some general message of "Jack Daniels is dogshit", I believe that it'd have been unambiguously protected.
- deleted 3y ago[deleted]
- simiones 3y agoThe SC actually decided something else. They decided that you can't defend your product's only branding as parody, whatever form it takes. If something is your trademark, you have to defend it from being an infringement of someone else's trademark solely on the basis of customer confusion (i.e. prove that the accuser is wrong in saying that their customers would buy your products in confusion). You can use someone else's trademarks in your parody, but only if that parody is branded differently (e.g. the Barbie Girl song was not branded using Barbie logos, it was using AQUA's logos).
- ghaff 3y ago>Does this mean it is now illegal to make a red and white dildo and call it Cock-a-cola? I'm not a lawyer but I'm guessing yes. Note that, as with somewhat related Dr. Seuss copyright cases [1], some of it relates to whether something is actually a satire/parody or whether you're just taking advantage of someone else's IP to sell something--even if it's a non-competitive something. As someone else noted, it's not clear that Weird Al's songs would in general be OK if he didn't license the source material. [1] https://www.jdsupra.com/legalnews/who-s-who-dr-seuss-and-copyright-law-6219828/ https://www.jdsupra.com/legalnews/who-s-who-dr-seuss-and-cop...
- idopmstuff 3y ago> I think it's just as meaningful of a parody as a weird al song. This is just taking the exact JD bottle shape and logo, changing a couple of words and making it a plush toy. A Weird Al song is an entirely new song, written and performed to the beat of the current song. The difference is a lot of hours of time and creativity. > You're supposed to be able to use and reference trademarks as long as it can't be confused as the original. Songs can't be trademarked, so this isn't a relevant comparison in any case. > What if politicians start trademarking their names and faces and start suing people for talking shit? Again, you generally cannot trademark your likeness. There are exceptions for its commercial use, but the ability to "talk shit" about politicians is highly protected.
- ljm 3y agoAldi thrive on this by selling their own branded stuff that looks really similar to big name brands, even down to the style of packaging. Dogebrau Anarchist IPA isn’t half bad compared to the expensive alternative.
- ajsnigrutin 3y agoIt's still a muddy situation... On one hand, it is intentionally made to look like a Jack Daniels bottle... on the other hand it's not nearly the same product type and it won't interfere with product sales for actual Jack Daniels company. If we look at other similar concepts, can an apple (=fruit, or juice or strudel, etc.) company use an image of an apple with a bite taken out? Or will apple get grounds to sue?
- jkaplowitz 3y agoJack Daniels invented their distinctive design, and this was specifically imitating that. There is no owner of the concept of what an apple looks like, with or with a bite taken out of it, except for the specific logo images copyrighted by someone like a Apple Inc. What’s relevant here is that the chance is illegally high that someone who looks at the general appearance of the dog toy but doesn’t take the time to read the actual words might think, “oh cool, Jack Daniels is releasing a dog toy!” rather than that another company is parodying Jack Daniels. It’s exactly this kind of confusion which trademark law is meant to prevent. Even someone who reads the words on the toy might think, “oh cool, Jack Daniels has enough of a sense of humor to make fun of themselves on a dog toy.” It’s legitimately not obvious that the toy isn’t from them.
- P_I_Staker 3y ago[flagged]
- phpisthebest 3y ago[flagged]
- snapplebobapple 3y agoIt's the George Carlin defense of trademark. "Looks how dumb the average person is, then realize half of them are dumber than that your honor! Ergo, ceteris paribus, E pluribus unum, everyone is violating our copyright/patent/trademark and all should pay us royalties."
- 3y ago
- gms7777 3y agoThe thing that confuses me (as someone that knows very little about the topic) is that I thought the primary purpose of trademark law is to avoid consumer confusion (as opposed to copyright which is about IP, which I actually could see protecting logos and other brand designs in cases like these). If I look at that dog toy, I understand that it's clearly referencing JD, but it also seems obviously evidently clear that it's not JD, nor do I think people would assume it was produced by JD. Of course when a decision comes down 9-0 from the Supreme Court, I have to assume I'm missing some understanding here.
- technothrasher 3y agoWell, there were two points about that on this case. The first was that JD hired an expert to do a blind study on whether there would be potential confusion (and that's what you have to show, potential not necessarily actual) and found that, despite what one might think, it showed there could indeed be confusion. But also, even if you were able to show the expert's study design was badly done and/or biased, there is another prong to trademark and that is dilution. When the brand is as famous as JD, they can argue that another company copying them is causing harm to their brand's reputation. Considering this dog toy product compared JD to dog shit, the court ruled that there definitely was dilution. The last part is if the parody is directly related to the commercial aspect of the product. The defendant in this case admittedly used the parody brand as a trademark for themselves, and so the courts found it was indeed directly related to the business aspect.
- narrator 3y agoI think you mean trademark tarnishment instead of dilution. The act of associating a trademarked product with something distasteful or disagreeable is considered a tortious offense called tarnishment. Tarnishment is when you use a Dallas Cowboy's cheerleader outfit in an adult film[1]. The filmmakers argued it was parody, but the judges didn't think the adult film was comedic. However, naming a reasonably good character in your children's film "SPA'AM" is not considered trademark tarnishment[2]. [1]https://scholar.google.com/scholar_case?case=11014508973363071529&q=dallas+cowboys+tarnishment&hl=en&as_sdt=806 https://scholar.google.com/scholar_case?case=110145089733630... [2]https://scholar.google.com/scholar_case?case=16188685672866891690&q=spam+tarnishment&hl=en&as_sdt=806 https://scholar.google.com/scholar_case?case=161886856728668...
- q1w2 3y agoThis misses the point. This question was about whether the Parody exception is valid in this case. Was the dog toy a joke? Making a joke out of something popular is an allowed exception to trademark. The ruling seems to say that it wasn't a joke and therefore not covered under the exception. I get both sides of the argument. A physical product you're selling that has a clear non-parody purpose should have a higher bar to be regarded as parody. A more difficult example might be a t-shirt with a Google logo on it that has something "funny" about Google written below.
- kemayo 3y ago> A more difficult example might be a t-shirt with a Google logo on it that has something "funny" about Google written below. I think a more exact comparison would be, say, a t-shirt with a fluffy Google logo and the text changed to say "Poodle". It's not really saying anything about Google, it's just using Google-related imagery mashed up with dog-related imagery.
- q1w2 3y agoI'm not sure that's a better comparison, because the subject of the JD lawsuit, the toy had the exact imagery of the JD brand - not an alteration of it.
- kemayo 3y agoIt's subjective, but to me the picture of the dog toy in the article looks about as distinct from a real bottle of Jack Daniels as that Google logo example.
- q1w2 3y agoThere is legal importance in the brand symbol specifically - moreso than the product shape. The correct comparison is brand symbol/mark to brand symbol/mark.
- tialaramex 3y ago
- phpisthebest 3y agoTrademark is suppose to be about customer confusion, no one is confused here. This is just once again showing that intellectual privilege laws are too draconian and the only solution is massive congressional reform, but that has little hope as just like the Supreme Court, the congress believes in intellectual privilege maximalism, any reform from congress will likely expand not reduce intellectual privilege
- colechristensen 3y agoI’d have a problem if this was an artist, but it’s not art it’s somebody trying to sell dog toys that look like Jack Daniels. This is not expression that I care about protecting. The ruling talked about “trademark of a trademark” not being protected and that’s just fine.
- phpisthebest 3y agoNovel concept, my belief is there should not be any kind of test for which types of expressions should be "protected" or not... expression that everyone supports generally does not need protection in the first place, so laws that protect only expression that is as broad appeal or support are pointless. protection of expression needs to be for things we dislike, despise or even find abhorrent, people that claim they support protection of expression but for only things they find value in are in reality declaring they do not support freedom of expression at all.
- colechristensen 3y agoSo you’d be ok with someone using AI to generate an image of your self/spouse/child doing something unspeakably awful and putting it up on billboards around town with a suggestion that people take matters into their own hands? That’s “expression”. What I’m trying to do is come up with a hypothetical where you really would like there to be a test for what is and is not protected. The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that? You can call literally any act expression, the extreme of which is literally anarchy.
- jerry1979 3y agoI think the ruling sounds even more strict than that. I read it as you can make a business that parodies another business, but you cannot then go on to trademark your parody.