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Here, he is referring to the Tumblr product properly, and referencing their trademark'd product properly. He is not using their trademark to refer to another pr

• DannyBee 13y ago
  It's not a presumption, it's a test. I'm too lazy to look up decisions at this hour to cite legal language, but wikipedia's definition looks correct enough at a glance: The nominative use test essentially states that one party may use or refer to the trademark of another if: 1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). 2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol). 3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags. So let's apply the test: You can't identify the tumblr service without using the tumblr trademark. Only the minimum necessary to identify tumblr was used; words were used, not the font or symbol. Nothing on the page suggests sponsorship or association with tumblr It's not even a close case here. The fact that Tumblr doesn't like it is completely irrelevant. The whole purpose of nominative fair use is to allow things like competitors to compare their product to yours. If this was a presumption that had to be overcome, Ford could never compare themselves to Toyota in commercials, because they'd just fling trademark lawsuits at each other. The fact that he is making statements about the reliability of the tumblr service is exactly one of the things nominative use exists to allow. It is in fact utterly ridiculous. Toyota and Dyson don't threaten Consumer Reports with trademark lawsuits when Consumer Reports makes reliability claims about their cars and vacuums. They don't do it when a guy posts about car troubles on his blog, or even if a guy makes opinion statements about the reliability of Toyota (or Ford or whoever)'s cars in general on his blog. This is because it would be ridiculous. It isn't less ridiculous because Tumblr is popular, or because it's an internet service. He's not even making claims. He is reporting a factual state of reachability to Tumblr from various points on the internet. If you look, you'll see he's complained about Tumblr and their service reliability on their blog. Given that, it's hard to see this as anything other than Tumblr being pissy at someone with an audience that doesn't like them.
  • glurgh 13y ago
    So bear with me for a moment, the wikipedia page lists as a pre-requisite for the test to apply "Nominative use, also "nominative fair use", is a legal doctrine that provides an affirmative defense to trademark infringement as enunciated by the United States Ninth Circuit,[1] by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own." It doesn't say 'you can name your product after the other product', not does my poopy layman's understanding of http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcases/newkids.htm http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcase... And even if you could, wouldn't it be a lot clearer if you took some steps to actively dispel even the possibility of confusion? Neither Ford nor Consumer Reports publish an unidentified 'do toyotas break down a lot' magazine or website so this seems somewhat different. Mind you, I completely agree that tumblr's heavy-handedness about it is completely silly, I'm just trying to understand how it's so obviously legally silly, as well.
    • DannyBee 13y ago
      Sure, so let's start simple. Wikipedia's definition is not perfect, and you are trying to hang your hat on a technicality that does not exist. Your argument is about the domain name itself rather than the content. He has not named a product after another product. He does not have to call it "thestatusofvariousphotosharingsites.com". It is okay to name your website "walmartsucks" and talk about how much walmart sucks (though it's not okay to do that and then try to extort money from walmart, as one guy did). His website is about tumblr, the product. he can name it after tumblr, the product, as long as he does so in a way that confuses no one, and satisfies a bunch of other factors. Nobody is visiting his site and thinking "oh shit where are my photos". If there was some possibility of confusion, or if his website directed people to instagram, or any of a few other things (like tumblr was planning on expanding into what google tells me is a pretty competitive "is tumblr down" market), you may have a point. But it doesn't do any of this. It simply gives people the status of tumblr. He makes no money, he offers no non-substantiated facts, he dilutes no trademark. In this way, it isn't even an arguable case like "walmartsucks", because the domain name is literally a description of itself. Yes, it would be a lot clearer if he added disclaimers, but that's again, completely irrelevant to whether it's necessary or required. "Neither Ford nor Consumer Reports publish an unidentified 'do toyotas break down a lot' magazine or website so this seems somewhat different." It isn't. It is, as they say, a "distinction without a difference". The EFF has a page about this, btw: https://www.eff.org/issues/bloggers/legal/liability/IP https://www.eff.org/issues/bloggers/legal/liability/IP search for "Can I use a trademark in my blog's name or in the title of a blog post?"