4 ms·

Dear Google: Parody Is Not Trademark Infringement

99 points by anaphor 12y ago

hatelibs 12y ago
People did get confused by the original site, see HN comments: https://news.ycombinator.com/item?id=7710205 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 12y 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.
  - couchand 12y 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.
    - MartinCron 12y ago
      Has anyone ever provided an example of a brand losing its trademark status for not aggressively addressing minor/maybe/kind-of/sort-of infringement? It seems like a scary story designed to keep IP lawyers fully employed.
- yew 12y 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 12y 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 12y 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/ http://www.cnn.com/2012/09/28/world/iran-news-agency-duped/
  - wutbrodo 12y ago
    A more apt comparison would be if someone was fooled by an Onion article on the domain http://www.cnn-news.com 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 12y ago
https://web.archive.org/web/20140507171628/http://google-nest.org/ https://web.archive.org/web/20140507171628/http://google-nes...
- josephschmoe 12y ago
  I actually want a Google Bee. That sounds great.
TheMagicHorsey 12y 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.
- deleted 12y ago
  [deleted]
- kgarten 12y 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 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 12y ago
    > Under your definition groups like "The Yes Men" would not be considered parody. http://en.wikipedia.org/wiki/The_Yes_Men 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.
    - kgarten 12y ago
      see the comment above: I would classify Adbusters also as parody (spoof). Depends on your definition. https://www.adbusters.org/spoofads https://www.adbusters.org/spoofads
  - 12y ago
rdtsc 12y 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 12y 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.
asadlionpk 12y ago
The included pdf has this link cited: http://terranova.blogs.com/terra_nova/2007/01/proceed_and_per.html http://terranova.blogs.com/terra_nova/2007/01/proceed_and_pe... Pretty interesting and funny.
readme 12y 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 12y ago
Don't Be Evil should imply Have A Sense Of Humor.
- couchand 12y ago
  I'm pretty sure by now they've dropped the "Don't".
  - ASneakyFox 12y ago
    It was actually transferred to dont have a sense of humor.
dartonw 12y 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 http://goo.gl/6UEsEj.
yohui 12y ago
Someone elsewhere posted an image of the actual Google email: https://imgur.com/Km8tYbH 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/ 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.

99 points by anaphor 12y ago

People did get confused by the original site, see HN comments: https://news.ycombinator.com/item?id=7710205 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 12y 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.
- couchand 12y 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.
  - MartinCron 12y ago
    Has anyone ever provided an example of a brand losing its trademark status for not aggressively addressing minor/maybe/kind-of/sort-of infringement? It seems like a scary story designed to keep IP lawyers fully employed.
yew 12y 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 12y 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 12y 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/ http://www.cnn.com/2012/09/28/world/iran-news-agency-duped/
- wutbrodo 12y ago
  A more apt comparison would be if someone was fooled by an Onion article on the domain http://www.cnn-news.com 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 12y ago

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

josephschmoe 12y ago
I actually want a Google Bee. That sounds great.

TheMagicHorsey 12y 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.

deleted 12y ago
[deleted]
kgarten 12y 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 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 12y ago
  > Under your definition groups like "The Yes Men" would not be considered parody. http://en.wikipedia.org/wiki/The_Yes_Men 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.
  - kgarten 12y ago
    see the comment above: I would classify Adbusters also as parody (spoof). Depends on your definition. https://www.adbusters.org/spoofads https://www.adbusters.org/spoofads
- 12y ago

rdtsc 12y 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 12y 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.

asadlionpk 12y ago

The included pdf has this link cited: http://terranova.blogs.com/terra_nova/2007/01/proceed_and_per.html http://terranova.blogs.com/terra_nova/2007/01/proceed_and_pe... Pretty interesting and funny.

readme 12y 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 12y ago

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

couchand 12y ago
I'm pretty sure by now they've dropped the "Don't".
- ASneakyFox 12y ago
  It was actually transferred to dont have a sense of humor.

dartonw 12y 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 http://goo.gl/6UEsEj.

yohui 12y ago

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