Since When Is It Illegal To Just Mention A Trademark Online?

from the getting-ridiculous dept

There are some strange things happening with trademark law, and it certainly seems to go beyond the scope of what it's intended to cover. The point of trademark law is to prevent someone from passing off their goods as someone else's. It's to avoid confusion. A trademark shouldn't be considered something that you have absolute control over -- but just in situations where confusion can occur. However, that's not at all how it's being used. Instead, it's being used to stifle any kind of comment that someone doesn't like. About a year ago, we wrote about the somewhat bizarre case where the Greater Toronto Airport Authority told a silly site that posts photos of urinals (pretty much just for the hell of it) that they couldn't mention the name of the airport for no clear reason other than that the GTAA didn't like it. The owners of that site, Urinal.net, have now been approached again by someone who is trying to stop them from posting perfectly legitimate information. In this case, complaint is coming from the Marco Beach Ocean Resort, who is claiming that it's somehow illegal to use their name on the website. Urinal.net has responded by (amusingly) distorting the name enough to try to get around the request of the lawyers who contacted them. Part of the complaint seems to concern the fact that the anonymous contributor mentioned that the urinal is viewable from the lobby. Of course, courts have ruled that simply passing on content sent to you via the web or by email does not make the person or company passing on the info liable for its content. So, if the resort believes that this information is false, then it's not the fault of Urinal.net, but the person who sent it in to them. I asked the maintainers of the site if I could see a copy of the cease & desist, but apparently the lawyers claim that the cease & desist is copyrighted to them and that the recipient is not allowed to forward it to anyone. I wonder if that means they can't even forward it to a lawyer? So, as far as I can tell, the Marco Beach Ocean Resort seems to think that (a) they absolutely own all rights to the name beyond what the law intends (b) they can blame the most easily accessible party, rather than those who are actually responsible and (c) any cease and desist is to be some sort of "secret" cease & desist that can never be shown to anyone, which seems to go a bit beyond what rights copyright gives them. How long is it going to take before lawyers realize that the simple act of trying to repress something they don't like online is likely to make it so that something that most people would never, ever see (like a photo of a urinal in some random beach resort) is now seen by many more people? Let's call it the Streisand Effect.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    rob, Jan 5th, 2005 @ 2:24pm

    No Subject Given

    Other stories I've heard (there's a great one about an enema company objecting to their trademark being used in some erotic[?] story), make me wonder what a lot of these lawyers DO all day. Sit around suerfing for porn and then sending harrassing correspondence (Uh, wat a minute...)?

     

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  •  
    identicon
    ac, Jan 5th, 2005 @ 5:27pm

    legal documents

    I remember reading that legal documents aren't subject to copyright. Weither that's true or not, I have no idea.. but it seems logical.

     

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  •  
    identicon
    jeremy, Jan 6th, 2005 @ 8:14am

    No Subject Given

    It's doubtful that it's the lawyers that are responsible for situations like these. At a bare minimum, they're not solely responsible. With communications being funneled through attorneys, they're a natural target, and there are plenty of things about the profession you could reasonably find objectionable. But it's far more likely that an employee found this, took it up the chain, and somebody high up at the resort demanded that the legal department do something about it.
    It's overly facile to blame lawyers for being litigious, when their clients are the ones driving the litigation. That copyrighted nastygram tactic is ridiculous, though.

     

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    •  
      identicon
      Captain Ron, Jan 24th, 2005 @ 9:36am

      Re: No Subject Given

      To those think it's doubtful the laywers are responsible, I strongly disagree. The lawyers are the ones allowing this to proceed and become litigious, most likely motivated by money, and not good principles except perhaps in their delusional minds.
      So it is quite expected for lawyers to also become the targets of ridicule in situations like these.

       

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      •  
        identicon
        Anonymous Coward, Aug 28th, 2005 @ 6:14pm

        Re: No Subject Given

        I agree. Oh for the day when a lawyer would advise someone against legal action because it was simply being litigous. They might not be the one calling for heads to roll every time, but they are definitly the ones creating the environment.

         

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    •  
      identicon
      Name, Oct 3rd, 2005 @ 9:09am

      Re: No Subject Given

      Let me guess. Jeremy, your a lawyer? How did I know? Aw, just a lucky guess.

       

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  •  
    identicon
    Rob Jones, Jan 6th, 2005 @ 9:14am

    Oh please.

    Many lawyers slap copyright notices on everything, thinking that if there is ever an issue, that would be another arrow in their quiver. The article doesn't say whether or not the letter just had a copyright notice attached and Urinal.net is just interpreting things in this way or whether the law firm sending this made an explicit statement about not releasing the letter because its copyrighted.

    No lawyer writes anything from scratch. I doubt there was enough original content in the cease and desist apart from the factual information to even be copyightable (or at least to the law firm, who probably didn't write it in the forst place). If so, then the copyright would be so thin you couls see through it.

     

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    •  
      icon
      Mike (profile), Jan 6th, 2005 @ 9:49am

      Re: Oh please.

      Since I wrote this, I've seen the original letter in question (not a copy...). It's not them interpreting it wrong. The lawyer specifically wrote at the beginning of the letter that they were not to "forward, upload, copy, transmit or otherwise duplicate" the letter because it is covered by federal copyright law.

      This wasn't just a standard disclaimer placed at the bottom of a message.

       

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  •  
    identicon
    Anonymous Coward, Sep 30th, 2005 @ 10:11am

    No Subject Given

    A legal document couldn't be copyrighted, because legal documents are considered OPEN RECORDS; unless a gag order by a judge is granted. I doubt that is the case.

    As for the mentioning of a business name; it is similar to slander, you cannot publish that Coca-cola is made with harmful ingredient X when it is not. You will damage the brand name and you may be sued for damages. Oprah Winfrey was sued for defimation of the beef industry with her "reckless" and "untrue" comments but she won her case and paid nothing.

     

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    •  
      icon
      Jeffrey Nonken (profile), Jun 6th, 2009 @ 10:07pm

      Re: No Subject Given

      "As for the mentioning of a business name; it is similar to slander, you cannot publish that Coca-cola is made with harmful ingredient X when it is not."

      But that doesn't prohibit you from merely mentioning a name. If the urinal photos were taken at a particular airport, simply saying they were is merely truthful.

      (BTW, your example would be libel, not slander. JTFR.)

       

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  •  
    identicon
    Trey, Aug 27th, 2007 @ 11:39am

    Irony: Google ad on Urinal.net gives away resort n

    Clicked through to the Urinal.net story... Turns out the "Ads by Google" on the right list Marco Beach Ocean Resort as the first ad.

    They should sue Google next?

     

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  •  
    identicon
    D uhg, Sep 10th, 2007 @ 3:24pm

    Publicity

    If you can make a story headlines it draws attention. To your website? Want publicity? make the news! get it for free! Don't let the lawsuit become bigger than the publicity would cost you!

     

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  •  
    identicon
    Troels R, Oct 8th, 2007 @ 12:16pm

    If it were me...

    Didn't these legal departments run this through marketing?

    If I were in the PR department, I would really advice against sending a C&D against something like urinals

    You know what's gonna happen... you are going to get riduculed by a few, and they get angry or get smart, the Streisand effect will hit you.

    I couldn't find the WC from Marco, but is it that bad? the resort seems nice. Was the urinals decent or was the urinals contrary to the resorts image?

    If they were decent, this is PR-wise, similar to shoot your own foot.

    ...Troels

     

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  •  
    identicon
    My2cents, Oct 13th, 2007 @ 9:03pm

    Public Citizen Litigation Group challenges C&D cop

    Last 2 paragraphs are interesting reading in a similar situation involving DirectBuy & Justin Leonard of www.infomercialscams.com.

    http://www.citizen.org/documents/directbuyresponse.pdf

    There's an interesting blog (and link to their doc) at
    http://pubcit.typepad.com/clpblog/2007/10/dont-publish-th.html

     

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  •  
    identicon
    citizen current, Apr 24th, 2009 @ 5:24pm

    illegal trademarks

    it is interesting the sheer power of the ever reaching law. To even mention a trademark and have that be illegal seems to be encroaching on the freedom of speech. I personally do not know trademark laws but know of a free legal advice forum http://www.isitlegalto.com. This site could help you determine if it is illegal to use a trademark.

     

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  •  
    identicon
    Miami Personal Injury, Oct 26th, 2011 @ 3:32pm

    Still absurd

    Well, I guess you could point that some companies don't want their brands to be asociated with certain websites, but still a lot of those cases seem absurd.

     

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  •  
    identicon
    mary, Aug 26th, 2012 @ 8:09pm

    Since When Is It Illegal To Just Mention A Trademark Online?

    Unfortunately people have varied definitions of the truth. Yes, law suits are/HAVE BEEN ridiculous but I also understand a national company not wanting just anyone to use their brand name.

     

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