I agree with so much written on this web site that it always pains me a little to disagree; but, then again, that whole back-and-forth is what America is all about.

The article contained: “I’m not familiar enough with Canadian trademark law to know how this works, but it does seem pretty silly either way. It’s not as if anyone seeing the magazine would think that the carnival endorsed the magazine or anything. The illustration seems like a clever way to graphically illustrate the province of Quebec by using a symbol closely associated with it.”

I cound not more strongly disagree. And except for the accurate slander correction in Mr. Masnick’s response to the “IP is a funny thing” posting, I disagree with most of that, too.

There is a long history of case law which finds that the purpose of copyright and trademark amount to a whole lot more than that. One of the things I find irritating about some of what’s posted around here is that it is often about how the writer wishes things were, and not so much about how they actually are.

And I would argue that if the holder of a trademark can’t use the law to keep his/her trademark (an image in which s/he has invested huge amounts of money to be used by only him/her, and only in ways which benefit him/her) from being misappropriated and misused by others for their purposes (which may be directly in opposition to those of the trademark’s rightful owner), then of what value is it?

Trademarks are about image as much as anything else, and those who own them naturally do not want that image sullied by having them used by others in ways which somehow associate them, in the minds of those who see them so used, with controversy or negativity. In fact, most trademark holders don’t want them used by others at all… for any reason. And that’s their right. It’s part of what trademark protection affords them. And while those specific protections may or may not appear in the original trademakr statutory language, the volumes of case law since have clearly and unambiguously established them.

I, for example, had (and still kinda’ have) a web site planned for a religious organization I’ll likely be creating which involves a mascot-like cartoon character. If I develop it and the site and the organization, I can assure you that its image will be almost as important as anything else it does. And as “love your fellow man” as the organization will be, I can promise you that upon the first misappropriation of the cartoon-like character mascot by anyone else for any reason, I and the organization’s law firm will fall on the misappropriator like an old building. I’ll make Islam’s being upset about anyone showing an image of Muhammad look like a bunch of children playing jumprope.

And part of the reason I’ll be able to sleep at night after having forced the misappropriator to sell his house, his car and his Webber Kettle in order to pay me is because in multiple places on the web site will be my contact information, and notices that all one has to do to freely use anything on the web site is contact me and seek my permission; and I will assure (and my track record in life suggests that said assurance will not be empty words) that I will nearly always grant said permission as long as the intended use is fair… even if it’s critical… just as long as it’s fair (and balanced, and all that kinda’ stuff).

But use my trademarked image without having first obtained permission — no matter the use — and just watch what happens. It’s either permission in advance, or nothing. End of discussion.

Any operator of any entity which owns a logo, or an image of a mascot, or anything similar which conveys said entity’s image and unique identifiability would be in gross breach of his/her fiduciary responsibilities to said entity if s/he did not vigorously protect said logo, or mascot image, under any and all circumstances.

I’m happy for Mr. Masnick that he wants to (and clearly seems to sometimes believe that he actually does) live in a world where things are more relaxed, and more “live and let live,” where everyone can get along, and where no one does anything which results — either overtly or covertly — in real harm to others; and I’d characterize that, here, as but a fairy tale world…

…except that even Mother Goose and the Brothers Grimm recognized evildoers when they saw them.

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Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com