Carnival Threatens To Sue Magazine For Using Its Mascot To Illustrate Story

from the intellectual-property? dept

David Canton points us to the news that lawyers for the Quebec Winter Carnival are threatening to sue the magazine Maclean's for illustrating a story about Quebec corruption with the carnival's mascot carrying a suitcase full of cash. The mascot is known as Bonhomme Carnaval, and the lawyers claim that it's an IP violation to use it in this manner:
"For the past 57 years, the Carnival has invested considerable energy and resources into protecting Bonhomme Carnaval's outstanding reputation," said the event's CEO Jean Pelletier in a statement released Monday afternoon. "We are therefore examining the options available to us to enforce our intellectual property rights."
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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Jim, Sep 30th, 2010 @ 9:15pm

    I can certainly understand the carnival company being upset at having it's mascot associated with corruption.

     

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  2.  
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    Tech Review Express, Sep 30th, 2010 @ 9:51pm

    IP is a funny thing

    IP rights are there to protect from this sort of thing. I hope they sue and win. It's one thing to use a brand's product to discuss that brand (i.e. if it were only the mascot and not the money), but it crosses a line when you connect a public company with an individual's misdeeds through company trademarks. If not an IP violation it is slander at least that is damaging to the corporate image. -Joshua TRE

     

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  3.  
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    Anonymous Coward, Sep 30th, 2010 @ 10:03pm

    That is a creepy mascot.

     

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  4.  
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    Mike Masnick (profile), Sep 30th, 2010 @ 10:07pm

    Re: IP is a funny thing

    IP rights are there to protect from this sort of thing.

    No. Actually not at all. Copyright & patent rights are to promote the progress, and trademark rights are to prevent consumer confusion on goods in commerce. This fits with neither of those things.

    It's one thing to use a brand's product to discuss that brand (i.e. if it were only the mascot and not the money), but it crosses a line when you connect a public company with an individual's misdeeds through company trademarks.

    I don't think anyone sees this and thinks that the carnival's corrupt.

    If not an IP violation it is slander at least that is damaging to the corporate image.

    Slander is spoken, so at the very least you would mean libel. But it's not that either. Libel means making false statements about someone. That didn't happen here.

     

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  5.  
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    Joe Sweet, Sep 30th, 2010 @ 10:15pm

    Whoah

    The carnival wouldn't be upset if they did things properly, sometimes you just have to a simple thing for you to be given a favor, just ask for a consent.

     

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  6.  
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    sinsi (profile), Sep 30th, 2010 @ 10:19pm

    Re: Re: IP is a funny thing

    >I don't think anyone sees this and thinks that the carnival's corrupt.

    Sorry Mike, that was my first impression. Especially with "The most corrupt province in Canada" in caps next to it.

     

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  7.  
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    Moron, Sep 30th, 2010 @ 10:28pm

    If I where a Moron in a hurry, based on that image I would definitely think that the Carnival was stealing money from people.

     

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  8.  
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    Anonymous Coward, Sep 30th, 2010 @ 10:50pm

    Re: Re: IP is a funny thing

    Gonna have to disagree with you here, Mike.

    For anyone who knows Bonhomme, the initial impression is that Carnival is the centre of the corruption.

    For anyone who doesn't know Bonhomme, any time they see him in the future, many will remember "Corruption".

    Not exactly the image you want following you around, when it's completely undeserving.

    Now, I'm not very well versed in Canadian Trademark law either, but this isn't a parody, and I highly doubt "association an organization with crime" falls under Fair Use (or the equivalent), and it most definitely is misleading to consumers.

     

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  9.  
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    Anonymous Coward, Sep 30th, 2010 @ 10:55pm

    Re: Re: IP is a funny thing

    As you know, trademark rights are also there to protect against dilution, and, whatever you think of dilution law, this seems like a textbook case of dilution by tarnishment.

     

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  10.  
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    DelBoy, Oct 1st, 2010 @ 2:49am

    Re: Jim

    I agree with Jim on this one.

    Gives the impression that the carnival is at the center of the corruption & is bagging the cash.

    If a magazine used Techdirts logo to highlight corruption within the internet (Corrupt internet NEVER!) then I'm sure you would be pissed.

     

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  11.  
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    Anonymous Coward, Oct 1st, 2010 @ 3:17am

    Counter suit?

    Would the magazine be able to counter sue for advertising fees after this?

     

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  12.  
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    Comboman (profile), Oct 1st, 2010 @ 5:55am

    Re: Re: IP is a funny thing

    I don't consider myself a moron, but I am in a hurry and based on that cover, I would have assumed that it was the carnival that was involved in corruption if I didn't read the article. To put this in American terms, if a Time Magazine cover showed the Phillies mascot running off with a bag of cash would you assume it was about corruption in the Pennsylvania government or in the sports team? Would the Phillies feel their trademark had been tarnished?

     

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  13.  
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    kilroy, Oct 1st, 2010 @ 7:10am

    Re: Re: Re: IP is a funny thing

    ... although the snowman represents the carnival, I did not assume the carnival was corrupt I know for a fact that there is a great deal of corruption in Canada & am not surprised that there is more in Quebec than in other provinces.

    The gov't of Quebec spends too much time & effort creating silly language laws & policies & not enough time weeding out corruption & the like.

     

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  14.  
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    kilroy, Oct 1st, 2010 @ 7:10am

    Re: Re: Re: IP is a funny thing

    ... although the snowman represents the carnival, I did not assume the carnival was corrupt I know for a fact that there is a great deal of corruption in Canada & am not surprised that there is more in Quebec than in other provinces.

    The gov't of Quebec spends too much time & effort creating silly language laws & policies & not enough time weeding out corruption & the like.

     

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  15.  
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    DS, Oct 1st, 2010 @ 7:39am

    Re:

    Well, don't be the mascot for a festival that is closely identified with a corrupt province.

     

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  16.  
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    Anonymous Coward, Oct 1st, 2010 @ 8:00am

    If the shoe fits.

     

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  17.  
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    Anonymous Coward, Oct 1st, 2010 @ 8:14am

    I was thinking, ok the province is corrupt... I bet the carnival they're running is part of it and being used to fleece people or launder money or something.

    Gotta say, if the carnival is a purely independent commercial enterprise it's a bit rough to be slapping their mascot on the cover in association with all this.

     

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  18.  
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    Marcus Carab (profile), Oct 1st, 2010 @ 8:24am

    Re:

    The carnival wants to be one of the best-known things associated with Quebec. And they have succeeded. And Bonhome is the face of the carnival. Like it or not, they have to accept that people are going to use the carnival and its mascot as symbols for the province.

     

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  19.  
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    Marcus Carab (profile), Oct 1st, 2010 @ 8:28am

    Re: Re: IP is a funny thing

    It seems like many people have interpreted the cover to mean the carnival is corrupt, and if that's the case I suppose there is the possibility of libel or defamation. But I don't think anyone has confused the cover as an endorsement or a brand mark for the magazine, so trademark should not be the issue.

     

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  20.  
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    Anonymous Coward, Oct 1st, 2010 @ 10:15am

    Re: Re: Re: IP is a funny thing

    Having been to Phillie numerous times, I'm not so certain such a perception would be false.

     

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  21.  
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    Gregg L. DesElms (profile), Oct 1st, 2010 @ 11:12am

    Once again, I must respectfully disagree

    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.


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

     

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  22.  
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    Marcus Carab (profile), Oct 1st, 2010 @ 12:43pm

    Re: Once again, I must respectfully disagree

    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).

    It seems to me that you are relishing power for power's own sake. You sound like you get a perverse joy out of the idea of financially ruining another person, even when you openly admit that you see asking permission as a formality/courtesy.

    It also sounds like you intend to use trademark law as a way of stifling discussion and criticism. Suddenly YOU are the arbiter of what is "fair and balanced," which is really something for the courts to decide - and somewhat besides the point anyway, since freedom of speech does not only extend to "fair" speech, and certainly not to one man's definition of "fair" speech.

    It's either permission in advance, or nothing. End of discussion.

    Since such situations often lead to protracted courtroom battles, it is clearly not the "end of discussion." Often enough, a perceived trademark infringement is the beginning of a very long legal 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.

    What of a company like Twitter that recognizes the benefits of loosening the reins on their trademarks?

    ...and to backtrack slightly:

    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.

    Doesn't sound very "love your fellow man" to me. At all.

     

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  23.  
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    rec9140, Oct 1st, 2010 @ 12:44pm

    quebecois over sensitized, period.

    quebec is the thorn in Canada's side and has been for a LONG time....

    Have to have french on the labels, everything done in french, want a govt. job in Canada, not if you don't speak french....oh.. got to protect the culture and language of quebec... wait a minute... lets review who NEEDS protection of THEIR CULTURE and LANGUAGE? ? quebec or the other NATIVE CULTURES of Canada like in the Yukon, Labrador, NWT? ?

    Lets see:

    English or Non French = 78.6
    French = 21.4

    I don't see where a language and culture that statistically is 1/5 of the country population but only covers a small percentage of 2-3 provinces needs any protection. The qubecois and company are doing a fine job as it is and imposing THEIR wishes on a clearly NON french speaking country. All the efforts and resources and money spent on protecting "french" could be far better spent to protect and promote...Inuktitut or other native languages etc...

    I can speak to this from having the misfortune of living in the Toronto area, and visiting the quebec province. One of the reasons I will not ever go back is this francais over everthing and especially English... Just ask a tourist who visited quebec what happens if you speak English to some clerk in the store... you be going home empty handed!

    Most corrupt province YOU BET! 100% DEAD ON.. .If they have any thing in common with their desire to be as much like the french, CORRUPT they got that down! Maybe thats why the french snear at the french quebec. most of france wants nothing to do with the province ne country that wants so desparately to be either a over seas french district or its own country. I say let 'em go! Should have done it the first go around!

    As for the whole flap...

    Its called:

    PARAODY and FAIR USE

    These trump your stupid "rights" period.

    As for any one who sees that horrid creature and associates it with the carnival being corrupt, well your at least partly right. But you missed the point... that character is widely associated with quebec in general in most aras, and especially in English speaking countries. Most non quebec know little about quebec other than the carnival, 76 olympics, failed baseball team (more to do with anti US and English than anything)... If they had used the provincial flag with the Fleur and cross on it would the provincial government be suing? ? ? ? How many would even know what that represented? ?

    The biggest whining and complaining come from those who are guilty when their lies and CORRUPTION is brought into the sunshine.

    Just expel the whole province and move on Canada!

     

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  24.  
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    Marcus Carab (profile), Oct 1st, 2010 @ 1:23pm

    er, one more point

    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.

    Ummm... no. I think it's quite clear that trademark protection does NOT afford them the right to prevent any use "at all... for any reason". Otherwise this would not even be a point of discussion, and MacLean's would never have put Bonhome on their cover, nor could any other newspaper or magazine or website ever put a brand logo in their publication for the purposes of commentary ever. In fact, they couldn't even mention the trademarked names of brands and products. There would be no criticism or "whateversucks,com" websites, no community review websites like Yelp, no business directories, nothing.

    You're either being very oblivious or very disingenuous when you suggest that trademark law affords total control and protection.

     

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  25.  
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    burdlaw (profile), Oct 2nd, 2010 @ 12:41am

    This reminds me of the political saying "Go ahead and call me any name you want, just use my name and use it a lot. Be sure to spell it right and publicize it widely. Then, when I protest and defend myself, I'll be even better known and even more famous." As a TM lawyer, I think Mike is basically right on this, but is missing the logic in it. Even bad publicity is often good. The suit is likely part of an advertising campaign. The fair should probably spend its money putting out ads protesting its association and claiming it is honest. All that publicity will make the fair more famous and their trademark more valuable not less. In fact, the suit is probably just that, more an advertising ploy than anything. Sometimes, if the press grabs onto a suit like this, it is huge free advertising of great value. Even if the fair loses the suit, the fair probably wins due to the publicity it brings. Most people going to a fair care whether it is exciting and fun, not whether it is corrupt. And, they are more likely to go if they know about it and there is a big fuss about it, perhaps even to see for themselves what all the fuss is about. Like rubbernecks at a traffic accident, you can tell people they should stay clear and not slow down, but they won't. They want to be there and see it and tell others they saw it. Advertising 101.

     

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  26.  
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    Jay (profile), Oct 3rd, 2010 @ 1:39pm

    Its also a freedom of speech issue. Freedom to not be forced to endorse or be associated with something. Trademark is also there to enforce this.

     

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  27.  
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    Anonymous Coward, Oct 4th, 2010 @ 3:47am

    Selective interpretation?

    It is important to test laws from time to time, so I hope there is a trial and look forward to seeing which way it goes. When I saw the cover, my immediate impression was Quebec and not the Carnival. Reading the posts here gives me the impression that I may be in the minority. I have to ask, how are people missing the big bold all-caps text next to the image that explicitly says "PROVINCE"? The front page taken as a whole makes the message seem pretty obvious, at least to me.

     

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