Is Getty Guilty Of Trademark Infringement For Every Photo It Has That Shows A Trademark?

from the 80-million-and-counting dept

And here we have yet another case of trademark law gone wrong. We've mentioned in the past that the company CAR-FRESHNER is so insanely over aggressive with its trademarks concerning its annoying pine tree-shaped car air fresheners that it takes out magazine ads warning photographers not to photograph the iconic air fresheners without permission. This struck us as trademark abuse. Contrary to the claims of the company, a trademark does not grant you all uses of a mark. It was initially designed as a consumer protection law, to help avoid consumer confusion. Unfortunately, aggressive trademark lawyers and the courts seem to keep expanding how trademark is interpreted, and CAR-FRESHNER may be leading the way towards a massive expansion of how trademarks can be asserted.

It appears that the company sued Getty Images for infringing on its trademarks on those tree shaped air fresheners because a few of the stock images available via Getty Images includes the tree. Getty Images responded that this isn't a violation of trademark law and is clearly fair use, so the claims should be dismissed. Unfortunately, at this stage, the court has refused to do that, and argues that CAR-FRESHNER actually has made a reasonable enough argument that there may be consumer confusion.

Really?!? I'm curious what moron-in-a-hurry is going to look at these images and think, "gee, the idiotically misspelled company CAR-FRESHNER must have sponsored this photograph that some person took in their car." I just don't see it. Furthermore, trademark (unlike copyright) has a clear requirement that the mark be "used in commerce." While Getty is certainly selling these images, it's ridiculous to think that it's using the trademark in commerce. It's just selling photos -- millions of them -- that photographers have taken. In this case, the "commerce" associated with AIR-FRESHNER happened when someone bought the little tree. Photographing it doesn't represent a new use in commerce. Except in this court, unfortunately.

And if you think this is just a minor issue, you're not paying attention. As trademark lawyer, Marty Schwimmer, points out in the link above, this could make Getty liable for every image in its collection that incidentally shows any trademarked item:
Given that Getty has 80 million images, it may have some agita that its fair use defense did not defeat a 12(b)(6) motion, given that perhaps some others of its 80 million photos that may depict recognizable trademarks as well.
While there may be some poetic justice, given reports that Getty is, itself, a rather insanely aggressive protector of copyrights, known to send out letters demanding huge payments for finding incidental parts of its images on websites, we should never celebrate the expanding of bad laws like this.


Reader Comments (rss)

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    Mike42 (profile), Oct 13th, 2011 @ 5:41am

    There you go, Mike, thinking that you can judge Trademark cases.
    Just sit down, take a deep breath, and realize that the best judge of the "moron-in-a-hurry" test is the Judge presiding in the case.

     

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      Anonymous Coward, Oct 13th, 2011 @ 6:06am

      Re:

      Brilliant comedy pseudo-trolling!

       

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      Anonymous Coward, Oct 13th, 2011 @ 7:44am

      Re:

      The best can be debatable, there are clueless judges too.

       

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      oldandbald (profile), Oct 13th, 2011 @ 8:29am

      Re: "Moron in a hurry"

      Nuf said.

       

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      Ben, Oct 13th, 2011 @ 10:55am

      Judges are in the pocket of those with the most money - TROLL

      Judges are notoriously in the pocket of those with the most money. You must be either a trademark troll or a lawyer

       

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        Anonymous Coward, Oct 13th, 2011 @ 12:20pm

        Re: Judges are in the pocket of those with the most money - TROLL

        "Judges are notoriously in the pocket of those with the most money."

        Throwing out such accusations reveals that you have no idea what you are talking about.

         

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          John Fenderson (profile), Oct 13th, 2011 @ 2:23pm

          Re: Re: Judges are in the pocket of those with the most money - TROLL

          ...or it reveals that he is paying attention.

           

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            Anonymous Coward, Oct 13th, 2011 @ 4:00pm

            Re: Re: Re: Judges are in the pocket of those with the most money - TROLL

            Sure. Like the judge in Minnesota who threw out three separate jury awards against Jammie Thomas, or the judge in Massachusetts who threw out the jury award against Tenenbaum. Totally in the pocket of the rich guys.

             

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              John Fenderson (profile), Oct 14th, 2011 @ 4:20pm

              Re: Re: Re: Re: Judges are in the pocket of those with the most money - TROLL

              Nobody, including the commenter, said that all judges were corrupt. Just that there is a large enough number of corrupt ones that the entire field has achieved notoriety.

               

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                MIKE MIDAS, Oct 27th, 2011 @ 4:50pm

                Re: Re: Re: Re: Re: Judges are in the pocket of those with the most money - TROLL

                I AGREE 100%.....THEY PLAY GOLF TOGETHER....JUDGE AND CAR FRESHENER LAYERS.....NOT LAWYERS......THEY ARE LAYERS!!!!!

                 

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    John Doe, Oct 13th, 2011 @ 5:44am

    I wish patents, trademarks and copyright would hurry up and strangle our economy

    The sooner that the courts and the government burden the commerce with overbearing patent, trademark and copyright law, the sooner it will crash and maybe lead to real reform. I would dare say that any new company to be created today will violate many patents, copyrights and possibly trademarks. Heck, I bet most existing companies do as well.

     

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      Anonymous Coward, Oct 13th, 2011 @ 7:26am

      Re: I wish patents, trademarks and copyright would hurry up and strangle our economy

      Unfortunately I must disagree with you that the more screwed up the patent/trademark/etc system gets the sooner it crashes and gets reformed. Look at US tax law, it's clearly screwed up when corporations earning billions of dollars pay zero dollars in taxes. Yet the chances of real tax reform look like next to nothing because if one party proposes any kind of tax reform the other party reflexively opposes it, even if they were the first ones to originally make the proposal the other party is pushing (see health care reform, Obama's health care bill is almost word for word the same as the Republican health care proposal from the 1990's).

      Worst yet, history shows even if we DID get major patent/trademark/etc reform, many of the rules under the current system (the kinds groups like the RIAA, etc like the most) would likely be put back into law in a few years.

      That's exactly what happened a few decades ago when the United States heavily reformed it's tax system. Within a few years many of the old rules that were so heavily abused were back on the books.

       

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        DannyB (profile), Oct 13th, 2011 @ 8:21am

        Re: Re: I wish patents, trademarks and copyright would hurry up and strangle our economy

        While it is true that US Tax law is rigged in favor of the rich and corporations, as you point out; that rigging did not generally affect the masses in a negative way that they perceived everyday. They had jobs, homes, toys, and improving tech that made their lives ever easier.

        Today, not so much. As a result, the fact that the system is rigged (not just taxes) suddenly catapults to the forefront of attention.

        Similarly, with IP law (copyright patent trademark), it mostly didn't affect most people every day. With improving tech that makes it cost nearly zero to instantaneously move vast amounts of bits to any point on the planet, IP law increasingly affects everyone, every day.

        Real reform happens when the masses revolt.

        As purely an observer, I find it interesting to see what could be described as the beginnings of that in the US, after watching it elsewhere in the world earlier this year.



        Instead of calling it TRADE-mark, it should be TIRADE-mark.

         

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    Anonymous Coward, Oct 13th, 2011 @ 6:15am

    I sell stock photos for a subsidiary of Getty and they have you remove any and all trademarked items from your images before they are accepted. I literally spent years taking the stupid bear off of all my boys' Gap polos so as not to infringe.

     

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      fogbugzd (profile), Oct 13th, 2011 @ 6:42am

      Re:

      To me the whole thing about blurring out logos on T-shirts and ball caps is crazy. obviously an over reaction to hyped up trademark attorneys. It seems to me that if you put an item out there to be worn and someone takes a picture of someone wearing it then that would be the very definition of fair use. Can you imagine how hard it is to put together candid photos for a high school yearbook when every company out there is marketing logo shirts to high school students?

      But of course we will continue to have to put up with this nonsense as long as there is a ton of money to be made by attorneys filing overly aggressive trademark claims and judges who are happy to play along.

       

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        Anonymous Coward, Oct 13th, 2011 @ 7:45am

        Re: Re:

        I find it comforting, they should instead remove it digitally though so there will be no more logos anywhere.

         

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        Anonymous Anonymous Coward, Oct 13th, 2011 @ 7:58am

        Logo's = Advertising

        Hell, logo's are advertising. I won't buy clothing that has such identifiable marks, because they don't pay me enough to advertise for them. They should be unimaginably happy that their mark is showing up EVERYWHERE, not fighting it.

         

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    Anonymous Coward, Oct 13th, 2011 @ 6:29am

    "Really?!? I'm curious what moron-in-a-hurry is going to look at these images and thing, "gee, the idiotically misspelled company CAR-FRESHNER must have sponsored this photograph that some person took in their car." I just don't see it."

    *think not thing

     

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      Anonymous Coward, Oct 13th, 2011 @ 7:40am

      Re:

      Meanwhile, "gee, the idiotically misspelled company CAR-FRESHNER must have sponsored this photograph that some person took in their car." gave me my first belly laugh of the day.

       

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    Remy, Oct 13th, 2011 @ 6:43am

    The government... All the same.. So bad ..

     

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    David, Oct 13th, 2011 @ 6:53am

    Blimey

    When you think how much people have to pay for product placement in films, to sue a company for advertising your products for free seems a bit silly.

    I would pay a lot of money to get my company logo on the Getty photographs, ideally every single one of them.

     

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    Old Fool (profile), Oct 13th, 2011 @ 6:58am

    Are vehicles not covered by cctv as they pass along highways?
    Will these images not contain pictures of a freshener tree hanging from the rear view mirror?
    Is the highways agency paying royalty fees?

    If these laws are to prevent confusion, they are not working, because I'm as confused as hell here.

     

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    AJ, Oct 13th, 2011 @ 7:06am

    !!! Does this mean everyone will have to be naked in every photo they put online or risk getting sued because the clothes they are wearing contain a trademark symbol?!

    Sweet ass apples! It's a porn bananza! Let me be the first to say that I welcome our new naked-trademark trolling overlords and I'm looking forward to our first photo shoot together.... o yeah!

     

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    MrWilson, Oct 13th, 2011 @ 7:13am

    The only effective solution for companies and individuals to prevent all trademark, patent, and copyright violations of their "intellectual property" is pretty freaking simple: stop publishing, producing products, or patenting things!

     

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    Andrew F (profile), Oct 13th, 2011 @ 7:19am

    Motion to Dismiss vs. Summary Judgment

    Keep in mind that the judge's refusal to dismiss the case at this stage does not mean the plaintiff has "won".

    First, you have to understand the distinction between questions of law and questions of fact. A question of law is something like: "Does U.S. trademark law apply overseas?" A question of fact is something like: "Was anyone actually confused by the CAR-FRESHNR pictures?"

    This is only a motion to dismiss. When considering a motion to dismiss, a judge must accept the plaintiff's facts as true, and only rule on the legal questions. So if CAR-FRESHNR has sued over photos not in the U.S., then Getty could dismiss by arguing that U.S. trademark law does not apply to those photos. That's a question of law.

    Presumably CAR-FRESHNR says there's customer confusion. While it may be obvious (to us) that there's no customer confusion, if there's even a .1% chance that's true, the judge has to accept that. This ties the judge's hand. While the judge may be skeptical about this, he can't do anything. Customer confusion is a question of fact, and are really hard to challenge at the motion to dismiss stage.

    This is different from a motion for summary judgment. On a motion for summary judgment, you're allowed to argue that the other side doesn't have enough evidence to back up their factual allegations. This is when the judge can demand that CAR-FRESHNR show evidence of customer confusion and can dismiss the suit once CAR-FRESHNR brings nothing.

    You could argue that judges should have more leeway to dismiss cases where it's obvious that plaintiffs can't bring any evidence to prove their point. Maybe. But that's not the law.

     

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      AJ, Oct 13th, 2011 @ 7:23am

      Re: Motion to Dismiss vs. Summary Judgment

      If what you say is true, then +1 insightful and 10 internets to you sir.

       

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      allomancer (profile), Oct 13th, 2011 @ 7:38am

      Re: Motion to Dismiss vs. Summary Judgment

      Thank you for that explanation of what's required for a motion to dismiss. Once more the comments to the article prove just as, if not more, informative than the article itself!

       

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      Anonymous Coward, Oct 13th, 2011 @ 8:05am

      Re: Motion to Dismiss vs. Summary Judgment

      Thanks for the explanation, but it raises a question for me - are judges not allowed to employ common sense? I mean that seriously. Seems much time, money, and manpower could be saved.

       

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        Andrew F (profile), Oct 13th, 2011 @ 10:00am

        Re: Re: Motion to Dismiss vs. Summary Judgment

        Sort of -- judges aren't required to accept factual claims that are incompletely implausible.

        But this is risky for the judge. There are two things at play here:

        (1) The "final judgment rule" says you can't appeal losing a decision until you've exhausted alternatives to appeal at the lower court. So defendants can't appeal a failure to dismiss because they have the chance to succeed at trial. But plaintiffs CAN appeal a dismissal, since if there's a dismissal, they never get to trial.

        (2) Judges hate being overturned on appeal.

        So if you're the judge, it's in your interest to not dismiss. If you dismiss, you have to worry about the plaintiff appealing right away. If you don't dismiss, you don't have to worry about anyone appealing until later.

         

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          Anonymous Coward, Oct 14th, 2011 @ 8:22am

          Re: Re: Re: Motion to Dismiss vs. Summary Judgment

          Ah, didn't know about the plaintiff appeal part, thanks again, Andrew!

          I asked about common sense because it seems that 10 minutes of dedicated thought about the complaint and the ripple effects that could arise out of finding for the complainant (as we see here in the comments) would lead to some very unworkable futures.

          But there is procedure to follow. Appreciate the response. :)

           

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      oldandbald (profile), Oct 13th, 2011 @ 8:41am

      Re: Motion to Dismiss vs. Summary Judgment

      Good analysis and shows that we can hold off on those 'stupid judges' comments.

      However looking at the basic argument of the case, there is someone who is being a complete idiot for thinking that a trademarked product somehow gives you rights to pictures of that product.

      We can only hope that in the Motion to Dismiss is als to consider CAR-FRESHNR a Vexatious litigant and sanction their Lawyers for bringing this forard.

       

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      DogBreath, Oct 13th, 2011 @ 10:41am

      Re: Motion to Dismiss vs. Summary Judgment

      A question of fact is something like: "Was anyone actually confused by the CAR-FRESHNR pictures?"

      You can bet the "CAR-FRESHNR" lawyers will try to present some expert morons-in-a-hurry who thought it was a scratch-and-sniff picture, and others who were confused enough to print the picture and hang it from their car mirror.


      Expert Morons-In-A-Hurry... coming soon to a court near you!

       

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      LawTalkingGuy, Oct 15th, 2011 @ 10:15pm

      Re: Motion to Dismiss vs. Summary Judgment

      "Keep in mind that the judge's refusal to dismiss the case at this stage does not mean the plaintiff has "won".

      First, you have to understand the distinction between questions of law and questions of fact. A question of law is something like: "Does U.S. trademark law apply overseas?" A question of fact is something like: "Was anyone actually confused by the CAR-FRESHNR pictures?"

      This is only a motion to dismiss. When considering a motion to dismiss, a judge must accept the plaintiff's facts as true, and only rule on the legal questions. So if CAR-FRESHNR has sued over photos not in the U.S., then Getty could dismiss by arguing that U.S. trademark law does not apply to those photos. That's a question of law.

      Presumably CAR-FRESHNR says there's customer confusion. While it may be obvious (to us) that there's no customer confusion, if there's even a .1% chance that's true, the judge has to accept that. This ties the judge's hand. While the judge may be skeptical about this, he can't do anything. Customer confusion is a question of fact, and are really hard to challenge at the motion to dismiss stage.

      This is different from a motion for summary judgment. On a motion for summary judgment, you're allowed to argue that the other side doesn't have enough evidence to back up their factual allegations. This is when the judge can demand that CAR-FRESHNR show evidence of customer confusion and can dismiss the suit once CAR-FRESHNR brings nothing.

      You could argue that judges should have more leeway to dismiss cases where it's obvious that plaintiffs can't bring any evidence to prove their point. Maybe. But that's not the law."

      Quoted for truthiness. And thus, the success of the "nuisance lawsuit" business model. It's easy enough to draft a complaint so that there exists a question of fact, preventing a cautious judge from granting a motion to dismiss. And a motion for summary judgment on the factual issues will have to wait until discovery of relevant facts. So the practical thing to do is settle for less than the anticipated cost of discovery.

       

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      dnball (profile), Oct 16th, 2011 @ 10:08am

      Re: Motion to Dismiss vs. Summary Judgment

      The judge should have granted the motion to dismiss. He failed in his legal analysis by skipping the threshold issue of whether the allegedly infringing mark was being used in commerce AS A MARK. Only if such use occurs can there be, as a matter of law, infringement of the mark. The judge's analysis on the merits began by considering whether Getty's "use" of the mark was a "fair use." But that presupposes that Getty is making a trademark use of the mark at all. It is not. This action, as a matter of law, is unsupportable and should have been dismissed. Regardless of the facts alleged in the complaint.

       

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    Legolas2112 (profile), Oct 13th, 2011 @ 8:17am

    Blurry Shows

    How irritating it is trying to watch those programs on History and Discovery where someone blurs out half the background! Hell, even to artwork hanging in people's homes!

     

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      Anonymous Coward, Oct 13th, 2011 @ 9:04am

      Re: Blurry Shows

      They're all doin' it.

      I watched Ghost Hunters on Syfy last night (yeah? so?) and they were prowling around in the dark at the Friars' Club in NYC.

      It's hard enough to see detail with those night vision cameras, but many pics on the walls were also blurred digitally.

      I see a lot of blurring of artwork on walls in homes shown on many HDTV shows as well.

      Of little note: I love looking at the artwork in the background on shows like Law and Order. Some of those suspects have really cool paintings!

       

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    DannyB (profile), Oct 13th, 2011 @ 8:27am

    Take it to its logical conclusion

    Make it illegal for a trademark to be within view of a camera, or a camera to see a trademark.

    How would this affect Big Brother surveillance cameras on public streets?

    Owner operated surveillance cameras in stores?

    Want to have an advertising free zone? Put a camera up first before there is any advertising. Such as on undeveloped land. Some people would highly value land free of views of any trademarks.

     

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    Ray Trygstad (profile), Oct 13th, 2011 @ 8:36am

    Getty does plenty of abuse of IP--but this is not an instance

    Getty has literally thousands of photos on their site that are official U.S. Government images from the armed forces and from NASA, all with the Getty copyright and watermark slathered across them despite the fact that BY LAW they are in the public domain. But this case is NOT an instance of their abuse of intellectual property.

    If everyone had to take down every photo with a trademark in it, what would be left? What would fans think if Nike started claiming trademark infringement and demanding a takedown of every picture of a football player displaying a swoosh? Shoot, they probably even have a trademark on the word "swoosh", so they could be coming after me next. Actually, no, they have more sense--but if I were to say "little tree", CAR-FRESHNER might come after me so I'd better watch my step...

     

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      Anonymous Coward, Oct 13th, 2011 @ 9:40am

      Re: Getty does plenty of abuse of IP--but this is not an instance

      Getty, Corbis, and other stock photo sites have tons of PD images including stuff from the Library of Congress, NASA, and other sources which they charge $$$$ for...without paying a penny to the sources!
      Their claim is clients like publishers and ad agencies are not paying for the pix, but for "added value" like digital clean up and convenience in sourcing the pix!

       

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    Robert Doyle (profile), Oct 13th, 2011 @ 8:42am

    It's funny that the companies want everyone to buy their product, but if you as a person can be associated with something negative to someone, they don't want people to actually know that you buy their brand.

    Yes, I would like that cake, and yes, I will eat it too.

     

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    iamtheky (profile), Oct 13th, 2011 @ 9:05am

    AIR-FRESHNER

    is what my mind corrects it to as well; but while it is misspelled, it is not the name of anyone involved.

     

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    Anonymous Coward, Oct 13th, 2011 @ 9:57am

    I think you're right that there would be little chance of confusion in most cases (maybe all cases), but I fail to see how selling photos is not a use in commerce.

     

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      John Fenderson (profile), Oct 13th, 2011 @ 2:32pm

      Re:

      I believe it's because the images include the tree incidentally. They're not selling the image of the tree, an image that happens to have the tree in it. Therefore, the tree itself is not being used in commerce: it is not the focus of, or used to brand, the thing that is being sold.

       

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        Anonymous Coward, Oct 13th, 2011 @ 4:08pm

        Re: Re:

        That's not how "use in commerce" works, though. Use in commerce refers to anything that can be regulated by Congress under the commerce clause. That would include any sort of interstate commerce, like selling licenses to a photo to someone out of state.

         

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          LawTalkingGuy, Oct 15th, 2011 @ 10:06pm

          Re: Re: Re:

          You are confusing the term "commerce" as it is used in the commerce clause (the Constitution grants exclusive authority to the federal government to regulate "interstate commerce" and to enact all laws "necessary and proper" to carry out that power) with the term "commerce" as it is used in trademark law (to be guilty of infringement, a defendant must use the mark in commerce -- meaning it must be used in connection with the sale of goods or services as an indication of the source or sponsorship of those goods or services).

          In this case, the good being sold is a photo, not an air-freshener, and it really would take a moron-in-a-hurry to assume that the photo was made or sponsored by Car-Freshner.

           

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    Boost (profile), Oct 13th, 2011 @ 10:04am

    Screw Air-Freshner and their poor spelling

    As far as I'm concerned Air-Freshner can die a quick death. I hate those little air fresheners anyway. The only people that use them are the same people who are too lazy to ever clean their car...so they smell like Evergreen Forrest AND moldy carpet. It's like people who smoke and then douse themselves with perfume/cologne...worst smell ever.

     

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    Anonymous Coward, Oct 13th, 2011 @ 10:11am

    Do you...

    ...remember when companies wanted and even payed money to have their trademarks get as much exposure as possible?

     

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    Greenzrx (profile), Oct 13th, 2011 @ 10:39am

    Culpability

    It seems to me that the manufacturer should have some culpability here. They are putting products out into a world where they cannot help but be seen, and by extension, photographed.

    If the manufacturer is unhappy that their product is being displayed in a manner that they do not condone, they should make their product more inconspicuous, or at least less recognizable.

    Putting a string on the air freshner [sic] only encourages the end user to hang the device from their rear-view mirror. Had the manufacturer in fact, designed the device to be hidden, say in a vent, or under a seat, they wouldn't have to worry about images of their product being bandied about the web, willy-nilly.

    The least they could do is print a camouflage pattern on their 'tree' I'm sure a certain demographic might even find that preferable to the current design.

     

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    Gordon Peterson (profile), Oct 13th, 2011 @ 11:52am

    Get real!!!

    If this were held valid, then any photo (news broadcast, etc etc) in a public place which showed (for example) a trademark logo on a vehicle driving by would be unusable other than by the vehicle's manufacturer (and they couldn't use it either, if it also showed a trademark belonging to ANYBODY ELSE). (Actually, since those vehicles have design patents or copyrights, any vehicle with an identifiable manufacturer's design would be illegal too).

     

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    MIKE MIDAS, Oct 27th, 2011 @ 4:40pm

    CAR FRESHENERS - DO NOT BUY THIS PRODUCT

    CAR-FRESHENER - BAD COMPANY - SIMPLE SOLUTION.....DO NOT BUY THEIR PRODUCT.
    PLEASE ADVERTISE THIS AS MUCH AS POSSIBLE.
    DO NOT BUY CAR-FRESHENER PINE TREE / LITTLE TREE AIR FRESHENER!!!!!
    DO NOT BUY CAR-FRESHENER PINE TREE / LITTLE TREE AIR FRESHENER!!!!!

     

    reply to this | link to this | view in chronology ]


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