What about teaching the value of "context"? I think that is a VERY good lesson to teach kids. When I tell my kids, "Don't get out of bed." That doesn't mean I want them to stay in bed if the house is on fire!
Even before the Welles case, the "nominative use" defense first came out in a case by Mike's favorite band, the New Kids on the Block:
"New Kids On The Block v. New America Publishing, Inc. The band, New Kids On The Block, claimed trademark infringement arising from the use of their trademarked name by several newspapers. The newspapers had conducted polls asking which member of the band New Kids On The Block was the best and most popular. The papers' use of the trademarked term did not fall within the traditional fair use doctrine. Unlike a traditional fair use scenario, the defendant newspaper was using the trademarked term to describe not its own product, but the plaintiff's. Thus, the factors used to evaluate fair use were inapplicable. The use was nonetheless permissible, we concluded, based on its nominative nature. We adopted the following test for nominative use:
First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.
We noted in New Kids that a nominative use may also be a commercial one." --quoted from the Welles case.
Neither Lindsey nor the IOC can stop them from factually reporting that she used their stuff.
But Lindsey could embarrass them by criticizing the performance of their gear or publicly switching to something else and saying it's better. Since she doesn't have a licensing deal with them, she'd be free to do it.
Of course, if I'm the company, I'm feeling pretty safe at this point to sit back and enjoy the free publicity -- knowing that when the biggest race of her life came up, she chose our stuff and won -- enough said.
"In-school discipline is for in-school activities." Why? Is that how it is in the real world? What you do/say outside of work has no impact on your employment? Don't be silly. Of course it does. What virtue is there in giving students the false impression that free speech equals no consequences? I think it would be better to teach students accountability. (And some horrible teachers from the sounds of Liquid's experience!)
The point of education is to provide a "practice" environment to teach students life's lessons in a way that they can use and apply to the real world when they get out of school. I should think school discipline would be a far better and lower level of consequence than running to the police or the court system for enforcement. The story doesn't say the school expelled the student -- just that they were disciplined.
I see no compelling reason why the school cannot use this as an opportunity to teach through appropriate discipline.
Without details of how the fake myspace page was setup how can you judge the school for disciplining? Was it obvious that it was a parody page? I've dealt with this many times as an attorney for private schools (obviously different re: 1st Am. issues) but they can be downright nasty.
Would it change your mind if it wasn't obvious that the page was a parody and it said things that cast the teacher/administrator as a sex offender? Or a drug addict, etc? Realistically photo-shopped pictures of the teacher in fake compromising situations?
I think if the student was merely expressing his negative opinions on his own MySpace page it would be a clear free speech issue -- but you're dealing with a level of dishonesty here that certainly could create a discipline issue in the way it is executed by the student.
As I said, without details, this one is impossible to judge from media accounts alone.
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