Okay, THAT Would Be A Trademark Violation

[filkertom]

Why is this book cover a problem? Because it sure as hell looks as if it's authorized by Hershey, which it isn't.

Rule No. 1 of fair use: Don't be perceived as damaging a property.
Rule No. 2: Don't do something that makes it look as if you're the property owner when you're not.

Comments

[naja-pallida.livejournal.com]

Damaging the property though, really is rather subjective. Depending on content of course, one company may see it as damaging, another may see it as free advertising. Or in the case of something like parody of a song, one artist may see it as amusing, or even flattering, while another is appalled that their original work is changed to the whim someone else. I guess its a fine line. Of course, he probably could have asked the company ahead of time "Hey, look, I'm writing a biography about Milton Hershey, is there some sort of logo or design of the company's that I could be permitted to use?" Afterall, they did say they didn't object to the content. I'm sure they have some stock material they give to the press that he could have been permitted to use.

[filkertom.livejournal.com]

Well, the problem is that he didn't ask. When I do a parody, I am absolutely not trying to pass myself off as the original artist. For instance, the cover of Debasement Tapes was a very deliberate thematic mimic the cover of Bob Dylan's Basement Tapes. But in no way did I try to pass myself off as Dylan. (For which I believe we can all be thankful.)

But, by using the Hershey's logo and the design of the Hershey's Kiss, I think (and I bet the judge and/or jury thinks) a casual observer could easily believe the book was authorized by The Hershey Company.

[naja-pallida.livejournal.com]

What?! You're not Bob Dylan? All these years... I'm so confused. :)

[filkertom.livejournal.com]

First clue: most of the time, you can understand what I'm saying.










Funny how Bob Dylan and George W. Bush are never seen together....

[naja-pallida.livejournal.com]

If Dubya was even a tenth as eloquent as Bob Dylan with the written word he could get by with only a dry erase board for communication and no one would care. Unfortunately he's both unintelligible and illiterate.

deep thoughts...

[sylverwolfe.livejournal.com]

wow. thanks for the blank space. i think it's all that kept me from snarfing my ice cream. teehee.
oo. i sense a potential parody for your political blog. dubya as sung by dylan. hrm...

[tlatoani.livejournal.com]

Actually...

As an aside: under current US fair use law, you're allowed to damage the property as long as you don't compete with it. For example, you could write a song parody that so mercilessly lampoons the original that nobody will listen the original song any more for fear of being labeled a loser. You just can't write one that will make people who would otherwise have bought the original buy your parody instead.

However, fair use law isn't relevant, because it's about copyrights, and what the book cover is using is Hershey's trademark. Trademarks are handled differently, so what they're arguing is essentially that people would think this book is a Hershey product because it uses Hershey's trade dress. The law about making use of a trademark to criticize or comment on the company that owns it isn't as settled as fair use law, and it's relatively unpredictable. If this were the header for a newspaper or magazine article, I think they'd be fine, but a book like this could cause confusion.

[lizard-sf.livejournal.com]

While I may very well be wrong, I *believe* the 1996 extensions to the Lanham(?) Act allow for filing a trademark violation suit if a use 'dilutes' the value of a trademark, including mockery, etc. This is one of the most egregious changes to IP law in recent history, as it shifts trademark from a reasonable tool to protect both businesses and consumers from fraud (If you have come to trust GoodBrand(tm) toothpaste, and end up buying the cheap knockoff Go0dBrand instead and losing all your teeth, both you and the company are harmed) and instead becomes a tool used to quash criticism and commentary (for example, attacks (trademark)-sucks.com type sites). While such suits may ultimately end up being tossed, it's usually the case that the defendent cannot afford to do anything but comply with the C&D.

[tlatoani.livejournal.com]

I'm not completely sure myself, but I believe the doctrine of dilution was around well before 1996. Briefly, it's the concept that some marks are so widely known that use of them by others is actionable even if you can't prove that the public would be confused.

Some of those X-sucks.com sites have actually won in the past, but as you point out the mere filing of a C&D letter chases many people away.