Puma Ads
Elizabeth Spiers goes on the verbal offensive against Puma after they sent in the lawyers. [Gawker]
John, this post was prescient: "as a practical matter ... people get downright ornery when you try to enforce your IP rights and any attempt at enforcement would harm your public relations."
Legal Bloggers dissect the issues here.
Nick Denton discusses his intention to leave the images up.
Felix Salmon, who posted the ads at MemeFirst, quotes Marty and then states emphatically: "I'm never buying Puma shoes again. It's adidas all the way for me from now on."
Another thing that has everyone riled is the fact that Peter Kim, of Puma Interactive Marketing, who was interviewed by Salmon, said "that blogs are 'not a media outlet' and that they are therefore not protected on First Amendment grounds."
Also, thanks to everyone who has linked to TLA regarding the issues raised by Puma and these fake(?) ads and I hope to provide further discussion on the legal ramifications of blogging this weekend.
Marty asks several very interesting questions...
re shrink wrap clauses and I hope to provide an answer as soon as I draft some counterclaims in an answer that is due today. For now, you can ponder his query:
"I was mulling the ramifications of the scraping decision in Texas this week as I was standing in my driveway removing my home-delivered NY Times from its blue plastic wrapper, when the thought occurred to me: "Jeez, when is this winter going to end?" Also: if the NY Times printed a shrink-wrap license on this blue pastic bag invoking provisions regarding what I could do with the unprotectable facts in this paper, would a Texas (or some other) court enforce them? Does it have to be a shrink-wrap, can the Times merely print a "Browse Wrap" on its front page? Should a click wrap or browse wrap on a website treated differently than the theoretical one on a front page of a newspaper? Should the Times begin selling even newsstand copies in plastic bags with terms and conditions printed on them?" [The Trademark Blog]SHRINK-WRAP: First off, let's eliminate the shrink wrap and click wrap agreements and assume that Pro-CD will carry the day.
BROWSE-READ: Since Marty is in New York, my guess is that Specht v. Netscape Communications Corp. may apply (online or off) and require click-wrap or shrink wrap in order for the contract to be enforceable. However, if the Times utilized a browse read/browse wrap clause on the front page in place of "all the news fit to print" then there could be an argument to distinguish Specht. In Specht, the Second Circuit held that Internet users could not be bound by a license agreement mandating arbitration when the agreement was buried on the second page of a free software download program. [cite].*
This only begins to answer the questions... which are now more policy based... and I will have to think them over and get back to you soon. In the meantime, if you are really interested in this topic, you can peruse this article for more background on shrink-wrap agreements, copyrights and contract law.
* This is merely a preliminary, pressed for time draft and I reserve the right to modify and expand as I see fit.
March 13, 2003
The Legal Ramifications of Blogging, Squatting, Scraping, Clicking, and Linking on the Web
"Now the legal ramifications of blogging and its rumor mongering nature are being tested, with the outcome uncertain..." [Soooo 5 minutes ago] This blog is only 5 minutes old, but I enjoy the writing style and the topics are interesting as well as its' concept. Plus I've been on a kick all day to come up with a new title for this blog and my rebranding concept and it's been spit right out at me. I'll just leave it here for a bit and see what I think of it come tomorrow. No need to update blogrolls or anything like that I'll probably change my mind again in five minutes.
March 12, 2003
(Un)Official Word on Puma
Actual Malice: "I would think that Puma would have a claim again the creator of the ads (but whose identity they may never uncover). I don't think that the "First Amendment parody defense" is as clear. In order to be protected, the "parody" must comment upon or criticize the borrowed material. If Puma is known for pushing the envelope with sexually suggestive ads, then perhaps. Or if the fake ads had been for Pony, which recently announced that [Jenna Jameson] would be its new spokesmodel, the argument would be much stronger. However, "First Amendment parody defense" is not a magic phrase that makes your infringement worries disappear.
Also, as a practical matter I'm not sure it's worth the expense given the recent flak over Google's enforcement efforts (at least in the online community). It seems that people get downright ornery when you try to enforce your IP rights and any attempt at enforcement would harm your public relations.
With respect to the people that have re-posted the ads, these postings seem mainly to be done in conjunction with discussion over whether the ads are real or not, which to me seems a lot closer to fair use."*
Update: Official Statement by Peter Kim, Puma Interactive Marketing and here's his unofficial statement as relayed to Felix Salmon:
"[T]he fake ads constituted trademark infringement, defamation, and possibly libel, and that "definitely legal action is in the works". He told me that "it's a clear-cut case that this is illegal content," and that if MemeFirst didn't take the images down, it would face legal action itself."More: The Trademark Blog replies (indirectly) to Puma, who is clearly looking to get litigious or get more legs on this story (depending on who you ask):
"As to the threats that are being bandied about to those folks reproducing the ad on their sites, let's go over some (U.S.) ground rules. If you're not using the trademark in commerce, you're not infringing and you're not diluting. If you re-publish a false statement with the indication that it is false (and in fact publish it because its falsity is news), then you are not committing libel or trade disparagement. Now, if you're the person who created the ad, and then disseminated it indicating that it was an authentic Puma ad, that's a different analysis."The ads can be found here, for now.
March 11, 2003
Puma Resolution - Dilution v. Fair Use
Susannah Breslin received the following helpful information from Wendy Seltzer of ChillingEffects.org in response to the conveyance of infomation from Puma AG regarding unauthorized "bad taste advertisement" and their demand to take down the "fake ads". [see prior post]
Hi Susannah, From a quick impression, the most likely claim is trademark dilution, against which there's a fairly strong First Amendment parody defense.Well, I guess this answers some questions.
Most likely, Puma would claim that its brand is "tarnished" by appearance in these unsavory images (Coca Cola won a famous tarnishment case against the seller of an "Enjoy Cocaine" poster in their trademark script). You'd have a First Amendment defense that the images were parody, social commentary on the brand and the image it has tried to cultivate. L.L.Bean lost another famous tarnishment case against Drake's "L.L.Beam's Back to School Sex Catalogue". Your site's non-commercial nature is another factor working in your favor. I doubt there's a straight infringement claim, that consumers would be confused into thinking that Puma sponsored these images, but that's another possibility. To be on the safer side, you might change the text of the hyperlink to something other than the trademark. Note that the DMCA's notice and takedown provisions (and the DMCA safe harbor) don't apply to trademark claims; and a publisher can be held liable for publication of trademark infringement.
Conceivably, the creator of the image could claim a copyright infringement based on your copying, or if the image is an unauthorized derivative of an actual Puma photograph, the original's creator could claim unauthorized creation of a derivative work. That doesn't sound like what's happening here though.
I think the subjects' heads' being cut off precludes a claim of rights of publicity! [RCB]
Liz Shapiro: "These attorneys can't all be doing that badly." Ailing Economy, Exacting Performance Reviews [The Legal Intelligencer]
12 Months Ago Today
I decided to do something different for my one year anniversary at my current place of employment -- so I am staying here all night working on something or other until it's complete or it is 9 a.m. and it has to be faxed to Raleigh, NC for review by the senior attorney in charge of my litigation team.
1 year ago: Although I now almost always take the subway the 14.1 miles to work, I took the bus back home from my first day on the job since it's route passed by the tribute of light that marked the 6 month anniversary of 9.11.01.
18 months ago: Would you believe that I went to bed at 8:31 a.m. after spending almost 17 hours in the City the day before. What a difference 14 minutes make.
21 months ago: Law School Graduation.
77 months ago: Exited the NR subway stop at Courtland Street and into the WTC Mall for the first time ever to go to work at Bankers Trust across the street from the South Tower.
Scraping, Blocking, Suing and Enjoining
Denise has the story on the recent American Airlines v. Fairchase litigation wherein AA was granted an injunction prohibiting FairChase from accessing, using or scraping information from AA's web site for any commercial purpose.
One disturbing trend, [see prior post] also present here, is the enforcement of browse-read agreements to protect information placed on a web site. If the material is protectible under copyright law then contract law is unavailable [see prior post].
Whereas, if the material is not protectible, why should treatment differ from Feist, but it does if you treat browse-read the same as shrink wrap and invoke contract law, even though several courts have required click-wrap.
Actual Malice: [D]oesn't "O: The Oprah Magazine"™ also depict a voluptuous woman in fantasy settings." You decide.
March 9, 2003
Defining Advertisements:
If these ads are fake we may yet learn the definition of dilution. [per RCB] If they are real, then I think that these guys have been trumped.
An Informed Reader writes: "They're not fake - those ads have run in Maxim magazine in Brazil." [Ed. note: according to Maxim's masthead, there is no Brazil edition]
Gawker: "Puma ads may be fake."
* Talk about Fair Use.
* Power of the Fourth (Circuit) [NYT] [Balkin's thoughts]
Decisions, Decisions...
Blogs are now soliciting interns and/or employees. Here are some recent offerings.
This would be great if I had a clue or could afford 10-20 free hours per week.
The Trademark Blog is looking for Law Students Within Commuting Distance of Westchester... unfortunately I am no longer a law student. Man, I miss law school.
This place is looking for a summer law clerk, but in Delaware.
I'm not quite sure if this is a solicitation. Nevertheless, there are no IP opportunities.
Alas, I guess there are no decisions to make after all.
Kevin J. Heller, Esq.
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