Patterico's Pontifications

11/24/2010

IP Related Silliness? It’s on Like Donkey Kong

Filed under: General — Aaron Worthing @ 8:48 am



[Guest post by Aaron Worthing; if you have tips, please send them here.]

IP is lawyer talk for “Intellectual Property” which refers to more or less copyright, patents and trademarks.  And it’s important to remember that every single rule protecting these rights is also a restriction on freedom of expression.  I mean I think it is justified when used properly.  I mean, for instance, if you want to read good novels, then you need to make sure the author is paid for his work.  But if there were no laws preventing people from illegally copying that work, then you could literally destroy a writer’s entire income stream. And if writer can’t make money writing books, they are less likely to write books.  Of course the blogosphere is equally proof that a lot of people like to give their writing away for free.  Still within reasonable limits, I support the idea of IP law.

But sometimes it goes too far.  For instance, today I learned that Facebook is set to trademark the word “Face.”  Now there is some suggestion that this might be limited to online, but really?  The word “face” all by itself?

I am no IP lawyer, but what I do understand about this area of law suggests that this trademark is unlikely to be upheld in a court of law, whatever the trademark office says.

The irony is that Facebook was in fact the victim of a very real trademark violation a few months back.  As I wrote at Everyone Draw Mohammed:

I’d like you to meet someone.  This is Azhar Siddique.  This is what he looks like:

Sorry for the distortion, but that is how he appears on his facebook page.  Oh, whoops, I meant Millatfacebook.  This trademark infringing page has been set up as [a muslim] alternative to facebook, and what do you know, he is part of the team that runs it.  Now if I googled his name, where else do you think his name might show up?  Hmm…  Let’s give it a try…  Well you get stories like this:

And then I went on to quote this article:

Pakistan blocks Facebook over caricatures

ISLAMABAD (Reuters) – The Pakistan Telecommunication Authority (PTA) directed Internet service providers to block Facebook indefinitely on Wednesday because of an online competition to draw the Prophet Mohammad…

“The court has ordered the government to immediately block Facebook until May 31 because of this blasphemous competition,” Azhar Siddique, a representative of the Islamic Lawyers Forum who filed a petition in the Lahore High Court, told Reuters.

(emphasis added)

I go on:

Well, isn’t that a funny coincidence?  The guy who is working hard to ban facebook—not just the offending pages, but all of facebook—just happens to run a website that not only competes with Facebook, but in fact blatantly violates its Trademarks.

But I am sure that is all a giant coincidence.  I am sure the fact that this guy is trying to launch a competing international website has nothing to do with his desire to censor all images of Mohammed. Nah, I am sure his motives are as pure as new fallen snow.

I followed up on the issue, here.  The main highlight is that since then they changed their name to milatbook, and googling around today, it appears that the site no longer exists, though I could be wrong.  Whether threatened legal action played any role in that disappearance is a matter of speculation.

But all of this highlights one of the reasons why we can’t have laws like Pakistan’s anti-blasphemy law: because corrupt persons can then use such laws to their political, or business advantage.

Oh, and incidentally, in case you are wondering how a Pakistani Constitution that guarantees freedom of religion can be construed to make blasphemy of Mohammed (pedophilia be upon him) a capital offense, Mr. Siddique has a theory:

Judicial creativity must fill the gap between the existing law and the law as it ought to be. The constitution as the grundnorm should be interpreted according to current societal standards.

Ah, living constitutionalism is clearly the best way to permanently secure our rights.

In other IP related silliness, remember that viral video of that man singing “What What (in the Butt)?”  Well a while back on South Park the kids decided to make their own viral video, so Butters made his own rendition of the song in a parody of the original.  And now the company that made the original video is suing the makers of South Park.  Apparently they never heard of a little case called Hustler Magazine v. Falwell.  Oh, but that is right, liberals, you believe that corporations have no right to freedom of expression, so I suppose you think Falwell was wrongly decided?  Falwell should have won, right?

And finally you get to find out what I meant by the title of this post.  Nintendo is seeking to trademark the phrase “It’s on like Donkey Kong.”  Now I could go on about the silliness of suddenly deciding you own a phrase that has been slang for years, but instead I think I will like Stephen Colbert do the mocking for me.

[Posted and authored by Aaron Worthing.]

10 Responses to “IP Related Silliness? It’s on Like Donkey Kong”

  1. [Aaron, FYI, the link in your guest post byline at the beginning of your posts leads to a 404 error.]

    JVW (9bed62)

  2. When clicking through to the millatfacebook page i get:

    The page you are looking for cannot be found.

    Looks like someone has scrubbed the site already.

    Ryan (5e8966)

  3. jvw

    the email link. sometimes it does that for some reason. i will fix it, but it is probably recurring in alot of posts.

    Aaron Worthing (e7d72e)

  4. Thanks Aaron. Now it prompts the user to copy and email address, which works fine for me. I just passed along something to you.

    JVW (9bed62)

  5. Just to muddy the waters with pre-emptive usage in international publication …

    Face™!

    Tully (62151d)

  6. …today I learned that Facebook is set to trademark the word “Face.” Now there is some suggestion that this might be limited to online, but really? The word “face” all by itself?

    So will Stephen J. Cannell Productions have to change the name of one of their characters?

    Blacque Jacques Shellacque (609d83)

  7. I’m not an IP lawyer of any stripe, though I’ve worked on a case or two involving trademark, trade dress, and copyright issues. So take what I’m saying with the obligatory grain of salt.

    The PTO can give whatever it wants to whomever it wants; that doesn’t mean the decision will be held up in court. It seems to me like you have a trade *dress* claim one the whole blue and white “Face” thing, and that web sites that tried to pawn themselves off as affiliated by using it would be in violation of one law or another — but that there’s no way that you can get a super-generic trademark like “FACE” to hold up in court.

    But I also tend to have an optimistically and naively laissez-faire view of IP protections.

    Michael E. Lopez (a38623)

  8. I can see where Facebook’s coming from. As a lifelong news junkie, my interest in reading legal documents began with the SCOTUS decision finding for the creator of the board game Anti-Monopoly, who argued successfully that the Monopoly game had long been in the public domain and that Parker Brothers no longer held the trademark. It was then that I learned that common nouns in American parlance such as “aspirin,” “tarmac,” “ping-pong,” “yo-yo,” “escalator” and “zipper” were once trademarks that weren’t vigorously protected against use by the mark-holders’ competitors.

    Losing the Anti-Monopoly case before an eventual out-of-court settlement led Parker Brothers’ parent company General Mills to seemingly unreasonable extremes. It sued an Illinois hot dog stand called “Wee-Dee’s” (named after co-owner Richard Wehde) because of the phonetic similarity to its breakfast cereal “Wheaties.” Not making it up, folks. Nowadays, if you read the Columbia Journalism Review, you will see in each issue at least one half- or full-page ad from manufacturers urging editors 1) NOT to use their trademarks to describe items that may not have been their products, and 2) If it IS their product that is being described, to use “(TM)” or “(R)” when using the product’s name (e.g., “ROLLERBLADE (TM) brand in-line skates”, or “FRISBEE (R) brand flying disk”).

    Even Google has been careful not to too eagerly embrace its status as a verb. The case of “The College Politico” vs. Politico.com has been well-documented here at Patterico.com. Facebook is too valuable a mark to leave unprotected, so as heavy-handed as it seems, they have to sic the sharks on the little guys. Sometimes, as Charles Dickens wrote, “The law is an ass,” but when it is, you gotta saddle up and ride.

    L.N. Smithee (05d080)

  9. This whole thing is silly. Trademarks are not IP; they don’t exist to reward the company that owns them, but to protect the consumer from being defrauded by impostors. If there’s no likelihood of customers’ mistaking the alleged infringer for the trademark owner, then there’s no infringement.

    At least that was the case until the newfangled and totally evil concept of “trademark dilution” was introduced into the law; and that was only recently.

    So “millatfacebook” was not infringing on FB’s trademark, or at least not in any way that we should give a damn about.

    Milhouse (1448a4)

  10. Based on my experiences with FaceBook, I would say that it’s a stretch to apply the term “intellectual” property to anything associated with it.

    Gesundheit (aab7c6)


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