Posted on 07/07/2003 11:31:40 AM PDT by mhking
Since he's engaged in commercial transactions, it's not speech. He's marketing a product which could have the FOX logo (which is trademarked) or Ann Coulter's picture. Is he even licensing the photos he plans to use on his shirts? This is why the first approach to these bottom feeders is "Cease and decist". He chose to broadcast his predicament and sell more shirts as a response (which shows willful disregard for the cease and decist notice).
Of course his site claims copyright on all of "his" works.
He also sells some authorized Ted Rall merchandise.
Remember that even Rush said that the EIB "university" shirts were unauthorized. It's not just about "squashing" free speech, it's about protecting copyrights, trademarks, and likenesses.
His bandwidth is strained and I found his site and images to be painfully slow loading.
Actually, one of the shirts does mock CNN's logo with a shirt proclaiming the PNN - Pentagon News Network. I guess FoxNews is just more sensitive to this form of t-shirt mockery, or maybe the executives at FoxNews really don't have any sense of humor.
How about Viacommie?
At the Code Pink-o Womyn for "Peace" Assault & Battery March and Rally on March 8, 2003, Exit148 got some shots of this babe, who felt it was her right to get in Doctor Raoul's face and try to argue with him. At times, she stood with her face literally just a few inches from his. Doc tried to shoo her away several times, but like poop on your shoe - she just stuck there. She was a most-annoying little pest that day; and when she realized that Exit148 was taking pix of her, she got kind of snitty about it. After Doctor Raoul managed to get her to move away from him, she then made the mistake of trying to engage Cal, who was happy to oblige. Every argument the woman tried to pose was quickly and expertly dismembered by Cal; and the woman finally walked away, defeated.
The folks who are buying the shirts are no doubt as reality-challenged as this dame was. It will be interesting to see how the Fox legal effort turns out.
Have you heard of the Federal Trademark Dilution Act? Perception is irrelevant. The law specifically states that "the likelihood of confusion, mistake, or deception" is meaningless. All that matters is that an attempt at dilution is occurring.
There are two ways dilution can occur: "blurring" or "tarnishment." I don't really think blurring would count in this case, so I won't get into it, but tarnishment sure does. The courts define tarnishment as "an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product." That is PRECISELY what the Agitproperties guy is doing.
Because the Agitprop guy did this to intentionally dilute the power of the trademark, he is risking a severe butt-kicking in court:
Ordinarily, only injunctive relief is available under the new law. However, if the defendant willfully intended to trade on the owner's reputation or to cause dilution of the famous mark, the owner of that mark may also be entitled to other remedies available under the United States Trademark Act, including defendant's profits, damages, attorneys' fees, and destruction of the infringing goods.Those "damages" can be treble damages, by the way.
Oh, and you can forget the "First Amendment" BS. The law specifically allows for three cases in which the First Amendment trumps the law:
(1) "fair use" of a mark in the context of comparative commercial advertising or promotion;I made it very clear in my original thread that it is the fact he is SELLING the t-shirts that will be his undoing. Any First Amendment protection falls apart when the only point of the so-called "political speech" is to turn a profit via the unauthorized use of someone else's protected trademark.
(2) non-commercial uses, such as parody, satire and editorial commentary; and
(3) all forms of news reporting and news commentary.
If Mr. Agitproperties wants to GIVE his t-shirts away, more power to him, and the courts will back him up. When he's just trying to hide behind the 1A in order to protect his newfound way of STEALING, the courts are going to tear him to shreds.
Not when it's the use of a registered trademark for commercial purposes without the consent of the trademark owner, it's not. The guy is not trying to make a political statement; he is trying to make a profit. That changes EVERYTHING.
Besides, any trademark violation can be turned into a "political" arguement; all the violator has to do is make some outlandish (and even blatantly false) claim about how the company whose trademark he's stolen is somehow "making kids work in sweatshops in China for 30 cents a day," or perhaps "doesn't pay women the same salaries it pays men," and voila, suddenly it's "protected speech?" Horsepuckey. The courts aren't that stupid.
O'Reilly is a different case. He's fair game in terms of what the shirt depicts.
O'Reilly's fair game, but that shirt too includes a giant depiction of what is obviously a completely unadulterated FNC logo. I don't know whether the courts will allow it just because the shirt is designed so that you can't see the word "Fox" in it.
In the end, the O'Reilly shirt doesn't matter anyway. The damages for the "Faux News" shirt alone will bankrupt this guy.
No, that's a copyright violation case you linked to. This case is about trademark violation, a completely different area of the law. mhking did make a mistake when he said "FNC has to protect its copyright." He should have said "FNC has to protect its trademark." We covered that earlier up in the thread, though.
He's going to run into trouble there, as well, because it can be proven in seconds that neither the phrase "Faux News" nor the taglines "We Distort, You Comply" or "Pentagon News Network," were invented by Mr. Luckett or anyone else on his staff. Google shows that "Pentagon News Network" has been around since at least January 1991. "Faux News" goes back at least to August 2000 (and probably earlier; I think I messed up that search). "We Distort, You Comply"? November 2000.
Attempting to copyright ideas in the public domain is not very smart.
Agitproperties is COMPLETELY SCREWED, and deservedly so.
By the way, why does Agitproperties not offer an MSNBC t-shirt? Could it be because they already tried, MSNBC sent them a cease-and-desist, and Agitproperties totally caved in because they knew nobody would support them in a fight against a LIBERAL news network?
Glad to see someone finally point this out.
Now one must define unwholesome or unsavory. You go on to make a legal point about the selling of the t-shirts as though that somehow proves that Fox "had" to issue a desist request but you stopped there.
What you haven't done is show that the trademark would be lost by a failure to act on the part of Fox.
If this were to proceed to court many arguments could be made and I would hope one of them would be whether the trademark "replica" was accurate enough to be confused with the true trademark but I merely pointed out that Fox need not have made a big deal of this unless they were prepared for adverse publicity.
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