TheAgitator.com
New Frontiers in IP Imperialism
Monday, January 14th, 2008Ford shuts down a Cafe Press calendar of Mustang enthusiasts posting with their cars.
Ford’s argument is pretty stunning: The company claims the design and look of the cars themselves is a trademark. So even images of the car can’t be reproduced without permission from the company.
I don’t claim to know the legal merits of that argument, but the contempt it shows for Ford’s own customers is pretty remarkable.
The courts might find this legal, but surely the courts won’t find that degree of stupidity in business management legal!
Clueless legal departments. These idiots just generated millions in badwill advertising.
There is a cliche about how in business, before a decision is implemented, they need to “run it by Legal” and see if there might be problems with the idea. Well, as this shows, legal departments should be running things by the PR people before acting. That would save companies a lot of headaches.
I will honor them and not spend my money on any of their products. I feel this may actually be a trick where they are trying to entrap me and drum up a lawsuit to make money off me later. I realize now I may be no longer buying the car but purchasing a long term lease of expensive hardware and would be actually getting charged to enjoy the use of the name on my piece of metal with tires. Will the hunk o junk morph and lose it’s distinguishable look at some point? They used to call that rust but now I’ve heard that I will need to renew my user license with the car manufacturer at some point too. *sarcasm drips for RIAA*
Actually, Ford *has* to do this, or they risk losing their trademarks. In the world of trademark law, a company with a particular mark has to demonstrate that they are actively preserving the mark, or else they risk losing it. For example, “crock pot”, “spandex”, “zipper”, and “touch-tone” were all formerly trademarks.
I suspect it’s because people are actually (attempting to) make money from their pics. Lucas (et al) don’t go after Star Wars fan pics/fics/movies when they’re not for profit (anyone remember Troops?)
That being said, this is just stupid.
I wouldn’t buy a Ford anyway. They suck. I like my Subaru
Hi all,
Sadly, so very sadly, I work in IP (I’m not proud of it, but since I can’t find a job in my chosen career, it’s a job that pays the bills). It is probably the most insanely stupid and petty business I’ve ever seen. It isn’t always about making money, rather it’s preventing others from making money (i.e. trading on the “goodwill” of your trade marks). To be fair, there are hundreds upon hundreds of dodgy businesses who will steal your trade mark or will come up with something nearly identical to your mark. Intellectual Property is important. Too often it’s carried too far… especially these days.
That said, in my professional opinion and without seeing the subject photos and calendar, I think Ford is very likely out of line. You cannot trade mark a car. You cannot get a patent for an entire car. The only thing you can get is a “design”, which barely prevents others from copying/manufacturing the same design for the purpose of selling the design.
The only things Ford could legally moan about is if the calendar A) uses Ford’s logos and trade marks separately and apart from the photos of the cars, and B) claims the calendar is officially endorsed by Ford Motor Company or produced by Ford.
That’s it. Shame on Ford for being morons and bastards.
Imagine taking a photo of your house, which you bought, and being told by the architect that he owns the IP of that house and therefore owns any photos you take of it. Ridiculous? You bet. Same thing applies here.
Besides, even if the claim were legit (and it’s not) the calendar could easily be made and sold on a fair use basis, since it’s unlikely that 100% of any car will be shown in the calendar.
WE can’t beat the Chinese, Japanese or Europeans but we can sure beat our selves. My ’89 Ford will be my last.
“Have you been driven away by Ford lately?”
If I owned a business I would want folks to be enthusiastic about my products. I’d want them to do things like this, it creates a community of fans that help sell my my products. Why would anyone crap on such a thing?
MY legal department would just make sure that the proper legalese went into the calendar such as “all rights retained by….” or “logos and trademarks used by permission” things like that.
Supposing they can trademark the design and appearance of the car, doesn’t a trademark only protect against someone else making another car of the same design that consumers might confuse for an actual Ford?
I made my way to the BMC forums run by the folks that were making the calendar, and saw an email received from Ford that was posted on there. I’ll just copy and paste it to save everyone some time…
“Ms. Wall,
Ford has spoken with Café Press and the Black Mustang Club and there are no issues with them printing their calendar. Ford takes the protection of its brands and licensing of them seriously and had previously contacted Café Press regarding violations of those agreements, that was not the case in this situation. However, as you design your calendars, please exclude the use of our logos and trademarks. ”
It sounds to me like someone was printing up stuff that used the Ford logo, and Ford contacted Cafe Press about it. I’m wondering if due to this contact the folks at Cafe Press decided that the BMC images were suspect, and rather than risk getting in trouble from Ford, just pulled them?
The last thing Ford needs right now is to alienate their customer base. If they’re smart, they’ll issue a press release, or something of the sort letting Ford enthusiasts know that the removal of this calendar was a mistake, and that’s it’s perfectly fine to show off pictures of their cars. If they were really smart, they’d use this incident to promote a contest in which folks with Ford cars can submit pictures, and vote on the best ones online. The winners of the contest would be in an “official” calendar, or some other publication.
Jay,
You should not conflate trademarks and patents so casually, and fair use really has nothing to do with NOT showing 100% of the item.
Trademark, as you stated, is to make sure consumers can identify the source of the products they buy. It promotes brand quality and loyalty.
Anything can be trademarked (e.g the shape of the coca-cola bottle is a famous trademark). It doesn’t have to be a name or official logo. The question is whether the average consumer has come to identify the thing with the product brand. (Often time litigation will invovle complex survey data as evidence.) In that sense, there is a very reasonable argument that a recognizable car is itself a trademark. Ford’s concerns is that if these folks take pictures of themselves with their mustangs and thne seek to sell that calendar, consumers will conclude that Ford itself is somehow behind the production of that calendar. Of course depending on the overall quality of the calendar, that is not exactly a huge stretch, though it does sound like a bad PR and business move for Ford.
So, Zeb, it doesn’t have to be an actual car to invoke trademark protection. If we imagined someone made remote control cars that looked exactly like Mustangs, Ford would probably wisely sue for trademark infringement.
Fair use would likely include using fords or pictures in a movie because no one would think that Ford was behind the movie and the movie required some type of car.
“You cannot trade mark a car. You cannot get a patent for an entire car. The only thing you can get is a “design”, which barely prevents others from copying/manufacturing the same design for the purpose of selling the design.”
I’m not sure what this means, particularly what is meant by a “design” here. Design patent?
In any event, the design of a car is subject to trademark protection. Nick isn’t quite right to say ANYTHING is subject to trademark protection. Functional design features are not subject to protection. Traffix Devices v. Mktg. Displays, 532 U.S. 23 (2001).
As for the (non-functional) design features of a car, the Sixth Circuit said in one case,
“The district court found, and we agree, that the unique exterior design and shape of the Ferrari vehicles are their ‘mark’ or ‘trade dress’ which distinguish the vehicles’ exterior shapes not simply as distinctively attractive designs, but as Ferrari creations.”
944 F.2d 1235, 1240 (6th Cir. 1991).
None of this is to suggest, however, that Ford is correct.
While the Ford logo, and the design of the cars are protectable, I cannot see how pictures of enthusiasts next to their cars gives Ford any IP rights.
Scroll down on the boingboing link to the post by WHITNEY of Ford Communications.
I think that will clarify what’s going on a bit.
-Dave
Ford can afford to piss of a few customers. After all they are selling their cars like hotcakes. People are practically knocking down the doors in the morning when the Ford dealerships open up. You can hardly keep any Fords on the lot. When you cannot keep up with demand you can afford to treat your customers like shit.
I am sure all of their lawyers and marketing geniuses graduated Harvard.
TFPIC
Ditto # 15, Mr. Krueger.
The problem here is using a trademark in ‘certain’ commercial ways. If it’s not even a commercial way, the law can’t apply.
Ford would be wise to admit as much.
#4, AlexK, however injects a little more FUD into the picture with the “Ford HAS to do this” nonsense. There’s no law (or court case) that says a company has to actively be a jerk about asserting their mark. There’s not even a law that says they have to be dilligent about policing their mark in appropriate situations.
FUD about “police it or lose it” is made-up BS, possibly by poor lawyers. Marks become generic (or don’t) pretty much regardless of how many nastygrams are sent out. Nastygrams probably won’t even turn the tide against looming generic-ness, but they definitely are NOT required.