Working clarification to no_copyright.txt

Grim_Arbiter · 2019-03-11 22:50:07

jasonrohrer wrote:

Also, from my understanding of trademark, I would be free to do this:
https://i.imgur.com/aHa7YFl.png
Seems pretty ridiculous.

From my understanding they could probably hit you with a trademark infringement for that..

"a plaintiff must prove that it owns a valid mark, that it has priority (its rights in the mark(s) are "senior" to the defendant's), and that the defendant's mark is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or services offered under the parties' marks."

If you flipped the M and made it "wcdonald's" with everything else the same you would have a better case of being free do do it. After all you can't own a color scheme, and that's the main thing that catches your eye in that logo and name.

CrazyEddie · 2019-03-11 22:56:53

... accordingly, it occurs to me that it would probably be in your best interest to draft a more formal agreement with Dual Decade regarding the use of your trademarks. That agreement should probably take the form of a contract. A contract necessarily requires the explict exchange of considerations, which means that you would have to give them something (a license grant) and they would have to give you something (something more than merely goodwill; for example, say, a sum of money).

This would help ensure that DD's use of the trademarks could not be used by someone else as an argument towards the genericization of those marks. Your current non-contractual agreement with them regarding their use of your trademarks wouldn't be as much help, and in fact might even undermine your efforts to assert your mark ownership due to the language you used in that email.

CrazyEddie · 2019-03-11 22:58:12

Grim_Arbiter wrote:

After all you can't own a color scheme.

You can absolutely own a color scheme.

Grim_Arbiter · 2019-03-11 23:03:35

CrazyEddie wrote:

Grim_Arbiter wrote:
After all you can't own a color scheme.
You can absolutely own a color scheme.

Trademarking a color allows a company to use a particular combination and shade of color in its own industry. McDonald's doesn't own the colors yellow red and white until you try to make a competitive burger chain against them.

CrazyEddie · 2019-03-11 23:28:38

As I mentioned previously...

The rule is not "within the same industry", although that's a useful guideline. The rule is "tends to confuse the public as to the origin of the product".

A set of three colors is not "a color scheme". A color scheme is the use of a set of colors in a particular way so as to create a distinctive appearance and style. Distinctive appearances and styles can be trademarked.

So, no. No one can own the colors red, yellow, and white. But McDonald's owns their color scheme, which uses the colors red, yellow, and white. You too can use the colors red, yellow, and white, but not in the distinctive way in which McDonald's does.

Grim_Arbiter · 2019-03-11 23:44:08

Well that's where the parties involved (if it ever goes to that) have to figure out what those distinctions are in the first place.

If we're still going with the WcDonald's videogame example, you could use a parody defense and probably win.

I remember t mobile going after a german net company for using "thier" color pink a while back, but I think it ended up never going to court.

*edit

After a quick research I was confusing multiple t mobile stories and they are actually very willing to battle for that color

Last edited by Grim_Arbiter (2019-03-11 23:48:59)

CrazyEddie · 2019-03-12 00:20:50

Grim_Arbiter wrote:

If we're still going with the WcDonald's videogame example, you could use a parody defense and probably win.

Only if it was actually a parody. Courts are very good at seeing through ruses.

jasonrohrer · 2019-03-12 02:07:18

What I was missing here was that logos can also be copyrighted. See:

https://www.copyright.gov/help/faq/faq- … html#title

For actual trademark law applied to logos:

The USPTO determines that a likelihood of confusion exists when both (1) the marks are
similar, and (2) the goods and/or services of the parties are related such that consumers would
mistakenly believe they come from the same source. Similar marks or related goods/services by
themselves are not enough to support a finding of a likelihood of confusion, unless a court has
held that the mark is actually a famous mark. That is, generally two identical marks can co-exist,
so long as the goods and services are not related.

https://www.uspto.gov/sites/default/fil … cFacts.pdf

I suppose the courts have held that it is a Famous Mark.

Also, here's a full trademark search for the word "McDonald's". You can see that they've registered in many distinct areas of business, including toys, ornaments, and clothing.

http://tmsearch.uspto.gov/bin/showfield … bmit+Query

jasonrohrer · 2019-03-12 02:31:02

Also, dilution and blurring of a famous mark, even in a totally different area of business (Chanel Real Estate denied).

https://www.newyorktrademarkattorneyblo … -blurring/

lionon · 2019-03-12 05:32:58

The word "McDonalds" surely is likely protected beyond restaurants, toys etc. whatever they are doing business in (in the last 5 years). Especially considering it's just a Scottish surname. The golden arches... is a different topic, as you're going into copyright as well. Like "apple" the music label surely can't use the bitten off Apple logo. I believe if you go make a video game called "McDonalds" thats about the life of a Scottish farmer and don't use their logo or play any other way on resembling them etc. you have a chance to get away with it, albeit you know big corps using loads of lawyers just to defend their turfs against small, the usual story.

@CrazyEddie since you seem to know at least more than most here, what is your opinion on how far the trademark stretches? In my understanding it is exactly what Jason uses to market the game, not a "second order copyright" of everything in the game, which would be covered exacly what Jason doesn't want to participate with, copyright.

CrazyEddie · 2019-03-12 13:44:26

lionon wrote:

@CrazyEddie since you seem to know at least more than most here, what is your opinion on how far the trademark stretches? In my understanding it is exactly what Jason uses to market the game, not a "second order copyright" of everything in the game, which would be covered exacly what Jason doesn't want to participate with, copyright.

Thanks for your vote of confidence! But I don't know the answer, and I know that the answer likely depends on a number of factors (including factors I don't know about), and I politely decline to do the substantial research that would be required to make my opinion at all relevant.

I like spouting off as much as the next guy, and I actually enjoy reading and learning about this kind of stuff, but I know enough about it to know that a meaningful answer would require more reading and learning than I have time and curiosity for.

This is why people who can actually answer that question get paid to answer such questions.

CrazyEddie · 2019-03-12 13:58:00

jasonrohrer wrote:

For actual trademark law applied to logos:
The USPTO determines that a likelihood of confusion exists when both (1) the marks are
similar, and (2) the goods and/or services of the parties are related such that consumers would
mistakenly believe they come from the same source. Similar marks or related goods/services by
themselves are not enough to support a finding of a likelihood of confusion, unless a court has
held that the mark is actually a famous mark. That is, generally two identical marks can co-exist,
so long as the goods and services are not related.

Jason, note that the discussion you quoted there is about the USPTO application process, and outlines the criteria under which the USPTO will review the application.

Even if the USPTO accepts a trademark application and grants a registration, the mark may be infringing and the registration may be invalid. But the question of whether it is infringing and invalid will be done via the courts, and a different set of criteria will be brought into consideration.

Also, the document you quoted doesn't comprise the entirety of the criteria that the USPTO will use to determine whether or not to grant your registration request. It's an outline of the "basic facts", but the actual process will (or rather, might) involve the entirety of trademark law as embodied in statutes, regulations, and court decisions... depending on the examiner that handles the application.

[Edit:] Also, the section you quoted isn't specifically about logos. A name can be a mark. So when they say "generally two identical marks can co-exist, so long as the goods and services are not related" they're talking about names, such as Harry's the grocery store and Harry's the pizza joint. If you took the distinctive logo that the pizza joint uses and tried to use it on your muffler shop (for some reason) then independently of the copyright issues you would also have a trademark issue even though mufflers and pizza are unrelated products, because the distinctive logo would tend to confuse the public as to the origin of the products. If the logo was sufficiently distinctive and the two logos were sufficiently similar there could be a finding of infringement even if the mark was not famous.

... I think.

Last edited by CrazyEddie (2019-03-12 14:14:20)

jasonrohrer · 2019-03-12 16:05:20

In the PDF guide, they give loads of examples of this, including two different brands that use exactly the same logo image. This part of the guide is quite amusing, and worth looking at. Starting at page 8 here:

https://www.uspto.gov/sites/default/fil … cFacts.pdf

My understanding, from looking at case law, is that only "famous marks" are subject to dilution or blurring. And I'm assuming that "famous" is relative to geographic area as well. So a local business that is well known locally can protect its mark against other, unrelated businesses in the same area (pizza shop and muffler shop can't use the same logo), but cannot protect its mark against other, unrelated businesses (or even identical businesses) operating in another state. I.e., I think that two local pizza shops operating in different states can probably use the same name and same logo.

The thing with McDonald's and Apple and Chanel is that they are "famous across the land," and in the McSweet case, McDonald's pointed to how many stores in how many locations and how many millions of customers, and furthermore, how widespread their Mc_____ branding has become (McMuffin, McFreeze, McRib) across the land.

If I were their lawyer, I would have brought up the term "McMansion" to demonstrate just how widespread the association with Mc has become. "Mc" means "anything cheaply made with low-quality components for mass consumption," that's just how strong the public association has become, and everybody associates that with McDonald's restaurants.

McSweet pickles, on the other hand, are a high-quality product. Thus, they would cause confusion in the mind of the consumer if they used Mc in their name. "Wait, these pickles don't taste like salted wallpaper paste?"

CrazyEddie · 2019-03-12 17:04:15

It's true that dilution claims can only be brought if the mark is famous. Fame here is not relative or local; it must be nationwide.

However, while dilution claims are reserved for famous marks, the normal trademark claim is available to any mark owner: likelihood of confusion as to the origin of the product. And while "separate channels of trade" is a defense, it's just one factor. Similarity of marks is another factor, as is distinctiveness of marks. So if my pizza logo is very distinctive, and you used the exact same logo for your mufflers, then I would probably prevail in court, even though my mark is not famous.

... I think.

I haven't found a high-quality source that confirms that, but here's an offhand comment from someone who sounds like they have at least a little knowledge:

There’s a kind of sliding scale – the more similar the marks are, the less similar the goods/services have to be, and vice versa. The key question is whether consumers are likely to be confused between the origin of goods sold under one trade and those of the other.

Now, normal trademark claims like this do have some local considerations, but only with respect to priority of use. If you are the first to use a mark in an area and the mark is not yet registered, then you have priority of use in that area. If you are the first to register a mark, then you have priority of use nationwide, except in any area where someone already has an established use of that mark. But if someone else has a registered mark, you cannot start to use that mark in any area where you were not already using it before the mark was registered.

So two pizza shops in two different states can use the exact same name and logo unless one of them not only used it but registered it, and did so before the other one started using it.

Last edited by CrazyEddie (2019-03-12 17:34:49)

CrazyEddie · 2019-03-12 17:28:19

Here is an excellent article that expands on my point that there are multiple factors that are considered when evaluating trademark infringement, and that no single one of them is dispositive in either direction: https://www.njlawblog.com/2018/11/artic … confusion/

Whether your muffler shop could use the exact same distinctive logo as my pizza shop is not an open-and-shut case. It would depend on the specific facts at hand. But in every case, the factors would be evaluated as a guide towards answering the ultimate question: is the use of the mark likely to confuse consumers as to the origin of the product?

The same considerations guide whether my OHOL bath towels infringe on your OHOL online game... or, frighteningly, the reverse!

Last edited by CrazyEddie (2019-03-12 18:01:03)

jasonrohrer · 2019-03-12 20:42:05

Still waiting for those OHOL bath towels.

My body is wet and ready....

...to be dried off by the towels, of course!

All this stuff reminds me that so much of this is a "know it when I see it" judgment on the part of a judge, jury, or USPTO clerk.

My fundamental philosophical questions about the validity of copyright and patents as an enterprise has been restored by that book. It's an excellent and dare I say entertaining read. Curious to hear your thoughts about it, Eddie:

https://mises.org/library/against-intel … property-0

He seems to get a little hand-wavy about trademarks.... they protect the public's right to not be deceived, and the public would be the ones that would have cause for legal action. But if we're going to let owners have cause for action to protect their trademarks, we're again granting them the right to control what an unlimited number of independent actors are allowed to do with their own rightfully acquired property.

And that point about copyright is really hard to assail: If I claim copyright over my poem, I claim a right to limit what you may do with your own ink and your own paper (you may not write down a copy of my poem, among other things). This is very strange: the act of me creating a poem suddenly gives me a partial claim over the rightly-acquired physical property of an unlimited number of other people. Likewise if I figure out a way to carve a log so as to better crack walnuts, and patent that carving method, I supposedly gain the right to limit what you can do with your own rightly-acquired log. This just cannot be right or just. It's your own damn log!

CrazyEddie · 2019-03-13 00:03:35

I'm somewhat familiar with the libertarian case against copyrights and patents; I'm rather libertarian myself, at times even radically so. I haven't read Kinsella's book but I've read the occasional article by him and others on the topic.

I'm ambivalent on it myself. I'm not convinced that copyrights and patents are natural rights (which are the only kind that many of us libertarians recognize!), but at the same time I don't see them as particularly offensive, and do see that they have the potential of providing a great deal of value to mankind by incentivizing creation and innovation.

One note, which doesn't necessarily undercut your points: copyright doesn't control what you can do with your own ink and paper; it controls what you can distribute, i.e. it's a restraint on commerce (or non-commercial trade), not specifically on personal actions and personal property.

I'm not crazy about the modern-era trend of extending copyright periods. I think that's been a particularly egregious bit of rent-seeking and that the periods have been extended far beyond what can be supported by arguments about creating incentives for creativity.

Starknight_One · 2019-03-13 12:43:38

CrazyEddie wrote:

I'm somewhat familiar with the libertarian case against copyrights and patents; I'm rather libertarian myself, at times even radically so. I haven't read Kinsella's book but I've read the occasional article by him and others on the topic.
I'm ambivalent on it myself. I'm not convinced that copyrights and patents are natural rights (which are the only kind that many of us libertarians recognize!), but at the same time I don't see them as particularly offensive, and do see that they have the potential of providing a great deal of value to mankind by incentivizing creation and innovation.
One note, which doesn't necessarily undercut your points: copyright doesn't control what you can do with your own ink and paper; it controls what you can distribute, i.e. it's a restraint on commerce (or non-commercial trade), not specifically on personal actions and personal property.
I'm not crazy about the modern-era trend of extending copyright periods. I think that's been a particularly egregious bit of rent-seeking and that the periods have been extended far beyond what can be supported by arguments about creating incentives for creativity.

Exactly. Read Spider Robinson's "Melancholy Elephants". Eternal copyright would kill creativity; it's far too easy to make a derivative work unintentionally (look up the legal action surrounding George Harrison's "My Sweet Lord", for example). A reasonable copyright term - say, 25 years, like patent rights - would allow a family to profit from a particular work for a time, then release the work into the public domain for others to remix as they chose. But the big media corporations don't want that (Disney, I'm looking at you in particular) because they'd lose exclusive access to 'their' characters, and so they keep lobbying for longer and longer copyrights.

jasonrohrer · 2019-03-13 16:07:28

CrazyEddie wrote:

copyright doesn't control what you can do with your own ink and paper; it controls what you can distribute, i.e. it's a restraint on commerce (or non-commercial trade), not specifically on personal actions and personal property.

Eddie, you're wrong about this. See: https://www.law.cornell.edu/uscode/text/17/106

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;

Thus, you have the exclusive right to the very act of reproduction, and the very act of preparing derivative works. Whether the infringing party distributes the reproduced or derivative work, or engages in commerce, is irrelevant. (Whether private acts are possible to police is another matter.) The same holds true for patents, as I understand it, though I haven't studied it as closely.

That's why I've referred to collage as the illegal art form. Illegal to even create, in the privacy of your own home, from magazines, etc.

This may be somewhat tempered by the rules for fair use. See: https://www.law.cornell.edu/uscode/text/17/107

for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,

The key phrase there is "such as," so other uses may be included there, and then we also would need to consider the four-factor test. Some collages seek to comment, of course. But what about those that don't?

Also, see:

https://en.wikipedia.org/wiki/Lewis_Gal … erica,_Inc.

Nintendo could not demonstrate harm from the private use of the Game Genie to create non-profit derivative works in people's living rooms.

But at least one judge ruled on whether such consumer activity created derivative works at all, not whether the derivatives were fair use:

Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work.

Regardless of the fair use exception, the underlying principle still stands: the copyright owner has the right to say who can do what with this material.

And there is no such fair use exception for patents. Which means the person who invents a novel use for a log can supposedly limit the private actions of every person in the land with their own logs.

fragilityh14 · 2019-03-13 17:10:23

jasonrohrer wrote:

Regardless of the fair use exception, the underlying principle still stands: the copyright owner has the right to say who can do what with this material.
And there is no such fair use exception for patents. Which means the person who invents a novel use for a log can supposedly limit the private actions of every person in the land with their own logs.

i don't know how much you know about beekeeping [your knowledge is pretty broad, so i'd imagine at least a little] but Langstroth tried to patent his moveable comb hive [the most common kind now] in this way. He wasn't even trying to sell them, he just wanted everyone [except preachers of the Gospel, who were allowed free use] to just send him a dollar or whatever amount of money if they made one of his hives at home.

Suffice to say, he wasn't even mildly successful at defending or profiting from this patent, because no one who buys a book with instructions to make something for personal use is going to send the book's author money each time they make one. i think he had some success in stopping commercial sale of finished hives for a period of time, but the patent simply didn't work as intended.

lionon · 2019-03-13 17:12:26

Since this has turned into a philosophical just another 2 cents.. While I do see that intensive lobbying has smudged copyright (foremost some comic enterprise to keep a mousy character in protection -- that is the most problematic area is likely it's very extensive period) the original idea was good. Before copyright people were extremely protective of their stuff, as to physically hinder anyone to make a copy of it? "You want to take that book home? Surely not, you may only read this, in this protected hall with a guard watching you..." The original idea was to liberate it, so people feel more secure sharing their stuff. To some degree this kind of protection is returning with big film, as to control you cannot make a physically make a copy until the box office paid off.

At least so I read, dunno if this was that historical correct or a a marketing pitch for copyright.

SImilar with patents, the core idea was well intended, again encouraging people to share their ideas, some developments turned problematic tough...

CrazyEddie · 2019-03-13 17:29:24

Eddie, you're wrong about this. See: https://www.law.cornell.edu/uscode/text/17/106

Huh. I learned something. Thanks.

Also...

There is a kind of "fair use" exception for patents: experimental use. It's restricted to "amusement, satisfying idle curiosity or strictly philosophical inquiry" that are not "in furtherance of a legitimate business purpose", and where the use is "in the case of an individual’s general interest without any intention to profit" and is "only de minimis, small-scale tinkering".

http://nysstlc.syr.edu/experimental-use … ringement/

But, yes. If your intention is to use a patented machine for a useful purpose pursuant to its patented use, it doesn't matter whether you buy the machine from someone or build it yourself using your own materials. In either case, the use of the patented machine for the patented purpose infringes on the patent.

Last edited by CrazyEddie (2019-03-13 17:48:26)

jasonrohrer · 2019-03-14 03:28:46

Even if you invent it independently, but later, without ever seeing the original patented machine!

Frag: I didn't say that patents were actually possible. But that is the underlying philosophy of them, and it clearly borders on the absurd.

That IP book that I linked elsewhere has interesting discussion of copyright/patent as contract. I sell you this book, and the sales contract includes a clause where you agree not to make copies of it. The same when I sell you my patented mousetrap. The problem occurs when you accidentally drop your book out out of your carriage window, and some unrelated (by contract) third party gets a hold of it.

In the case of a book, it might be pretty clear if the "contract" was printed inside, and anyone reading the book was somehow bound by it (since it's impossible to copy a book without at least looking at it).

For other works, such as poems or songs, which may be heard and memorized, the idea of a contract bounding all hearers is a stretch.

I suppose the contract on your printed poem could include a clause forbidding public performance without also binding the listeners in contract.

And of course, anyone who "leaked" your work would be in breach of contract. You could sue them, but it would be hard to see how you could also sue the recipient of the leak, or people further down the chain of leaks.

So, for OHOL, that could be another way forward:

"By accessing these materials, you are bound in contract with me to not use them in a competing multiplayer online game service, nor to distribute them to someone else who is not bound by this contract."

CrazyEddie · 2019-03-14 04:17:33

You've just invented copyright, but poorly.

Most creators would like for there to be such contracts, but they have enormous logistical problems, as you point out. And most consumers would be fine with such contracts! Everyone likes free stuff, of course, but most people already find it worth paying for creative works and so would also be happy to pay for them even if they had to agree to such a contract in the process.

So, since contracts like that would be generally desirable / acceptable, but they're pretty much impossible to actually do, the government steps in and declares that everything comes with that contract automatically.

Poof. Copyright.

This is arguably the kind of coordination problem that a government is useful to solve.

lionon · 2019-03-14 04:55:32

jasonrohrer wrote:

"By accessing these materials, you are bound in contract with me to not use them in a competing multiplayer online game service, nor to distribute them to someone else who is not bound by this contract."

Contract law know something as "wrapping". Originally by shrink wrapping. By breaking the shrink wrap, you agreed to the contract, which is generally seen as valid, as long the whole of the contract is readable before you break the seal. Otherwise it would be ridiculous to suppose agreement without being able read it.

Then there is the nowadays classical "clip wrapping". By clicking this button you agree to bla bla... valid as well, same condition.

Sometimes I come across to people trying to do "browse wrapping". Like having a footer "by browsing this side you agree to." This is generally *not* valid, as there isn't a clear indiciation of agrement, you are already browsing before you read the conditions etc.

"By accessing these materials" is likely also not a valid wrapping. It's not like I'm hindered to access it without agreeing to the contract, so I disagree the contract and still access it. So now what? In case of the shrink wrap, there would be the shrink wrap in the way, and in case of the click wrap I don't get to install the software, get into website etc. without clicking the button.. but "accessing" is not a valid wrap.

Also the classical example, writing on my car "by reading this you agree to not holding me responsible if I drive over you"... is not a valid wrapping

PS: Special case are OpenSource licenses which are most times not wrapped in anyway, because they don't need it. They leave you in the ex-post decision, either you agree to them or you are infringing copyright... They don't need any wrapping, because they are bettering your situation to what would be default law if you disagree. However trying to worse someones situation by a non-wrapping contract offer, doesn't work.

Last edited by lionon (2019-03-14 05:59:00)

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