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kraker
07-14-2011, 09:21 AM
If logos in films would be a problem, the people who created Logorama (http://vimeo.com/12026956) sure would be knee-deep in... trouble.

zsas
07-14-2011, 09:27 AM
Emerson made two claims in court, reading the below first claim implies you need consent to use the trademark. I don't know what law specifically, but it is mentioned in general below (per above linked article). The defamation is another matter.

"In the lawsuit, Emerson claims that NBC used Emerson's trademark without the company's consent..."

I say it's a gray area and to be careful that's all I am trying to impart.

If one wants to make a US released coffee table book (photo book) of all the 2011 John Deere tractors (logos and mention of John Deere) just don't be surprised if there is a knock on your door.

Steve Smith
07-14-2011, 09:45 AM
If one wants to make a US released coffee table book (photo book) of all the 2011 John Deere tractors (logos and mention of John Deere) just don't be surprised if there is a knock on your door.

I really don't see why you couldn't do that. It's just a documentation of fact without being judgemental or spreading false information. There is no loss to the company so I don't see what they can claim.


reading the below first claim implies you need consent to use the trademark. I don't know what law specifically.

I'm sure there is no such law.


Steve.

Steve Smith
07-14-2011, 10:12 AM
I really don't see why you couldn't do that. It's just a documentation of fact without being judgemental or spreading false information. There is no loss to the company so I don't see what they can claim.

In fact, you can go much further. Think about the number of magazines available which compare things. Cars, TVs, washing machines, etc. Not only do they show the product, including the logos, but they also publish their opinions of them. If a reviewer thinks one manufacturer's washing machine is inferior compared to another, they will publish this opinion.

This information can be much more damaging to a company than a mere book of photographs. The comments cannot be claimed to be defammatory as they are based on actual tests so the manufacturer has no comeback (except perhaps to stop advertising in that magazine!).


Steve.

zsas
07-14-2011, 10:32 AM
I believe journalism plays by different rules. A for profit photo book could have trademark considerations depending of the use of the logo and trademark. I don't think the McDonalds and John Deere book would be at no-risk of orig trademark holder making a claim in the US.

Diapositivo
07-14-2011, 10:33 AM
Exactly and to bring it back to buildings, for e.g., you are free to photograph every McDonalds restaurant exterior you wish. But you can't sell a coffee table book called "My Tour Across America Documenting McDonalds' Restaurants". The logo and brand name are trademarked and therefore you would need consent from McDonalds. I think it gets more complex when logo's and/or trademarks become centerstage as opposed to say a cityscape with a golden arch way in the background and the intent if the book is to document skylines or something benign.

Well, now that I know what a coffee table is, I'd like some clarification about this post. Do you have memory of such a book being challenged in court by McDonald's, or is it just an hypothesis of yours?

To me it is very clear that you can call your book "My Tour Across America Documenting McDonald's Restaurants", but you cannot call it "My Tour Across America Documenting McDonald's Restaurants" using the McDonald's logo instead of the normal lettering.

zsas
07-14-2011, 10:37 AM
The coffee table book I mention is hypothetical

Steve Smith
07-14-2011, 11:55 AM
I believe journalism plays by different rules. A for profit photo book could have trademark considerations depending of the use of the logo and trademark. I don't think the McDonalds and John Deere book would be at no-risk of orig trademark holder making a claim in the US.

In the eyes of the law, a publication is a publication. If it is acceptable for a magazine called Which Tractor (I don't know if it exists but I bet it does) to publish pictures of the tractors they have tested (including logos/trademarks) and to publish glowing reports for those which performed admirably and damning reports for those which performed poorly, then a simple book of John Deere tractors with no judgemental text will also be acceptable.

A magazine is a for profit publication in the same way as a photo book is.

Magazines and newspapers publish illustrated reviews of all sorts of products from cars to sausages. They often compare similar products of many manufacturers and tell you which is the best and unfortunately for the manufacturer, which is worst. The manufacturer has no claim on the publisher as the opinions are just that, the opinions of a reviewer. Plus they are based on actual tests of actual products. None of this needs to be endorsed by the manufacturers as these are products available for purchase.

To get back to the topic in hand, let us consider this scenario (using your example):

I have produced a glossy full colour book of John Deere tractors. There is no judgemental text but there might be a list of features.

Assume someone at John Deere got a copy of the book - I might even send them a free copy. And assume that they didn't like the idea of me making the book and were thinking of taking legal action.

What are the grounds for this legal action? There is no defamation and no loss to the company.


Steve.

michaelbsc
07-14-2011, 12:43 PM
In the eyes of the law, a publication is a publication. If it is acceptable for a magazine called Which Tractor (I don't know if it exists but I bet it does) to publish pictures of the tractors they have tested (including logos/trademarks) and to publish glowing reports for those which performed admirably and damning reports for those which performed poorly, then a simple book of John Deere tractors with no judgemental text will also be acceptable.

A magazine is a for profit publication in the same way as a photo book is.

Magazines and newspapers publish illustrated reviews of all sorts of products from cars to sausages. They often compare similar products of many manufacturers and tell you which is the best and unfortunately for the manufacturer, which is worst. The manufacturer has no claim on the publisher as the opinions are just that, the opinions of a reviewer. Plus they are based on actual tests of actual products. None of this needs to be endorsed by the manufacturers as these are products available for purchase.

To get back to the topic in hand, let us consider this scenario (using your example):

I have produced a glossy full colour book of John Deere tractors. There is no judgemental text but there might be a list of features.

Assume someone at John Deere got a copy of the book - I might even send them a free copy. And assume that they didn't like the idea of me making the book and were thinking of taking legal action.

What are the grounds for this legal action? There is no defamation and no loss to the company.


Steve.

But in the USA recall that we have absurd tort law.

I can sue John Deere because I don't like their tractor color. And they can sue me for wearing brown shoes to court.

And those cases can go on until one of us runs out of money.

None of it has to make sense.

Steve Smith
07-14-2011, 01:22 PM
But in the USA recall that we have absurd tort law.

I can sue John Deere because I don't like their tractor color. And they can sue me for wearing brown shoes to court.

Don't they have to show some defamation, misrepresentation or loss in order to sue? Or in other words, a reason for suing?

You can't just say "I don't like the colour of your tractors therefore I claim $1,000,000" can you?


Steve.

lxdude
07-14-2011, 01:39 PM
Right now I have in front of me a book called "The Bronica Manual", by William Cheung, copyright 1989. A picture of an ETRSi is on the cover. The title, in all caps, has the word 'BRONICA' in a script similar to the Bronica script, including the the star inside the 'O', repeats it seven times on the cover, and twice more inside. The book contains detailed information on the ETR series, SQ series, and GS-1, which were in production at that time, and also describes all prior models of Bronica SLR. It also details the history of each current series and describes and compares early and late models within each series.

I don't know if Cheung needed to receive permission from Bronica to use the Bronica star logo, but there is no indication in the book that he did. What is clear and obvious is he did not need to get permission from Bronica to publish the book, including pictures of cameras, descriptions and any critiques.

Think also of books like "The Nikon Way" and "The Pentax Way", by Herbert Keppler. He had a right to write about those companies' products, including using their names in the titles.

lxdude
07-14-2011, 01:44 PM
Don't they have to show some defamation, misrepresentation or loss in order to sue? Or in other words, a reason for suing?

You can't just say "I don't like the colour of your tractors therefore I claim $1,000,000" can you?


Steve.
They can file a suit, though it's up to a judge to allow it to progress. The judge can impose penalties for clearly frivolous or meritless lawsuits.

Steve Smith
07-14-2011, 01:47 PM
That Cheung bloke needs locking up and the key throwing away!!!

Seriously, it's a very good book and I borrowed it from our local library when I first got a Bronica ETRS.

I also doubt that he had permission from Bronica and I also doubt that he needed it.


Steve.

Steve Smith
07-14-2011, 01:49 PM
The judge can impose penalties for clearly frivolous or meritless lawsuits.

That's a good idea. I don't know if they can do that here but they should be able to.

Is that penalty paid to the defendant for wasting his time or does it just go to the court/state?


Steve.

Steve Smith
07-14-2011, 01:58 PM
On the subject of lawsuits and colours, I recall reading something a few years ago about mobile phone company T-mobile claiming that they owned the rights to the magenta colour and they were threatening legal action on other companies with a similar colour in their logos.

http://www.colourlovers.com/blog/2007/11/04/beware-t-mobile-owns-the-color-magenta/



Steve.

Diapositivo
07-14-2011, 02:07 PM
I deem very likely Cheung's publisher obtained permission to use the logo in the title. Somewhere in the little print is should also be said that the Bronica logo, the star etc. are trademarks of Zenza Bronica. I don't know how "similar" is the logo to the elements used in the book maybe they didn't use exactly the logo and, considering the kind of book, entirely devoted to a Zenza Bronica model, this is acceptable.

Use of the logo can always imply some form of sponsoring or endorsement by the logo owner. If the logo owner had not been happy with the book, he could not have complained about the book itself, but could certainly have complained about the use of the logo.

EDIT: just to make an example, if I am a mechanic, and I feel I am very good with FIAT cars, I cannot just put the FIAT logo outside of my shop to mean that I am ready to deal with those cars. I can put it only if I am an "authorized" mechanic (authorized to claim this particular status, authorized to sport the logo).

EDIT EDIT On the other hand, use of logos is allowed for strictly editorial purposes, so Cheung, thinking about it, might not have needed any permission. Think about the logos you find on Wikipedia... so yes, it can be used if it does not imply any kind of endorsement, I suppose.

Sirius Glass
07-14-2011, 02:09 PM
That's a good idea. I don't know if they can do that here but they should be able to.

Is that penalty paid to the defendant for wasting his time or does it just go to the court/state?


Steve.

Yes, they can be counter sued for malecious prosecution. If they are found guilty of malecious prosecution, then they have to pay all the target's costs plus damages and fines.

Actually, although slow, tort law works well. The usual tort law complainer is a company or industry that has been doing illegal or unethical acts as a normal part of business. So rather than clean up their act, they blame the victims and cry foal.

lxdude
07-14-2011, 02:14 PM
The penalties are usually defendant's court costs, but can include fines, which would go to the state. Jail time is possible for repeat offenders. Judges can sanction lawyers involved, as they are supposed to know better. Sanctions usually would be fines, though jail is still possible. The greatest harm to a lawyer from sanctions comes from it going into his/her record, where it can affect the lawyer's standing with the bar. Defendants can, of course, countersue.

Court costs are technically not penalties, but remedies. Sanctions, e.g., fines and jail time, are penalties.

Steve Smith
07-14-2011, 02:16 PM
I know the defendant can counter sue but that's not the same as the judge imposing penalties for frivolousness as in Lxdude's post... or is it?

EDIT: Mr Lxdude answered at the same time as I wrote this. I assume a US judge can impose penalties without the defendant counter suing then?


Steve.

Steve Smith
07-14-2011, 02:23 PM
EDIT: just to make an example, if I am a mechanic, and I feel I am very good with FIAT cars, I cannot just put the FIAT logo outside of my shop to mean that I am ready to deal with those cars. I can put it only if I am an "authorized" mechanic (authorized to claim this particular status, authorized to sport the logo).

On the other hand, use of logos is allowed for strictly editorial purposes, so Cheung, thinking about it, might not have needed any permission. Think about the logos you find on Wikipedia...

You are right about the Fiat logo as that would be mis-representation. Mr Cheung does not need permission to write about Bronicas as he is just documenting the facts as he found them. If he was unlucky and had a Bronica camera which jammed up every time he tried to wind the film on, he could write about that too because he is just stating the facts (wouldn't be such a good book though!).

Thinking about it, he probably did have permission from Bronica and possibly even help from them but I still don't believe he necessarily needed it.


Steve.