...consider that organizations can lose their trademarks if they don't actively defend them against even vague and doubtful potential infringements. If they let this case slip without issuing a token C&D, it could be cited later by an actual competitor as grounds for permitting their own infringement.
That's not to say that the law isn't stupid, but the proper target for complaints about the stupidity of the law is your local congresscritter, not the lawyers who are just dealing with the laws as they are
I am an IP lawyer (IAAIPL). From the letter of demand, it appears that the NPB hasn't actually twigged that this is an imaginary product. Therefore even if ThinkGeek has used their trademark, they haven't used it as a trademark - i.e. to indicate the origin of a product - because there is no actual product. (I tried ordering it, it doesn't let you.)
Funnily enough, it might be different if they were shipping something, even if it was just a novelty can of dog food.
Likelihood of consumer confusion as to sponsorship is as good as likelihood of consumer confusion as to source. Then there's the trademark dilution and tarnishment issues. It'd be hard to argue that "the other white meat" is not a famous mark.
One of the better discussions of trademark parody is found in Mutual of Omaha Insurance Co. v. Novak, 836 F. 2d 397 (8th Cir. 1987). Although the fact that the parodist is not in the market is significant, ThinkGeek really does sell a broad range of merchandise. Th
One of the better discussions of trademark parody is found in Mutual of Omaha Insurance Co. v. Novak, 836 F. 2d 397 (8th Cir. 1987).
But in that case Novak was actually marketing products containing parody slogans. In this case, if I understand the facts correctly, unicorn meat is not actually being offered for sale. So the use of the mark is not a trade mark use and the question of parody would never arise, surely?
That would be true if this were a real product.
I am an IP lawyer (IAAIPL). From the letter of demand, it appears that the NPB hasn't actually twigged that this is an imaginary product. Therefore even if ThinkGeek has used their trademark, they haven't used it as a trademark - i.e. to indicate the origin of a product - because there is no actual product. (I tried ordering it, it doesn't let you.)
Without impugning your qualifications as an IP lawyer, I politely suggest you may have forgotten about dilution and tarnishment. Consider Anheuser-Busch v. Balducci Publications [audiocasefiles.com]: Balducci never sold "Michelob Oily", nor was it a real product. However, it was still a use of a mark in commerce (in a magazine) that was likely to confuse.
Similarly, ThinkGeek is in commerce, and a parody ad on their site still serves to draw attention and potential buyers to their other products. Accordingly, section 32 of t
We have a equal opportunity Calculus class -- it's fully integrated.
Before having a knee-jerk anti-lawyer moment... (Score:5, Informative)
...consider that organizations can lose their trademarks if they don't actively defend them against even vague and doubtful potential infringements. If they let this case slip without issuing a token C&D, it could be cited later by an actual competitor as grounds for permitting their own infringement.
That's not to say that the law isn't stupid, but the proper target for complaints about the stupidity of the law is your local congresscritter, not the lawyers who are just dealing with the laws as they are
Re:Before having a knee-jerk anti-lawyer moment... (Score:5, Informative)
I am an IP lawyer (IAAIPL). From the letter of demand, it appears that the NPB hasn't actually twigged that this is an imaginary product. Therefore even if ThinkGeek has used their trademark, they haven't used it as a trademark - i.e. to indicate the origin of a product - because there is no actual product. (I tried ordering it, it doesn't let you.)
Funnily enough, it might be different if they were shipping something, even if it was just a novelty can of dog food.
Re: (Score:3, Informative)
Likelihood of consumer confusion as to sponsorship is as good as likelihood of consumer confusion as to source. Then there's the trademark dilution and tarnishment issues. It'd be hard to argue that "the other white meat" is not a famous mark.
One of the better discussions of trademark parody is found in Mutual of Omaha Insurance Co. v. Novak, 836 F. 2d 397 (8th Cir. 1987). Although the fact that the parodist is not in the market is significant, ThinkGeek really does sell a broad range of merchandise. Th
Re:Before having a knee-jerk anti-lawyer moment... (Score:4, Informative)
One of the better discussions of trademark parody is found in Mutual of Omaha Insurance Co. v. Novak, 836 F. 2d 397 (8th Cir. 1987).
But in that case Novak was actually marketing products containing parody slogans. In this case, if I understand the facts correctly, unicorn meat is not actually being offered for sale. So the use of the mark is not a trade mark use and the question of parody would never arise, surely?
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Funnily enough, it might be different if they were shipping something, even if it was just a novelty can of dog food.
What if it was a can of pork?
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It will be a ground for a lot of real lawsuits - for example from people that avoid pork.
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Can unicorn's meat be kosher?
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Unlikely. Horse meat can not be kosher. Presumably unicorns don't chew their cud or have cloven feet.
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Mod parent up. Not only did he clarify the point I was missing, he did it politely.
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That would be true if this were a real product. I am an IP lawyer (IAAIPL). From the letter of demand, it appears that the NPB hasn't actually twigged that this is an imaginary product. Therefore even if ThinkGeek has used their trademark, they haven't used it as a trademark - i.e. to indicate the origin of a product - because there is no actual product. (I tried ordering it, it doesn't let you.)
Without impugning your qualifications as an IP lawyer, I politely suggest you may have forgotten about dilution and tarnishment. Consider Anheuser-Busch v. Balducci Publications [audiocasefiles.com]: Balducci never sold "Michelob Oily", nor was it a real product. However, it was still a use of a mark in commerce (in a magazine) that was likely to confuse.
Similarly, ThinkGeek is in commerce, and a parody ad on their site still serves to draw attention and potential buyers to their other products. Accordingly, section 32 of t