Comments on: Popular IP

By: MT

MT — Sat, 31 Dec 2005 20:31:42 +0000

Magritte was important, but it was Wylie Coyote who said “Ceci n’est pas un tunnel”

By: Mike Madison

Mike Madison — Sat, 31 Dec 2005 18:58:50 +0000

Sure, a picture of a cigar isn’t a cigar (said Rene Magritte), but the statement responds to a different question. Here’s the question that trademark law wants to answer: What is the relevant thing? The cover photo, or the Hershey’s wrapper pictured on the cover photo? For trademark law purposes, my money is on the latter. A cigar — when you light it or chew on it or use it as a doorstop — is just a cigar, and a wrapper that says Hershey’s is what happens to cover a bar of chocolate from that company.

By: MT

MT — Sat, 31 Dec 2005 16:31:55 +0000

At the risk of my considerable reputation as an anonymous yahoo, I say fiddlesticks. How can a cover photo not be semiotic? It’s not wall paper. What if you had a big, framed glossy poster of the Cleveland Rock & Roll Museum on the masthead or in the position of a building plaque on the Smithville Rock n’ Roll Hall of Fame? Lots of big companies of photos of the HQ positioned at the entrance of their regional offices to identify themselves, and such a Smithville poster easily could be taken as an attempt at branding, especially if the poster stood alone on a wall without disclaimer. Anyway, a picture of a cigar is never a cigar.

By: Mike Madison

Mike Madison — Sat, 31 Dec 2005 01:50:50 +0000

The distinction between IP rights, on the one hand, and interests in objects, on the other hand, is one that the law recognizes (in patent, and copyright, and trademark), but one that courts are rarely enthusiastic about grappling with. It’s so foundational, in fact, that we rarely see it at work, and sometimes (as in the case of software licensing), we lose track of it altogether. The fact that the Simon & Schuster book isn’t in the chocolate business is beside the point; the issue in the case — had it proceeded — would have been whether the image of the Hershey’s wrapper was being used as a mark, that is, whether it was being used (non-legal jargon warning) semiotically. It wasn’t. It was simply a picture of Hershey’s chocolate bar. The book jacket wasn’t using the mark; it was using the thing. Rather than belabor the point with another link to my article on “things,” for now I’ll just quote Freud: “Sometimes, a cigar is just a cigar.”

By: MT

MT — Sat, 31 Dec 2005 01:28:14 +0000

Ah: “Pictures of buildings do not violate trademark”
http://biotech.law.lsu.edu/cases/IP/trademark/rock_and_roll.htm

The case was

Rock & Roll Hall of Fame & Museum v. Gentile Prods., 134 F.3d 749 (6th Cir. Ohio 1998)

and a telling line of the opinion seems to be

“It is well established that ‘[t]here is no such thing as property in a trademark except as a right appurtenant to an established business or trade in connection with which the mark is employed.’ United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918).”

A decorative poster or book cover obviously isn’t connected with the business or trade in which either the Hershey or McDonald’s mark is employed. A bucket of chicken? A less obvious but still an easy call, I suppose. Thing-ness isn’t how the court seems to have resolved this issue, and I still don’t see how it could have.

By: MT

MT — Sat, 31 Dec 2005 00:47:23 +0000

This seems related to the court case involving the Rock & Roll Museum (?), which objected to the sale of landscape photos in which the museum building appeared, at least as a vaguely recall it. So the element of the landscape photo that is the pictorial representation of a thing that bears or embodies the trademark seemingly can be construed to run afoul of that trademark. Depending how the case came out.

By: MT

MT — Fri, 30 Dec 2005 07:28:20 +0000

Thanks for clarifying. I still don’t see a compelling distinction though. McDonald’s golden arches logo is a trademark when it appears on a roof or a hat or a styrofoam burger box. Can I take a photo of the hat and print them on my buckets of fried chicken? I doubt it. Putting such a photo on a book seems like it ought to be more an issue of fair use issue than an act that wouldn’t pertain at all to trademark protection, which is what I took you to be saying.

By: Mike Madison

Mike Madison — Fri, 30 Dec 2005 05:46:06 +0000

The protected mark isn’t the wrapper, and the wrapper isn’t the mark. The wrapper, as wrapper, isn’t protected by trademark law. That’s the point.

By: MT

MT — Fri, 30 Dec 2005 02:14:26 +0000

A book cover isn’t a candy bar wrapper. A picture of a candy wrapper on a book cover is an illustration, and illustration is symbolization. What does the pictured wrapper symbolize? Does it matter what it symbolizes to people who see it or to the people who decided to decorate the book that way? Either way, an association to the company and the chocolate has to be an element. Ditto for a trademarked wrapper on a bar. So I don’t see a distinction as having been articulated here, not that a decent one couldn’t be cooked up.