Trademark theory question

Trademark theory question

usenet@hockeydb.com (Ralph Slate)	10/10/2003 6:41:27 PM
I'd like to know what people think of this situation. If a company purchased copies of the NY Times, and then inserted advertising flyers in them, resold them for 1/2 price, would this be a trademark infringement situation? The theory would be that the person doing this would be using the good name of the NY Times to sell advertising, that would deliberately create confusion as to who is sanctioning the advertising. My opinion is that this would probably be a trademark infringement, or possibly an unfair business practice. Now I'd like to draw an analogy. There was a recent lawsuit by companies like UPS against an internet company called WhenU. WhenU makes software that is usually included when you install other software applications -- it defrays the cost of the software. WhenU's software pops up advertising when you go to certain sites -- if you go to UPS, it pops up an ad for FedEx, for example. The Eastern District Court of Virginia ruled that WhenU's behavior is permissable, because the end users have agreed to install this software on their own PC's. A link can be found here: http://www.whenu.com/news_businessweek.html Another example is a browser called Opera that also shows advertisements based on the content of the site that a user visits. If you go to a site about stereos, the browser will show you ads for stereos. It doesn't interfere with the website, so there's probably no copyright violation, but it does use the content of the website to match the ad, making the ad seem to be in some way related to the site. It also uses the site's content to make money without the consent of the site owner, so I could see some kind of copyright violation there. Isn't this the same situation as someone who inserts his own advertising into copies of the NY Times? Ralph Slate http://www.hockeydb.com



"Richard"	10/10/2003 10:48:45 PM
Ralph wrote: I'd like to know what people think of this situation. If a company purchased copies of the NY Times, and then inserted advertising flyers in them, resold them for 1/2 price, would this be a trademark infringement situation? The theory would be that the person doing this would be using the good name of the NY Times to sell advertising, that would deliberately create confusion as to who is sanctioning the advertising. My opinion is that this would probably be a trademark infringement, or possibly an unfair business practice. Now I'd like to draw an analogy. There was a recent lawsuit by companies like UPS against an internet company called WhenU. WhenU makes software that is usually included when you install other software applications -- it defrays the cost of the software. WhenU's software pops up advertising when you go to certain sites -- if you go to UPS, it pops up an ad for FedEx, for example. The Eastern District Court of Virginia ruled that WhenU's behavior is permissable, because the end users have agreed to install this software on their own PC's. A link can be found here: http://www.whenu.com/news_businessweek.html Another example is a browser called Opera that also shows advertisements based on the content of the site that a user visits. If you go to a site about stereos, the browser will show you ads for stereos. It doesn't interfere with the website, so there's probably no copyright violation, but it does use the content of the website to match the ad, making the ad seem to be in some way related to the site. It also uses the site's content to make money without the consent of the site owner, so I could see some kind of copyright violation there. Isn't this the same situation as someone who inserts his own advertising into copies of the NY Times? Ralph Slate http://www.hockeydb.com If the NY Times found out about the gimmick, I'm sure the lawyers would find something in the laws they could use to stop it. The real trick would be to remove 90% of the paper, then insert your own ads. People would think they're buying a full newspaper, only to be duped. Of course, that wouldn't last long either. Question really is, why would a person go to the trouble of doing such a thing? As for the ads on the internet, that's not invasive or infringement of anything. Just by being connected, you have technically agreed to be a victim of anything that passes on to your screen. Much like watching television and being slammed with commercials. Or worse, paying for cable and the privilege to watch even more commercials. How about software I buy that tells me that I have to install gator/gain in order to use it? How about AOL installing all kinds of stuff on my machine without my knowledge or consent? And the list goes on and on and on and on and......... Life's a "beech" baby, live it up. mexican version of #@&@ .



"John D. Goulden"	10/11/2003 8:06:34 PM
Another example is a browser called Opera that also shows advertisements based on the content of the site that a user visits. If you go to a site about stereos, the browser will show you ads for stereos. It doesn't interfere with the website, so there's probably no copyright violation, but it does use the content of the website to match the ad, making the ad seem to be in some way related to the site. It also uses the site's content to make money without the consent of the site owner, so I could see some kind of copyright violation there. Isn't this the same situation as someone who inserts his own advertising into copies of the NY Times? No. You gave permission to accept ads generated by the browser when you agreed to the Opera EULA. See http://www.opera.com/privacy, which is incorporated into the EULA by reference. John D. Goulden



Paul Robinson	10/19/2003 12:26:35 AM
Ralph Slate wrote: I'd like to know what people think of this situation. If a company purchased copies of the NY Times, and then inserted advertising flyers in them, resold them for 1/2 price, would this be a trademark infringement situation? I'm not a lawyer but here's my take. First sale rule applies. Once the NY Times sells its paper the purchaser owns that copy and may dispose of it as they please. Now, if there is an implication that the ad was issued by the NY Times there may be an issue of palming off, but the simplest answer is to either put the ad in a bag with the newspaper, such that it's separate from it, or clearly have the ad indicate it is not part of the paper. "This advertisement was not included with the newspaper nor was it printed or issued by the New York Times." One possibility is to put them together in a plastic bag that says, "Reduced price copies provided courtesy of ..." and whoever is putting in the ads. The theory would be that the person doing this would be using the good name of the NY Times to sell advertising, that would deliberately create confusion as to who is sanctioning the advertising. If the ad indicates it's not from the Times there's no confusion. My opinion is that this would probably be a trademark infringement, or possibly an unfair business practice. Without any indication that is quite possible to argue that. -- Paul Robinson "Above all else... We shall go on..." "...And continue!" "If the lessons of history teach us anything it is that nobody learns the lessons that history teaches us."

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