More on toy models as trademark infringements

Originally posted 2008-01-14 11:05:57. Republished by Blog Post Promoter

Ara Rubyan sends along this link to Boing Boing:

Josh sez, “The folks at BMC (Black Mustang Club) automotive forum wanted to put together a calendar featuring members’ cars, and print it through CafePress. Photos were submitted, the layout was set, and… CafePress notifies the site admin that pictures of Ford cars cannot be printed. Not just Ford logos, not just Mustang logos, the car — as a whole — is a Ford trademark and its image can’t be reproduced without permission. So even though Ford has a lineup of enthusiasts who want to show off their Ford cars, the company is bent on alienating them. ‘Them’ being some of the most loyal owners and future buyers that they have. Or rather, that they had, because many have decided that they will not be doing business with Ford again if this matter isn’t resolved.”

We’ve touched on the issue of whether toy models are infringements of the products they depict, even granting that the trademarks apply to the products themselves. In the case of a Ford car, it seems pretty clear that they do; in the case of a railroad locomotive manufactured by a third party but bearing the logo of a given line, it seems a dubious proposition indeed.

But Big IP is, after all, insatiable… and many big companies, not necessarily Big IP, but in struggling businesses such as, oh, automobile manufacturing and railroads, are looking at their dubious core businesses and deciding it’s time to “exploit the IP portfolio” to buy time till the next bailout or merger — and there you have it.

Fun in our age is only available via a written license, with royalties, reversions and attorneys’ fees upon breach.

UPDATE:  Much ado about nothing, or a climb-down by Ford?

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Author:Ron Coleman

I write this blog.

5 Responses to “More on toy models as trademark infringements”

  1. January 14, 2008 at 11:59 am #

    Clearly, Ford has the law on its side.

    But it seems to me that any time a company threatens the most faithful part of its market, they’re just sawing off the branch they’re sitting on.

  2. Roger
    January 15, 2008 at 12:23 am #

    Look at BMW. AFter years of ignoring the issue it prohibited BMW owners groups from using the BMW roundel (blue and white propeller logo) as any element of the club logo design or on the club materials. Alienated more than 200,000 club members around the world. BMW has actually threatened litigation against clubs of fans of the marque essentiantialy expressing their devotion. Now I don’t have a BMW motorcycle anymore.

  3. Zergling
    January 15, 2008 at 4:34 am #

    Just another example of bad publicity over a legal nonissue that could have been easily averted with a little discretion on the part of the attorneys. I wonder whether this trademark discipline was worth the cost in consumer goodwill.

  4. January 15, 2008 at 4:53 pm #

    “We’ve touched on the issue of whether toy models are infringements of the products they depict, even granting that the trademarks apply to the products themselves. In the case of a Ford car, it seems pretty clear that they do[.]”

    In this sort of situation, do you say this because: (a) there really is a likelihood of confusion; (b) whether it’s true or not, judges think there is a likelihood of confusion; (c) free riding is bad and so it’s appropriate to pretend there is a likelihood of confusion; or (d) whether it’s true or not, judges think free riding is bad and so pretend there is a likelihood of confusion?

    Disclaimers can solve the problem of (a) and maybe (b), but they won’t help you with (c) and (d).

    Option (b) is supported by GMC v. Lanard Toys, Inc., 468 F.3d 405 (6th Cir. 2007) (Hummer toy case).

    Option (d) is supported by Boston Athletic Ass’n v. Sullivan, 867 F.2d 22 (1st Cir. 1989). But see WCVB-TV v. Boston Athletic Association, 926 F.2d 42 (1st Cir. 1991) (opinion by Breyer) (essentially repudiating Boston Athletic Association).

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