Dear Google: Parody Is Not Trademark Infringement
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eff.org
Before the general context and behavior of big companies was very serious. You know you had your GE, IBM, Ford, I don't know P&G, big serious companies that wear ties and white shirts. And you make a parody of them and becomes kind of obvious. Oh look "Big Brother Inside" logo for Intel. Ok clearly a parody.
However, I feel, there is this movement toward lightheartedness and humor in the new style of PR. Google is the prototypical company here. Bright childish colors. "Oh look the rainbow! Blue, green, red colorful beach balls in every office!". That was their initial image. "We are just big kids playing and building cool stuff". Or say, April 1st comes, and here is Google making fun of their products. Releasing something like "Google Fiber over Toilet Plumbing" (get it, get it, fiber, toilet, ..., make sure to tweet it!). Something like that. So that is all jolly good, except that by using lightheartedness and parody as a standard PR tool, now it is not easily differentiated from other parody out there. Maybe environmentalists make a site about Google's Fiber Toilet Plumbing. Now it is kind of harder to tell the difference.
Anyway, this is too much drivel. Not defending or taking sides, just pointing out what seems like an interesting pattern developing.
Ten aprils fools. That's ten days. It took ten days to run a perfectly fun day into a day where a lot of people would rather stay to listen to Rush Limbaugh read the phonebook than go on any website, at any point of the day.
I think it's inherently impossible for an megaentity existing purely for monetary gain to seem lighthearted and human. I wish they'd stop trying.
If one makes a product as a "parody" and pretends to be the original source, while acting purposely foolishly, I don't think that would be defensible.
For instance, if you are opposed to people eating meat sold by Foster Farms, then making deliberately disgusting meat, and handing it to pedestrians in a city, while making fun of meat, does not constitute parody of Foster Farms. It damages the brand of the original.
A parody would be using Google's names and symbols in some transformative action that is clearly not sourced from Google.
So to adjust your example, if a group had a political complaint against Foster Farms and made a website claiming to sell obviously foul products, that would be a rich example of parody. "Damaging the brand" is pretty much the goal in an action like this.
I don't think pretending to be another entity should ever be permissible. The integrity of communications should not be compromised. Nor is that the intention of the parody-based fair use principles in IP law. The intention of the parody exception to liability is to give artists an opportunity to make fun of the high and mighty. Not to pretend to be them.
If we allow fraudulent messaging to come under the umbrella of parody protection, then this same exception will be abused by parties to malign their competitors. It will be difficult for consumers to know or trust the source of messaging, goods, or services.
It is no excuse to say no goods or services were actually produced, because to advertise a shitty bundle of goods in the name of another is enough to cast doubt on the good sense of that other.
A proper parody makes no pretense of its source. It proudly proclaims itself a form of protest. It doesn't dissemble and try to corrupt the flow of information/communication in commerce.
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If that's not "making fun of the high and mighty" I don't know what is.
You can also read more here: http://www.greenpeace.org/new-zealand/en/blog/shellfail-insi...
In my opinion this clearly classifies as parody.
Imagine the same standards being applied when someone is pretending to be you and maligning your name in public with foolish declarations.
Next, in the examples not an individual is "impersonated" but a faceless, anonymous corporation. I would have way more problems with the parody if an individual (independent to if I like them or not) would be impersonated or ridiculed.
If somebody makes similar fun of my employer, I would not mind at all.
I don't want to go into the example you brought up with Foster Farms, you should realize that this comparison is pretty much flawed.
With a few exceptions, The Yes Men do not do parody. Hoaxes and parody are quite different things.
Parodies in the past did not depend on fooling people as to the source of words. It is enough to conjure up a thought of the parties parodied, through use of similar symbols/words/methods. One doesn't have to actually pretend to be them in an exact way for parody to hit its mark. Nor in the past have I seen great parodies do this.
The content itself is fine (there's an archive.org link below). It's the domain I suspect they had a problem with.
Is the letter legit? It claims the Google Nest parody went so far as to create fake Google employee profiles on social networking sites, used false Whois info (listing Google as the registrant and contact), and featured a (working) Google "Sign In" button.
The last one is the most concerning (and confirmed by mirror sites, e.g. http://google-nest.codewing.de/ ). That's more like what I'd expect from a phishing site; a parody page should have no need for it.
Pretty interesting and funny.
Also don't trademarks get forfeited if you don't enforce them? there are at least 2 of them being misused in this instance.
Edit: not quite sure why my comment is getting downvoted.
Given that the use here is noncommercial (Peng! is not selling a product in Google's area of business), it's almost certainly the case that Google is under no obligation to engage in any legal action. Even commercial parody can be protected, though the criteria are somewhat more complex.
Interestingly, it's easier to legally parody stronger trademarks because of public recognition of the parody - see Louis Vuitton v Haute Diggity Dog for an example. Google certainly qualifies as a strong trademark, although the parody name here isn't as memorable as 'Chewy Vuiton'.
Kneejerk responses.
You're entirely right that Google at least has to legally take some action, as otherwise others can point at the precedent when doing actual attacks on Google trademarks.
And a minor point - "precedent" is commonly used to mean simply "that which came before" but it has a very specific legal definition (generally just decisions issued by a court) that doesn't apply here.