Carnival Threatens To Sue Magazine For Using Its Mascot To Illustrate Story
from the intellectual-property? dept
David Canton points us to the news that lawyers for the Quebec Winter Carnival are threatening to sue the magazine Maclean's for illustrating a story about Quebec corruption with the carnival's mascot carrying a suitcase full of cash. The mascot is known as Bonhomme Carnaval, and the lawyers claim that it's an IP violation to use it in this manner:"For the past 57 years, the Carnival has invested considerable energy and resources into protecting Bonhomme Carnaval's outstanding reputation," said the event's CEO Jean Pelletier in a statement released Monday afternoon. "We are therefore examining the options available to us to enforce our intellectual property rights."I'm not familiar enough with Canadian trademark law to know how this works, but it does seem pretty silly either way. It's not as if anyone seeing the magazine would think that the carnival endorsed the magazine or anything. The illustration seems like a clever way to graphically illustrate the province of Quebec by using a symbol closely associated with it.
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IP is a funny thing
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Re: IP is a funny thing
No. Actually not at all. Copyright & patent rights are to promote the progress, and trademark rights are to prevent consumer confusion on goods in commerce. This fits with neither of those things.
It's one thing to use a brand's product to discuss that brand (i.e. if it were only the mascot and not the money), but it crosses a line when you connect a public company with an individual's misdeeds through company trademarks.
I don't think anyone sees this and thinks that the carnival's corrupt.
If not an IP violation it is slander at least that is damaging to the corporate image.
Slander is spoken, so at the very least you would mean libel. But it's not that either. Libel means making false statements about someone. That didn't happen here.
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Whoah
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Re: Re: IP is a funny thing
Sorry Mike, that was my first impression. Especially with "The most corrupt province in Canada" in caps next to it.
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Re: Re: IP is a funny thing
For anyone who knows Bonhomme, the initial impression is that Carnival is the centre of the corruption.
For anyone who doesn't know Bonhomme, any time they see him in the future, many will remember "Corruption".
Not exactly the image you want following you around, when it's completely undeserving.
Now, I'm not very well versed in Canadian Trademark law either, but this isn't a parody, and I highly doubt "association an organization with crime" falls under Fair Use (or the equivalent), and it most definitely is misleading to consumers.
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Re: Re: IP is a funny thing
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Re: Jim
Gives the impression that the carnival is at the center of the corruption & is bagging the cash.
If a magazine used Techdirts logo to highlight corruption within the internet (Corrupt internet NEVER!) then I'm sure you would be pissed.
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Counter suit?
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Re: Re: IP is a funny thing
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Re: Re: Re: IP is a funny thing
The gov't of Quebec spends too much time & effort creating silly language laws & policies & not enough time weeding out corruption & the like.
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Re: Re: Re: IP is a funny thing
The gov't of Quebec spends too much time & effort creating silly language laws & policies & not enough time weeding out corruption & the like.
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Gotta say, if the carnival is a purely independent commercial enterprise it's a bit rough to be slapping their mascot on the cover in association with all this.
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Re: Re: IP is a funny thing
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Re: Re: Re: IP is a funny thing
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Once again, I must respectfully disagree
The article contained: "I'm not familiar enough with Canadian trademark law to know how this works, but it does seem pretty silly either way. It's not as if anyone seeing the magazine would think that the carnival endorsed the magazine or anything. The illustration seems like a clever way to graphically illustrate the province of Quebec by using a symbol closely associated with it."
I cound not more strongly disagree. And except for the accurate slander correction in Mr. Masnick's response to the "IP is a funny thing" posting, I disagree with most of that, too.
There is a long history of case law which finds that the purpose of copyright and trademark amount to a whole lot more than that. One of the things I find irritating about some of what's posted around here is that it is often about how the writer wishes things were, and not so much about how they actually are.
And I would argue that if the holder of a trademark can't use the law to keep his/her trademark (an image in which s/he has invested huge amounts of money to be used by only him/her, and only in ways which benefit him/her) from being misappropriated and misused by others for their purposes (which may be directly in opposition to those of the trademark's rightful owner), then of what value is it?
Trademarks are about image as much as anything else, and those who own them naturally do not want that image sullied by having them used by others in ways which somehow associate them, in the minds of those who see them so used, with controversy or negativity. In fact, most trademark holders don't want them used by others at all... for any reason. And that's their right. It's part of what trademark protection affords them. And while those specific protections may or may not appear in the original trademakr statutory language, the volumes of case law since have clearly and unambiguously established them.
I, for example, had (and still kinda' have) a web site planned for a religious organization I'll likely be creating which involves a mascot-like cartoon character. If I develop it and the site and the organization, I can assure you that its image will be almost as important as anything else it does. And as "love your fellow man" as the organization will be, I can promise you that upon the first misappropriation of the cartoon-like character mascot by anyone else for any reason, I and the organization's law firm will fall on the misappropriator like an old building. I'll make Islam's being upset about anyone showing an image of Muhammad look like a bunch of children playing jumprope.
And part of the reason I'll be able to sleep at night after having forced the misappropriator to sell his house, his car and his Webber Kettle in order to pay me is because in multiple places on the web site will be my contact information, and notices that all one has to do to freely use anything on the web site is contact me and seek my permission; and I will assure (and my track record in life suggests that said assurance will not be empty words) that I will nearly always grant said permission as long as the intended use is fair... even if it's critical... just as long as it's fair (and balanced, and all that kinda' stuff).
But use my trademarked image without having first obtained permission -- no matter the use -- and just watch what happens. It's either permission in advance, or nothing. End of discussion.
Any operator of any entity which owns a logo, or an image of a mascot, or anything similar which conveys said entity's image and unique identifiability would be in gross breach of his/her fiduciary responsibilities to said entity if s/he did not vigorously protect said logo, or mascot image, under any and all circumstances.
I'm happy for Mr. Masnick that he wants to (and clearly seems to sometimes believe that he actually does) live in a world where things are more relaxed, and more "live and let live," where everyone can get along, and where no one does anything which results -- either overtly or covertly -- in real harm to others; and I'd characterize that, here, as but a fairy tale world...
...except that even Mother Goose and the Brothers Grimm recognized evildoers when they saw them.
_________________________________________
Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com
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Re: Once again, I must respectfully disagree
It seems to me that you are relishing power for power's own sake. You sound like you get a perverse joy out of the idea of financially ruining another person, even when you openly admit that you see asking permission as a formality/courtesy.
It also sounds like you intend to use trademark law as a way of stifling discussion and criticism. Suddenly YOU are the arbiter of what is "fair and balanced," which is really something for the courts to decide - and somewhat besides the point anyway, since freedom of speech does not only extend to "fair" speech, and certainly not to one man's definition of "fair" speech.
It's either permission in advance, or nothing. End of discussion.
Since such situations often lead to protracted courtroom battles, it is clearly not the "end of discussion." Often enough, a perceived trademark infringement is the beginning of a very long legal discussion.
Any operator of any entity which owns a logo, or an image of a mascot, or anything similar which conveys said entity's image and unique identifiability would be in gross breach of his/her fiduciary responsibilities to said entity if s/he did not vigorously protect said logo, or mascot image, under any and all circumstances.
What of a company like Twitter that recognizes the benefits of loosening the reins on their trademarks?
...and to backtrack slightly:
And as "love your fellow man" as the organization will be, I can promise you that upon the first misappropriation of the cartoon-like character mascot by anyone else for any reason, I and the organization's law firm will fall on the misappropriator like an old building. I'll make Islam's being upset about anyone showing an image of Muhammad look like a bunch of children playing jumprope.
Doesn't sound very "love your fellow man" to me. At all.
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quebecois over sensitized, period.
Have to have french on the labels, everything done in french, want a govt. job in Canada, not if you don't speak french....oh.. got to protect the culture and language of quebec... wait a minute... lets review who NEEDS protection of THEIR CULTURE and LANGUAGE? ? quebec or the other NATIVE CULTURES of Canada like in the Yukon, Labrador, NWT? ?
Lets see:
English or Non French = 78.6
French = 21.4
I don't see where a language and culture that statistically is 1/5 of the country population but only covers a small percentage of 2-3 provinces needs any protection. The qubecois and company are doing a fine job as it is and imposing THEIR wishes on a clearly NON french speaking country. All the efforts and resources and money spent on protecting "french" could be far better spent to protect and promote...Inuktitut or other native languages etc...
I can speak to this from having the misfortune of living in the Toronto area, and visiting the quebec province. One of the reasons I will not ever go back is this francais over everthing and especially English... Just ask a tourist who visited quebec what happens if you speak English to some clerk in the store... you be going home empty handed!
Most corrupt province YOU BET! 100% DEAD ON.. .If they have any thing in common with their desire to be as much like the french, CORRUPT they got that down! Maybe thats why the french snear at the french quebec. most of france wants nothing to do with the province ne country that wants so desparately to be either a over seas french district or its own country. I say let 'em go! Should have done it the first go around!
As for the whole flap...
Its called:
PARAODY and FAIR USE
These trump your stupid "rights" period.
As for any one who sees that horrid creature and associates it with the carnival being corrupt, well your at least partly right. But you missed the point... that character is widely associated with quebec in general in most aras, and especially in English speaking countries. Most non quebec know little about quebec other than the carnival, 76 olympics, failed baseball team (more to do with anti US and English than anything)... If they had used the provincial flag with the Fleur and cross on it would the provincial government be suing? ? ? ? How many would even know what that represented? ?
The biggest whining and complaining come from those who are guilty when their lies and CORRUPTION is brought into the sunshine.
Just expel the whole province and move on Canada!
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er, one more point
Ummm... no. I think it's quite clear that trademark protection does NOT afford them the right to prevent any use "at all... for any reason". Otherwise this would not even be a point of discussion, and MacLean's would never have put Bonhome on their cover, nor could any other newspaper or magazine or website ever put a brand logo in their publication for the purposes of commentary ever. In fact, they couldn't even mention the trademarked names of brands and products. There would be no criticism or "whateversucks,com" websites, no community review websites like Yelp, no business directories, nothing.
You're either being very oblivious or very disingenuous when you suggest that trademark law affords total control and protection.
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Selective interpretation?
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