NY Stock Exchange Claims Trademark On Any Depiction Of Trading Floor, Threatens TPM

from the ownership-society dept

For quite some time now, we've been detailing the rise of "ownership society," where misleading concepts like "intellectual property" have been so driven into the heads of some people, that they believe they can claim "ownership" of totally abstract things, and then aggressively claim that no one else can make use of them. It's a really sad statement on what we're teaching people when it comes to "intellectual property." The latest such example is that the NY Stock Exchange (NYSE) apparently was able to secure a trademark (2587615) a few years back that appears to cover any representation -- such as a drawing or photograph -- of the NYSE trading floor.

Overbroad enough for you?

Well, the NYSE's senior VP for its "Intellectual Property Group" (the NYSE has a whole IP group?!?) is now threatening the news site Talking Points Memo for writing a story that was illustrated with the following stock photo:
In the view of the NYSE, apparently, posting a photo of the trading floor without its approval is trademark dilution. This is, simply speaking, an amazing stretch of the dilution concept of trademark law. Of course, the very use of "dilution" in trademark law is a stretch of the stated and written explanation of trademark law which is solely supposed to be about preventing consumer confusion from products. Yet, in this case no one is being confused into thinking that the NYSE is endorsing TPM's coverage. And TPM's use is not diluting the NYSE's mark. The NYSE might not like it, but then using trademark law to block that form of speech is completely antithetical to the law's intended purpose, and the general concepts of free speech (and, to clarify: free speech is about the government stopping speech, but that includes a private company using laws to prevent another's free speech).

Thankfully, it appears that TPM has good trademark lawyers they can call on, and they're calling the NYSE's bluff:
TPM is represented on Media and IP matters by extremely capable specialist outside counsel. And we've been advised that the NYSE's claims are baseless and ridiculous on their face. But this is yet another example of how many large corporations have given way to IP-mania, trying to bully smaller companies into submission with inane and legally specious claims of intellectual property rights.

Well, TPM's small but we have big teeth. And we don't like being pushed around. So we're again posting the same picture as an illustration for this post. But really, what's next? Mayor Bloomberg trademarks his face and the city newspapers have to get his permission to publish photos of him so not to infringe the Bloomberg face trademark? Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.
Not only that, but TPM has proposed a contest, asking people to predict what the NYSE will try to stop next. Should be interesting to see the NYSE's response. The proper response would be to apologize, admit that it overreached, and promise not to do so again. The more likely response is silence. The really dumb response would be to press this issue.


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Filed Under: dilution, trademark
Companies: nyse, tpm


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  • identicon
    Anonymous Coward, 27 May 2011 @ 8:29am

    It is a private, not public location. They have all rights.

    link to this | view in chronology ]

    • icon
      The eejit (profile), 27 May 2011 @ 8:31am

      Re:

      So a depiction, regardless of accuracy, is a trademark violation now?

      One word: lolwut?

      link to this | view in chronology ]

      • icon
        :Lobo Santo (profile), 27 May 2011 @ 8:45am

        Re: Re: :-D

        Welcome the internet age everybody, were 'lolwut' is one word, and embodies almost one concept.

        ;-P

        link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2011 @ 8:59am

      Re:


      It is a private, not public location. They have all rights.


      Including the ones that's don't exist!

      link to this | view in chronology ]

    • icon
      Trails (profile), 27 May 2011 @ 9:17am

      Re:

      All rights?!?! No. Just because you own property, doesn't mean you get to control others' depiction of our discussion of that, except in very limited sense defined by law.

      Nice try though.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 May 2011 @ 9:28am

        Re: Re:

        The image is taken inside a private location, and a location release was obtained, the image cannot be used. They could take a picture of the outside of building and use that, but images taken inside are subject to approval by the location owner.

        For that matter, the two people in the image would also have rights, and would require a model release. That could only be avoided if they agreed to waive those rights upon entering the premises.

        link to this | view in chronology ]

        • icon
          Mike Masnick (profile), 27 May 2011 @ 9:38am

          Re: Re: Re:

          The image is taken inside a private location, and a location release was obtained, the image cannot be used. They could take a picture of the outside of building and use that, but images taken inside are subject to approval by the location owner.


          Care to post a citation for that? I believe what's stated above is almost entirely wrong.

          link to this | view in chronology ]

    • icon
      DannyB (profile), 27 May 2011 @ 10:25am

      Re:

      They have rights to restrict people from entry.

      They may have copyrights if something creative such as artwork were photographed. Of course, the photo could still be used in a fair use manner, such as a story that is unrelated to the artwork, and the artwork that happens to be incidentally in the photo is not the reason people flock to the story. But this paragraph is irrelevant to the issue.

      They have trademark rights to their NYSE logo. But that doesn't mean this photo is infringing those rights.

      In this case, they allowed someone access. They even allowed them to photograph. The use of the photograph is fair use. There is no trademark issue.

      link to this | view in chronology ]

  • identicon
    Joshy, 27 May 2011 @ 8:42am

    In Portland Oregon there is a statue on one of the city government buildings. The Statue "Portlandia" isn't very famous nor used often in anything related to do with the city because the sculptor has retained "intellectul property rights" and thus no commercial reproduction or phots can be taken of the statue without the artists permission. Some gift to the city eh...it's named after you perched on a public building and maintained by the city...but no one is allowed to reproduce a photo of it...

    http://en.wikipedia.org/wiki/Portlandia

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2011 @ 8:45am

      Re:

      If the statue doesn't belong to the public then why is it being stored on public property? I recommend http://www.publicstorage.com/

      link to this | view in chronology ]

      • icon
        DannyB (profile), 27 May 2011 @ 10:28am

        Re: Re:

        It sounds like the statue is owned by the city. The copyright is owned by the artist.

        Even if that is the case, there can still be fair use defenses of a photo that happens to include the statue. There are probably fewer possible fair uses of a photo where the statue is the subject of the photo.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 May 2011 @ 10:48am

          Re: Re: Re:

          "It sounds like the statue is owned by the city. The copyright is owned by the artist."

          That's retarded.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 27 May 2011 @ 10:55am

            Re: Re: Re: Re:

            Not really.

            If you buy a music CD, you own the CD. But the Copyright is owned by the artist.

            Same principle could apply.

            link to this | view in chronology ]

            • identicon
              Anonymous Coward, 27 May 2011 @ 11:15am

              Re: Re: Re: Re: Re:

              "Not really."

              Yes really.

              "If you buy a music CD, you own the CD. But the Copyright is owned by the artist."

              No city should buy things if the copy protection is 'owned' by the artist. It should demand that it be released under a CC license of some sort, or that it be in the public domain. Things on public property should belong to the public. Public property is not the storage place for someones private intellectual property.

              and usually the copy protection isn't owned by the artist, but by the labels. To say that it's owned by the artist is generally false.

              "Same principle could apply."

              Though the principle you speak of itself is retarded, the same principle doesn't apply. In one case, public space is being used to store intellectual property at taxpayer expense. In the other case, that's not so.

              link to this | view in chronology ]

              • identicon
                Anonymous Coward, 27 May 2011 @ 11:16am

                Re: Re: Re: Re: Re: Re:

                The second to last sentence should read

                "In one case, public space is being used to store private intellectual property at taxpayer expense."

                link to this | view in chronology ]

              • icon
                DannyB (profile), 27 May 2011 @ 12:34pm

                Re: Re: Re: Re: Re: Re:

                > No city should buy things if the copy protection is 'owned' by the artist.


                If that were true, that's a good argument not to buy PC's running Windows.

                You own the PC, the hard disk. You don't own the copyright nor the copy protection on Windows.

                link to this | view in chronology ]

                • icon
                  slander (profile), 27 May 2011 @ 6:35pm

                  Re: Re: Re: Re: Re: Re: Re:

                  So if you build the PC and install Linux, should you also be required to code a non-infringing BIOS from scratch? You own the motherboard, not the copyright on the BIOS.

                  link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 May 2011 @ 11:18am

          Re: Re: Re:

          "There are probably fewer possible fair uses of a photo where the statue is the subject of the photo."

          The statute needs to be removed from public property and be placed on private property. Things on public property should both intellectually and physically belong to the public, to freely copy, take pictures of and redistribute those pictures. That public property is being used to host private intellectual property at the expense the public's freedom to take a picture is unacceptable.

          link to this | view in chronology ]

          • icon
            DannyB (profile), 27 May 2011 @ 12:36pm

            Re: Re: Re: Re:

            I would extend that to private property as well.

            I don't care what kind of artwork you put on your property.

            If I can take a picture of it from public space, then it's fair game to publish my photo.

            link to this | view in chronology ]

    • identicon
      DogBreath, 27 May 2011 @ 10:37am

      Re:

      From what I've just seen on Google Maps right above the entrance to "The Portland Building"(blue-green color) at 1120 Southwest 5th Avenue, Portland, OR, (unless Google Maps received permission and "paid their dues" to photo the sculpture), they are in big trouble (again... sigh).

      See for yourself:

      http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=1120+Southw est+5th+Avenue,+Portland,+OR&aq=0&sll=37.0625,-95.677068&sspn=29.578161,56.513672&ie =UTF8&hq=&hnear=1120+SW+5th+Ave,+Portland,+Oregon+97204&ll=45.515907,-122.679133&spn =0.001609,0.003449&t=h&z=18&layer=c&cbll=45.515804,-122.679187&panoid=PLuEEqAagj m6hH4Csnl0eQ&cbp=12,110.6,,0,-42.69


      Even though the view is a little blurry, obscured by tree branches, the illegal image pirating of the sculptor's intellectual property clearly ought to be worth a couple of bucks in some "sue-em-all" court.

      Poor Google...

      link to this | view in chronology ]

  • icon
    Andy (profile), 27 May 2011 @ 8:51am

    Would be quite the hoot if they tried to claim trademark over all the ticker symbols of the stocks traded on their exchange! The sooner IP maximalists reach the extreme where they put themselves out of business, the better, perhaps.

    link to this | view in chronology ]

    • identicon
      DogBreath, 27 May 2011 @ 11:09am

      Re:

      Think of all the license plates across the 50 states with those same ticker symbols in them that they could sue for: brand dilution. I'm sure some NYSE lawyer is thinking of it right now... with dollar signs in his eyes!

      link to this | view in chronology ]

  • identicon
    That Anonymous Coward, 27 May 2011 @ 8:56am

    Oooh for fun lets find all the pictures of it the AP sells...
    Lawyer gladiatorial combat!
    Only the strong survive!

    link to this | view in chronology ]

  • icon
    Ben Robinson (profile), 27 May 2011 @ 9:01am

    Who owns your knowledge

    I say this on the BBC site today http://www.bbc.co.uk/news/business-13570725

    As far as I can tell PayPal are trying to claim ownership of the knowledge in a former employees brain and are suing google for employing him. If the guy took documentation or code with him then fair enough, if he had a contract that that said he couldn't go work for google or whoever then fair enough. But suing google for employing someone who has useful and relevant knowledge is crazy. All google is doing is competing for employees the same as all firms do constantly. I am a software developer and before working in my current role i had no experience of Dynamics CRM development. Now i have lots and demand for my services does my current company get to sue if i get a better job elsewhere.

    link to this | view in chronology ]

  • identicon
    Mr. Smarta**, 27 May 2011 @ 9:07am

    Makes perfect sense

    Technically, I own the whole idea, concept, and IP of Ex Post Facto, so everything that came before now belongs to me. Just ship it all to my home address along with all the money that was printed before today. And tomorrow, you'll all owe me everything created today. If not, I'll sue you all tomorrow for not giving me everything yesterday.

    link to this | view in chronology ]

  • icon
    W4RM4N (profile), 27 May 2011 @ 9:38am

    What the NYSE Will Stop Next

    I believe/predict the NYSE will stop the act of raising your hand and yelling. This will devistate the auction business. You won't be able to buy a beer or hotdog at the ballpark. Rock concerts will become a thing of the past. Political speeches will never be the same. The taxi companies will be left in ruins. Depressing; I know.

    link to this | view in chronology ]

    • icon
      harbingerofdoom (profile), 27 May 2011 @ 10:01am

      Re: What the NYSE Will Stop Next

      Political speeches will never be the same

      so, not all bad then...

      link to this | view in chronology ]

  • icon
    mike allen (profile), 27 May 2011 @ 9:44am

    As all brains work on a frequency i own that frequency i own all your brains any thoughts you have i want $100 each.
    Rich at last (totally sarcastic)

    link to this | view in chronology ]

    • icon
      DannyB (profile), 27 May 2011 @ 10:32am

      Re:

      Personally, I have found that if you use two layers of foil when fashioning your aluminum headwear that it more than doubles the effectivness!

      This is due to a resonance effect that develops between the two layers of foil at exactly twice the frequency of the government's invisible brain lasers.

      Also, I have found that if you fashion two antennas on top instead of the usual single antenna that it further increases the effectiveness by an additional 37 %.

      I have a patent pending on these and other discoveries.

      link to this | view in chronology ]

  • icon
    mike allen (profile), 27 May 2011 @ 9:50am

    more seriously i just searched for NYSE on goggle images. result, About 3,380,000 results how many are they suing.

    link to this | view in chronology ]

  • identicon
    Davis Freeberg, 27 May 2011 @ 10:16am

    The NYSE Has A Point

    If you go back to the original article, you'll see that TPM used the NYSE photo on a story about insider trading at unrelated hedge funds. It would be a bit like Mike writing a story about tainted beef at Burger King and then using a picture of McDonalds to illustrate it. Most people might not appreciate the difference when it comes to finance, but clearly the NYSE shouldn't be associated with people who weren't even members. While their trademark claim may or may not be overreaching, TPM did make a mistake in this case and could have easily changed photos to rectify it. While they may ultimately end up being in the right, I don't think this is a case where TPM is doing the right thing.

    link to this | view in chronology ]

    • icon
      The eejit (profile), 27 May 2011 @ 10:43am

      Re: The NYSE Has A Point

      That's not what they're suing for. If it were, we wouldn't be seeing this.

      link to this | view in chronology ]

      • icon
        Davis Freeberg (profile), 27 May 2011 @ 10:59am

        Re: Re: The NYSE Has A Point

        A.) They're not "suing" anybody yet, but if TPM tries to raise a fair use defense, they may run into trouble because the NYSE had nothing to do with the original story. B.) This is exactly what they are complaining about,

        "your unauthorized used of the images of the trading floor, tarnishes NYSE's trademarks and it's affiliated companies by associating NYSE trademarks with entities and issue with which it is not affiliated or relevant."

        Again, this doesn't make the NYSE right, but you can see their point. Can you imagine the uproar if TPM used a Starbucks photo for a story about slave labor in China? Even though the two had nothing to do with each other, Starbucks brand would still be guilty by association. The NYSE is a 200 year old institution, the hedge funds that were busted for sleazy behavior were young companies that had much less regulation. To use a NYSE photo with the story is almost slanderous. The mere fact that no one seems to acknowledge this is proof that the NYSE has a branding problem and should be defending their reputation somehow.

        link to this | view in chronology ]

        • icon
          Chris Rhodes (profile), 27 May 2011 @ 11:11am

          Re: Re: Re: The NYSE Has A Point

          You're talking about defamation, not trademark infringement. And your discussion "fair use" assumes that the picture in question is copyrighted by the NYSE, and therefore would require a defense by TPM.

          link to this | view in chronology ]

          • icon
            Davis Freeberg (profile), 27 May 2011 @ 11:21am

            Re: Re: Re: Re: The NYSE Has A Point

            Defamation, slander, even beating the fair use defense is admitedely a stretch, but TPM acted did act unethically in this case and while the NYSE shouldn't get any love for being ham fisted, TPM should have taken the high road by correcting the mistake and using a photo of one of the hedge funds involved instead. If you look at the bigger picture, this really isn't about trademark law, it's about journalistic integrity. In the blog post Mike writes how he doesn't see how the NYSE was harmed, but if this was a case where the brands were more recognizable by consumers then this harm would be clear.

            link to this | view in chronology ]

    • icon
      AdamR (profile), 27 May 2011 @ 10:54am

      Re: The NYSE Has A Point

      So your saying that none of the companies involved in the probe( IE Goldman Sachs) not a NYSE member? That none of the stocks they are accused trading with insider info are part of the NYSE?

      link to this | view in chronology ]

  • icon
    Mike Raffety (profile), 27 May 2011 @ 11:02am

    Trademarking an image

    Reminds me of the attempts by the French to claim copyright over all images of the Eiffel Tower.

    http://www.techdirt.com/articles/20050202/1946248.shtml

    link to this | view in chronology ]

  • icon
    gort-o-matic (profile), 27 May 2011 @ 11:10am

    Chrysler Building Trademark

    Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.

    Not the Empire State Building, but the Chrysler Building is trademarked:
    http://www.trademarkia.com/chrysler-building-75982939.html

    link to this | view in chronology ]

    • identicon
      Scote, 27 May 2011 @ 11:56am

      ...And the TransAmerica Pyramid is trademarked.

      The TransAmerica Pyramid skyscraper in San Francisco is also trademarked--and it is routinely removed from the San Francisco Skyline to avoid trademark issues.

      http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/07/08/DDGM7C8H4O1. DTL

      Which is ridiculous. Nobody should be able to essentially own a city skyline by dint of having a trademark on a building.

      link to this | view in chronology ]

      • icon
        btr1701 (profile), 28 May 2011 @ 12:37am

        Re: ...And the TransAmerica Pyramid is trademarked.

        > The TransAmerica Pyramid skyscraper in San Francisco is
        > also trademarked--and it is routinely removed from the San
        > Francisco Skyline to avoid trademark issues.

        I've read similar stories about Seattle's Space Needle.

        Of course none of those trademarks would give their owners any legal grounds for recovery merely because a movie or photographer showed the city's skyline in their work.

        This is just another example of moneyed interests using the law like a club to extort money to which they're not entitled, knowing that even if the defendants win in court, they lose financially.

        link to this | view in chronology ]

    • identicon
      Lawrence D'Oliveiro, 27 May 2011 @ 9:57pm

      Re: Chrysler Building Trademark

      A trademark doesn’t stop you referring to the original product using the trademark. That, after all, is what the trademark is for.

      Isn’t it?

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2011 @ 4:34pm

    lol @ the US flag... fascist country

    link to this | view in chronology ]

  • icon
    gilroy0 (profile), 28 May 2011 @ 5:10am

    Genuine question

    One of the counter-volleys is that the story was not about the NYSE but about some other unrelated hedge fund. Here's my question: The image used is pretty iconic for "financial markets". The NYSE trading floor is used by lots of financial cable channels as "the" symbol of the capitalist economy -- and the NYSE is quite happy to let them. (For example, it allows and encourages coverage of the opening and closing bell.)

    Could an argument be made that the trademark conveyed by the image has been turned generic, a la the fears of Band-aid Brand bandages, Kleenex tissues, or Xerox copying? Can an image become generic?

    link to this | view in chronology ]

  • icon
    jakerome (profile), 30 May 2011 @ 8:26pm

    Glad to see this story

    Sure I was among the dozens to tip TechDirt to this gem. Glad to see some in new media fight back instead of rolling over.

    link to this | view in chronology ]

  • identicon
    ike, 31 May 2011 @ 3:39pm

    Landmark buildings do charge fees for their image



    Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.




    It's my understanding that this is the case for the CN Tower* in Toronto, at least for use in movies.

    * — It's currently the tallest building in the Americas, and it was the tallest in the world for over three decades.

    link to this | view in chronology ]

  • identicon
    Jayden Eden, 30 Jan 2014 @ 5:28pm

    I wonder if they would get mad at me if I started my own stock floor in my storage shed. http://www.lowestcoststorageguaranteed.com/ Would that be possible even?

    link to this | view in chronology ]


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