Hey IMAX: IMAX Can't Threaten People With Trademark Infringement For Saying IMAX. IMAX. IMAX.

from the imax-imax-imax-imax dept

Over the years, we've certainly seen plenty of ridiculous attempts to overclaim trademark rights, often for the sake of censorship. While it's not always the case, generally speaking, it's smaller, less sophisticated companies and trademark holders who do this. Larger companies do have a habit of trademark bullying on the margins, but they tend to know better than to send absolutely insane trademark threats just because someone mentions their brand. Apparently, IMAX is an exception to that general rule. IMAX apparently believes that merely mentioning IMAX without a license is infringing on its trademark. Even if you're a media company writing about a product and you interview someone who says something nice about IMAX. IMAX is wrong. Also: IMAX.

You see, our friends over at Ars Technica recently wrote a review of the SteamVR offering, and it included a quote from a game designer, Denny Unger, who was talking about how cool SteamVR is and said: "It’s like saying, 'I have an IMAX theater in my house.' It’s so much better that we can get away with a cumbersome setup." That quote also did become a part of the headline to the story, which appears to be what tipped off IMAX's elite crack squad of trademark censors, who proceeded to send Ars Technica this ridiculous letter which states:

IMAX Corporation has been the owner of the federally registered trademark in the United States and Canada since 1970. Any unauthorized use of our trademark is expressly forbidden.

We believe that your incorrect reference to IMAX when describing this product is misleading to readers as we do not believe that it is possible for a virtual reality system to replicate the experience of an IMAX theatre, which is provided by cutting edge projection and sound technology on screens up to 35.72 metres. We request that all future articles regarding this "room-scale" virtual reality system make no reference to our registered trademark.

Ars Technica's response to this ridiculous threat is perfect. It points out, first of all, that the quote mentioning IMAX is actually praising IMAX:

In other words—Unger thinks SteamVR is awesome, and to express its awesomeness, he compared it to IMAX, another thing he clearly thinks is awesome.

But then explains some rather basic things about trademark law that you would think a company the size of IMAX would already know.

First of all, this isn't a story about IMAX, and it contains just one (nice!) reference to IMAX. The statement wasn't Ars' speech at all, but one that an Ars writer chose out of many possible interview quotes. But that's all a bit of an aside, because the important point is that despite Ruby's fantastical interpretation of what a trademark means, we're actually allowed to say whatever we want about IMAX. I can say IMAX screens look like SteamVR, or that they look like my 47" Vizio TV, or that they remind me of purple bunnies. We can review IMAX directly, we can compare it to other products, we can love 'em, we can hate 'em—all without their permission.

The standard in trademark law is to determine whether there's infringement by detecting whether there would be a "likelihood of confusion" between two products. But again, we're very far away from that test here. That standard would only apply if we were selling movie tickets; there are no consumers who confuse reading an article about virtual reality with going to the movies.

And, you know what, I don't think enough people have compared IMAX to purple bunnies.

Ars Technica's Joe Mullin also points to our own article about how, if anyone is messing with IMAX's trademark, it's IMAX itself, which for years now has been installing much smaller screens but still calling them IMAX, confusing lots and lots of people. It's been years since we mentioned that, and I don't think we otherwise would have had need to do so if IMAX itself hadn't reminded us of this little fact. So, yeah, IMAX, maybe send your staff to some remedial trademark school, because the media can absolutely say IMAX without your "authorization." IMAX. IMAX. IMAX.

IMAX.

Filed Under: ars technica, imax, journalism, trademark
Companies: imax

Bogus Infringement Takedowns And The Danger Of Relying On Third Party Services With No Backbone

from the sad dept

We've discussed in the past how the DMCA notice-and-takedown process could be deemed a First Amendment issue, in that it involves government pressure to block speech prior to any hearing -- in fact, just on the say so of an individual. That's because the way it works is that if a service provider receives a DMCA takedown notice, they either have to take that content down, or face liability themselves. Nearly all service providers take the liability-minimizing position of simply taking down the content. Some go even further and take down entire accounts. It's a massive overreaction, but it's a lot easier than actually figuring out what's going on and the law encourages that.

This is becoming a bigger and bigger problem lately, as more and more people and companies rely on third party service providers for what they do. New social services are popping up left and right and becoming quite popular: Facebook, Tumblr, Twitter and others -- and unlike a blog where you can host it on your own server and (hopefully) find a service provider who doesn't easily fold, these services require you to keep the content on their servers and they often seem less willing to hear people out.

Today, we have two separate examples of this, both involving "big" names, which is really the only reason they're getting attention. Were it to happen to less well known names, their content would likely just have been stifled.

First up, we have our friends over at Ars Technica, who had their Facebook account taken down due to a vague complaint of copyright infringement. No real details. No clue who filed the complaint. No notice. And the entire account locked down:

Prior to the account lockout, we had received no notices of infringement or warnings. Truly, we awoke to find that Facebook had summoned a judge, jury, and executioner and carried out its swift brand of McJustice all without bothering to let us know that there was even a problem.

Further investigation has revealed just how flawed Facebook's infringement reporting system is. To begin with, someone making a complaint can provide any third-party e-mail address they choose. So it is rather easy to spoof the origin of a complaint, while giving Facebook and the accused no chance for a direct rejoinder.

The Ars crew is now highlighting how big a problem this is on Facebook, and how ill-prepared Facebook appears to be at handling counternotices or complaints about all of this:

"I have had this happen twice now. I am a professional photographer and I have been using Facebook to increase my business. This has been working great so far. The first time, I was the only admin of the fan page and my account got suspended (for what reason, I still do not know). And thus, my fan page was automatically assigned to some random 'fan' of the page. Of course they renamed it and stole all of my fans.

When contacting Facebook to try and get my main account reinstated and my fan page back, (7 total emails spanning a 2 week time) I got no response at all. My network had been crushed and I had to start from scratch."

Apparently, this has been an ongoing issue for a number of websites, including Neowin, which has had its Facebook page taken down multiple times due to a bogus complaint. In that case, it's even more ridiculous as Facebook claims the only way to fix it, is if Neowin can convince the person who filed the original notice to change his mind.

Next up, we have Danah Boyd, who is well known for her research and insightful writings into internet culture and social media. Apparently she had a Tumblr account under the name Zephoria, the online name that she has used for over a dozen years. Yet, a few years ago, some marketing consultants, who have nothing to do with Boyd, started a company called Zephoria and have been apparently trying to push Danah out of her online persona. The company apparently filed a trademark claim with Tumblr, who simply handed her Tumblr account over to the company and changed her account to some other name without her approval. Tumblr claims it contacted her, but gave her very short notice and she apparently did not see the note in time.

Thanks to her going public about the issue, Tumblr has apologized and reverted the mistake, and, I imagine, someone inside Facebook is scrambling to do the same thing for Ars Technica as well. But, this is a really big problem that is impacting more and more people and it's only going to continue. Part of the problem is the absolutely ridiculous way Congress and the courts have increased third party liability, such that these service providers feel that as soon as anyone says something, they need to totally kill accounts. It's a systematic way to use intellectual property claims to stifle and censor speech. It's a huge problem that's only going to get worse.

Filed Under: ars technica, copyright, danah boyd, liability, neowin, takedowns, third parties, trademark

Don't Blame Your Community: Ad Blocking Is Not Killing Any Sites

from the get-over-it dept

Every so often we hear about a random blog or website that freaks out and claims that ad blockers are "stealing" or somehow damaging websites. But it's quite a surprise to see a similar argument from a site like Ars Technica -- one of the top techie sites out there, which is now owned by Conde Nast. Over the weekend, Ars wrote an odd post claiming that ad blocking "is devastating to the sites you love." Ars decided to run an experiment where it blocked access to its content to any user using an ad blocker (with no warning or explanation). Not surprisingly, this pissed off a bunch of readers, and Ars now admits that it was a mistake in how it was handled -- but that it still believes ad blockers are harming sites.

Frankly, such a position is insulting (though, even more insulting was the way Ars staff responded to complaints in its comments, dismissing people who don't like their ads as not adding anything and actively telling them to go away). If you're reading Techdirt, and the ads we serve are not good, you have every right to use an ad blocker. It's your browser, do whatever you want with it. I, personally, do not use an ad blocker because I don't find most ads annoying -- but if you do, more power to you. You're absolutely welcome here on Techdirt.

If the ads are bad, it's bad for the advertisers

Back in December of last year, we signed an experimental ad deal to run a series of ads on the site, where a single advertiser would effectively have all the ads for a 24-hour period. As a part of that, there would be an ad at the top that temporarily "pushed down" the content for a few seconds, before pulling back up. Nothing was covered. Nothing prevented readers from getting the content. And the "pushdown" ad only showed once per visitor and never again. We went back and forth about it, but decided it was worth an experiment -- especially since no content was blocked or covered. I won't name the advertiser who was in the first test... but many of you did notice, and did not like it. We got a lot of complaints. So we killed the additional tests. I won't lie: these deals were for quite a bit of money -- a very large premium on the amount of money we typically make from advertising. But when we saw how annoyed our users were, we realized immediately what a bad idea this was and told the others who were scheduled to run similar campaigns, "sorry." We gave up a lot of money to do so, but what it came down to in our mind was that it wasn't worth it.

And when I say "wasn't worth it," I don't mean just to us or our community -- but to the advertiser. Most of the anger we saw over the original ad campaign wasn't directed at us -- it was directed at the company doing the advertising. So we told a bunch of companies willing to pay us a lot of money not that we didn't want their money -- but that they didn't want to buy that kind of advertising, because it would only damage their own brands.

Advertising that works, not annoys

Now, compare that to another "project" that we did late last year. As you may recall, UPS sponsored me doing a series of "whiteboard videos" about topics that we regularly talk about here -- one on the economics of abundance, one on the innovator's dilemma and one on the difference between innovation and invention. Before releasing these, I was actually a bit nervous about how people would respond. But these videos, which were clearly labeled as being sponsored by UPS, actually were a huge hit, and we received lots of compliments about them. Even more interesting? Numerous comments on the videos thanked UPS for sponsoring them and making them happen.

A similar thing happened when we launched our IT Innovation website, sponsored by Sun and Intel. In that case, those two companies were sponsoring us to develop more general content around a topic that we (and many of you) found interesting. The editorial control was still entirely our own, but Sun and Intel received branding on the website, and the ability to offer up some whitepapers to download in the sidebar. The end result has been wonderful, and we'll likely do similar projects in the future. Rather than annoying readers, we lined up everything in a way that benefited everyone. It really was a win-win-win sort of setup.

Those types of projects are the kinds that we love to do, and which add real value to the community and to the sponsors. Those are the types of things that we think all media publications should be looking at doing. Things that add value, not take it away. Oh, and if you're a company that wants to do a project like this that gets people excited, rather than annoyed by your brand, feel free to contact us.

Don't blame others for your failures

Mike Markson recently wrote up a blog post for entrepreneurs, talking about how every entrepreneur needs to learn the lesson that, whatever doesn't go right is your fault. It's a tough lesson for people (especially entrepreneurs) to learn. If you can't raise money, don't blame the investors. You were the one who failed to convince them. If you can't make sales, don't blame the sales people. You either hired the wrong sales people or didn't put together a compelling enough pitch or didn't have a good enough product. It's your responsibility as an entrepreneur to fix things. And I'm not saying this as a third party: I've been in both of the experiences discussed in this paragraph, and had to learn not to blame others, because that is the natural tendency. But it's not productive at all.

Along those lines, if you are running a media site, if you're having trouble making money, it's your fault. Don't blame your readers. Don't blame your community by telling them they're "devastating" a site by blocking ads or failing to pay for a paywall. As the producers of that site, it's your responsibility to do things to get that site paid for. If you don't like what we're doing on Techdirt, go ahead and block our ads. Sure, just like Ars, many of our ads are paid for based on impressions and we may make less money from those ads, but that's our problem and the problem of advertisers who aren't willing to do more unique, creative and compelling projects that benefit the community rather than annoy it. We want the advertisers, sponsors and partners we work with to get the best results possible in a way that everyone wins. And that's not by forcing people who don't want to see their ads to see them, or by pissing off our readers by blocking them if they use ad blocking. It's by taking on the responsibility ourselves to put together compelling programs that make everything more valuable for all participants.

There's lots of ways to value a community

And we value you as readers even if you're not seeing any ads at all. That's because you take part in the community. You share links to our posts. You comment. You tell others about what we've written -- and that's all incredibly valuable to us and the rest of the community -- much more than any CPM value we'd get from a few extra ad impressions. If you don't see an ad, that doesn't mean you have no value. Quite the opposite.

Claiming that ad blocking is harming sites is like the recording industry claiming that piracy (or home taping) is killing music. Or it's like the newspaper industry claiming that aggregators are killing them. It's passing the blame. If you run a company, it's your responsibility to put together a business model that works. And if people are somehow figuring out ways to do what they want where you don't get paid, then it means you're doing something that needs to change. A good business model is one where everyone is happy with the transaction, not one where one party feels forced or coerced into accepting something they don't want.

So, let's get past this idea of blaming others, and focus on building business models where everyone benefits.

Filed Under: adblocking, adblocks, advertising, ars technica, business models, community, economics, publishing, value
Companies: ars technica, conde nast