Comments on: WSJ on Computers in the Movies (and Trademark Missteps) http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_missteps.html Musings of a techie lawyer Fri, 29 Aug 2008 21:24:32 +0000 http://wordpress.org/?v=2.7-bleeding By: TheOnlineLawyer http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_missteps.html#comment-458 TheOnlineLawyer Thu, 18 May 2006 19:21:01 +0000 http://wendy.seltzer.org/wordpress/?p=349#comment-458 It seems to me the better argument for Caterpillar would have been based on defamation, not trademark law. Even a defamation claim would have been an extremely uphill battle. It seems to me the better argument for Caterpillar would have been based on defamation, not trademark law. Even a defamation claim would have been an extremely uphill battle.

]]> By: Anonymous http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_missteps.html#comment-457 Anonymous Tue, 16 May 2006 13:47:03 +0000 http://wendy.seltzer.org/wordpress/?p=349#comment-457 Clarification on the last paragraph of my comment posted about an hour ago. It should read as follows: "In my view, it's not the end of trademark fair use to say permission should be sought in such circumstances. Fair use would apply more in instances where a particular usage in a film is truly in passing -- and thus not in a manner likely to be construed as an endorsement, and not really a "trademark use." Clarification on the last paragraph of my comment posted about an hour ago. It should read as follows:

“In my view, it’s not the end of trademark fair use to say permission should be sought in such circumstances. Fair use would apply more in instances where a particular usage in a film is truly in passing — and thus not in a manner likely to be construed as an endorsement, and not really a “trademark use.”

]]> By: Anonymous http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_missteps.html#comment-456 Anonymous Tue, 16 May 2006 12:59:38 +0000 http://wendy.seltzer.org/wordpress/?p=349#comment-456 I would respectfully suggest that we have a collision here between academia and daily law practice. You cite the Catepillar case, but the reality is that (like many cases) it's highly fact-specific. Consumers have come to expect authorized product placements in films. Such expectations would generally not extend to heavy earth-moving equipment, but probably would apply in the context of consumer products like food, soft drinks, and even computers or online services like AOL, Amazon, etc. So, if you were counseling a film production on whether it can prominently feature an image of a well-known brand that might or might not be construed as an endorsement or authorized use of some kind, would your advice be "don't worry, we'll cite the Catepillar case and fend off the injunction"? In my view, it's not the end of trademark fair use to say permission should be sought in such circumstances, especially if the usage in the film is truly in passing -- and thus not in a manner likely to be construed as an endorsement, and not really a "trademark use." I would respectfully suggest that we have a collision here between academia and daily law practice. You cite the Catepillar case, but the reality is that (like many cases) it’s highly fact-specific. Consumers have come to expect authorized product placements in films. Such expectations would generally not extend to heavy earth-moving equipment, but probably would apply in the context of consumer products like food, soft drinks, and even computers or online services like AOL, Amazon, etc.

So, if you were counseling a film production on whether it can prominently feature an image of a well-known brand that might or might not be construed as an endorsement or authorized use of some kind, would your advice be “don’t worry, we’ll cite the Catepillar case and fend off the injunction”?

In my view, it’s not the end of trademark fair use to say permission should be sought in such circumstances, especially if the usage in the film is truly in passing — and thus not in a manner likely to be construed as an endorsement, and not really a “trademark use.”

]]> By: Rob Carlson http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_missteps.html#comment-455 Rob Carlson Wed, 10 May 2006 14:55:51 +0000 http://wendy.seltzer.org/wordpress/?p=349#comment-455 If companies got freebie product placements in big ticket movies and TV shows all the time, then who would pay for them? It's not about trademark dilution, it's about creating artificial market competition to be the logo on the protagonist's soda can. If companies got freebie product placements in big ticket movies and TV shows all the time, then who would pay for them?

It’s not about trademark dilution, it’s about creating artificial market competition to be the logo on the protagonist’s soda can.

]]> By: Jesse Fox http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_missteps.html#comment-454 Jesse Fox Fri, 05 May 2006 18:13:26 +0000 http://wendy.seltzer.org/wordpress/?p=349#comment-454 very interesting. what, then, is the rationale when certain television shows blur the logo of, say, a pepsi can? are they misinformed? is that "precaution" not required? ~jesse very interesting.

what, then, is the rationale when certain television shows blur the logo of, say, a pepsi can? are they misinformed? is that “precaution” not required?

~jesse

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