Brand Bullies Strike Again

José Avila, a young software developer, appears to be a pretty resourceful fellow. According to Wired News,

...he's locked into two rents after moving to Arizona, and has no extra cash for an Ikea shopping spree. But instead of scouting street corners for a ratty, unwanted couch, Avila got creative and built an apartment full of surprisingly sturdy furniture — out of FedEx shipping boxes. ... [He] has outfitted his entire apartment with FedEx box designs, including a bed, a corner desk with wall shelves, a table, two chairs and a couch.

That's pretty cool, no? Well, no — not if you're a FedEx pettifogger eager to justify your existence and your paycheck. The company's lawyers promptly sent Avila a couple of nastygrams insisting he take down the website showing off his project, supposedly because he's in violation of the Digital Millennium Copyright Act.

It's hard to see how Avila broke copyright law, and his attorney is rightly nonplussed. These kinds of Goliath-versus-David corporate attacks are usually fought over trademark issues.

But even that's a dead end more often than brand bullies care to admit. The courts generally recognize that trademark law was written to fend off unfair competition. It exists to prevent businesses from being deceptive, so you can’t start a pizza joint and call it Dominoe’s. But if you love Domino’s food, or hate it, and you want to speak up about your pizza preference — or you have a webpage that documents how you built a mansion out of Domino's pizza boxes — no one should stop you. Trademark law was never meant to be used as a club against free speech or free markets.

Seems to me that the squash-the-little-guy suits brought by Mattel, Ford, Disney, and a number of other corporate miscreants are never really about protecting legitimate trademarks — that’s just a smokescreen, or a secondary concern at best. They're about angst over the loss of control. If you can’t control it, you can’t spin it. The Internet has changed the game, a reality many old-economy companies have yet to face.

Clueless corporate citizens like FedEx risk losing millions of dollars in goodwill by their bizarre acts of self-mutilation. They should keep in mind that it's one thing to win in court (although the company almost certainly won't prevail in this case), and another to win in the court of public opinion.

Comments

[Matt]

Actually, no. They're about the courts' perverse definition of "abandonment" when it comes to trademarks.

It turns out that, if a trademark owner _chooses_ to let certain arguably-infringing uses slide without suing, he loses all rights to the trademark forever and ever...more or less automatically. Unlike patents and copyrights, trademarks cannot be enforced selectively (and hence reasonably) in America. If FedEx doesn't go after the guy who builds furniture out of FedEx boxes, they lose the right to go after the guy who starts an express company called FeedEx.

Stupid? Of course.

But true.

(This does not, of course, preclude the possibility that FedEx might be both managed and legally-advised by humorless control freaks...but that hypothesis is no longer required to explain their behavior.)

[Rogier]

Matt:

Thanks, good comment, and true enough. I know what you're saying, having written about brand bullies before.

Of course, your point doesn't negate mine: that companies like Mattel and Paramount typically get nowhere at all when they go after art or parodies or fan sites that use their trademarks. And that they do so at their own peril. Mattel, in particular, is beyond pathetic in how it keeps hounding people with legitimate, constitutionally protected comments about its brands. The company knows full well it has virtually no leg to stand on when it sends its bullies/lawyers after these folks. The lawyers don't just do it pro forma; there's a real (misguided) zeal behind their efforts, and they never take no for an answer, no matter how often the judge slaps them down. The courts have time and again lost patience with Mattel. There have even been instances when the company was ordered to pay in excess of a million dollars to the artists it had sued, because the judge ruled that Mattel had made 'frivolous'use of the courts.

Most people have neither the energy nor the money to fight the cease-and-desist letters and the years of postential litigation they imply, resulting in censorship by another name.

I'd hate to see Fedex, a company I respect, go down the same path.

Regarding the courts' exasperation with Mattel (and their usually coming down on the side of free speech), check these out:

http://www.dcbar.org/for_lawyers/sections/intellectual_property_law/newsletters/caseReviews.cfm
http://ad-rag.com/112408.php
http://www.anecdotage.com/index.php?aid=1994
http://www.sorehands.com/injdir/timel_3.htm#nocert
http://www.wired.com/news/politics/0,1283,20036,00.html
http://wired-vig.wired.com/news/culture/0,1284,8037,00.html

[Melissa]

You'd think FedEx would send more boxes to the guy just for the free press. Sheesh.

[Matt]

Well, like I said...their decision-makers and legal advisors might in fact be humorless control freaks. Certainly there are lots of those in corporate America. I'm just saying...the present legal regime tends to make even reasonable people behave like humorless control freaks, where trademarks are concerned.

[FurnitureFromHome]

Boxes as sturdy as bedroom furniture? You would think that Fed Ex would be all over this kid with a marketing campaign. Not suing him. He's a genius in my book! Plus, I'll be shipping with FedEx from now on.