RE: Re: Using Logos in Wikipedia Articles without pemission

From: Shawn N. Sullivan <sullivan[_at_]sullivanlaw.net>
Date: Mon, 02 Oct 2006 11:00:00 -0400
With regard to trademark infringement, I think that one might never get to the issue of trademark fair use because simply posting someone's logo on Wikipedia probably doesn't constitute "trademark use," and can't serve as a basis for infringement. One of the first inquiries in any trademark case is "whether defendants are using the challenged mark in a way that identifies the source of their goods." Interactive Prods. Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687, 695 (6th Cir. 2003). If the defendants are using the trademark only "in a 'non-trademark' way--that is, in a way that does not identify the source of a product -- then trademark infringement and false designation of origin laws do not apply." Id. I suppose that if the Lutheran mark were "famous," there could be a claim under the Federal Trademark Dilution Act. However, I doubt that the mark has sufficient "fame" for that.
 
With regard to copyright infringement, I tend to agree with John Levine's "slam dunk" analysis posted earlier. It certainly looks like fair use to me.

 

Shawn N. Sullivan
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-------- Original Message --------
Subject: [CNI-(C)]  Re: Using Logos in Wikipedia Articles without
pemission
From: "Webb, Jere" <JMWEBB@stoel.com>
Date: Fri, September 29, 2006 6:02 pm
To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
<CNI-COPYRIGHT@cni.org>

I havent read the material at your links, but if you have not already
found Judge Kozinski's opinion for the 9th circuit on whether use of the
logo version of a mark is ever fair use, you need to go read it.    He
says fair use only allows use of the word version of a mark consistent
with the rule that fair use requires the minimum use of a mark necessary
to get your communication across   This would arguably never include
logo usage.  

Here is the note I dictated when this case was handed down:

Judge Kozinski's opinion in New Kids on the Block v. Gnat Satellite
Information Network, 971 F2d 302 (1992), makes it clear that fair use in
a situation where defendant is using plaintiff's trademark to describe
plaintiff's own product as would be true in comparative advertising, for
instance, does not cover use of the logo type version of a mark.  See
footnote 7 in that opinion to which the court cites the Ninth Circuit's
decision in Volkswagenwerk v. Church, 411 F2d 350 (9th Cir 1969), in
which the court held that Adida could use the words Volkswagen and VW in
advertising its repair services but would not be entitled to use the VW
logo.  According to Judge Kozinski a defendant in such cases is held to
the following standard.
"Only so much of the mark or marks may be used as is reasonably
necessary to identify the product or service."

-----Original Message-----
From: Smith, Robert E. [mailto:smithre@ctsfw.edu]
Sent: Thursday, September 28, 2006 02:01 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Using Logos in Wikipedia Articles without pemission

Dear Friends:

I'm in a -- discussion -- on Wikipedia about the use of the logo of the
Lutheran Church--Missouri Synod without their permission.

The LCMS has posted this statement on their website:

"The logo is the exclusive property of The Lutheran Church-Missouri
Synod and may not be used without its express consent."

My conversation partners argue that it is fair use because Wikipedia
engages in non-profit educational activities, that a low resolution
version is not substantial and that the image itself is only one of many
on the page and that, because it is given away on their website for
free, there's not effect on market.

I'm arguing that it certainly is not fair use and the wishes of the
copyright holder ought to be respected.

For those interested, the discussion is at:
http://en.wikipedia.org/wiki/Talk:Lutheran_Church_-_Missouri_Synod#Aspec
ts_of_Logo_Use (I'm CTSWyneken on Wikipedia)

And

http://en.wikipedia.org/wiki/Wikipedia_talk:Logos#Use_of_logos_when_and_
organization_forbids


see also Wikipedia's logo policy:

http://en.wikipedia.org/wiki/WP:LOGOS

Bob

Rev. Robert E. Smith
Electronic Resources Librarian
Concordia Theological Seminary
Fort Wayne, Indiana
"Translatio traditio est."
-- attr. St. Jerome


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Received on Mon Oct 02 2006 - 19:00:00 GMT

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