Anyone have extra Harvard Sucks shirts?

Perhaps someone should trademark the phrase "Harvard Sucks"

[Q]billhoward Wrote:
If TiVo doesn't send the letters, they might maybe possibly lose some control over the brand name or trademark. But as a practical matter TiVo has entered the lexicon as a verb and lawsuits won't change it.[/q]

I do know enough trademark law to know that consistent, vigorous defense of your mark is required to protect it against the sort of vernacular dilution of trademark you're talking about. In other words, TiVo would be irresponsible not to send those letters. As soon as they stop, you might as well add it to the dictionary and start calling all DVRs "tivos," because it'll become acceptable to use it as a generic. Note that while this has happened to zippers, aspirin, and cellophane, it has not happened to Kleenex or Hoover - because they still vigorously defend their marks. And nobody who knows the law has ever suggested they should stop.

[q]When you're talking about non-commercial speech, if your speaking devalues the other guy's product, well, tough, so long as it wasn't libelous or slanderous. Plus you always have truth as a defense if there was malice.[/q]

For there to have been "actual malice" in the freedom of speech sense, the speech has to have been false in the first place. The definition of "actual malice" in this context is "knowledge of, or reckless disregard for knowledge of, falsity." Which is completely irrelevant, because "Harvard Sucks" is opinion - and there's well-settled law that there is no such thing as a "false opinion" as long as it doesn't assert any false facts.

But it's one thing to call a forum thread "Harvard Sucks," and quite another to print it on a t-shirt and sell it. That's not non-commercial speech, that's commercial activity and trademark infringement.

[q]Harvard can send all the cease and desist letters it wants to. Volume of certified mail doesn't make case law. It may frighten off some less well-heeled T-shirt peddlers or wearers.[/q]

Seriously. Test it out! I'm sure Floyd Abrams would laugh you out of his office.

[q]There is history showing you might possibly "devalue" a product and still be standing on firm constitutional ground: Remember Al Franken used "fair and balanced" as part of his book title lampooning the right, and Fox on behalf of Bill "Fair and Balanced" O'Reilly sued Franken ... and the case was tossed out by a U.S. district judge back in 2003.[/q]

...partly on the basis that he judged "fair and balanced" not to be a valid trademark, or a weak one at best. But you'd still have to go to court to get that ruling, and I doubt you'd get a similar one on "Harvard." In any event, one of the other major grounds for the ruling was that Fox was asking for an injunction against the book's sales, not damages for use of the trademarked phrase - and they had waited far too long (ten weeks) after becoming aware of the book's impending distribution to file for the injunction to be entitled to such drastic relief.

Dismissal of a case rarely means only that the underlying legal claim had no merit.

[q]Harvard tries to sue you for wearing a Harvard Sucks T-shirt, you might have cause for countersuit. Depose all of Harvard's lawyers and ask them, as learned men, if they knew the law was opposite Harvard's intentions -- "you are a Harvard-educated lawyer, are you not, sir?" -- and if that's the case, that would be harrassment, and there I think you've got some solid ground underfoot.[/q]

If you think a suit is frivolous, you're certainly entitled to file a request for Rule 11 sanctions. And if they sue you for wearing such a shirt, that would be frivolous. But a lawsuit for selling those shirts would have some pretty solid grounding in the law, and would absolutely not be grounds for a countersuit for harassment - and such a countersuit would be a pretty good way of bringing Rule 11 sanctions down on yourself.

Beeeej

I know you were joking, but just in case anybody took you seriously and is planning to do the legwork, I'm pretty sure the Trademark Office wouldn't let you do that, 'cause it contains another already valid trademark.

Beeeej

[Q]Jason L Wrote:
I was actually at Harvard that weekend to visit my gf and goto the harvard-Yale game. Some of those shirts were pretty vile, and if they werent getting kicked out for them, I hardly can see how they can kick someone out for a Harvard sucks one.

The shirt I'm referring to is basically a bulldog doing a puritan doggy-style. There were some harvard shirts equally on the same level but that one stood out.[/q]

enough with all this legal jibber-jabber, just have LYNAH EAST on the front and a bear humping a block letter "H" on the back ... enough with all this trademark crap.

btw ... SUCKS sucks! sorry had to said

"Lynah" also happens to be a building owned by CU, so there is a possibility that it could also be covered (though this is arguable)

use of an H resembling Harvard's trademark is also infringement sadly

believe me, when we went through this ordeal 2 years ago, we pursued every avenue for discussion. you'd be surprised at what is covered by trademark.

and believe me gentlemen that harvard's defense of its trademark is....vigorous.

my observations come from a copyright and trademark law course i took and an experience i had with harvard and cornell's trademark departments over making a similar shirt.

-mike

You could just get your own printer:

[www.bidservice.com]

then just deny everything!!!

[Q]Beeeej Wrote:
Note that while this has happened to zippers, aspirin, and cellophane, it has not happened to Kleenex or Hoover - because they still vigorously defend their marks. And nobody who knows the law has ever suggested they should stop.
[/q]

Other lost marks:
allen wrench
bikini
tarmac
elevator
yo-yo
dry ice
linoleum
and my all time favorite, heroin

Clearly band-aid, q-tips and walkman are still being defended.

I assume 3M is actively defending scotch tape? (sorta interesting that we're forgotten the bigoted origins of this term. Nobody today would buy Jew Tape.)

As far as verbed trademarks, google and photoshop are the 2 most obvious I can think of. Adobe is defending photoshop [www.adobe.com] , dunno about the folks at google.

Anywho, it turns out that wikipedia has an entire entry on genericized trademarks.

[en.wikipedia.org]

Why not a shirt that reads:

           Lynah     Faithful
^
East

with "This is OUR house" on the back
or
"The house that John built, but Ezra owns"


Note: Edited multiple times because it was killed by the formatting...

The more this thread carries on, the more it seems as if we're not always on opposite sides. But like two drunks arguing in a bar (okay, I’m maybe speaking only for myself), if we agreed we agreed, there'd be nothing more to talk about and it's still another ten days till the next hockey game. (Well, there is that RIT Goes D-1 thread which is now in a discussion about getting to Lake Placid via train and bus.)

I think we agree the trademark owner has to vigorously pursue the purity of the trademark. BTW it helps if there's an alternative that's easy to say; people tend to like the two syllables of Kleenex over the four syllables of facial tissue, and anyway you're never sure if facial tissue is your mom's polite way of saying at the party, "the downstairs bathroom is out of toilet paper and will you go put some more in, dear." No one in his right mind actually says, “Would you pass me a Kleenex-brand facial tissue?” because you’re going to sneeze all over yourself before you get the sentence out. One of the few cases where generic-is-shorter is hex key over Allen Wrench. (Also "search" by a mere one syllable over "google" though "google" as a verb implies smart search / simple search / fast search online as though previous searches weren’t all that smart or thorough or fast. BTW William Safire has done some good stuff on retronyms ie where you need to add a modifier to explain the original eg "corded drill," “analog watch,” “day baseball,” "acoustic guitar," and Safire throws in his politicized favorite, "English-language radio." I might add ShopVac as an endangered species trademark.

A lot of the protect-our-trademarks letters go out to the media since you can’t mail out 300 million cease and desist letters. Plus the trademark owners go overboard in their demands. They’ve got the right to remind the editors that Xerox is a trademark not a verb. But they go on and demand that it have a little R or TM thingie alongside, that the company or product be in all caps, etcetera. Compaq wanted COMPAQ and actually an italicized COMPAQ and if they could have gotten away with it they would have preferred it be printed in the Compaq version of red ink that Compaq preferred. See the site by the copy chief of the Washington Post, Bill Walsh, for a scathing takedown on over-the-top demands of some companies (you’re going to actually write it as KRAFT Macaroni and Cheese DINNER”), and note that some companies don’t even have consistent usage and spelling of their products’ names within the company: [www.theslot.com]

You're right and I shorthand-assumed we're in understanding that lack of malice only comes into play if the statement or article is false or actually recklessly false. As a practical matter the defendant argues all in parallel: Wasn’t false, but anyway it wasn’t knowingly false, and anyway it wasn’t maliciously intended.

It would help for the would-be entrepreneurs to understand the difference between possible legal woes for selling allegedly unauthorized merchandise and the free expression rights of wearing same garment. I think there's a slippery slope smart judges are not going to want to venture down (on this part we may not fully agree). Can you sell a sign that says, "Go Cornell, Beat Harvard"? (It’s a commercial activity.) What about a shirt that just says “H sucks”? Is it wrong to sell it in Cambridge? Would it be okay (legal) in Albany? What about in Albany the week the ECAC tourney is in town? What if the sign is a shirt and the shirt has Cornell and Harvard in the universities' recognized fonts and colors? (You got problems.) Are you as a judge in Detroit going to enjoin striking Ford workers (like this is a good time to be a striking autoworker) from printing shirts that say "Ford unfair to AFL-CIO"? Or "Worker Rights Are Job Two?" playing on a long-running Ford theme? It’s a tricky balancing act for the judge to decide between free speech (how absolute?) and commercial considerations. Does a company own the rights to a color? Kodak would like to think it does with one variation on yellow, Ford to a lesser extent with blue, Coca Cola with red. Can you enjoin an independent repair shop from hoisting a BMW logo on its sign (yes), but what about the newspaper ad or yellow pages listing that says “we service all top foreign makes” and it lines up five logos of BMW, Mercedes, Fiat, Jaguar, Volvo, etcetera? What about if the repair shop that lost the standalone lit BMW sign outside then puts a BMW logo’d clock on wall where it can be seen at an angle from the street? What about if the clock is dead square in the middle of the front window? Any half-fast lawyer can show so many shades of gray that it’s going to be hard to know where to draw the line.

And it would help for would-be Lynah East attendees to consider the repercussions of exercising your free speech inside Bright Arena if your goal is more to see the game in its entirety than hassle Harvard. That is, the practical vs. the theoretical.

Then there's the whole issue of why a couple dozen crummy T-shirts get more official notice and legal woes than the guys one street corner over selling dope. Lord help the dealers if they brand their joints with a maroon H.

Part of the other posters' concerns about the hassles of dealing with Cornell and Harvard on trademark issues may be that in addition to the schools having legitimate concerns, and now having financial interests (selling Harvard trinkets is a good business), it may just be there's something ingrained in the soul of a Harvard or Day Hall bureaucrat that makes them want to move slowly and be cantankerous as a starting position. Compare that with my wanting to get one-time use of an obituary cartoon of Christopher Reeve; it took two e-mails and about 90 minutes elapsed time for the syndicate to take me at my word and give permission, and by the way no money changed hands since it was for a non-profit publication. If Cornell owned the cartoon, the rights guy would probably still be finishing his first coffee of the day and hadn’t yet booted up his computer. Cornell does have a lot of rules for Cornell groups using its colors and logos (including how big, what placement, if Cornell or the college’s name goes to the top of the Web page, etcetera), but that’s Cornell dictating to Cornell, and that’s a large organization saying, “This is how we want our imaged to be consistently applied.”

Sometimes companies do stupid things that cost them money when shutting up would have helped more than hurt. Kodak tried to shut down Paul Simon’s “Kodachrome” where today Simon’s agent would have tried to set up a bidding war between Kodak, Fuji, and Agfa for the right to be used in the song, and gotten Kodak to pay. One sign of Mercedes’ comeback from being an old-peoples’ luxury/sport car was when it licensed and used in its ads the song by Janice Joplin (and the great laugh at the end), “Oh, Lord, won’t you buy me, a Mercedes-Benz?” Some of the old line, fossilized MB dealers thought it damaged their products (and the value of their dealerships) to use a dead, hippie, drug-taking rocker in advertising.

[Q]jeh25 Wrote:
Anywho, it turns out that wikipedia has an entire entry on genericized trademarks.[/q]

What's the legal status of "wiki"?

No, we're (at least now) quite obviously in general agreement - I just thought some of what you were saying was misleading because it wasn't entirely on point, so it behooved me to clarify.

Just two more things:

1. We used to joke that the job description of Cornell's Asst. VP for Community Relations (whose name at the time escapes me now), the person through whom all these approvals had to go, was "1. Say No. 2. Other Duties as assigned."

2. Malicious intent has nothing to do with the legal standard of "actual malice" - it is, as I defined it in my earlier post, simply "knowledge of, or reckless disregard for knowledge of, falsity." If you print something untrue about a public figure without caring whether or not it's true, that's enough to establish liability; you don't have to intend the act of printing it to be harmful to him.

Off to West Palm Beach and Atlanta tomorrow morning; maybe see a few of you at Jocks and Jills in Atlanta for the Everblades tourney! Happy holidays to all.

Beeeej

[q]TiVo has to send out the letters saying it's a noun not a verb to protect against a competitor in five years' time alleging it's common usage and not worthy of a trademark. TiVo's lawyers simply scanned letters used by Xerox corp. and then did a search and replace of "TiVo as a verb" for "Xerox as a verb."[/q]
Actually, that's not what the letter said. TiVo wants the brand name used as an adjective, not a nound. It's not "a TiVo," it's "a TiVo DVR."