Cory, I think you’re speaking in terms of black and white when there are actually many shades of grey. While noninfringing fair use might not dilute or confuse, as we’ve seen before, fair use is a pretty difficult thing to pin down. And when a company runs the risk of dilution or confusion, they feel compelled to respond. Are they actually compelled? Perhaps not. But the consequences are significant so it makes sense that they would respond. To say that Ikea has absolutely no reason to enforce their mark in this case, though, I think is overstating the law.
[quote=“doctorow, post:8, topic:34481”]
There is no parody defense for trademark. You’re thinking of copyright.
[/quote]Trademark does have a parody defence, as well as fair use.
You’ve done a pretty good job of trashing Ikea’s claims without even knowing what their claims were. Maybe they were more meritorious than you are assuming. I don’t know. I do know that Jules appears to be imitating Ikea’s typefaces and all-caps logo, as well as the color scheme — neither of which seem necessary for a purely factual use of the Ikea name. It also appears that at least some of their artwork (see below) copies the style, if not content, of Ikea’s cartoon instructions. To me, the site does have something of the appearance of an Ikea site. It also seems possible that Ikea could think that the hacker site is tarnishing their brand by the advertising that appears on the site, which is the most un-Ikea (not to mention low-rent) aspect of Jules’s site.
Here’s an Ikea-looking banner ad on their site:
Your analysis of Ikea’s claims may ultimately be correct. But even if it is, Ikea likely has enough of a case to survive summary judgment, in which case an expensive full trial (or settlement) would ensue. This alone is reason enough for Jules’s lawyer to suggesting settling immediately: there’s nothing shocking about this advice, and to describe it as such seems like an unnecessary attack on her lawyer, especially since the specifics of Ikea’s claim are unknown.
Finally, as to your claims of censorship, I would note that under the settlement Ikea is not forcing Jules offline. It’s just requiring that she not post ads. Free speech doesn’t mean $0.00 speech… and if she had never attempted to emulate the style and look of Ikea on her site, it is much less likely that Ikea would have pursued her.
doctorow, I am happily corrected, but seems that there is a great deal of misunderstanding here in the public. Its one thing for Ikea’s management to not understand, and allow their attorney’s to churn fees for baseless C&Ds, but something else entirely for IkeaHacker’s attorney to not know their rights and give them better advice.
Absofreakinglutely, Cory.
Trademark and copyright are designed to prevent loss of possible profit. Unless IKEA is planning to jump in and make their own hacker site using their name (the ultimate steal, which is concept) they have no reason to be attacking the existing site. They should be offering a license.
The site benefits them. It encourages people to not only do what they see on the site, but also look for other ways to use IKEA’s products. By her being able to run ads, she can devote more time to the site itself, and possibly produce more profit for them. Their own lawyers reduced their possible profit by instructing them to have her sign of on a “no-ad” deal. They should have just asked to clear all advertisers.
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I bought a Coke in IKEA.
It was flat.
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I love the IKEAhackers website but have long felt they were tempting fate with their use of fonts and colors that treaded way too close to those used by IKEA itself. It’s unfortunate that they’ve ended up with a Big Foot Letter from the company they obviously are huge fans of but it really was just a matter of time with their design. Hope they’re able to continue with a different design because the site does have a big following and many really neat projects.
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Ikea Font=Verdana (used to be Futura), Ikea colors=Swedish flag colors. Ikea owns neither.
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It doesn’t really matter if Jules had solid defense or the resources to mount it. Ikea’s lawyers wouldn’t have had to bring suit at all, they’d have simply sent a threatening letter to her domain registrar, which, being GoDaddy, would in all likelihood have caved and transferred the domain to Ikea.
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This makes no sense. If anything, this site was providing free advertising for IKEA and enticing people to buy more IKEA products!
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GoDaddy blows. Not just the company itself, but their site and management tools are crap, too!
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Exactly. That’s why this is a bogus claim.
There was never any loss of possible profit. There’d only really be a claim if IKEA had also had a directly competing site providing alternate uses of their products, and they’d been receiving advertising revenue from it. Then they could claim that IKEAhackers was removing advertising revenue - because that’s the only kind of revenue that the site could take from them!
They should rename it ‘Flathackers’.
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Wait until this book comes out! Read a review copy. Basically about a haunted IKEA, including corporate speak. A fun book. http://quirkbooks.com/book/horrorstor
Even so, that would be an extremely weak argument in my opinion!
Yep, they’d have to prove that the hackers site basically stole advertising dollars from them, which would be really hard to do if both sites were developed at the same time. Here’s how it would go if two sites existed:
IKEA could make the claim that the hacker site was banking on their identity, and that advertisers would be using the IKEA-owned site if the hacker site didn’t exist, but all the hacker site would have to do is get their advertisers to say that they preferred layout and content on the hacker site (the site design itself is copyrighted material). You can’t force advertisers to your site. So, there’d be no guarantee that an advertiser would choose to place advertisements at the IKEA site if the other site didn’t exist. Advertisers still might not choose IKEA even without the other site in existence - a good judge would see that. Unfortunately, direct competition through use of any design similar to trademark might still end up in a losing case when dealing with a major corp.
I’m not saying it’s a strong argument, just that it’s the only valid argument. The one that they are currently making - infringement of intellectual property rights - even Jules recognizes is wholly faulty. “Now by June 23rd, I would need to take down the ads, not earn any income and still advance their brand on this site. Wonderful!” She plans to eventually move her domain name. Without direct competition (or misrepresentation - and IKEAhackers doesn’t do that), there is no claim, but she is an individual and they are a corporation.
Given the popularity of the ikeahackers site it would make long-term business sense for IKEA to advertise on the site rather than cripple it.
However, in the short-term they have the best of all worlds. The ikeahackers site continues to promote their products, they do not have to pay a dime for the advertising, and they know their competition will not advertise on the site.
In addition, their predatory maneuver allows them to build their own competing site knowing that ikeahackers will eventually die by attrition.
Oh well. Just another nail in the free speech coffin. All hail our corporate overlords.
Bad idea - Ikea would lose assumption of the risk defense to liability for dangerous misuse of their products if they complicated it by licensing/endorsing the site that instructed in that use.
The law as it stands was perfect - trademark use was completely factual.
Not so.
The site is independent, and any license struck could easily require a disclaimer posted on the site itself. That is legally enough to protect a company otherwise unaffiliated from legal complications. This is already common practice.
Sample wording: "This site is run by insert name, and is unaffiliated with insert name. Trademark appears by license. Named company is not responsible for any content provided on or recommendations made by this site.
