Your liberal use of legal terminology suggests you are either a lawyer with a significant understanding of trademark caselaw, or a bullshitter who knows nothing. Sadly, there is no way to tell the difference.
You assume there’s a difference. Wilde, critics, etc…
You don’t need a lawyer to know the way the law blows.
I did, however, specialize in intellectual property in law school several careers ago.
They should just change their name to FlatPackHackers and be done with it.
The defense hinges on whether the misuse was forseeable… “we had no idea people were using our products that way” is hard to claim if you license the site which shows people how to do it.
They aren’t licensing the site’s content. That’s completely reversed. All they’re licensing is access to their trademarked name without legal prosecution. As I said, this is already a common practice when third parties use trademarks in their products. I’m guessing you moved on from law school because it didn’t suit you. You may want to do a bit of review.
https://clients.kilpatricktownsend.com/IPDeskReference/Documents/Trademark%20Licensing%20Basics.pdf
That’s very sweet of you. 
The point is that if they have actual notice of modifications and misuse, they can’t claim it was unforseeable if someone was injured.
They should have turned a blind eye to it, since they had no legal grounds to claim their mark was infringed when used to describe their products.
Just a question, are you a lawyer? You have an eye for detials that I as a consumer just do not see.
I was going to ignore your interesting legal theory, but since you’ve started insulting others who have a more realistic perspective, I’ll chime in. Trademark and Copyright holders do not have to show that they will be directly financially affected by infringement. And they certainly don’t have to do it in the way you suggest (i.e., by showing they have a directly competing product leveraging the IP the same way the infringing use is). Ikea doesn’t have to prove that Jules’s site stole advertising dollars from them, and there are lots of clearly infringing uses can make the claim that they actually increase publicity/sales of the Copyrighted/Trademarked items.
You’re not understanding his point. He’s talking about products liability claims, under which a manufacturer/retailer can be held liable for injuries resulting from using a product in a foreseeable way. And he’s saying that Ikea can’t say that it was unforeseeable that someone would use a Billy bookcase as place to store your babies if you’ve licensed your trademarks to a site that says this is one way to hack Billy bookcases.
I’m a recent law grad waiting to be sworn in. That aside, I bet you actually do see these details but don’t think about them too much. I mean, look at the graphic in the link provided on Cory’s blog post. Didn’t you think that the yellow “IKEA” with the painted line through it was Ikea’s actual logo? And imagine the site in black and white instead of blue and yellow: would it give you a different feeling and seem like it had less to do with Ikea?
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They’ve also screwed the pooch on the notice issue now, regardless of the licensing. Whatever brain trust advised Ikea to go after Ikeahackers has left them in a far worse position than they would have been if they had left well enough alone.
No, thats really what I meant by saying that as a consumer, I don’t see what the lawyers see.
I don’t conflate the two.
So my opinion on this, informed by your comments as well, is that no one really believes that both can be confused. But lawyers believe a case can be made for this, so they will.
To be clear, this is a preemptive strike, not because Ikea hackers hurts the business, but because, and this is solely my opinion, lawyers are just doing theyre job, the same way CEO’s are just doing their job by maximizing short term profits without regard for long term stability or social consequences.
I do have a realistic perspective on this, probably more realistic and well-exercised than your own.
Copyright and trademark aren’t designed to protect ideas. They’re designed to protect specific works and the use or profit from those. Providing a profit is what a license does. It provides consideration for the use of the name, logo, or other intellectual property. That’s why licenses have a fee (even if it’s only $1), they show intrinsic value of the intellectual property. Courts don’t really look fondly on lawyers bringing cases for reasons that a law wasn’t created. It’s a time waster. So, they aren’t thrilled when someone who is ALREADY PROFITING from another person’s use then decides to get litigious. It’s pointless, and this was really pointless to even start. They should have gone to the table politely.
The reason I provided the review I did was because it explains how a party allowing a third party could not be held liable for anything occurring while someone happened to be using something with their trademarked name or logo on it. I didn’t quote because I’ve been posting lots of long posts lately. Here’s one quote from the document:
“A license is necessary in many situations. A trademark owner may license its trademark to be used in connection with the manufacture of products for which the trademark owner does not have the capacity to manufacture and distribute. For example, many colleges and universities have well- established licensing programs, that manage the use of the trademarks in connection with products such as apparel, toys, glassware, and paper products that are manufactured and distributed by the licensee.”
It’s well beyond the realm of reasonable to believe that a college would be sued if, for example, a beer mug licensed for off-site sale by another party wasn’t well made, broke when someone was drinking from it, and they required stitches. Only the manufacturer would be liable.
You’re talking about the same thing here. All that we’re suggesting be licensed is the use of the company name in conjunction with the site name (which is, in reality a wholly new entity), to avoid litigation. We’re not even suggesting they license the logo or other parts of the brand identity - just keep the bickering down so that Jules can actually profit. I’m even suggesting that a disclaimer (common practice already in place) be added to the site to proclaim it has no official tie to the company, and “ideas presented herein are not provided by or warranted by IKEA Corp.” (I also suggested they clear any advertisers.)
So happy for your graduation, I’ve been practicing graphics for about 20 years, and have even taught the subject. I’m well-versed in copyright law, and believe me - I also well understood his truly flawed point. Ready?
It can’t win. You’re talking about a failure to warn, and that doesn’t fly here. You can’t use a brush stroke to say that no one will ever use a product other than as intended. IKEA already covers this by providing within package correct product use guidelines along with build instructions. Since they provide instruction, they’ve told you what their intent for your use was. If you don’t follow those instructions because a third party told you not to, it’s on your head.
IKEA tells their customers how to use their products. This is a third party site, and only that third party site would be liable.
There is no end to the bottom of the rabbit hole. He knows you better than you know yourself. Take his word for it.
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IP protects specific things, but it isn’t limited or constrained by profit. JD Salinger doesn’t have to let someone make movies of his books, even if it would be profitable to do so, and even if people agree to pay him. He has the right to say no to everything, including “advertising” that uses his IP. Similarly, when someone uses their IP, Ikea has the right to decide if something is helpful or harmful to their brand, or something they want to be associated with. You don’t get to make that decision, nor does Jules. I mean, Abercrombie & Fitch recently paid off The Situation to get him to stop providing them with free advertising by wearing their branded clothing. While this example doesn’t involve IP, it does show how what you think of as free advertising may not align with how others view it.
The text you quote and the example you provide isn’t very relevant. Ikeahackers doesn’t make anything. Ikea makes things. Ikeahackers tells you how to change the way they’re used. As the manufacturer and retailer, Ikea may be liable if their products are used in dangerous but foreseeable ways (this law is why there are warnings on products telling you not to put babies in the washing machine, for example). Ikea hackers makes these unauthorized uses of Ikea products foreseeable, and Ikea can no longer claim they weren’t aware that people might use their products in these ways.
20 years of experience in graphics is great. But it’s pretty clear why practicing graphic artists do not teach copyright law in law school.
Again, that’s simply wrong. Here’s a quick example of misuse of a product that led to huge damages against the manufacturer: Lifting Of Running Snowmobile Held To Be Foreseeable Misuse.
Liability may also occur when a consumer alters a product in a foreseeable way, as here. For example, a “[manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable][2],” and “liability can exist under a failure to warn theory in cases in which the substantial modification defense would preclude liability under a design defect theory.”
[2]: LUIS LIRIANO, PLAINTIFF, v. HOBART CORPORATION, DEFENDANT, V. 616 MELROSE MEAT CORPORATION, S/H/A SUPER ASSOCIATED, THIRD-PARTY DEFENDANT.[quote=“tachin1, post:51, topic:34481”]
No, thats really what I meant by saying that as a consumer, I don’t see what the lawyers see. I don’t conflate the two.
So my opinion on this, informed by your comments as well, is that no one really believes that both can be confused. But lawyers believe a case can be made for this, so they will.
[/quote]
Hmm. But do you see the similarity between the typefaces, color schemes, and art? If so, do you think this is accidental? Why were these specific design elements chosen? If the website is making purely factual use of Ikea’s trademarks, as Cory argues, why has it imitated all the non-factual branding elements?
I assume that you see the similarity, but think that—despite the similarity—no one would be confused into thinking that this is a website either run or endorsed by Ikea, nor do you think that this website tarnishes the brand in any way. And you may be right. But the thing is, it will take a jury to decide this factual issue of whether there is actual confusion. And that means a trial.
Bad IKEA! Bad! They’re effectively getting loads of free advertising from bloggers like IKEAhackers, but they have to harass some of their biggest fans. Lame!
This seems to be getting increasingly likely - Ikea furniture often relies heavily on the structures to provide its strength, while compromising on the materials. In recent years they seem to have done this even more (for example, replacing wood with cardboard). While most of the hacks I’ve seen are going to be fine, making alterations to Ikea furniture without being aware of the weaknesses could be risky. I wouldn’t blame Ikea if a modified piece of furniture broke, but if there’s a risk of liability I wouldn’t be surprised if Ikea wasn’t willing to take it. Ikea hackers does provide some free advertising, but it may just not be worth the risk for Ikea.
Having said that, I’d be sad to see Ikea hackers go. It seems to be in the spirit of Ikea to invite customers to repurpose the things they buy (within certain bounds). This website is just taking that idea further.
Go back and reread what I wrote. I never once said they have to allow someone providing to continue use. What I said was that the courts really get tired of people getting litigious when it’s inappropriate, and this was.
People have decided that C&D is the first step, and that getting threatening is the second step (if they haven’t already). It’s not always in the company’s best interests, and here it clearly wasn’t. Your example of The Situation and A&F doesn’t help your argument. They paid him off because they thought he harmed the company’s “aspirational” brand image and “may be distressing to many of our fans”. In their eyes, he actually represented a possible revenue loss. (It was still a monetary issue.)
Back to this this again. Forseeable use only covers normal foreseeable use of products. Negligence won’t magically cover them if an independent site publishes alternate uses for their products. This why I said (several times now) that IKEA would be best served by working with IKEAhackers so that they could put a well-worded disclaimer on the site - one that makes it clear that anyone following site instructions does so at their own risk. The action they’ve taken has instead resulted in Jules deciding to change domain names, and continue without such protections for IKEA.
Independent graphic designers (who are serious) need to know copyright law.
Believe me they do.
Your first example is not related to this instance. Here’s why: “The plaintiff claimed that the snowmobile should have contained a warning on the machine itself, warning against lifting the machine from behind while it was running. A warning against lifting the running snowmobile was provided in the owner’s manual. However, because the snowmobile had a handle on the rear of the machine to aid in what plaintiff contended was common practice, i.e., lifting a running machine in order to clear fouled spark plugs, the plaintiff argued the warning should have been on the machine.” So, the plaintiff was claiming that the manufacturing company made it easier for them to injure themselves by doing what was supposedly warned against. IKEA isn’t doing that. This is a copyright case. The company itself is not providing the information.
Your second example is also inappropriate. In that example, it isn’t the original owner who was injured. Instead, one party removed a warning and a safety feature so that another party never saw it. The second party was injured. That’s not the case here at all. From your own source:
“This responsibility derives from the manufacturer’s superior position to anticipate reasonable uses of its product and its obligation to design a product that is not harmful when used in that manner. However, this duty is not open ended, and it is measured as of the time the product leaves the manufacturer’s premises. Thus, a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their own unique uses. That kind of obligation is much too broad and would effectively impose liability on manufacturers for all product related injuries ( id., at 480 481).”
Please stop trying to paper me.
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So they don’t have to allow infringers to continue, but courts get tired of parties getting litigious (care to provide examples of this, and why someone like Ikea should care?). So where does that leave Ikea, exactly, and how should they enforce/disallow use without the courts?
As the post makes clear, Ikea and Jules have already settled.
I know that in A&F’s eyes he damaged their brand, despite the free advertising. And the same may be true in this case: Jules’s site may be damaging Ikea’s brand, in their eyes, especially with the crappy ads they’re running against their content, as well as by repositioning their target audience as The Situation did. It’s their call to make, not yours and not mine.
Foreseable use covers all uses which are foreseeable, even if they are misuses. Lifting a running snowmobile is foreseeable. Why? Because lots of people do it. When you have actual knowledge that your product is widely used in some way (even if not in the way intended), that usage is foreseeable.
Also, this is not negligence. This is products liability. They are very different legal theories.
Not according to the link in this post.
Whatever “this” is, it isn’t a copyright case. But I’m sure you knew that already since you know copyright law.
That’s not what the case turned on, and it’s not the basis for the decision. If you feel otherwise, feel free to quote from the decision where these facts are discussed and analyzed. Furthermore, there was no warning. There was a safety device which was removed.
The quote you provide explained why there is no liability for design defects. But products liability has multiple prongs, including not only defective design but failure to warn. That’s why the quote I used said “liability can exist under a failure to warn theory in cases in which the substantial modification defense would preclude liability under a design defect theory.”
Yeah, and I’m sure experienced graphic designers don’t ever consult with lawyers over copyright matters, because they know it so well. And I’m sure design firms don’t need in-house counsel for copyright matters, either.
Putting a handle on a snowmobile means that the handle can only be used, and is intended to be used, when the snowmobile is running? Even when the instructions explicitly say not to lift it when running? It’s clear that, contrary to your assertion, you can be liable when someone doesn’t follow instructions about the intended use of a product. Additional, prominent warnings may be required, as a supplement to the instructions.
I will close with you (because it’s just about 2am) by saying this. This is a copyright case that you guys are really ineffectually trying to turn into a product liability case. As I already quoted from your source:
“This responsibility derives from the manufacturer’s superior position to anticipate reasonable uses of its product and its obligation to design a product that is not harmful when used in that manner. However, this duty is not open ended, and it is measured as of the time the product leaves the manufacturer’s premises. Thus, a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their own unique uses. That kind of obligation is much too broad and would effectively impose liability on manufacturers for all product related injuries ( id., at 480 481).”
In other words: a third party’s suggestions for use won’t EVER get the original manufacturer sued. Like I said, waaaay up there somewhere. You clearly thought you might be in the wrong about that when you just ignored that whole paragraph in your bloated response.
This isn’t about product liability at all. So drop it.
Last bit. Copyright is about perceived value - otherwise such papers as “The Economic Value of Fair Use in Copyright Law. Counterfactual Impact Analysis of Fair Use Policy On Private Copying Technology and Copyright Markets in Singapore” wouldn’t get written. People don’t get paid for fair use, but it can affect the value of an intellectual property, and how it may affect value goes to determining “fair use.”
I’m done playing with you. Practice with someone else. Goodnight.
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As I said in my bloated response, this part of the discussion was about the design-defect prong of liability, and not about the duty-to-warn prong. I avoided including the quoted text in my response to avoid additional bloat. But since you want to take another look, lets include the context around your quote as well:
The factors militating against imposing a duty to design against foreseeable post sale product modifications are either not present or less cogent with respect to a duty to warn against making such modifications. [. . .] However, this duty is not open ended, and it is measured as of the time the product leaves the manufacturer’s premises. Thus, a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their own unique uses. That kind of obligation is much too broad and would effectively impose liability on manufacturers for all product related injuries ( id., at 480 481).
While this Court stated that principles of foreseeability are inapplicable where there has been a substantial modification of the product, that discussion was limited to the manufacturer’s responsibility for defective design where there had been a substantial alteration of a product by a third party ( id., at 479, 480).
It’s pretty clear you do not know how to parse judicial opinions and identify relevant rules of law. But again, I’ll include the bottom-line conclusion from the court:
Accordingly, the certified question should be answered as follows: manufacturer liability for failure to warn may exist in cases where the substantial modification defense would preclude liability on a design defect theory.
I think that’s a pretty clear conclusion. Substantial modifications do not extinguish the duty to warn, even if they extinguish design defect claims (and that’s even assuming that the hacks qualify as substantial modifications as opposed to unintended uses).
Anything can be analyzed in terms of economics. That doesn’t mean that economics dictate how the law is applied. There are papers discussing the economics of incarceration and the death penalty. This doesn’t mean that criminal sentencing is determined on the basis of economic efficiency.
Economic injury/effect on the market, on the other hand, is an explicit element of US Fair Use analysis. But Fair Use is an affirmative defense: it concedes there has been infringement but attempts to excuse it. And while economic harm/effect on the market may be an element of Fair Use analysis, it is not an element of infringement. Like I said, copyright holders have the right to control their work absolutely (mechanical licenses for songwriters excepted), even if it is economically inefficient to do so.
I’m still not sure why you are talking about copyright, though, as nothing about this is based on copyright. Trademark, yes. Products Liability, perhaps. Copyright, no.
