Best Buy threatens blogger over someone else's parody

Best Buy sent a cease and desist letter to blogger Scott Beale (Laughing Squid) for having had the audacity to blog news that prankster/comedy troupe Improv Everywhere selling t-shirts that were a parody of the Best Buy brand. Whether or not the parody is legally in the clear is one matter, but Best Buy nastygramming Beale for simply blogging about it -- not selling the shirts or participating directly? IANAL, but seems *way* out of line. Above, the parody logo that appeared on the t-shirts in question.

Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing's in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: xeni@boingboing.net.

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Neuron

I’ve been refusing to enter Best Buy for years. I tried it a few times, but the noise level was intolerable.
romwell

Each time I read news like these I begin to think that maybe use of tasers against civilians without any reason IS justifiable… if only it were against those dnastygram distributors !
PopArtDiva

In a world where litigation is the game board for over paid, under utilized lawyers on the corporate payroll none of this surprises me. It does, however, sadden me. Corporate America has no sense of humor.

If Best Buy had any sense, they would turn this into a media event and order thousands of the shirts, have an “Improv Everywhere At BEST BUY Day – In the Spirit of Fun and Support of the Internet Community!”

Then their marketing department should alert the media, give a press conference about what a great company Best Buy is and how it has this huge sense of humor and fun, thus driving thousands of people to their stores and selling not only the shirts but additional product.

BEST BUY!!! Your P.R. and Marketing Departments lost a good chance to get FREE PUBLICITY!!!
WassabiCracka

A DMCA take-down notice? Man, that is brazen. Did they specify exactly what their copyright was? I’m not sure what they could claim they have a copyright on. Sounds very bogus, but without all the facts I can’t confirm. Be prepared to discuss this with your provider in advance, and let them know the basics (there is no copyright to infringe, you’re not selling consumer electronics and thus can’t be infringing any trademark, and that the letter is crap). If you’re provider gets cold feet tell them you [i]intend[/i] to take legal action agains BB, and will enjoin them if they take your page down. If I remember correctly DMCA does have provisions for malicious use (concept being that companies use it to intimidate competitors and erect barriers to entry of the marketplace).

Sorry I haven’t had time to scrounge through your site and product carefully to provide a more detailed response strategy, but suffice it to say I think you can probably make them go away pretty easily. Again, without reading the letter I can’t point out exactly where they went wrong (and its been a few years since I did Copyright and TM law, work for the man now).

Any trademark BB has will be specifically defined at http://www.uspto.gov. You can always start there if someone sends you a C&D regarding the use of a logo or TM. Search the database for the particular TM in question and see what classes it covers (e.g. BB = sale of consumer electronics, class 27 or whatever) if you are not engaged in the exact same service or product it will be VERY hard for them to succeed. Intimidation is a common tactic, its just the way of things, but it works both ways. Corporate lawyers get in BIG trouble if the company gets sued (no matter how small) because they almost always have to refer out litigation matters to outside law firms (costing them big money), they will be desperate to settle.

Response letters to things like this should be 1) as short as possible; 2) non-chalant; 3) non-confrontational and matter-of-factly. DO NOT air your political views or criticism of the industry/company/lawyers in general as they could use the letter to demonstrate malice. Further, any lawyer worth his sweat knows that angry, spit-spewing letters = desperation, lack of knowledge and inexperience and usually a lack of legal foundation for any claims.

Something to the effect of “Hey, you can’t copyright a logo, and I’m not selling consumer electronics or attempting to compete for your customers in any way so your claims are baseless. If you persist I will defend myself and my company in court.” You can be more specific on the particular elements if you understand them.

Hope some of this helps CharlieTodd.
CharlieTodd

Thanks for the info, WassabiCracka. It’s really up to Neighborhoodies.com to decide if they want to fight this, as they were the ones selling the shirts (I made no money off of them.) I will pass your post on to them.
License Farm

I wonder, if you sold merch composed of that particular 6-sided shape, the angle of it offset, a black-edged white circle, the component colors, a rundown of the font used, would it still count as trademark infringement? Because although IANAL, I’m pretty sure that unless they’ve trademarked them all individually, their combination, especially using obviously and unmistakeably different words gives them exactly jack right to complain.

We can test their squeamishness with a simple web-based experiment: have a Flash site randomly generate a reconfigured design using all the visual elements in the Best Buy logo. At what point would the elements line up closely enough to the original to induce a vomit of nastygrams? If the logo was black and the lettering was yellow? How about if the letters were arranged perpendicular to how they usually are? If the tag is shaped like a buttplug? What’ll it take, overeager retained corporate lawyers?

And to think, I was just listening to one of the IE mp3 experiments today. I think Best Buy HQ needs a visit from Steve, The Omnipotent Voice From The Sky.
ill lich

TALKING about a crime is practically the same thing as committing a crime– just ask the Thought Police, you idiots.

“Next up in our broadcast, I am about to be arrested for reporting about a murder.”
allan

So I just now noticed that Best Buy has a bunch of ads plastered all over Boing Boing. Is that new?
x

I saw something in this thread about IE suing BB.
SIBS

And then tried to figure out why BoingBoing or Internet Explorer would be involved. (shakes head ashamedly)
queensissy

All problems with Best Buy targeting Scott Beale aside, isn’t Best Buy’s logo a ripoff of the name tags from The Price Is Right? This is sillier than the Rubinoos suing Avril Lavigne…
GmanUK101

man this is just another case of corporate bully boy tactics isn’t it?

Next they will be suing all the Chinese folks for their whispers!
Paul D

That’s just Best Buy making sure we know they’re still assholes. Thanks, Best Buy!
Mud Puppy

You’re just asking for a nastygram, aren’t you!
pepsi_max2k

>> IANAL

? thats a new one to me…
hyperkine

I Am Not A Lawyer.
melisslissliss

i just read that as iAnal. oh apple has infested my mind.
OsoMan

Oh you have to post the Cease and Disist letter they send to BB… sweet burn
cinemajay

Too bad that parody isn’t a protected form of free speech. Waaaait a minute…
Brian Carnell

Hey, the corporate folks are as knowledgeable as their in-store sales staff!! W00t, BB FTW.
paul beard

is that really a parody? Or just someone copping the art without making reference to the original? If it said “Worst Buy” or in some way made a connection to Best Buy, I could see it as parody.

The ever-reliable WikiPedia defines it as “In contemporary usage, a Parody (or Lampoon) is a work that imitates another work in order to ridicule, ironically comment on, or poke some affectionate fun at the work itself, the subject of the work, the author or fictional voice of the parody, or another subject.” Maybe my interpretation of that is off.

But I agree 100% with the original point: hassling someone who mentioned it is Grade A dumb.
Tensegrity

It references an Improv Everywhere prank conducted at Best Buy. I don’t know if that counts as parody per se but there is definitely a connection between Best Buy and Imrov Everywhere.
http://www.youtube.com/watch?v=dtBU0fNk3qE
EricT

I suppose it could be argued that the parody was in reference to a prank and therefore meets the test.
Regardless I would suggest that all bloggers post the link and report on the story just to bury the Suits in the issue.
zantony

Paul, good point re: parody. But there’s more going on than just the shirt. The shirt is in reference to Improv Everywhere’s mission to Best Buy. The shirt could be said to be one element of a larger parody. IANAL either (and I may be way off base here) but that’s something to think about.

In any case, hassling Scott Beale for blogging about it is just plain stupid.
simplehuman

I wonder if Best Buy is going to claim the shape and font are trademarks?

It’s this kind of humorless knee-jerk response that’s becoming more and more corporate America’s response to pretty much everything. Their argument is likely “if we don’t constantly defend our brand, we endanger the company”. It’s the same logic as saying that having people over for dinner is inviting looters to strip your house to the floorboards.
CharlieTodd

Just to be clear, Improv Everywhere and Neighborhoodies got a C&D over the Blue Polo shirts with yellow “Improv Everywhere” price tag logos, not the t-shirts. We’re in fact still selling the t-shirts (bargain price of $5.99 + shipping.) I guess the thought of people buying the polos and wearing them into Best Buy stores scared them into doing something about it. At any rate, I don’t have the money to fight their big bad lawyers as I’m just one dude with a website, and since I wasn’t making money on the shirts I can’t counter sue for loss of income.

The T-Shirts you can see are still on sale here:
http://www.neighborhoodies.com/improv-everywhere-p-183.html

And the original prank that started all of this is here:
http://www.improveverywhere.com/2006/04/23/best-buy/

-The Improv Everywhere Guy

PS: Yes, it’s completely outrageous that Scott got a C&D for blogging about us. Unreal.
Adam

if they were giving away the shirts or selling them specifically for use in their parody then i could see that IE would be legally in the clear. but they are clearly infringing upon best buy’s logo and trademark when selling them for profit. so i’d vote for best buy in a trademark infringement case against IE. as for their cease & desist letter… they probably went too far but i suspect they didn’t want their brand diluted by any posted graphics of the t-shirts.
WassabiCracka

I can only make a quick post here, but trademark is completely different than copyright. The ‘for profit’ motive has to do with a fair use analysis for copyright infringement. Fair use, parody, and satire, are all copyright infringement defenses. Trademarks/servicemarks are intended to protect the consumer, and are narrowly tailored to individual products and services. For trademark the ultimate analysis is to protect the consumer from being confused about whom the product or service is being purchased. This would be an easy win for Improv, and could possibly be handled with a smartly crafted response letter. CharlieTodd sorry to hear of your troubles, I used to help out small businesses like you (and budding game companies). Good luck.
octopede

It’s eventually going to get to the point where nastygrams invariably equal massive propagation of the offensive art/song/whatever as hundreds of blogs seek to defy corporate wrongheadedness…which means that these types of derivitave logos/songs/etc will become a super successful means of web promotion, as they will invariably be posted and reposted ad nauseum. All thanks to the incomprehensible stance of shoot-before-you think corporate lawyers and executives. Itâ€™s nice to see these clunky and outdated practices sink, one ill-advised and legally unsound missive at a time.
Cpt. Tim

i’m going to ignore the inappropriate comments i could make with that acronym and just say that a cease and desist like that is a cease and desist you ignore until they take you to court.

then counter sue.
CharlieTodd

They also sent both us and Neighborhoodies a DMCA take-down notice. We had 5 days to take it down or they would force our host to turn our sites off. Scott did not get one of these as of yet.