We (and the courts) can debate if this is the best case/place to do it but if a company is not SEEN to be protecting its trademarks, eventually someone comes along and does something with it that we would all agree is wrong, but they might get away with it if the trademark owner had shown no propensity to protect its trademark, as evidenced by lots of prior cases (such as calendars like this) over the years, where it had blithely looked on (implies approval) and taken no action.

This club could surely get their calendar produced by asking the trade mark owner for permission (which satisfies the criteria for protection).And in this case why wouldn’t a club like this have (or want to have) an ongoing relationship (which would facilitate easy permission) with Ford in any case? There are plenty of “INSERT BRAND” Owners’ Clubs in the world who all have excellent relationships with the manufacturer in question, after all.

Mind bending.

To be registrable, a design must be new and distinctive. ‘New’ means the identical design (or one very similar) has not been publicly used in Australia nor has it been published in a document within or outside Australia.

For example, a design would not be considered new if it had been ‘published’ on the Internet before the date it was filed (or its priority date, whichever is earlier).

A design is ‘distinctive’ unless it is substantially similar in overall appearance to other designs already in the public domain.

Before filing an application, you should search existing design records. If your design is not new and distinctive, any registration you receive could be revoked as a result of examination and your registration could be worthless. You may also face legal action if you infringe the design rights of the owners of other similar designs.

Advice and assistance when making a design application, and professional searches of the IP Australia registered designs records, are available from patent attorneys and search firms, a list of which can be found in your Yellow Pages Directory and IP Australia’s list of IP Professionals.

http://www.ipaustralia.gov.au/designs/what_index.shtml

The complete image of a car CANNOT be copyrighted.

Even if this were true, the fact that car owners PURCHASED the car for MONEY from Ford means they are allowed certain rights. One of them is taking a picture of the car itself.

As Pink Floyd once said: ‘Hello…(hello)… is there anybody IN there…’

Screw the revolution. Let’s line up all the lawyers against the wall *now*…

Unless I am missing something, the letter drafted by Drake above states that (1) trademarks cannot be used in the products that are sold, yet, incredibly, remarks that (2) he will purchase the calendar!?

It seems to me that by necessity, the Ford logo will appear in the calendar, and will be the impetus for purchasing the calendar.

So in one letter, the BMC is inconsistently told that they can and cannot produce the calendar.

Just another example of why trademark law in the wrong hands can be dangerous.

Regards,

Jason Nardiello
Nardiello Law Offices, P.C.
http://www.realtimeintellect.com

in this case FORD believes that they own the likeness of their cars, so how do you DRIVE the bloody things in public without EVERYONE seeing it??

isn’t that a public broadcast of a trademark? oh difficult one there right?

if people continue to ALLOW companies to have these beliefs and to successfully sue the public for living a normal life, then the people are the ones that responsible for this mess.

with copyright infringement and examples like this FORD fiasco waiting to happen, it all boiled down to the stupid human belief that you can “own” anything.

nothing is owned, you simply “share” time & energy with other energy forms for a period. you have “relationships” with things, people for the duration they’re useful to achieve your goal. then you continue to use these”tools” to get to your next goal, etc.

you don’t “own” your body, nor your partner, car, land, language,etc…you simply have the use of it. how long and in what manner is between you and anyone else that may disagree about it.

fighting about who owns anything is a futile human fear that is ruining our species’ evolution.

once we get rid of the idea that we are all unique individuals and that “I am better than you”, then we can all realise that we are all part of the same organism in the same galaxy, in the same universe…all part of the same recipe that is this universe.

lets share and play our part and stop trying to control things that have nothing to do with us.

there is no “I”, there is only “i am this small part of a bigger thing”.

it’s like having your body parts not realise that they’re all connected and start arguing about who owns anything and who controls, who has rights over the rest of the body.

once we realise we are all connected then we can cooperate and more efficiently achieve things impossible before when we argued over each other.

cooperation, not competition is the way forward, and for that to happen we have to get rid of the fear that if we don’t fight the other people we’ll be left with nothing.

Maybe the BMC just got a rookie lawyer on a bad day. Who knows – let’s wait and see what ensues (deliberate bad pun)

———————-

“Although you and your members may own the Ford automobile, you do not own the rights to the trade dress. Taking pictures of any Ford automobiles, placing them on products (i.e. calendar, mugs, t-shirts, etc.) and making them available to the public for sale is an infringement of Ford’s intellectual property rights.”

“Because of the cachet of the world-famous Ford name, thousands of independent businesses and people make a living from or pursue a hobby related to Ford products and services. Unfortunately, many of these businesses improperly attempt to affiliate themselves with Ford by using Ford trademarks and trade dress (for instance, the depictions or photographs of Ford’s distinctively shaped vehicles) in advertising their products and services.”

“If a business not affiliated with Ford uses any Ford trademark, whether through the use of photographs, depictions or silhouettes, or any confusingly similar variation thereof, without Ford’s express, written consent, then that business is violating Federal and state trademarks laws.”

“It is also not sufficient for a business to state that it is not affiliated with Ford but continue to use Ford trademarks without permission. The business is still misappropriating the goodwill and reputation developed by Ford, and attempting to capitalize on or profit from Ford’s goodwill and reputation. Even with the best of intentions, unauthorized use of another company’s trademark is against the law.”

“At times Ford enthusiasts question why Ford is so adamant about policing it’s trademarks and preventing unauthorized uses or infringements of them. It is quite common for someone who is using a trademark without permission to say, “I’m giving Ford free advertising, so why does Ford care?” Ford cares because it is important that Ford be able to exercise control over the quality of the product or service bearing Ford’s trademarks.”

“To protect the value of its trademarks, Ford is obligated to object to and pursue unauthorized uses of its trademarks and trade dress, even if the use of the trademark or trade dress does not appear offensive or objectionable.”

——————–

In a nutshell, they were selling their trademark, which they must enforce or lose it. You notice they use the words “Goodwill”. “Goodwill” is actually an accounting term, with a real monetary value behind it. It is the amount more the company is worth when adjusted for intangible assets, such as Intellectual Property. When the IP is infringed upon, the value of “Goodwill” goes down and the company loses perceived value.

Don’t sell things trademarked by other people. That’s really business 101 there.

@12 I’ll buy three

Arrogant companies need a consumer spanking.

Otherwise they start thinking they are governments.

I moved my publishing to a different supplier and included a zillion words of disclaimer. So far my clandestine project hasn’t been hassled but I fully expect it to be.

i hate cars even more than i hate copyright, so…

“and Ford pledged collateral for everything from its plants to the trademark Blue Oval logo to raise $23.4 billion to pay for new models”

This is true of more things than you might imagine, even things that might seem to be in the public domain. This includes statues, buildings, even the lighting schemes of buildings. For instance here in Chicago, Marina City recently took issue with one of its tenants for taking photos. The towers that make up Marina City were used in the film “The Hunter”, and they appear in other films, as well as on the album cover of Wilco’s “Yankee Hotel Foxtrot”. The rules on taking photos of buildings are a little fuzzy, depending on when the building was constructed.

Just to make it clear, I’m not in favor of this. As a photographer, I find it to be a major pain and indefensible in general. But if someone wants to enforce these rules and has money for lawyers, the current laws are on their side.

There are two elements to this calendar that make it, I think, a good case for the motor club and a bad case for Ford:
1) The calendar is more like a collection of art photographs and less like an unrelated commercial product; They’re not using the pictures of Fords to sell peanut butter; they’re just selling the pictures of Fords because in their own right.

2) Because the cars being photographed are highly customized and, presumably, different than the product that Ford offers to consumers, they are inherently works of art in their own right (like sculptures made from Sculpey brand modeling compound – Sculpey has no rights to those).

BTW, I could not find a single case in which the manufacturer of a commercial product was able to limit a purchaser’s ability to photograph the product and distribute the photograph as a work of art.

http://finance.yahoo.com/q/bc?s=F&t=5y

IANAL, but fundamentally, trade mark is a consumer-protection law. Are consumers being fooled into thinking something is a Ford product which is not? For a plain photo of an actual, genuine Ford car, the answer is clearly ‘no’.

Of course, the other question is whether you want to spend the next half a decade in court arguing about that. In a “might makes right” sense, they have the upper hand.