August 27, 2002

5:00 PM

FuckedCompany knocked offline for two daysdue to headlines that sounded like Ford's advertising slogans. While FC is no stranger to cease and desist orders, Ford threatened the web host directly, who ended up pulling the plug. Was Ford in the right, or did they overstep their bounds? Personally, it sounds a lot like suing a newspaper when a headline plays on your advertising.
posted by mathowie (30 comments total)

To directly answer the question: Sure, Ford needs to protect it's IP.

But screw that. The idea that a company must *by law* send you a cease and desist if they feel you do anything which even hints at their intellectual property is totally asinine. Sure, the law may actually work that way, but for the love of God why?

And what's the real issue here? This just seems like Ford trying to use an IP smoke screen to shut down bad PR.

So just keep in mind that if you want to exercise free speech, be sure to not give your target's legal team the bullets to shoot you with. How nice that we need to keep informed on arcane IP law if we want to take advantage of our 1st amendment rights.
posted by y6y6y6 at 5:22 PM on August 27, 2002

Ford most definitely did not have to "by law" send a cease and desist letter or further pursue this action. To be conservative they probably pursue anything that even comes close to infringement.

The real problem here is that dilution is too powerful of an enforcement tool for trademark holders. The traditional test, "is there a likelihood of confusion" provides more than adequate protection. Saying that someone else's use may dilute the strength of one's trademark puts too much power into the hand's of the mark holder to exclude competition. The issues parallel the extension issues that plague copyright law.
posted by caddis at 5:34 PM on August 27, 2002

Nintendo got my boyfriend's e/n page shut down for the word "Pokemon" in an obsolete meta tag. Who knows. Maybe Ford (or Nintendo) are in the right to persue it. But why bother some knuckleheaded guys or a satirical(ish?) webpage? Slow day at the office?
posted by macadamiaranch at 5:34 PM on August 27, 2002

Sure, the law may actually work that way, but for the love of God why?

Because if a trademark gets overused it becomes "diluted" and no longer a trademark. Think of the battles over "Xerox" and "Kleenex." A trademark owner has the duty to protect any possible infringement or it risks having its trademark (its intellectual property) taken away. Sorry, but it's not that arcane, and I suspect the owner of fuckedcompany.com knows full well the limits of IP law.
posted by pardonyou? at 5:35 PM on August 27, 2002

i see this kind of crap all the time and more than once it has occurred to me that it's probably the companies Legal department trying to justify their existence.

You can't lay us off! Look at all the people out on the internet infringing on our intellectual property!
posted by quin at 5:36 PM on August 27, 2002

i see this kind of crap all the time and more than once it has occurred to me that it's probably the companies Legal department trying to justify their existence.

Interesting. Not true, but interesting. IP is one of the only legal areas in which companies are hurting for attorneys. There is great demand and competition for the relatively few IP lawyers. I work in the law department of a Fortune 100 company, and can tell you that we're always looking for more IP lawyers.
posted by pardonyou? at 5:46 PM on August 27, 2002

What pardonyou? said. The irony of half of these lawsuits is that these companies spend half their budgets on advertising to make something like "Xerox" and "Kleenex" a household name... now we're in an era where the same companies are suing anyone who considers words like "Xerox" and "Kleenex" to actually be househould names.

A few months ago, a woman named Sarah Buck was given a C&D letter from Starbucks because her coffee shop, Sarah Buck's, infringed on the trademark of their store- which they had not yet built in her town.

I can't find a link to stories, but I recall that Rollerblade was in front of a charge to market the growing 90's sport as "In-line skating" as opposed to "Rollerblading" for this reason.
posted by XQUZYPHYR at 5:46 PM on August 27, 2002

I am sure that FuckedCompany would not be as successful as it has been if companies had publicly thanked the site for providing a valuable information service, so they must be used to this type of activity. Ford are no doubt on sound legal ground in their actions against FuckedCompany, but to take it up with the hosting company so early in the fight is, to me, taking things too far. I can understand the hosting company's actions, but Ford should have tried harder to work things out before going down this path.

Even if the legal position is that the host can be held responsible for breaches, it hardly seems fair to close down the whole site for the sake of one article. Kind of like recalling all Fords because one model had a fault that made it catch fire for no reason. Not that they would build a car like that ;-)

Huge companies like Ford are in a particularly vulnerable position with regard to dilution, as their trademark is so widely used that they have to act more aggressively than others to ensure protection against dilution.
posted by dg at 5:49 PM on August 27, 2002

Oops. Link to the Starbucks lawsuit deal here. And it's Samantha Buck's, not Sarah.
posted by XQUZYPHYR at 5:51 PM on August 27, 2002

pardonyou?, yeah, it was just a theory, but based on the number of seemingly frivolous complaints i have seen, it sure feels like they are sending them out because they have a quota to fill. :)
posted by quin at 5:53 PM on August 27, 2002

I understand how trademark dilution works, but I think this is over-stepping the bounds of that. We're talking about a single headline on the site (which has 15-20) on the front page.

To me, that'd be like AOL sending a C&D to the New York Post when the did a full page headline of "You've Got Jail" since it sounds like their trademarked advertising phrase.

I guess I'm wondering why a newspaper can make a witty headine and fuckedcompany cannot. While FC isn't journalism in the classic sense, they're just reporting internal rumors and news, and a witty headline doesn't seem like a good enough reason to threaten a webhost and get a site silenced.

I obviously have a vested interest here. How long until a witty post at MetaFilter lets the legal dogs out?
posted by mathowie at 5:54 PM on August 27, 2002

(I'll make the obvious joke: "well, as soon as we see our first witty MeFi post, maybe we will!")
posted by mathowie at 5:55 PM on August 27, 2002

That's a good point, mathowie - have you ever been approached by a company or their legal representatives about any of the content here?
posted by dg at 6:12 PM on August 27, 2002

What makes you so sure it will be Witty?
posted by madprops at 6:13 PM on August 27, 2002

MetaFilter: Home of the Whopper. Over 3 billion served.
posted by fatbobsmith at 6:16 PM on August 27, 2002

I guess I'm wondering why a newspaper can make a witty headine and fuckedcompany cannot.

I think that FuckedCompany can do it, but the cost to prove that in court would be considerable.
posted by rcade at 6:17 PM on August 27, 2002

These trademark wars always remind me of the 7-Eleven® takeover of the generic name for a local deli with longer hours than most, hence 7-11.

Perhaps some other older-fogies remember all those local establishments taking down or painting over their well-worn signs and becoming Bob's or Kate's or such. At the time it seemed as absurd as a company trade marking the word 'delicatessen', forcing all those current businesses to change their names. (The 2nd Avenue Bob's, Katz's Over-Lit Food Room, The Carnegie Big-Ass Sandwich Shoppe)

What always bothered me about it was that 7-Eleven® is not even a 7-11, being that they're open 24 hours. Shouldn't we be able to revoke their trademark privilege for not remaining true to the meaning of the term long before their usurping of it?
posted by HTuttle at 6:21 PM on August 27, 2002

Hello? Parody? Protected speech? Hello? Is there anyone out there? What's that spinning sound coming out of these early-19th century gravesites?
posted by Cerebus at 7:08 PM on August 27, 2002

HTuttle: but don't forget, there are still at least fifteen or sixteen "original" Famous Ray's in New York City.
posted by XQUZYPHYR at 7:17 PM on August 27, 2002

well, I'm sure it will make Pud happy, at least he will be getting some traffic again. I used to read FC all the time, but more and more, it just seems Pud and FC are grasping at straws. I won't even get into the nonsense that has become the message boards over there....yes, this isn't on topic per say. I just needed to vent.
posted by robotrock at 7:30 PM on August 27, 2002

Personally, I drive a Ford Limbo, but it's just OK.

And I always wondered what Job Two was. Quantity?
posted by BitterOldPunk at 8:17 PM on August 27, 2002

Bitter: Job 2 is trampling over your rights as the corporate behemoth they are, knowing full well they have a friendly executive installed.

I have a constant overriding sense of dread that we are on the real cusp of a frighteningly steep slippery slope as it pertains to IP issues.

A world where Alanis Morissette dings your charge-card for $1 everytime you say "Isn't it ironic?"

Here in the south we call all soft-drinks "coke". We'll owe Coca-Cola Corporation (R) (TM) (C) (PatPend) everything we own.

And also a real lack of class on Ford's part by going straight to the hosting company.

That is still something I don't understand. We don't hold the paper company responsible if its paper is used for offensive writings. Why is the hosting company responsible for it's "paper"?

Stuff like this makes me loose another shred of faith in this entire capitalist clusterfark.
posted by Ynoxas at 8:41 PM on August 27, 2002

just because...
posted by blackholebrain at 10:21 PM on August 27, 2002

Because if a trademark gets overused it becomes "diluted" and no longer a trademark. Think of the battles over "Xerox" and "Kleenex." A trademark owner has the duty to protect any possible infringement or it risks having its trademark (its intellectual property) taken away. Sorry, but it's not that arcane, and I suspect the owner of fuckedcompany.com knows full well the limits of IP law.

This is not the sort of incident which requires the mark owner to protect the mark or lose it. FC is not a competitor trading off of Ford's mark for commercial gain. Rather, it most probably falls within the protection of parody. Ford used its superior resources to intimidate FC. If this had been a well funded newspaper they probably would have told Ford to go stuff it.

What we have here is a classic case of a heavyweight fighter (OK this heavyweight is a little long in the tooth and tubby around the middle) beating up some child in the schoolyard. No one likes to see that. It certainly doesn't make the fighter look good. This is the sort of behavior to remember the next time you go shopping for a car.
posted by caddis at 4:51 AM on August 28, 2002

I called Ford at [phone] to complain. I let them know I wouldn't consider buying a Ford vehicle because of their corporate bullying. The operator was receptive to my complaint and had heard of fuckedcompany (her friend goes to the site). She had not heard that Ford had shut down the site.
posted by neuroshred at 6:22 AM on August 28, 2002

To me, that'd be like AOL sending a C&D to the New York Post when the did a full page headline of "You've Got Jail" since it sounds like their trademarked advertising phrase.

It is not just like, it is the same thing, no? The 'where laying off people is job 1' phrase was used in the context of an item's title. (And it was much funnier than a lot of his other headlines to boot.)
posted by maura at 7:22 AM on August 28, 2002

I remember reading a discussion a few years back about knocking-copy ads in the UK. It said that while there might be problems in criticising another company in an ad because of trademark issues, if you referred to the company by their full name (e.g Ford Motor Company Ltd) then it was perfectly legal.
posted by kerplunk at 7:52 AM on August 28, 2002

If you use Kate on ford.com, you can get to an e-mail form.. if anyone finds a direct e-mail address, please post it here.

Hey maura! (wave) long time no see!

As for the case, does it have any merit only because FC.com makes money (does it?) as a commercial venture versus being pure parody? How does it relate to other types of parody, like Letterman's Top Ten lists that commonly use variations of slogans?
posted by rich at 8:58 AM on August 28, 2002

good thing these ain't the harry bennett days or fucked company would live up to it's name.

I guess I'm wondering why a newspaper can make a witty headine and fuckedcompany cannot
why is not the question, the power of a free market that they have almost no control over and all in a new medium (thats the internet) is why. This is a sign that the big fellers are looking at their image being protrayed on said new medium. personally, Ford might be concerned about an negative image on something called fucked company-ya know, it is not wholesome (yeah, so is the SUV) But the big guys should be using honey and money instead of vinegar and typed paper. interesting situation.
posted by clavdivs at 12:02 PM on August 28, 2002

A poor, poor, response:

Dear Richard,

Thank you for contacting Ford Motor Company on 08/28/02. We appreciate
the time you have taken to provide us with your feedback.

We regret the circumstances that prompted you to contact us.

Ford Motor Company is concerned with the satisfaction of all Ford and
Lincoln-Mercury customers. Your feedback is highly valued by all
divisions within Ford Motor Company and serves to provide us with
insight into areas where we may need improvement.

When customers send us constructive comments, you help reinforce our
efforts to build the finest automotive products in the industry. We
have documented your comments for future reference and hope that future
experiences with Ford products will outweigh this one.

Thank you for taking the time to provide us with your feedback.

At Ford Motor Company, we consider the satisfaction of our customers as
one of our most important objectives. If you have any other inquiries
or concerns, please feel free to contact us and we will be happy to
address them.

Thank you for contacting Ford Motor Company.

Sincerely,
Yanique
Ford Motor Company
Customer Relationship Center
posted by rich at 8:59 AM on August 29, 2002