Football Player Plans to Amputate Finger
SYDNEY, Australia - An Australian professional football player said Tuesday he plans to have one of his fingers amputated in an attempt to improve his game.
Brett Backwell, who plays Australian rules football for Glenelg, a suburb of the city of Adelaide in South Australia state, told the Australian Broadcasting Corp. he has suffered from pain and restricted movement since he broke his left ring finger three years ago.
Doctors had suggested fusing the bones in the finger, but Backwell rejected the proposal.
He said he believed that amputating the finger was the only way to stop the pain and allow him to keep playing.
"To chop a finger off, that's a bit drastic," Backwell told the ABC. "But I love my footy (football), and love playing sport, and if that's going to help me to succeed at this level then it's something you've just got to do."
Got it yet?
"Good thing he didn't have a headache."
Web site starts selling T-shirts reading "A Prairie Ho Companion." Garrison Keillor's attorneys send a cease-and-desist letter. Web site goes public with dispute, calling Keillor a "humorless crank," and espousing how virtuous and blame-free the site really is:
I have no doubt about where I stand legally. Parody typically falls under Fair Use (or sometimes, the First Amendment), and this is clearly an instance of parody. There are a series of factors involved in the definition of parody, including this: it is probably parody unless a "reasonable person" could mistake the new work [the t-shirt] as the work of the copyright owner [Prairie Home Companion]. To claim copyright infringement would involve arguing (as the cease and desist letter below implies) that some lost soul could find their way to MNspeak.com, click through to the t-shirt, and ignore the message in bold that clearly says "WARNING: This shirt is not associated in any way with Prairie Home Companion, Garrison Keillor, MPR, The Fitzgerald, or, well, anything -- it is PARODY."
Yeah, well. For someone who posted an image of the C-n-D letter online, the guy obviously didn't bother to read it:
We represent Garrison Keillor, holder of the service mark and trademark PRAIRIE HOME COMPANION, registration numbers 2,542,912, 2,542,909, 2,203,900, 1,430,618, and 1,468,057. Our client uses his mark in connection with music publishing, production distribution and sale of sound recordings, entertainment services, radio programming featuring music and varety [sic] entertainment, and other services. He uses his trade name in connection with entertainment services, radio programming and other services.
It has come to our attention that you are marketing T-shirts bearing the word, "A Prairie Ho Companion." We believe that your use of these words creates a likelihood that the public will be confused as to the sponsorship of the T-shirt and our client's services and products. Because of the high probability of confusion, and because of our client's prior rights in this mark and trade name, on behalf of our client, we hereby demand that you immediately abandon all use of "A Prairie Ho Companion."
Please be advised that our client established use of the mark at least as early as 1974, and continues to use the mark in connection with a variety of goods and services. Our client has expended, and continues to expend, great effort, expense and time in the promotion, marketing and advertising of PRARIE HOME COMPANION branded services and products.
The Web site dork can go on all he wants about "parody" and "copyright infringement," but the actual letter, which he apparently either didn't read or didn't understand, discusses trademark infringement. Even ChillingEffects.org admits that the "parody" defense to trademark infringement is iffy at best. The text is too long to quote, but the examples show that simple goods being sold with someone else's trademark on them are the ones most likely to be found liable for infringement.
Since Keillor already licenses his trademark to American Public Media (formerly American Public Radio, formerly just Minnesota Public Radio) for a wide selection of T-shirts and other apparel, it seems perfectly likely to me that someone would see one of these shirts on a person and think it came from APM.
See, for example, this page discussing likelihood of trademark confusion:
In determining likelihood of confusion, the court will examine (among other factors) the similarity of the marks, the similarity of the goods, the marketing channels used, the strength of the plaintiff's mark, and the defendant's intent in adopting the mark.
Keillor uses or licenses his mark, the title of his radio show for most of the past 30 years, in selling T-shirts on the Web. Dumb-ass Web site guy adopted Keillor's trademark to sell his own T-shirts on the Web. Protests that this can't possibly be confused are transparently false.
This is all not even mentioning that trademark owners are required by law to defend their marks against infringing uses.
Failure to defend the mark. If the owner fails to be reasonably diligent in protecting rights to the mark, an intent to abandon may be inferred. However, the owner is not required to act against every infringing use. On the other hand, allowing some significant infringer to continue conflicting use may well weaken the mark over time.
The First Amendment does not give you the right to take anyone else's intellectual property, remove two letters, and profit from it - especially when the owner of the intellectual property is already selling similar goods in a similar fashion, any more than Apple Computer would sit idly while someone sold "Crapple eyePod" players or accessories. People who work for 30 years to build a name and follow the law to protect it are not "humorless" because some asshole with a 30-second idea can't make money off it without permission. Thanks to allergies or a cold, I'm sicker right now than Mr. Hankey on a Stick, and I still understand this.
I'm disappointed that Gruber fell for this.
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