Wednesday, March 19, 2003

MemeFirst responds to Puma

MemeFirst has responded to Puma's cease and desist letter. Trademark lawyer Martin Schwimmer was kind enough to draft a response both for us and for AdRants, and you can download a PDF file of it here.

If you don't want to plough through three dense pages of legalese, however, here's the basic gist of our response.

We didn't create those images. (To be fair, Puma never accused us of creating the images, but it's worth getting the ground rules straight.)
The images, whether real or fake, constitute an item of public interest. As such, we have a First Amendment right to comment and report on them.
We are not a commercial website, and we do not accept advertising. This means that (a) we didn't profit from the use of the images; and that (b) no one could have considered the images as being genuine Puma advertising.
Far from generating the impression that the images were genuine, we actually sought out Puma, got a statement from them saying the images were fake, printed that statement, and generally were prime source of the information that this was a hoax. In fact, to this day, Puma has nowhere on its website disavowed the ads.

This whole episode with Puma has been fun. I've enjoyed getting unprecedented numbers of visitors both to this website and to MemeFirst, and I've never received a cease-and-desist letter before. But this, I think, is an obvious point at which to bring the matter to a close. We're about to go to war, there are much more important things on everybody's mind, and we have an absolutely watertight legal case.

Peter Mastrostefano, Puma's lawyer, never returned the phone message I left for him the day I received his c&d, so I really have no idea what his take is. But I'll be very surprised if he chooses to pursue this any further.

Posted by Felix at 17:03 EST

Comments

Fact remains, the logo is a copyrighted trademark. If their logo appears on a picture without their permission, they have every right to pursue legal measures against the maker of the picture and those who reproduce the image.

You all seem to think that you know so much. I'm just amused to know that no matter how hard you fight against Puma [or try to use such smokescreen tactics like 'We're about to go to war, there are much more important things on everybody's mind,' to sidestep the fact that you're in the wrong... You'll never win.

Watertight legal case indeed...
Kids...

Posted by: TekGeist at 9:48 EST, April 17, 2003

I hope Puma jizzes on TekGeist

Posted by: fred at 9:15 EST, April 21, 2003

Well, here it is over a month later and the photos are still up, so draw your own conclusions about Puma's interest or "rightness" in pursuing this.

Personally, I think Puma had to go thru the obligatory motions so the easily offended elements of the public wouldn't go church-circle-crazy on them. Now that they've claimed how "appalled" they were and done a small bit of legal bullying, hopefully they'll just let it rest.

Posted by: Wondernuts at 13:02 EST, April 22, 2003

TekGeist: Are you for real ???
You write "If their logo appears on a picture without their permission, they have every right to pursue legal measures against the maker of the picture and those who reproduce the image."

Of course anyone can pursue legal measures against anyone without any valid reason.

But if what you say would actually be forbidden by law, the stars like Madonna would only have to create a "Madonna logo" and put it on their forehead as a temporary tatoo each time they wanted the Paparazzi to leave them alone..

Have you been inhaling glue ?
Or were you born without a clue ?

Posted by: FatBastard at 8:03 EST, May 15, 2003

The likeness of someone or something CAN be legally used without permission, in a satire or any other humourous situation.
There are cases which have gone to the Supreme Court, most famously The People vs. Larry Flynt.
The First Amendment takes precedent over somebody's lack of a sense of humor.

In fact, IF Puma were to take this to court, the would lose, and here's why:

Reasonable people would not believe Puma would advertise in this manner, just like "Reasonable people" wouldn't believe Jerry Falwell had had sex with his mother in an outhouse (as stated in a "story" in Hustler Magazine, which was the basis of the Larry Flynt lawsuit).

This is free speech, end of story.

Anyone can make a fake ad for any product, featuring anything, as long as it's humorous and "reasonable people" could not believe it was a real ad (personally, I think "reasonable people" automatically excludes the bible belt, but that's just me).

Do you think MasterCard would sue anyone for one of those phoney "Priceless" pictures, of which there are hundreds featuring nude women or people engaged in sexual acts.
Puhleeze! Free publicity never hurt anyone!

Posted by: Jack Frost at 19:09 EST, May 15, 2003