A takedown notice from British Psychological Society and the moron-in-a-hurry defense

peter_kinderman_140x140British Psychological Society President-elect Peter Kinderman continues to get a lot of attention for his indecent exposure and his invoking of the Holocaust in accusing academics who accept a biomedical model of psychological disturbance of being Nazis.

My blog post at PLOS Mind the Brain about it was receiving heavy traffic. And then a takedown notice – British Psychological Society – Logo/Trademark misuse. – arrived from the British Psychological Society legal department concerning my use of the BPS logo.

This is satirical and so appropriate use.

This is satirical and so appropriate use.

These are always a shocker to a blogger, but to be expected.

The British Psychological Society – Logo/Trademark misuse

Dear Professor Coyne,

I am the Director of Corporate Services for the British Psychological Society. I have become aware that you have included our Society’s registered logo/trademark in your blog post (URL below) without seeking appropriate permissions or with designated authority:

http://blogs.plos.org/mindthebrain/2015/08/25/the-holocaust-intrudes-into-conversations-about-psychiatric-diagnosis-godwins-rule-confirmed/

This is an infringement of trademark and copyright regulations. Please remove our logo from the blog post immediately in order to avoid further legal action.

Regards

Mike Laffan

Director of Corporate Services
St Andrews House, 48 Princess Road East, Leicester  LE1 7DR

please removeBeing a nice guy, I took it down and replaced it with the one to the right.

Actually, these kind of notices are a common form of harassment and intimidation. Legal experts suggest that they are not enforceable. I am sure that Mr. Lane knew this was an empty threat and informed the BPS Board of Trustees who had to approve his making it.

The Moron in a Hurry Defense

This is not a pipe.

This is not a pipe.

Google stimulated a lot of discussion in the legal blogosphere  when it sent such a threatening cease and desist order to a blogger who use the Google logo on his website that was simply informing people how to ensure that their businesses were listed by search engines.

As a blogger  you’ve got the right to use logos under the Fair Use Doctrine. The same protection that comes with using portions of others’ content for critique and commentary, whether it be a blurb from the Wall Street Journal or a block quote from another blog, applies equally to using corporate logos.

moron indexTechdirt was blunt in a brief postings subtitled from the morons-in-a-hurry dept:

Well, we know that Google gets dragged into bogus trademark lawsuits all the time, but that doesn’t mean Google should be making bogus trademark claims itself. The latest is that the company’s lawyers sent a cease & desist letter to a guy for using the Google logo on an informative site where it was explained how to get your business listed on various search engines. While it is true that you need to protect your trademark or risk losing it, it’s ridiculous to think that this is a case where the trademark is being infringed or needs to be “protected.” Google’s complaint is that this somehow might confuse people into believing the site was associated with Google and lessens Google’s ability to make money. If we pull out the ever popular moron in a hurry test, we find that Google’s claims don’t stand up. No moron in a hurry is going to think the site is officially associated with Google. As for hurting Google’s ability to make money, this is a site that will get more people to use Google — which is Google’s exact defense when newspapers flip out about Google linking to them.

In the thread of comments that followed, the lawyer-author of the post elaborated:

Re: Re: Re: Re: Re: More Google: Official Logos

sorry mike… you’re wrong on this one. trademark law clearly imposes the burden upon the owner of the trademark to act in every situation where it’s trademark or logo is used without their permission. failure to do so can later be used as evidence against their ownership or protection of ownership. this places the owner of the trademark in a situation where they must act – from a legal standpoint – in any and every situation of which they become aware.

Sorry, common sense, but in this case, it’s actually you who are wrong. I pointed you to the Lanham Act. I’m not sure why you then say “not sure where you’re getting your info” because I told you where I got it. Go read the Lanham Act.

As for defending your trademark, it’s true that you need to defend it — not for *every* use without permission, but only those that violate the trademark. A mark used within fair use isn’t in violation, and therefore you do not need to defend it.

For more from lawyers on the topic:

http://kevin.lexblog.com/2007/08/law-blog-basics/can-you-use-another-companys-logo-on-your -blog-post/
“As a blogger, you’ve got the right to use logos under the Fair Use Doctrine. The same protection that comes with using portions of others’ content for critique and commentary, whether it be a blurb from the Wall Street Journal or a block quote from another blog, applies equally to using corporate logos.”

http://www.erikjheels.com/2007-07-13-freakonomics-cleavage-and-fair-use.html
“If you are writing and commenting about a company, product, or famous person, then it’s a no-brainer that it’s fair use to use the company’s logo, product image, or headshot in your blog post.”

http://www.publaw.com/fairusetrade.html
” The Lanham Act permits a non-owner of a registered trademark to make “fair use” or “nominative use” of a trademark under certain circumstances without obtaining permission from the mark’s owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized in those instances where a reader of a given work is clearly able to understand that the use of the trademark does not suggest sponsorship or association with the trademark owner’s product or services and therefore is not being used in a manner to confuse the reader.”

http://www.hklaw.com/Publications/OtherPublication.asp?ArticleID=2815
“Courts have long recognized that a company can use a competitor’s federally-registered trademark without liability for infringement, if the competitor’s use is a “fair use.” The Trademark Act of 1946, commonly known as the Lanham Act, expressly permits fair use as an affirmative defense.”

There’s plenty more from where that came from…

applecorpsClick here for links to a more extensive history of the legal test of a moron in a hurry, including the famous Apple Computer, Inc versus Apple Records and  Beck v. Eiland-Hall in which Glenn Beck sued a parody website.