Friday, November 09, 2018

In which I appear as a sideshow (but ABC gets the right result on TM/(c) claim based on news report)

Manigault v. ABC Inc., 17-CV-7375 (KNF), 2018 WL 5818101 (S.D.N.Y. Oct. 10, 2018)

I show up in this opinion because I wrote a blog post and the pro se plaintiff decided that I was some sort of publicist for ABC (I am not). Manigault sued ABC for trademark infringement/dilution, false advertising, and copyright infringement for running a news story displaying the logo of his software, KeyiCam, which takes a picture of a key and displays the “biting code” for the key.  ABC here won summary judgment.

Relevant uncontested facts: the news report at issue “examined a smartphone application for a key duplication service called KeyMe, explained how KeyMe works and showed several tests performed to assess how well KeyMe works with two positive and one negative result. The news report also showed materials published by KeyMe.” The reporter stated: “KeyMe isn’t the only game in town, though; there’s also Keys Duplicated and KeyiCam” and the report showed a screenshot from each business’s website for about one second. A text version included hyperlinks to the websites of each of the companies mentioned in the news report.

“ABC’s brief use of the KeyiCam mark in its news report did not suggest in any way that KeyiCam: (i) is affiliated, connected or associated with ABC; (ii) originates from ABC; or (iii) is sponsored or approved by ABC.” Likewise, there was no evidence that ABC engaged in materially misleading consumer-oriented conduct or commercial speech, dooming the false advertising claims. Nor was there dilution or tarnishment. The news report reported on KeyMe; no reasonable finder of fact could conclude that ABC used the KeyiCam logo “in an unwholesome or unsavory context likely to evoke unflattering thoughts about” KeyiCam’s services. [And even if the news report had been unflattering about KeyMe, it would be unconstitutional to bar nonfalse unflattering statements!]

The challenged use was fair. News reporting “is specifically exempted from copyright infringement by statute.”  Not exactly, but the court then quoted the more accurate rule that “there is a strong presumption that factor one [of the fair use factors] favors the defendant if the allegedly infringing work fits the description of uses described in section 107.” Nature of the work was neutral: creative, but already published. Amount: the extremely brief showing was “reasonable and consistent with the news report’s purpose, which was to inform viewers about the existence of key duplication services other than KeyMe.” Market effect favored fair use becaue a news report does not compete with and has no effect on any market for the KeyiCam logo.

And me?  I’m just irrelevant to the issues here.

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