Wednesday, July 22, 2009

The Daily Show covers trademark!

Or at least the dispute between the Pull My Finger iPhone app and the iFart iPhone app:
The Daily Show With Jon StewartMon - Thurs 11p / 10c
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Due to the good offices of the plaintiff's counsel and eBay, I myself possess both a Pull My Finger Fred and a Fartman, subjects of a different fart-based IP case--that one copyright. Here, the apparently unrelated Pull My Finger app creator complains that the iFart relied on ads with "pull my finger" as the link text. If that's a protectable trademark, then that's dangerous behavior. Assume the term is descriptive but has secondary meaning: can using the term as link text be a descriptive fair use? If not, what would suffice? "A pull my finger app"? If that won't do it, what's left for descriptive fair use in short ads?

1 comment:

Anonymous said...

I guess the question becomes whether consumers are confused by the ad. If they are, then there is infringement. If not, then the use is permitted.

I'm not sure I see a problem with prohibiting a short ad stating something like, "This is a pull-my-finger app" because it is not a pull-my-finger app; it is a fart app. Perhaps because I have a demented mind, but I can think of a million ways to say I am selling a fartapp.