I Am Not A Lawyer, But I Have a Smart Lawyer Friend!
Yesterday, I noted the story of how The Politico sent Stephen Gutkowski, who runs The College Politico a cease and desist order. The Politico claims that the word “POLITICO” is its trademark and asked Gutkowski, under threat of legal action, to shut down his blog and transfer his domain to the owners of The Politico.
Now, I only know a little bit about copyrights and trademarks (but not quite enough to keep me from confusing the two in my post title), but I know someone who knows quite a lot.
My friend Ron Coleman is a trademark lawyer and his blog, Likelihood of Confusion, deals with trademark and copyright law. I hoped, in my earlier post, that he would weigh in on the issue, and tonight he did. I highly recommend that you read his post. It is a very well-written summary of the basics of trademarking a word (as The Politico seems to have done) and what “likelihood of confusion” means in this case. He didn’t go so far as to handicap the potential lawsuit, and I would never expect him to do so. That’s his professional territory and people, perhaps even people involved in the case, would pay him very good money to do that.
However, I’m not a trademark litigator and no one will ever pay me to weigh in on the case, so what the heck! I want to pull out one part of Ron’s post (you did read it, right? No? Go! Scoot!) and work off of that.
Stylized marks [of] incorporated words most certainly have been found to be infringed by unstylized uses of the same words. Just note that here, however, that the LOC analysis would have to [be] weighted by the point I made above — the narrow ground of protection afforded a fundamentally weak mark such as POLITICO under any circumstances, which acts as a counterweight to this last point.
At this point I have to ask myself, are the plaintiff’s claims of confusion likely? Based on looking at the two sites, I can’t see how a reasonable person would say they are. The Politico’s sites have a distinctive and relatively uniform look. They use the same colors and fonts, and are organized in the same fashion. The College Politico looks nothing like them and, more importantly, acts nothing like them. It is clear from a cursory reading of the content that The Politico is a broad news and commentary website with a particular stable of writers. The College Politico has a narrow focus and is almost exclusively commentary. In my judgment, The Politico’s claim doesn’t fly.
But I’m not a judge or jury. It is possible that I’m wrong and they share enough in common to meet the likelihood of confusion legal threshold.
In either case, Ron did some darned good work. He deserves all the traffic love tonight!
Other Posts of Interest:
- Who’s Got the News You Can Use?
- Meghan McCain = David Frum with a Nice Caboose
- A Mid-Week Link Dump, Because I Care!
Category: Blogs and Blogging
Politico is such a common word. I'd be amazed if College Politico was found in breach of any law.
"The College Politico looks nothing like them and, more importantly, acts nothing like them."
Umm, from a legal perspective, action in a literary context is not important in copyright cases. What would be arguable here is that they would have copied the format. In older cases, it would have been multiple consistent exact phrases. Now, I really don't think it matters. What are you really going to steal, anyway? Want to steal Lucas's stuff? The only company who can really produce it is Lucas. I'm not sure copyright protection is even a good idea. I'd like it for sure, but why do I deserve it?