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Originally Posted by dlanor
Like I said in an earlier post: We're continuing this discussion beyond what's reasonable here, but I'm willing to go one more round anyway...  |
Nothing unreasonable about a discussion on whats legal and whats not. How else could i express what i understand as "not illegal' ?
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Originally Posted by dlanor
So you keep saying, without a shred of proof IMO, and I still disagree.
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Its a 2 way street, i havent seen any shred of proof thats its illegal or infringing upon the trademark or anything to cause a concern.
Quote:
Originally Posted by dlanor
As I see it, the critical requirement is not that the offender is making money, but that the offending material is distributed to the public in some form or other. Making money off that activity is in no way required. If that was the case then 'smear campaigns' against a company, abusing their trademarks as part of the propaganda, would also be perfectly legal as long as those doing the 'smearing' don't show a monetary profit.
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But this is the point im attempting to make, it doesnt matter if the offender is making any money or not, but that it has a commercial effect....and that would make the offender a 'particpant'. In your example, the offender is slandering the trademark in an attempt to confuse the consumer about the company or its product(s), but isnt doing it for profits. If the slandering trademarks have an impact or threaten commerce by consumer confusion, then it could be an infringement claim.
Quote:
Originally Posted by dlanor
This example makes no difference to me. You still focus only on the issues of money-making and possible confusion about the product identity or usage. I on the other hand focus more on the issues of confusion about sponsorship/approval of the trademark owner.
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And i cant see how any skin we have ever made would imply confusion of sponsorship or approval.
Quote:
Originally Posted by dlanor
Not really. The Internet is international, and if I do something illegal on the Internet I can be held to account for it by local swedish authorities, regardless of which nation the server computers are located in, which I used for that activity.
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Well im not going to pretend i know every countries policy of Internet laws, but i can say if this site was in your country and i posted something there, my country couldnt prevent me from doing so nor could they proscute me.
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Originally Posted by dlanor
As we have already discussed earlier, it is enough that people may falsely believe that Sony 'approve' of the stuff.
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That would still be classed as confusion, which i still dont see any such confusion occuring here.
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Originally Posted by dlanor
I don't think there is any clear-cut boundary for these cases.
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I agree on that much. Its even unclear in the courts when it comes to a "non-commercial" use of a trademark.
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Trademark dilution can occur even if there isn't any likelihood of confusion, and regardless of whether there is competition between the two parties. However, there are three exceptions under which trademarks can be used: fair use in comparative advertising, in noncommercial use, and in news reporting or commentary.
Many companies claim trademark infringement or dilution when pursuing unauthorized uses of their names or logos on the Web--but it's not entirely clear how these laws apply to noncommercial activity on the Net. Many attorneys argue that this is currently a gray area, but the use of another company's logo on a noncommercial page could be considered trademark infringement. Fair use as applied to trademarks is usually more strictly enforced than it is in regards to copyright.
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Quote:
Originally Posted by dlanor
That is irrelevant. The relevant part is that it is 'aimed' at the same user 'market' as valid Sony PS2 related products.
So in a way we do participate in that market simply by making uLE available for it, regardless of the fact that we do it without profit.
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But it doesnt participate in the commercial market place, it doesnt have to 'make' any money.....it only has to have an impact on it to be considered for an infringement claim.
Quote:
Originally Posted by dlanor
This is where you and I focus differently again.
You only see uLaunchELF and its 'staff' as possible targeted 'offenders'.
I also see the skins themselves, and their makers, as possible targets.
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I still cant see where any valid infringement claim could be filed with any real impact. Fair use is the category this falls into.
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Originally Posted by dlanor
And I never claimed that such confusion could arise.
What I said is that use of Sony trademarks can give the impression that Sony has approved their use. And that is one of the other forms of confusion that can also constitute an infringement.
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Consumer confusion is the basis an infringment claim is required to prove, so how do any of those skins give the impression Sony approved them? If i viewed them for the very first time, i would assume they were only useful if i had a Sony product.....but certainly not confusing me as to if they were made by or even approved by them.
Quote:
Originally Posted by dlanor
The infringement is not necessarily tied to the project the skin is intended for, but inherent to the skin itself and the false image of Sony approval that the use of their trademarks implies.
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Without being 'tied' to a project, its just an image without any meaning and certainly of no confusion towards the purpose of the trademark. People viewing such an image as a standalone wouldnt matter if it was Sony approved or not, since it would fall under the Fair Use act.
Quote:
Originally Posted by dlanor
But though I never really feared that Sony would take action, I still wanted to raise the issue, so we can reach an agreement on what should be allowed on the site. (Btw: we're already imposing some limits which have nothing to do with legislation even)
I think we'd both better 'agree to disagree' on the interpretation of the law here, so we can lay this thread to rest.  |
Well i dont know why the issue was even made, whether we agree or not on the law is unclear since we do come from different regions. The finer points of law will be quite different if ever a case was made, as it would be dependant on the actual claim made and why it should be considered.
Conclusion
Im going to drop this , since its not up to me what is allowed on this forum or not....but it doesnt change anything for me as for making skins with trademarks if i choose to use them, until such proof is demonstrated that they are illegal to use.
The focus has been on trying to demonstrate they are legal, but it should also go the other way to, showing they are infact illegal before any such decision is made towards any rules on useage.
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