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Products use trademarked Google logos without permission

Microsoft Corp.'s (MSFT) "Scroogled" campaign -- a series of sarcastic ads masterminded by Mark Penn, best-known as a campaign strategist for Bill and Hillary Clinton's respective Presidential runs -- was greeted with mixed reactions.  Some of the ads, which attacked Microsoft's search arch-rival Google Inc. (GOOG) -- bordered on being mildly humorous.  Others fell flat.

In the end Microsoft seemed to be letting the campaign quietly die down -- or so it seemed.

But while the broadcast ads tapered off, Microsoft has taken the campaign to the web.  Its latest attack -- which is featured on mugs, t-shirts, and other memorabilia available from the Microsoft store carrying various anti-Google slogans, including the familiar "Scroogled" parody of Google's colorful log.

Perhaps most eye-catching, though, is a fresh attack proclaiming:

Keep calm while we steal your data.
Scroogled

Zing! The quote on that hot cup of sass alludes to the internet company's snooping on citizens' open Wi-Fi networks via its StreetView cars.  Google claimed the data collection was "accidental" despite internal emails clearly stating that it was an attempt to collect informations on users to improve marketing.

So far Google has already been slapped with at least three fines internationally as officials declined to buy Google's excuses about "accidents".  Most recently Google was ordered to pay a $17M USD fine to U.S. federal regulators. It paid a separate $7M USD settlement to U.S. state regulators and a $189,000 USD settlement to regulators in Germany.  Google faces similar or potentially even bigger fines in other European Union member nations

Google Street View
Google claimed it snooped on users on "accident" despite internal emails revealing it did so for profit.  The company has been fined multiple times for the spying. [Image Source: Jacopast/Wikipedia]

In addition to mugs, the material is also printed on pre-washed T-shirts made from socially conscious fabrics.  The shirts are the work of American Apparel, Inc. (NYSEMKT:APP), the "fair-trade" espousing brand beloved by hipsters across the country.

The quote is surprisingly edgy and internet culture aware, as it seemingly hops on board the popular "Keep calm and carry on" meme, which was originally based on a  humorous World War II propoganda poster from the UK.

It's also somewhat surprising as the memorabilia uses Google's trademarked Chrome logo with no indication that Google permitted Microsoft to use it, or even an acknowledgement that Google is the logo's owner via a trademark or copyright symbol (trademarks are generally more appropriate, although often a broad set of design features is copyrighted or even patented).

Scroogled shirt

Google in fact appears to explicitly ban this, stating:

Don't display a Google Brand Feature in a manner that is in Google's sole opinion misleading, unfair, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Google.

Further common sense tells you that appropriating a company's well-known logo for use in selling your products is probably intellectual property theft.  And insulting the owner while using their logo to sell your products -- that's just adding insult to injury.

A Microsoft product description states:

A vintage line, reworked to reflect a modern problem. Printed on an American Apparel 50/50 t-shirt, pre-washed for minimal shrinkage.

Breathe in, breathe out. It won’t be long before Google has attempted to make money off of every aspect of your digital life. This t-shirt lets them know that you know. It's 50% cotton, 50% polyester blend, and pre-laundered for minimal shrinkage.

Again, there's no sign of any trademarks/etc. on the store page.

Keep calm scroogled

Edgy?  Trendy?  Illegal?  IP theft?  Funny?  It appears Microsoft's new campaign may be all the above.  It wouldn't be surprising to see this one wind up in court... but Google faces a lose-lose scenario as if it does sue Microsoft it's bringing attention to its own privacy offenses and risks looking losing its "cool cred" by appearing litigious.  

After his largely failed prior attempts, it appears Mike Penn has finally crafted a scenario in which Google just can't win.  His new product line marks a significant improvement in Microsoft's efforts to troll Google, practically begging them in a legal sense -- "Come at me, bro."

It should be interesting to see if Google responds.

Sources: Microsoft, Google Logo/Trademark Policy



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Parody?
By Shadowself on 11/20/2013 7:40:22 PM , Rating: 4
Microsoft might get away with it even in a legal battle as a parody. There has been a long history in the US of allowing the use of trademarked and copyrighted materials in parodies.

It is interesting to note that the coffee cups are currently sold out. Did Google employees buy them all as souvenirs?




RE: Parody?
By Reclaimer77 on 11/20/2013 8:43:52 PM , Rating: 2
I don't know about the mug, but I can't imagine anyone being thick enough to walk around in public wearing that shirt lol.


RE: Parody?
By ritualm on 11/20/2013 9:23:23 PM , Rating: 1
If Google gets its way and manages to block Microsoft from selling those things, we might as well start redefining 'freedom of speech' and 'freedom of expression'.

You will never be able to wear a t-shirt that says "Poke me and die" just because it parodied the Pillsbury Doughboy mascot.


RE: Parody?
By YearOfTheDingo on 11/20/2013 9:30:19 PM , Rating: 2
From a trademark infringement standpoint, there's probably no problem. The message is unequivocally critical. No reasonable person would assume the shirt and mug are made by Google.

Google might be able to sue for defamation though. What Microsoft is saying here is that the Chrome browser and Chrome OS steal your data. I don't know if such a claim is tenable.


RE: Parody?
By FaaR on 11/21/2013 7:38:29 AM , Rating: 5
Parody and/or sarcasm doesn't have to be tenable; in fact it's probably the defining traits of both that they aren't... What might trip MS up though - and I'm not a lawyer or anything - is that they're not just expressing this sentiment publically (like in ads or somesuch); they're actively producing, marketing and selling these things with copyrighted google logos and trademarks on them.

I think that's not gonna fly very far in a courtroom brawl. After all, you can't produce and sell, say your own Star Wars figures with lucasarts/disney logos, even with critical messages printed on them. You'll have packs of dobermann attack lawyers bearing down on you in an instant if you try.

The really stupid thing about all this though? What exactly is Google doing that MS itself is not? Nothing. (Well, except for getting caught/sued for tresspassing on peoples' wifi networks of course.) They've even speculated going much further than Google ever has, creating papers discussing the viability of harvesting marketing and demographics information via kinect cameras and such. That takes spying and stealing of information to a wholly new level.


RE: Parody?
By Da W on 11/21/2013 8:51:10 AM , Rating: 2
quote:
they're actively producing, marketing and selling these things with copyrighted google logos and trademarks on them.


A comedian might produce, market and sell ticket to his show based on parody. Same concept, it's allowed.


RE: Parody?
By Cheesew1z69 on 11/21/2013 11:55:04 AM , Rating: 2
quote:
A comedian might produce, market and sell ticket to his show based on parody. Same concept, it's allowed.
If only this were comedy, it's not and they are using a trademarked logo to bash Google, it's not even CLOSE to being the same thing.


RE: Parody?
By ClownPuncher on 11/21/2013 12:11:23 PM , Rating: 2
Prove it.


RE: Parody?
By FaaR on 11/22/2013 2:13:38 PM , Rating: 3
A comedian's show is free speech. Manufacturing and selling goods is trademark infringement, possibly plagiarism.


RE: Parody?
By YearOfTheDingo on 11/21/2013 12:43:57 PM , Rating: 2
The exception on parody only apply to infringement cases. It's not a defense against tort. Defamation is relatively hard to prove in the US, but businesses tend to enjoy less First-Amendment protection. Making a statement with no factual basis is dicey. Google is unlikely to sue though, since that'd only draw more attention to it.


RE: Parody?
By Just Tom on 11/21/2013 1:25:44 PM , Rating: 3
Google is unlikely to sue because the underlying fact is Google did indeed steal data. The best case against defamation is the truth.


RE: Parody?
By coburn_c on 11/21/2013 12:39:56 AM , Rating: 2
A long history? You mean a constitutional right, a last vestige of constitutional rights perhaps.

The Microsoft monopoly actually puts them in a unique position. No one trusts them and that in turn makes them the best company to trust with our privacy.


RE: Parody?
By maugrimtr on 11/22/2013 5:31:02 AM , Rating: 3
As opposed to Google who started encrypting links between their datacentres at the first whiff of the probability that the NSA were intercepting those intra-centre communications? Google has two facets - it must collect lots of data about you so it can push ads more efficiently and it does guard that data with diligence and enthusiasm.

Yahoo and Microsoft share the first motive but have never struck me as being enthusiastic about the second. Yahoo will be encrypting links between datacentres from 2014. Microsoft is presently reviewing its policies since it also has no intra-server encryption. Yahoo and Microsoft are also behind the curve in reporting government requests to the public.

So really, who should we trust then it comes to privacy? The company that encrypts stuff and discloses data on government requests to it, or the two companies which historically have not until forced into it?

That said, stealing data has already gotten Google fined in Europe twice with more to come. So technically, the t-shirts are parody and protected speech. The problem is that parody relies on people not interpreting the statement as being factual. We know Google were caught stealing data, ergo we know the statement is presently untrue (unless Google are really dumb), ergo the statement is parody. If the t-shirt/mugs were sold next year, with more distance from the data stealing events, people might interpret the text as referring to some other future event, ergo it has transformed into libel.

Parody is protected so long as people KNOW it's parody.


Irony
By tim851 on 11/21/2013 5:14:05 AM , Rating: 2
The real irony here is that it's Microsoft, of all companies, trying to take the high road.




RE: Irony
By nafhan on 11/21/2013 11:54:53 AM , Rating: 2
More realistically, they're not taking the high road; they're trying to make it look like they are.

I find it a little incredible that people feel like it's OK for a software/services/advertising/hardware company (MS) to mine your data, but bad for a advertising/services/software/hardware company (Google) to do the same thing.


Love it!
By SpartanJet on 11/21/2013 12:38:29 AM , Rating: 3
I have to get a few of those. Its so true its amazing how little people think of privacy if you dangle """""FREE"""" in front of them.

I switched to Firefox and now block everything google with noscript.




Shut up and take my money!
By lagomorpha on 11/21/2013 7:20:01 AM , Rating: 1
I don't think I've said this about a Microsoft product since they stopped making joysticks but, "Shut up and take my money!"




RE: Shut up and take my money!
By lagomorpha on 11/21/2013 7:50:22 AM , Rating: 2
And they're sold out :(


Both as bad as each other
By ipay on 11/21/2013 3:24:01 AM , Rating: 2
Some times the truth hurts. Both companies can be trusted to be both bad. There is no black and white good or bad in this world only grays.




XBONE
By phatboye on 11/21/2013 1:44:24 PM , Rating: 2
Kinect2 Camera: Keep calm while we stream your living room live to the NSA.




So how
By Piiman on 11/23/2013 10:42:27 AM , Rating: 2
So how does BING work?




By elleehswon on 11/21/2013 9:46:26 AM , Rating: 1
I mean, ever?




And we Thought
By Reclaimer77 on 11/20/13, Rating: -1
RE: And we Thought
By Tony Swash on 11/20/13, Rating: -1
RE: And we Thought
By wordsworm on 11/20/2013 8:00:49 PM , Rating: 2
I have to say that one of the best commercials of all time was Apple vs. IBM's 1984 parody.

Google isn't getting everything right... but they are involved in some very important work... the most important I see is what they're trying to do with autonomous vehicles. I'd go so far as to say that they're probably doing some of the most important work. It would be nice if regulators would acknowledge that and work on fixing issues rather than just firing fines at them willy nilly.


RE: And we Thought
By stm1185 on 11/20/2013 7:32:51 PM , Rating: 2
I use Chrome and I like the ads! Google has stolen data. It's a fact, and one their competitor's should mention.

Also the Chrome logo uses a white ring in the center while these have a black ring. I wonder if the legal team at MS thought that was enough of a change.


RE: And we Thought
By JasonMick (blog) on 11/20/2013 8:04:31 PM , Rating: 3
quote:
Also the Chrome logo uses a white ring in the center while these have a black ring. I wonder if the legal team at MS thought that was enough of a change.
Perhaps, but unlikely given that Google's terms state... from the same page:

"One of the conditions for all uses is that you can't mess around with our marks. Only we get to do that. Don't remove, distort or alter any element of a Google Brand Feature. That includes modifying a Google trademark, for example, through hyphenation, combination or abbreviation, such as: Googliscious, Googlyoogly, GaGooglemania. Do not shorten, abbreviate, or create acronyms out of Google trademarks."

http://www.google.com/permissions/trademark/rules....

As someone pointed out below Microsoft could probably use the defense that it's using the material under fair use as a parody/satire. But given that it's for profit and that it's coming from a competitor it's hard to say whether a court would consider Microsoft's effort "art". i.e. Maybe a newspaper cartoonist can make satirical images of BP or Apple's logos, but it's doubtful Google could go and place Apple logo with...

"Think Dif f erent
............S u e
______- Apple "

...with the 'f' and 'u' and "Apple" highlighted and say "oh, we're within our rights, because that's a parody protected under artistic exceptions to IP laws!"

Like the Microsoft mug, it might be humorous, it might be true, it might even be worth it in terms of legal costs versus publicity, but it probably is technically violating intellectual property laws, as they stand in the U.S.

Still I'm pretty sure Microsoft wouldn't mind Google trying taking into court and bringing attention to the campaign.


RE: And we Thought
By rsmech on 11/21/2013 2:35:14 AM , Rating: 2
Your example of Google vs. Apple isn't the same. It's more opinion and slander. Where as there is some truth to the MS campaign. Not opinion and is truth slander?


RE: And we Thought
By ritualm on 11/21/2013 4:31:28 AM , Rating: 2
Truth... is just a matter of perspective.


RE: And we Thought
By JasonMick (blog) on 11/21/2013 11:29:50 AM , Rating: 2
quote:
Your example of Google vs. Apple isn't the same. It's more opinion and slander.
Really?

Apple hasn't sued nearly every major Android OEM ? Ha... HAHAHA... thanks, I needed a good laugh.

You're real funny buddy.


RE: And we Thought
By Wazza1234 on 11/21/13, Rating: 0
RE: And we Thought
By retrospooty on 11/21/2013 6:32:22 PM , Rating: 2
Seriously testerguy you are beyond a joke at this point. It was funny for a while now its just sad.


RE: And we Thought
By JasonMick (blog) on 11/21/2013 9:21:58 PM , Rating: 2
quote:
Your precious Android OEM's have tried to ban every iPhone and iPad so far and many have already had to drop their cases due to being under investigation.
As I said you're real funny bud. "My precious Android OEMs?" hahahaha oh man, good one. If you even marginally paid attention to my reviews pieces you'd know that I haven't owned an Android phone in nearly two years.

I have no horse in the Apple v. Android race as I'm a Windows Phone user. I'll admit Samsung's done some dirty things too... i.e. leaking court documents.

But let's face it, Samsung's goal was clearly never to copy Apple... it wanted to create something better than Apple. And it appears that more customers now appreciate it's products than Apple's... that's saying something.

And you can't give me the price excuse as you can get iPhones for very cheap these days.

But you keep telling yourself they're iPhone ripoffs.

................

But lest you think I "blame" Apple for everything, understand I don't... Apple is just doing what it can to maximize shareholder value. So is Samsung... so was Nokia. If anyone is "to blame" for the smartphone war's it's Nokia. But then again they are an industry pioneer and arguably have more of a justification be getting licensing fees than anyone... see the truth is complicated.

At the end of the day I wish companies would spend less time in the courts, and I support patent reform. But I don't blame Apple/Samsung/Nokia/whoever for suing each other.

I just think their suits are ridiculously silly.


RE: And we Thought
By Cheesew1z69 on 11/21/2013 9:26:19 PM , Rating: 2
quote:
And it appears that more customers now appreciate it's products than Apple's... that's saying something.
And it just eats them up inside...LOL


RE: And we Thought
By Just Tom on 11/21/2013 12:24:16 PM , Rating: 2
Google can say whatever they want, however they do not make the laws. Microsoft has a pretty good argument for a nomative use defense here. There is no need to talk about parody or satire. If we did not allow for nomative use there would be no comparative advertising allowed.

The message here is pretty clear: Google steals your data, we don't. Such a message is legal and violates no trademarks.


RE: And we Thought
By Cheesew1z69 on 11/21/2013 1:10:33 PM , Rating: 3
quote:
Nominative use, also "nominative fair use", is a legal doctrine that provides an affirmative defense to trademark infringement as enunciated by the United States Ninth Circuit,[1] by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own.
Doesn't sound like either of those...


RE: And we Thought
By Just Tom on 11/21/2013 1:23:15 PM , Rating: 2
It is describing the other product as stealing information.The criticism is explicit. Case law is fairly robust in this area. Remember the purpose of trademark law is pretty simple: To avoid consumer confusion. No reasonable person is going to believe that the tshirt or mug are Google products, there is no trademark dilution.

Google would be far more likely to sue if the underlying message of these items were untruthful. Case law does not protect nomative use when the message if fundamentally unthruthful.


RE: And we Thought
By DT_Reader on 11/21/2013 11:50:59 AM , Rating: 2
Other items for sale include the white ring, but they're on white items (T-shirts). The ones with black rings are on black items (T-shirts, mugs). It appears to simply be a case of no ink, allowing the underlying color to show through, not any attempt to alter the logo for legal reasons.


RE: And we Thought
By troysavary on 11/21/13, Rating: 0
RE: And we Thought
By Da W on 11/21/2013 8:53:33 AM , Rating: 1
Jesus. You sure sound offended as if you were Google. A pinch of fanboyism peraps?


RE: And we Thought
By EricMartello on 11/21/2013 11:42:26 AM , Rating: 1
You get more bang from an ad campaign that a large group of people find controversial enough to talk about - exactly because of articles like this one.

What I don't like about bing, aside from its name, is that it's trying too hard to copy google instead of just providing something new and better.

MS could have dethroned google's search engine dominance if they went for a more open approach. I'd like a search engine that provides accurate unfiltered, unbiased, uncensored results - not results that the underlying company or government deem appropriate.

Google and other search engines display their bias, especially politically, when they have certain search terms result in "statement" results. For example, google would automatically present 'positive spin' for misspellings of 'barack obama' (especially during the elections), while similar misspelled searches for 'George Bush' or 'Mitt Romney' would return satire and/or negative results.

We need to divorce big companies from having control or influence over search engines, and that's the type of service that will delete google. We do not need a copy of google's search with a slightly better looking website.


Get over it
By mrwassman on 11/20/13, Rating: -1
RE: Get over it
By troysavary on 11/21/2013 8:24:53 AM , Rating: 2
Nobody cares that Google is trying to make money. It is only when they break the law in the attempt to do so that fines are issued. The fines were specifically for Google stealing data over WiFi. No one is fining Google for gathering information from people using their free services. In that case, government should stay the hell out. It is up to the market to punish Google for that. If people care, they will stop using Google services. If they keep using Google services, then they have given Google a green light to use their data. I still have me gmail address, but I only use it as my Spam trap. If Google wants to harvest that junk, they are free to do so.


RE: Get over it
By Reclaimer77 on 11/21/2013 4:00:43 PM , Rating: 1
quote:
The fines were specifically for Google stealing data over WiFi.


UNSECURED routers. Let's tell the whole story.

Sorry but if you're stupid enough to not secure your router, you can't say the data was "stolen".


RE: Get over it
By themaster08 on 11/21/2013 4:26:38 PM , Rating: 3
"If you're stupid enough to not lock your doors, you can't say your belongings were stolen."

That's about as ridiculous as your comment.


RE: Get over it
By Reclaimer77 on 11/21/2013 5:48:12 PM , Rating: 2
Very poor analogy. It would be more like leaving your door unlocked as well as moving everything worth stealing to the street for anyone to come pick up.

Sorry I just have no sympathy for people who still to this day don't secure their routers. Hell they don't even bother to put an administrator password on it!

You guys are acting like Google hacked routers, a ridiculous claim. The routers were BLASTING private info in all directions for anyone to see.


RE: Get over it
By Wazza1234 on 11/21/2013 5:58:47 PM , Rating: 1
No, it would be like leaving your door unlocked. Your personal possessions are still contained within your house.

Items in the street would not be considered stolen if removed, data extracted clearly does, which is why your correction is stupid.


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