Idealab F*cks With F*ckedCompany

Idealab has made it clear: It won’t be f*cked with.

On Monday, the Net incubator sent a cease-and-desist letter to the operator of the dot-com death-chronicle site FuckedCompany.com, demanding that he remove a parody of Idealab’s home page that replaced the word “idealab!” with “FuckedCo!”

Idealab has made it clear: It won’t be f*cked with.

On Monday, the Net incubator sent a cease-and-desist letter to the operator of the dot-com death-chronicle site FuckedCompany.com, demanding that he remove a parody of Idealab’s home page that replaced the word “idealab!” with “FuckedCo!”

“Your exploitation of the idealab! website and logo designs constitutes trademark infringement and unfair competition in that users of your services may erroneously believe that such services and/or online activities are licensed, sponsored, or authorized by idealab!” wrote Idealab’s lawyers. “In fact, idealab! has already received evidence of actual confusion regarding idealab!’s affiliation with your website.”

FuckedCompany’s owner, Philip Kaplan (aka “Pud”) responded by pulling the parody, but posting the cease-and-desist letter along with a note from a FuckedCompany reader: “Which sites do you think they confused? Cooking.com? Hah! NetZero? The only connection is that IdeaLab! creates Fucked Companies — and Pud makes fun of them.”

Asked about the dustup with Idealab (which writes its name “idealab!”), Kaplan responded by email, “i! have! no! fucking! clue! whats! up! with! idealab!” Nevertheless, he said he won’t put the parody back up.

Idealab did not return calls seeking comment.

Though Kaplan’s decision to yank the spoof page will likely avert any legal action, the flare-up nonetheless raises questions about where, exactly, the line between legal parody and copyright or trademark infringement lies.

The Web has created an instant global medium for satirists and parody artists, and a nightmare for corporate lawyers tasked with “policing” a company’s brand to protect it from illegal use.

Still, no matter how scathing it might be, parody is legal — specifically protected by a “fair use” provision in trademark and copyright law — so long as it meets certain tests.

For parody to be legal, there has to be a meaningful connection between the subject of the parody and the ultimate message. In other words, you can’t take, say, the Microsoft logo and use it to make a parody about evil corporations destroying the ozone layer. Also, the parody has to be sufficiently distinct from the original to be recognizable as a parody, and the person creating the parody can’t be doing it to make money.

“FuckedCompany is close to the line, but they would still probably have a good defense,” said Bruce Doeg, an e-business attorney at the law firm Baker Donelson Bearman & Caldwell.

FuckedCompany could argue that Idealab is a meaningful subject for a parody about “fucked” companies, because Idealab has launched a number of dot-coms that qualify as “fucked” by Kaplan’s standards, Doeg said. And adding “FuckedCo!” to the parody makes it pretty clear that the site is not an official Idealab page, despite Idealab’s claims of surfer confusion.

Idealab, though, could argue that it had been unfairly singled out from any number of Net incubators, and thus unduly tarnished. Moreover, Kaplan’s plans to sell FuckedCompany.com for a profit, announced earlier this month, would open him up to charges of profiteering at the expense of Idealab.

Further still, Idealab might successfully argue that the use of the word “fucked” alongside the names of Idealab companies moves past parody and into trademark “tarnishing.”

“There’s a lot of gray area in these cases,” said Ronald Johnston, a partner at the law firm of Arnold & Porter and the editor in chief of the trade publication The Computer and Internet Lawyer. Nevertheless, Johnston said, courts tend to come down on the side of a copyright or trademark holder because they’ve often spent so much money to create certain associations with their trademarks. A single illegal smear, if widely circulated, can undo a lot of pricey goodwill.

“Courts tend to set a pretty high standard for something to be considered parody,” Johnston said. “It’s a pretty tough test in most courts.”

Of course, most parody artists would cite the same reason — that companies spend a fortune to promote an image they want — as the most important justification for parody.

“As corporations move to take over the world, we the people have to find ways to take back the power,” said Kalle Lasn, editor and publisher of Adbusters magazine, which publishes both a print edition and an online gallery of ad spoofs, in a previous interview with Wired News.

Author: Craig Bicknell

News Service: Wired News

URL: http://www.wired.com/news/business/0,1367,39086,00.html