Copyright Experts, Weigh In Please

[scottb]

I just read that Porsche sent a cease and desist letter to Palo Alto Upholstery, demanding that they stop using www.targatops.com as their web address, and that they do not use the words "Porsche" and "Targa" in the descriptions of the services they provide. While I understand that they might not be able to use "Targa" in their web address, I am confused as to whether they can still use the words "Porsche" and "Targa" in the body of the text of the website. Does anyone have enough familiarity with copyright laws to opine on what appears to be some heavy-handed conduct by Porsche?

(Moderators, here comes the technical piece....)

Has anyone used Palo Alto Upholstery to re-do their Targa top? What were the results?

[mikebrasket]

Well.... There's always that part of the copyright laws called "fair use". Just what is considered fair use is open for interpretation and these guys probably didn't want to pony up the dough to have a lawyer duke it out with the Porsche lawyers.

I believe the jist of it is that they can use Porsche names and trademarks for descriptive purposes of their products but they must indicate that they aren't the holder of the copyrights and trademarks of those terms. Also, I don't believe that fair use includes images such as the Porsche crest, etc.

Mike
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'79 911SC Targa

[scottb]

Originally posted by mikebrasket
I believe the jist of it is that they can use Porsche names and trademarks for descriptive purposes of their products but they must indicate that they aren't the holder of the copyrights and trademarks of those terms. Also, I don't believe that fair use includes images such as the Porsche crest, etc.

That's always been my understanding, which is why the comments on Palo Alto's website got me thinking....

[KevinP73]

Scott ....Porsche has been "heavy handed" regarding copyrights for a long time. I did a quick search on Jeeves using "Targa" as the keyword. Not many returns.
targa:
A removable-roof body style popularized by Porsche that is similar to a convertible except that it incorporates a fixed, roll-bar-like structure running from side to side behind the front seats.


targa bar:
A type of roll bar made of a relatively wide band of sheet steel rather than of tubing; made popular by the Porsche 911 Targa


targa top:
A rigid, removable roof section between the windshield and targa bar


I think you hit on the basic notion in another thread that a brand name becomes so imbedded into our everyday vocabulary that we lose the original definition or ownership of the word.

[scottb]

Originally posted by KevinP73
I think you hit on the basic notion in another thread that a brand name becomes so imbedded into our everyday vocabulary that we lose the original definition or ownership of the word.

I'm sure Porsche is worried about diluting their trademarks, but I think that they go too far when they try to prevent another business from using "Porsche" and "Targa" in the copy text of their website, especially with the usual "not affilliated with Porsche..." disclaimers.

[jasonq]

There is another aspect to copyrights, trademarks, and patents. If you do not take steps to defend them, they can be declared null. That is what happened to Bayer with Asprine trademark, and what Velcro was/is worried about (notice how they make a point of refering to themselves as velcro brand hook and loop fastner). This may simply be a case of porsche having to protect their name for fear of loosing it.

on the other side, as long as the word targa is not used in the context or cars, it should be ok, like the targa graphics file format.

just my 1/50th of a dollar.

jason

[campbellcj]

Their enforcement of trademarks and copyrights seems to be pretty artbitrary. My feeling is that they mainly go after commercial entities marketing products or services that could be viewed as competition to Porsche's own. In this case, clearly they would prefer that owners take their cars to authorized dealers. (Even though I betcha 99% of them would refer or sublet any upholstery job anyway.)

I know where they are coming from, and have actually been involved in IP and trademark disputes with my own business, but IMHO Porsche is way over the top and on the brink of permanently damaging customer loyalty and good will.

[scottb]

Originally posted by campbellcj
IMHO Porsche is way over the top and on the brink of permanently damaging customer loyalty and good will.

Yeah...like they care!

[911SCfanatic]

The site references copyright laws, but the domain name issue is a trademark issue. Mayber there were other issues involved. I haven't seen their previous website, so I don't know. Porsche has a registered trademark for "Targa" for vehicles. The upolstery company can reference Porsche and Targa in order to sell their goods (so they can identify, for example, which of their tops will fit a Porsche targa), but they cannot use the goodwill associated with Porsche's "targa" mark.

Not affiliated with either company nor do I have any knowledge of this dispute. I'm just an IP attorney, and I can't stand when people misuse terms or whine about IP rights being unfair out of ignorance. I can imagine that Porsche does overextend their rights by intimidation. Oh well, that's life.

--I just reread my post, and to clarify, I'm not dogging anyone in this thread, just expressing a pet peeve.--

[mikebrasket]

Maybe this has to do with Porsche introducing that big sliding glass roof that they are calling a "targa".

From their website**:

"The 911 Targa is a unique Porsche concept that combines the freedom of a convertible with all the security of a genuine coupé.

The secret of the Targa is its innovative roof, which can be adjusted to any position you desire. It’s easy to operate using a button on the center console, and can also be adjusted while on the move."

Porsche has a long history of dissing anyone with an older car and could give a rats a$$ about squashing the aftermarket community that built up around something from their past -- Even if they no longer plan on supporting it.

Mike
-----------
'79 911SC Targa

** Mike Brasket is in no way affiliated with Porsche and makes no claim to the trademarks "Porsche" and/or "Targa". He's just a chump with no money so please don't sue him.

[scottb]

Bill: Thanks for your expert input. Much appreciated!

[Grady Clay]

Another aspect of Copyright law and “fair use” is the posting of Porsche’s copyrighted material. That can be advertisements, publications (Christophorus), manuals and technical information, etc.

I am not an attorney.
As I understand it from some legal experts:
You may not, without permission, use an entire work. Apparently what is an “entire work” is an issue with case law on both sides. Is an article out of a magazine or a chapter from a manual an “entire work”? Clearly you can’t reproduce an entire manual or publication without permission.

At the other extreme, “fair use” apparently is clearly things excerpted from copyrighted material for various purposes. I haven’t seen the list but I understand it defines technical discussions as one.

When I post excerpted material I put it in “quotes” and add the line; © 19xx name of copyright owner. I don’t think this is absolutely necessary but prudent to help someone else who might cut & paste to another situation, not realizing that the quoted piece isn’t in the public domain.

Let’s have the legal types chime in here.


I think Porsche should rightfully protect their copyrights, those are valuable assets (Porsche Crest, Targa, Carrera, etc.) I also think Porsche should do a better job of disseminating historic and technical information.

Porsche should issue a blanket statement to the effect that everything prior to, say 1996, can be used with credit and copyright notice for non-commercial purposes. They should post everything on there website, including engineering stuff back from some date.
The most recent (warranty period) info they should carefully husband to protect their dealers.
The intermediate stuff they should progressively release.
They should make the process of permission, licensing, etc. less onerous so more can properly handle the requirements.

I think Porsche gave their attorneys a blanket mandate to protect their copyrights at all costs. I don’t think someone thought this through very carefully. Porsche’s customers are what count. Porsche is supported, not only by its dealer network but by many small Porsche businesses around the world. Porsche AG needs to find a way to better support its customers from the retail new 996 owner to the DIY ’52 356 restoration project; from the Dealers to the small businesses. This is something Porsche occasionally does well, but too frequently only by accident.

The way Porsche deals with this situation is reactive. They find someone who they feel is violating their copyright rights and descend with the “silk stocking” troopers. I feel Porsche should take a proactive approach and make it easy to do business with them. These customers and businesses are, after all, Porsche supporters and buy what Porsche has to sell.

Best,
Grady

[911SCfanatic]

Porsche first registered the mark "targa" in 1970 and has since renewed the mark in 2000. Porsche has every interest in protecting its trademark whether it is for their older or newer models. Porsche cannot compartmentalize the goodwill associated with the mark "targa" between older and newer models. An errosion of goodwill of Porsche's "targa" mark in relation to older cars negatively impacts the good will of that mark for all models.

In this context, the remark that "Porsche does not care about the aftermarket" makes no sense. They cannot simultaneously ignore what goes on in the aftermarket with a mark and protect the goodwill of that same mark with respect to its newer models. Said another way, Porsche could not allow a misuse of its crest with early models and at the same time protect their crest with respect to later models. Follow me?

[911SCfanatic]

Copyright "fair use": the most misused and misunderstood concept in intellectual property. Everyone cries "fair use" out of convenience to justify ripping off someone else's work. See excerpt below from a government websight (http://www.copyright.gov/fls/fl102.html), which BTW is not a fair use. Fair use does not apply to government works, since the government cannot hold copyrights under section 105.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

[mikebrasket]

Come on. The guys make tops for targas. I understand the domain name issue, but what else about their business would prompt such an aweful response from the company? It was undeserved.

I'm sure if someone had called up and said "Hey guys, we're a little concerned about your domain name. We were wondering if we could buy that name from you and you could operate as something else." The targa top people would have said "Ok" and it wouldn't have been a big deal, they would not have put a big "Porsche made us shutdown our business" notice, and this thread wouldn't be debating the merits of fair use copyright law.

Seems like the only winner here is the lawyers.

Mike

[vash]

remember when spike lee, sued spyke television network for stealing his name?

[911SCfanatic]

Like I said:

I can imagine that Porsche does overextend their rights by intimidation. Oh well, that's life.

I've got sympathy for the company if Porsche is abusing its power, which sometimes happens. We don't know. The fact that the company appears a victim based upon statements on its website is also consistent with the victim mentality that many portray when they do something out of ingorance of the law. Doesn't really mean they are a victim.

"We were wondering if we could buy that name from you and you could operate as something else."

Give me a freaking break. They already own the mark, and you want them to buy it back?! Like most people who criticize the law out of ignorance, you appear to be a big spender with other's money. You probably would complain if it affected your pocket book, but it doesn't so who cares? So let me understand this. In your legal world Porsche's got to police their marks and then pay every little guy off even though it's their property? Yeah, that makes sense (it's called socialism).

Seems like the only winner here is the lawyers.

Typical well thought out remark. We already know Porsche owns the "targa" mark. They clearly have a legal position with respect to the domain name. And yet, somehow the lawyers are the one's that manipulated this whole thing. Yeah, it's a conspiracy between all attorneys.

Bottom line, at best the company didn't know the law in this area. Ignorance of the law is not a defense. Porsche owns the mark. So why are we acting that everyone got victimized by the attorneys?

[Grady Clay]

Bill G,

Help us with your understanding of the language and interpretation of the “four factors” in section 107. Limitations on exclusive rights: Fair use.
(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
On one side you could argue that Pelican Parts is of commercial nature and the “Fair use” exemption wouldn’t apply.
On the other side you could argue that the Pelican Forum, while sponsored by a commercial entity, is for a nonprofit educational purposes and the “Fair use” exemption would apply.

(2) the nature of the copyrighted work;
I don’t understand the legal implications of the word “nature”. I would choose Webster; “The inherent character or basic constitution of a person or thing: ESSENCE.” How does this apply?

(3) amount and substantiality of the portion used in relation to the copyrighted work as a whole;
I understand the argument if someone, for example, reproduced the entire issue of a magazine.
Can it be successfully argued that reproducing a single article meets the “Fair use” ‘amount and substantially’ standard? How about an illustration out of a 2500 page manual?

(4) the effect of the use upon the potential market for or value of the copyrighted work.
On one side you could argue that ANY use could reduce the potential market for or value of the copyrighted work. I don’t think that could pass the laugh test.
Could it be successfully argued that the use actually enhances the potential market for and the value of the copyrighted work?

Clearly the use to which the excerpted copyrighted material is used has a major influence on meeting the “four factors” for fair use. The proportion of the use to the total work has an effect. Weather there is a positive or negative effect on the value and marketability has an effect.

Are these factors individual or cumulative?

Lets have more legal experts chime in here.

I don’t think it was the intent of Congress to stifle technical intellectual educational pursuits such as this Forum. I don’t think it is in the interest of any copyright holder (Porsche, Excellence, R&T, etc.) to try and exercise perceived rights to their ultimate disadvantage. Does “Cut your nose off to spite your face” ring a bell?
I agree with Bill, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” However, it goes a long way toward preventing abuse of the rights of the copyright holder.

Best,
Grady

[Randy Webb]

Legal experts (i.e. attonreys) are well advised not to chime in, as it is illegal for them to practice out of state, and there are other problems as well.

I am certainly not acting as an attorney when I offer my opinion that PAG has been very abusive in their copyright 'attacks' on various entities. They forced PorscheList to change its name to Rennlist for example.

And, BTW, does PAG not know that "targa" is the name of a race thru a region of Italy called that or thru a village called that? That might enlighten them.

Todd Serota specializes in IP law and is on Rennlist if anybody wants to contact him. I'm sure he will make clear that he is isn't being your attorney when he gives an opinion.

Dr. Wienie King is my whipping boy for most of the bad thaings going on a PAG, so let's blame him for this too. The attacks by PAG that go beyond the law are just examples of the big abusing the small, by using the monetary threat of legal fees to do so. I, of course, support their right to defend their IP, but they've gone way beyond that.

I'd like to see some judgement proof individuals do a spoof on PAG and get sued, then win attorneys fees from PAG. I'm that pissed off -- and PAG has pissed away a lot of the good will they built up over decades.

[Schuey]

actually it's probably Jana France, and attorney in the Mpls. MN area...she's been known to beat on MANY website owners, etc. many of which have stood up to her and won...it's my belief she's drumming up business and Porsche hasn't a clue what may or may not be going on...

Just my 2-cents