HSTuners - View Single Post

03-07-2003, 12:33 AM

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Quote:

I would suggest visibly posting on the website that you are using the Honda name within the bounds of the Fair Use Rule (Section 107) of the US Copyright Act of 1976, as "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

First and most importantly, is the website being used commercially? If it is, then you certainly will not fall under the non-profit education section.

But - what I think is important here is the criticism and comment section. According to the Fair Use Rule, a trademark is not infringed upon if it is being used to illustrate for criticism or commenting. What else is a forum for besides criticism and commenting?

I would suggest, in addition to posting on the site, that you write a letter back to the kind folks who initially sent you the cease order conveying these same things. If you call them on their own rules, you'll be one step ahead.

Also, your site's name is a merely derivative of a trademark, and its contents are protected by the First Amendment.

In the precedent of Bally v. Faber, the court granted a summary judgment in Faber's favor, thereby showing the he was not in violation of trademark laws by creating his 'Bally Sucks' website. To be guilty of trademark infringment Honda would have to show clearly that you were creating a likelihood of confusion between your site and Honda's; in other words, they would have to show that any reasonable consumer would think that your site came from the same source as Honda's. This also applies to the goods you are marketing: Honda markets cars (and other things), but you market nothing. So, it's great if your site is non-profit here too, because if Honda were to claim you were guilty of trademark dilution, they would have to prove that you had done damage to the image of their trademark and that your use of the trademark was commercial in nature.

So, to sum it up, I don't think Honda has any ground.