Rant alert! I just got an email from Entertainment Weekly inviting me to enter a contest. Big deal, I usually ignore these. But my hackles went up when I saw what the prize is: “An all-inclusive trip for two to TV’s biggest awards show in 2010.” IT’S THE EMMY AWARDS, STUPID! And it’s idiotic to have to refer to the awards ceremony by some nonsensical generic name. Is the public going to be confused that the Emmy Awards are sponsoring the promotion? What if some other telecast thought it was TV’s biggest awards show? Just as the NFL overreaches in its efforts to restrict usage of the “Super Bowl” name, and just as the Academy of Motion Picture Arts & Sciences tries to restrict use of “Oscar” and “Academy Award,” so has the Academy of Television Arts & Sciences jumped on the overreaching bandwagon. Lawyers can come up with all the fancy trademark restrictions they want, but nothing changes the fact that Entertainment Weekly’s use, if they made it, would be fair use – that is, use other than as a trademark, or, as Judge Kosinski defined it, “nominative fair use.” The fact that ATAS and AMPAS and the NFL have come up with their complex scheme of restrictions on such use, and the fact that they have succeeded in scaring the hell out of the public (e.g., signs exhorting you to “stock up for the big game!” at the supermarket) doesn’t mean they’ve got the legal high ground.
Just as I bitch about the blurring of logos on clothing worn by reality TV show contestants as not constituting trademark use, so will I continue to bitch about overzealous trademark owners and their counsel who attempt to restrict the legitimate flow of commerce and discourse. Govern yourselves accordingly.