So, I received a message from one of the people I know who is an affiliate for GeekGirlsOnline. It was titled “Just a heads up” — so I assumed I’d linked something wrong on the last update. Boy was I wrong. Apparently Nintendo has some company as their lackey that goes around attempting to enforce their trademark. This is all fine and dandy if they are enforcing it properly. Unfortunately, they are attempting to use their own idea of what is ‘decent’ and try to get anyone using ‘Nintendo DSi” along with nude pictures, no matter how NOT hardcore they are, to remove Nintendo DSi from their text that is visible, invisible and meta.
Sorry guys, in this case, it doesn’t work that way.
A nonowner may also use a trademark nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising.
http://en.wikipedia.org/wiki/Fair_use_%28U.S._trademark_law%29
The Lanham Act permits a non-owner of a registered trademark to make “fair use” or “nominative use” of a trademark under certain circumstances without obtaining permission from the mark’s owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized in those instances where a reader of a given work is clearly able to understand that the use of the trademark does not suggest sponsorship or association with the trademark owner’s product or services and therefore is not being used in a manner to confuse the reader.
http://www.publaw.com/fairusetrade.html
Unlike most statutory fair use cases, nominative fair use involves the descriptive use of the plaintiff’s mark to describe or identify the plaintiff’s goods or services. While decided as a statutory and/or common law fair use case, WCVB-TV v. Boston Athletic Ass’n., 926 F.2d 42 (1st Cir. 1991), is more logically a nominative fair use case, although decided before the Ninth articulated the defense and coined the term. This case involved the use of the registered trademark BOSTON MARATHON by a television station in connection with its coverage of the running event. WCVB-TV had displayed the words “Boston Marathon” on the screen before, during, and after their coverage of the actual marathon. The First Circuit found that the fair use defense was properly asserted, reasoning that the trademark was used primarily in a descriptive manner. Because of the “timing, meaning, context, intent, and surrounding circumstances,” there was no likelihood of confusion. The court concluded that without allowing others to use the term “Boston Marathon,” it would be virtually impossible to describe the Boston Marathon.
http://www.cll.com/articles/trademark-parody-statutory-and-nominative-fair-use-under-the-lanham-act#NOMINATIVE%20USE%20AS%20FAIR%20USE
The facts are these: I posed naked with my Nintendo DSi. I stated as a description FOR the promotional gallery for my affiliates, that it was a Nintendo DSi. My affiliates used this terminology because it is in fact a Nintendo DSi in the photos with me. The company going after people states the following:
Re: BLOG NAME REMOVED
IDENTIFIED PROBLEM: Web site uses a Nintendo trademark (Nintendo) in
the code of the page.
Dear Moniker Privacy Services,
We are an Internet monitoring agency representing Nintendo of America
Inc. (“Nintendo”). We are writing to ask you to stop using the Nintendo
properties in the hidden text/visible text/meta tags and/or title and/or
links of the above-referenced sexually explicit Web site. Nintendo’s
customers include many children and their parents. Unauthorized use of
Nintendo trademark(s)/work(s) is harmful to those customers and will
tarnish Nintendo’s reputation.
We look forward to your immediate confirmation that you have taken the
necessary steps to resolve this matter. To that end, you may email us at
StopInfringement@cyveillance.com.
Please note that these are automatic email boxes so typically no
response is sent as long as the problem is corrected.
Sincerely,
Cyveillance
Um. No. I don’t give a shit if Jesus himself surfs the web looking for a Nintendo DSi — the simple fact of the matter is that not ONLY are my affiliates in the right but I am in the right for instructing them to use the phrase in the first place. It’s describing the object in the photo. Deal with it Nintendo. You’d be pitching a goddamn fit if I put it down as some other console, so take the publicity and move on about your lives. I promise, you’ll be less like tools if you do.
Btw, a couple of the photos mentioned are right through this link: http://www.geekgirlsonline.net/hosted/athenahollow4/ (OBVIOUSLY NOT SAFE FOR WORK!)
Also, another example of how Nintendo is being rediculous, is pointed out by our friends over at KinkyGamer. I was talking to the owner about the whole situation and here’s what he had to say:
It appears to be related to the below picture of Athena from Geek Girls Online enjoying her DS while nude. The funny thing is, they did not seem to have a problem with a barely dressed girl playing the Wii Fit on youtube which got millions of views immediately following the release of the Wii Fit.
[Read the Full Post] (Also Not Safe For Work)
Yea……. off that cross Nintendo.
