I'm being sued by Ferrari

+1

No doubt! [We know both FNA and SpA "lurk" on here.]

However, I have to respectfully disagree about being "open".... It seems to me this guys not out to make $, but rather provide a "service". He got a nastygram from "the corporation", and asked what he should do - Lots of advise followed, including attornies offering pro-bono (!) - "Cease & desist" seems to be the consensus, and I suspect his site is being updated as we talk.....

Hopefully, that will suffice and everyone lives happily ever after. Should a second letter subsequently arrive, hopefully that'll get posted, and we'll take it from there.

Cheers,
Ian

 

But he IS collecting money for the service ---- there in-lies the problem, and the validity of Ferrari's action.

 

No argument from me there! - They have a duty to their shareholders etc to protect their IP etc.

My point was that (IMHO) the "little guy" now has a chance - He's now been "told" how to make 'em go away without huge legal costs!

"Keep stuff open!"

Cheers,
Ian

 

In his post, Scott mentions that if the OP re-created the wiring diagram, then it is not a copy and therefore not infringing.

A wiring diagram is simply an expression of what a circuit is. The intellectual content can be protected separately by patent. The expression of that content can be protected by copyright. If the guy made his own expression (diagram) of the content, he isn't infringing.

Scott was clearly talking about the OP having re-created the diagram. It's not a book where it's subject to someone's creativity - a wiring diagram is akin to a set of measurements, and you can't copyright measurements, only the graphical expression of them.

Understandable confusion, as you said, IP isn't your forte.

 

How does this statement measure against the legality of guitar tabs being published on the internet? I was of the impression that guitar tabs are a violation of copyright?

 

What if Paul put something like "The Ferrari Logo/Prancing Horse (whatever he is being sued for) is a registered trademark of Ferrari SpA"..."all rights reserved..."

I realize it is too late now, but in future.

Something like this:

 

Something similar happened in a silver section thread. He lost his domain.

The problem now is the "wheels are in motion". Going back now and changing any Ferrari IP doesn't change the fact you were doing it before hand.

Some of the advice being offered here is useless for this case.

The best thing to do is to read this guide. These guys are the ones that will rule your case.
http://www.wipo.int/amc/en/domains/guide/

As you can see the rules now favor the complainant. (this wasn't the case in the early internet days).

Ferrari loses money putting complaints in, so its not like they just go after anyone that just happened to register a url with Ferrari in it.

Here are some cases that Ferrari has won in the past and might help you to see if you have a case. Just search the WIPO site for more cases.
http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0342.html
http://www.wipo.int/amc/en/domains/decisions/html/2009/dae2009-0004.html
http://www.wipo.int/amc/en/domains/decisions/html/2008/d2008-1090.html
http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0673.html
http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-1003.html

 

whether it is a commercial venture, if money is collected or not, has no bearing. if the service were absolutely free Ferrari would still be in the right.

 

What a great community! Awesome people here!

I just opened a new burger restaurant by the way...
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The Ferrari Market Letter also had to stop using the logo as of a few years ago...

 

Ironic that you wrote this on the day that Ferrari and FCA finally came to agreement on these issue and we are now official!

 

Hmmmm, fix your logo/trademark issues which do infringe on Ferraris intellectual property.

 

So you basically repeated the exact point I made. Let's review.

But that's ok, Mike, because clearly law, or for that matter reading comprehension or thinking are not your forte. Why don't you let grown-ups talk and stick to what you know best. Although I'm still not sure what that would be. Selling stuff on Amazon and mad skillz at Google, maybe?

 

Seriously, as someone who appears to know at least a little more than most on the subject, what do you think of the following:

Could they drag "defamation" into their investigation? I personally believe the more open and honest he can be the better, but I know basically nothing of the topic....

Cheers,
Ian
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Highly, highly unlikely. Besides, "truth" usually serves as absolute defense to defamation, libel and slander. I wouldn't worry about it too much.

 

Thanks! That's what I thought.

I didn't visit the site until a moment ago, and it appears there are no longer any "infringing marks" therein. He's also added a "not affiliated with" banner at the bottom of every page - So, he should be good to go (?) - I guess the question now becomes can Ferrari "claim" the domain names as theirs?

Cheers,
Ian

 

That's good. I would still suggest that it's prudent for Mr. Bennett to make direct contact with Dr. Barbero or his associates, advising them of the changes and inquiring if there is anything further that could be done to avoid any likelihood of confusion short of transferring the domains.

Following any conversation it would advisable to follow-up with a written communication (email should suffice), as the letter calls for a written response, reciting the key points of the discussion and items agreed (i.e. OP confirming removal of trademarked items from the site, the firm confirming they will not pursue transfer of domain names if OP also does X and Y by a certain date).

Being reasonable and cooperative would be the key to the resolution, over and above any legal merit of the claims. Paul, I will second Scott's kind offer and be glad to look over any response letter if Scott is out of pocket.

Yuliya

 

+1

*Hijack alert*..... While we're sort of on the subject, does anyone know where the "line is drawn"?

Specifically, lets say I shoot a picture of the Cavallino. Then I use that as a "backdrop" in a picture of your car, that I then sell to you.

I shot the pictures, their IP features "prominently", and I'm (hypothetically) making $ selling these images - Do I have to become a licensee?

TIA, and sorry for the hijack, cheers,
Ian

 

Again, as Scott identified the issue, it is important to distinguish between a copyright infringement and a trademark infringement, as those are governed by different sets of rules. What you described above could create issues for you and your customer. In brief:

Copyright basically reserves to the author exclusive rights and protections related to original works of authorship; author has the exclusive right to reproduce/copy the work (most fundamental right), prepare derivative works based upon the work (this is where I would still have some concerns in connection with Paul's wiring diagrams, but again think they may have been modified enough to have created a completely new work), distribute copies for sale, lease etc., perform or display the work publicly, and some others.

There are limitations on these rights, however, the most major one I'm sure you've heard of: "fair use" (section 107 of the Copyright Act). I would suggest that using a copyrighted image to create a work for profit would be a violation (due to copying and/or creating a derivative work) and would not be subject to the fair use exception, thus subjecting the photographer to copyright infringement claims.

Trademark-related issues, on the other hand, deal with affiliation and likelihood of confusion. The inquiry is whether the use of a word, symbol, phrase, logo, even color or sound creates likelihood of confusion between two businesses (it does not require proof of actual confusion, though) because the mark is "confusingly similar." As an aside, similarly to copyright, trademarks do not need to be registered to be valid, but, unlike copyright, they do need to be registered if the trade or service mark owner wishes to enforce it beyond the immediate geographic area of the business.

In case of your photo example, you as photographer won't get in trouble for trademark infringement but if your client uses the resulting photo to promote his business (a repair shop, parts distributor etc.), Ferrari will assert that customers may assume that the business has been authorized, approved or is otherwise affiliated with Ferrari (especially considering they are in the same general business). Even if the infringing business is not automotive by nature (watches, paper goods, etc), Ferrari can argue that it resulted in "trademark dilution" - first, because it blurs the line between Ferrari's business and this other area of business and, second and most important, in my opinion, because the mark can be tarnished by low product quality or unethical conduct of the business in question.

I'm not going to touch on patent law, that's a whole other animal, but only point worth addressing here is that obtaining a patent can be a lengthy and expensive process, and I encounter a lot of misconceptions among people regarding what can be patented and how easy they think it is. Intellectual property is a very specialized practice area, so the points above are intended as very broad brush strokes. Actual mileage may vary. Void where prohibited. Some assembly required. Read at your own risk. Ask your doctor or pharmacist. Parental guidance advised. Do not eat, not a toy.

PS I think I figured out why Scott was referring to the diagrams not having a copyright symbol - the 1976 act required notice of copyright (requirement that was eliminated in 1989 by the Berne Convention), so I can see how for older diagrams that may be a relevant inquiry, although URAA may restore the copyright even to the works without notice. Am I on the right track here, Scott?

 

unfortunately, there is a large grey area.

 

I call it job security

 

Thanks for the response above - Appreciated. [Certainly makes sense even if it remains a "huge gray area"..... ]

BTW, and I'm sure you've answered this one before, mind me asking how you pronounce your name? - I could read it as "You-liar", which may not be terribly "apropos" given your position!

Understood!

Thanks again, cheers,
Ian

 

Like "Julia" but with a "Yu" as first sound.

Got a letter from Association of Corporate Counsel that I've been a member for a while with a relevant link in plain English that you may wish to watch and/or show your employees regarding copyright issues in your business (you may have to register to view the video but it's worth it): http://learn.copyright.com/ACC2010.

 

Thankyou! Much better than my "guess"....

 

So, with apologies again for the shameless hijack, I guess the attached falls firmly into the "gray area" - A buddy *created* the "virtual dashboard" onto which my data is overlaid in the making of the video - It's his own work, but certainly incorporates "the horse" and the word "Ferrari".... I'm hoping they don't want me to change it as I think it's pretty cool.....

Cheers,
Ian
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