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Old December 16th, 2007, 06:12 PM   #16
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Originally Posted by Jeff Emery View Post
So just what are those concerns?

Jeff
I'm not going to give anything that can be construed as legal advice here. I'd suggest that you (1) do a search on this forum for my discussions about when and under what circumstances you can use someone else's trademark in a film -- the over-all considerations are the same, (2) do a google search on "product configuration trademark" and "Walmart v. Samara" with respect to trademark concerns in using the image of someone else's product, and (3) the definition of "useful article" within the meaning of the U.S. copyright. The determination of whether what the OP wants to do is possible is not a simple analysis, nor is it necessary a negative one.
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Old December 16th, 2007, 08:30 PM   #17
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Thanks for the suggested reading Paul. I'll try to get to it this week. I'm sure there is some very useful and enlightening information in those subjects you mention.

And, while it seemed like a simple answer to me (based on the Canon site copyright notice), perhaps it is much more complicated than one can know and the result of the case, if brought into a court, could be very difficult to ascertain. One can never know for sure the outcome of a legal proceeding. It's not the lawyer who knows the most law who wins. It's the one who best presents his case to sway the judge or jury in his favor.

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Old December 16th, 2007, 09:06 PM   #18
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Walmart vs Samara has nothing to do with this situation at all. Walmart was selling the clothing and making a profit. This guy wants to use an image of the A1 to show that he is using an HDV camera. I highly doubt that Canon would have a problem with their logo being displayed especially if it is in a positive manner. He is not profiting from the canon logo but rather the work in which he does from that camera. In order for him to tell what equipment he uses he must say Canon also and this is not infringement but a matter of fact.
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Old December 17th, 2007, 12:23 AM   #19
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Originally Posted by Jeff Emery View Post
Thanks for the suggested reading Paul. I'll try to get to it this week. I'm sure there is some very useful and enlightening information in those subjects you mention.

And, while it seemed like a simple answer to me (based on the Canon site copyright notice), perhaps it is much more complicated than one can know and the result of the case, if brought into a court, could be very difficult to ascertain. One can never know for sure the outcome of a legal proceeding. It's not the lawyer who knows the most law who wins. It's the one who best presents his case to sway the judge or jury in his favor.
Well, yes, but . . . I get paid to do two things: get the best result for my client if they sue or get sued, and give them the best advice to avoid either. If I do my job well, my clients don't have to go to court.

If I get some time after the new year, I'll try to write a little bit about the general concerns in using product images for various purposes.


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Walmart vs Samara has nothing to do with this situation at all. Walmart was selling the clothing and making a profit.
Walmart v. Samara set a new standard for protection of product configuration as a trademark as a matter of law. Neither the result nor the specific facts are of any relevance to this discussion. The holding, however, is highly relevant, i.e. production configuration is not registrable (and, hence, not protectable) absent proof of secondary meaning, rendering product configuration trademarks the equivalent of descriptive marks. This was a dramatic change from the law prior to Samara, which was set out in a case called Taco Cabana which found a protectable trademark interest in trade dress (a super-species of product configuration trademark) based on the assumption that it was suggestive, i.e. registrable without proof of secondary meaning. Note as well that the extent to which product configuration can be protected as trademark is subject to a number of other factors, which include whether the overall design is functional, whether that which is sought to be protected is subject to extant or expired utility patents, etc.

This is all highly technical, and one of the reasons why people get legal advice from lawyers (and why only lawyers are allowed, by law, to give legal advice). No one here is going to be interested in my opinion as to the bokeh of a particular lens, which camera is best for "running and gunning," or the best way to light and mike an interview. Yes, I know a little bit about these topics and have my own common sense, but that is a poor substitute for in-depth professional knowledge, training and experience. In other words, I know my limitations.

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This guy wants to use an image of the A1 to show that he is using an HDV camera. I highly doubt that Canon would have a problem with their logo being displayed especially if it is in a positive manner.
That's because you're not aware that one of the factors used in determining the strength of a mark in an infringement action is the extent of third-party use of that mark. You're also probably unaware that there is no such thing as a "naked license" for a trademark, i.e. a trademark owner can't simply say, "Sure, go ahead and use my mark." To do so, without exercising some control over the context in which the mark is used, is an invitation to forfeit rights in the mark.

Quote:
He is not profiting from the canon logo but rather the work in which he does from that camera.
Whether or not he's profiting has absolutely nothing to do with the considerations that Canon would apply in making such a determination. I routinely send out cease-and-desist letters to small businesses who use my clients' trademarks in impermissible contexts, even when they are my clients' own retailers.

Quote:
In order for him to tell what equipment he uses he must say Canon also and this is not infringement but a matter of fact.
Depending on how he says this, it may not be an infringement. However, the topic of this thread is not the OP's equipment list, but the OP's business card.
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Old December 17th, 2007, 02:54 AM   #20
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Stating that you use Canon equipment is a BIG leap away from using a LOGO - you could probably even put in writing that "this studio proudly uses Canon XYZ1000's" or whatever, but use that logo (or for that matter the "official" HDV or DVD logos I believe), and you are creating an implied association by using someone else's trademark/image/logo.

Not saying the OP makes bad videos, but suppose for a second that his work is embarrasing (I saw some stuff shot by a local video guy with GL2's for instance that was simply HORRID... don't think Canon would have liked that association!).

If the Canon website suggests you need a contract, then make contact and see if you qualify for the terms they require - I'm going to venture a guess that there's a lengthy iteration of specifics, probably best left to a <wink> lawyer to review if you wish to use their image/logo for business purposes.

Personally I don't see the value in it for a business card... promote yourself, not your gear. If you have talent, doesn't much matter what your hammer of choice is, unless you're talking about a big budget situation where endorsements and product placements become an issue - and then your agent and <wink> attorneys work that stuff out for you!
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Old December 18th, 2007, 08:44 PM   #21
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Originally Posted by Paul Tauger View Post
Walmart v. Samara set a new standard for protection of product configuration as a trademark as a matter of law. Neither the result nor the specific facts are of any relevance to this discussion. The holding, however, is highly relevant, i.e. production configuration is not registrable (and, hence, not protectable) absent proof of secondary meaning, rendering product configuration trademarks the equivalent of descriptive marks. This was a dramatic change from the law prior to Samara, which was set out in a case called Taco Cabana which found a protectable trademark interest in trade dress (a super-species of product configuration trademark) based on the assumption that it was suggestive, i.e. registrable without proof of secondary meaning. Note as well that the extent to which product configuration can be protected as trademark is subject to a number of other factors, which include whether the overall design is functional, whether that which is sought to be protected is subject to extant or expired utility patents, etc.
Holy Cow! I don't think I understood anything in this paragraph. Except maybe the word "Taco."

Hat's off to you, Paul for having the patience and get up and go to master this stuff. I'll stick to video...
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Old December 18th, 2007, 09:25 PM   #22
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There's a lot of conjecture here. The appropriate first port of call is Canon. Ask them what the process is to use their artwork.

I recently became a Microsoft Certified Partner and, as such, am allowed to use the appropriate logos.

The logo licensing requirements are extensive and very clear. All kinds of restrictions on color (they specifiy the exact Pantone numbers), font, the minimum amount of white space around the logo, the size of the logo relative to my logo (theirs must be smaller and positioned in such a way as to not infer any business partnership between the two parties) etc.

The requirements are strict in order to protect Microsoft's reputation.
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Old December 19th, 2007, 11:40 AM   #23
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Originally Posted by Dave Blackhurst View Post
Personally I don't see the value in it for a business card... promote yourself, not your gear. If you have talent, doesn't much matter what your hammer of choice is, ...
+1 agree wholeheartedly. they are all tools, the real deal is in how you use them.
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Old January 31st, 2008, 06:29 PM   #24
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Sorry I'm a month behind

I know this is a 1-month old thread, but I did want to add my 2 cents.

I know of people that have pictured a BMW in their Yellow Pages ad for their auto-detailing shop and have been sued by BMW for using their car without permission in their ad.

I think a good rule of thumb is if you aren't sure, either don't do it, or get written permission to do it. It's not worth the risk and headache.
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Old January 31st, 2008, 07:57 PM   #25
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My whole take on it is if your client knows anything about cameras they will ask you regardless -and lots of questions. If your client knows nothing about cameras, they won't care.
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