Quote:
Originally Posted by gideongallery
ok let see
host get takedown notice
host ignores take down notices
host claims safe harbor protection for content they refused to respond too
judge and jury deny safe harbor protection.
you draw the conclusion that it a game changer allows you to get around the takedown notice responsibility.
what is unclear about the fundamental flaw in your arguement.
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Please, please, please show me where or how the DMCA even applies to trademarks ?
Cite some statutes or cases that hold that the DMCA applies to TMs ?
DMCA applies to copyright issues. There is no Lanham Act Take Down Notice. I wouldnt even need to send a take down notice for a TM infringement claim. I would send a C&D and if the host did not respond I am off the local District Court with my complaint.
The gravamen of my complaint would be that they are using the trademark, ie the watermark on the content, for a commercial use without an assignment of rights - not the actual video content.
And yes, by doing this I can eviscerate your "fair use" defense since I dont even care about the content - you wouldnt even be able to raise it as a defense to a Lanham Act violation. Unless you fit into one of the limited nominative fair use defenses to trademark infringement; (1) The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute); (2)
The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol); (3) The user does nothing to suggest sponsorship or endorsement by the trademark holder. You would be SOL.
I can bypass copyright law and go right for the Lanham violations, which means I dont even care if the content is registered with the US Copyright Office. All I need is a federally registered TM and I am good to go.