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Thursday, April 15, 1999

Simply Fits!!!
Dirty Palms and Badly Played Hands!

by Clinton Fein

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3Com's trademarks may be used publicly only with permission from 3Com and proper acknowledgement. For a current list of 3Com's trademarks and service marks, as well as trademarks licensed to 3Com by third parties, refer to [3Com Trademarks and Trademark Information] at: http://www.3com.com/legal/trademark/. All other trademarks, brands and names are the property of their respective owners.

So says the 3Com web site. However, recent events have led us to provide a legal education for the generally disenfranchised. We are First Amendment advocates, first and foremost. Here's the story.

A recent ad campaign launched by 3Com shows a nude woman clutching nothing but a Palm V handheld Palm Pilot. Of course, we at annoy.com relish the flesh. Our site is full of it. No sooner had the ad campaign launched on billboards and bus shelters and in magazines, the moral outrage began.

From the politically correct to the incorrectly political, 3Com bashing overtook Microsoft bashing overnight. On the surface, there's nothing really wrong with the ad other than the context being a little inappropriate. Using pussy to tout a product is almost as old as Cain and Able using images of Mom in the Garden to sell apples.

Parodies sprung up quicker than JonBenet Ramsey web sites and of course the cries of pornography resulted in such actions as the Santa Clara Valley Transportation Authority's refusal to put the ads on the bus shelters in fear of offending their riders. One such parody, was executed by Jason Kottke who posted parodies of the print ads along with the original on his web site, 0sil8, with the tag line: Simply Porn.

My name is Jason K., and I have a problem. Whenever I see silly things happen in the media, I feel the need to make fun of them. Palm Computing is running ads in magazines featuring a naked woman holding a Palm V organizer with the slogan "Simply Palm". I, of course, ran immediately to the store expecting to find a naked woman clutching my would-be PDA. Alas, there was none. Hopefully, the one I'm ordering off of the Web will ship with one. Anyway, with the Palm V ads bordering on pornography, I decided to take them all the way there with my series of four "Simply Porn" magazine ads.

In a parody annoy.com did of a CNET ad (which resulted, oddly enough, in a threatening letter from Ziff-Davis), we took offense to Ziff-Davis' characterization of more than one of our parodies as "pornographic". Pornography has no legal distinction, and so even Kottke's assertions that the ad borders on pornography are somewhat exaggerated, and have no legal relevance.

Yet 3Com foolishly over-reacted to Kottke's parody and immediately issued a "cease and desist" letter accusing him of trademark and copyright infringement. "Kottke's pornographic parody shows how inoffensive the Palm campaign really is," says Liz Brooking, the Palm Computing spokeswoman, according to the San Jose Mercury News. "It underscores how tame (the Palm ads) are by comparison."

By referring to Kottke's parody as "pornographic" Brooking has inadvertently made the case that the Palm campaign itself might well be considered pornographic. Certainly, some people in some communities would even consider such a blatant objectification of a female to sell a product as obscene, and the ad, according to current legal definitions, fits the criteria.

In 1973, the Supreme Court attempted to define obscenity in Miller v. California, by establishing a three-part test for obscenity: "hard core" sexual material that appeals to the prurient interest; is patently offensive under community standards; and lacks serious literary or other value. Each of the three parts of the Miller test must be met to criminalize even obscene speech.

In our own legal battle currently before the Supreme Court, we assert that in a well known case, and subsequent movie, Reverend Jerry Falwell accused publisher Larry Flynt of damaging his reputation by publishing a parody in which Falwell was depicted having sex with his mother in an outhouse. The claim for damages was rejected on the basis that no one would believe Jerry Falwell would have sex with his mother in an outhouse (his sister maybe, but not his mother). In Hustler Magazine v. Falwell, the Supreme Court held that the magazine's "patently offensive" parody was constitutionally protected. Even though the parody was "gross and repugnant in the eyes of most", and was found by a jury to be an "outrageous" and intentional infliction of emotional harm, it retained First Amendment protection.

Parodying a newsworthy advertisement is equivalent to parodying a public figure. It was protests against the original ad that spawned the parody. Further, 3Com's claims of trademark infringement are disingenuous, and suggests confusion over the Lanham Act that governs trademark law. Protection for trademark rights under the Lanham Act is limited to protection against another's use of a designation to identify its business or in marketing its goods or services in a way that causes a likelihood of confusion. Such trademark rights do not override First Amendment rights. Osil8 is not selling handheld computers and it is highly unlikely that anyone will confuse Osil8 with 3Com.

In the fiercely competitive market for small mobile communications mechanisms, we strongly recommend that 3Com focus its energies and attentions elsewhere. It's kind of hard to claim trademark dilution when you're the one doing the diluting!


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