Quote from: madelaide on May 12, 2009, 18:51

Ouch!  How was C-h-r-i-s-t's name substituted by "creepeers"?

leaf programmed it so

Works for me __ perfectly.

Ouch!  How was C-h-r-i-s-t's name substituted by "creepeers"?

LOL -- Now I understand any your post makes sense!

John Deere Green my @ss.   Now corporate America thinks they can own the rights to colors.   You can't "invent" or "create" a color. So how can you assert copyright on it?

Are there actually court decisions backing up these weasels or is this just small companies rolling over when they get threatening letters from big law firms?

It's not just "corporate America" you need to do some research before you blow smoke. Any distinctive and identifying mark, which is capable of distinguishing the goods and services of one owner from that of another, may be utilized as Trademark and such marks are afforded protection under the law. This includes Caterpillar yellow, John Deere Green, UPS brown trucks and many others. It's not just the color, it's the color and the use.

Same reason why you can't market a product in a bottle that's shaped like a Coke bottle. Or can't create a box for your goods that look like another product's lettering and colors.

This is true around the world, not just corporate America.

Yes there are many court decisions supporting this.

http://www.ladas.com/BULLETINS/1995/0495Bulletin/US_ColorTrademark.html

But read this for how the issue is viewed in many countries.

http://www.ladas.com/Trademarks/MakingSenseTM.html

"The United Kingdom has also recognized and registered colors as trademarks..."
"Although the new German Marks Act, effective January 1, 1995, specifically includes colors and combinations of colors as registrable marks, recently issued internal guidelines of the Patent Office appear to exclude registration for such marks, unless combined with other distinctive features..."
Uraguay: "combinations of colors...shall be eligible for registration as trademarks [although] members may make registrability depend on distinctiveness acquired through use [and] members may require, as a condition of registration, that signs be visually perceptible."
The Mexican Industrial Property Law prohibits registration of "isolated colors, unless ... combined or accompanied by elements such as signs, designs or designations that make them distinctive." (my example, say for instance a Farm Tractor.) 

Some you may recognize:

Owens-Corning Fiberglass Corp. pink fiberglass insulation
Keds tennis shoes, the blue rectangle on the sole (and you would say, they trademarked a blue rectangle?)

I agree that the laws are crazy and we can't take a picture of a shadow without a model release which really bugs me, this is a world wide problem. But yes, there is case law and there are individual colors, on products and combinations of colors, that are trademarked. Hey anyone want to trademark polkadots?

There was once a small business in personal computers that called itself "Itty Bitty Machine Company" who was forced to change their name because it was using a logo that had ibm in it. (lower case) For real!

The fact that "everybody is doing it", and that the courts have been smoking the same stuff, doesn't mean it isn't BS. 

What if I decide to paint my own car, and I mix some colors that I like, and they turn out to be a "match" (in someone's eyes)  to John Deere's colors? Let's leave aside the fact that no colors will ever match perfectly.  Can some Deere lawyer tell me I have to repaint my car?   Obviously some of you will say yes.  That doesn't mean it's right, or that in the future, a more enlightened court will throw this phoney trademark cr@p  out on its ear.

Patent trolling has made a lot of money for a lot of people, but the courts and Congress are finally waking up.  Junk patents like Amazon's infamous "one click shopping" may not hold up forever.  The only way this stuff ever gets undone is if people kick back instead of just saying "yes sir Mr John Deere lawyer sir, we'll take care of that right away".

So if I paint my car those colors I can't sell it?

I see the distinction regarding "trademark" but we're not really talking about the original question. The poster said his photo of a tractor painted in those colors had been rejected. (Let's assume it actually was a JD tractor).  In my layman's understanding of the law, if you want some sort of injunction or remedy,  you have to show damages.

Microstock photographers are not selling tractors, just photos containing tractors.  They are not "using" JD's trademark to sell goods.   They are not even allowed to use "Deere" as a keyword.  The Deere product simply appears in a photo, along with maybe 100 other products - clothing, shoes, handbags, cars - any of which might possibly be made in colors which their manufacturers have claimed as "trademarks.".

I can copyright a piece of music.  I can't claim the Gm7-C7 chord progression as my "trademark" and prevent other musicians from using that combination of notes.

"even though the photo of a JD tractor is not trademark infringement the person buying it could then use the image in a manner which would infringe a trademark"


That should not be my problem. An image could be used for any number of illegal purposes. The manufacturer of that handbag that woman is carrying doesn't want photos of it in circulation because they're used to produce knockoffs.

An image is information.  Neither I nor the microstock have any control over how that information is used by the buyer.

reductio ad absurdum: if every manufacturer of every product tried to assert "rights" similar to what Deere is asserting...

While I agree that we should avoid selling photos with trademark issues, I see royalty free as meaning that the buyer only pays one fee and does not pay any other royalties to the photographer.  I like the way alamy make it clear that it is the buyers responsibility to determine whether a release is required for their intended use.  All the sites should make that more obvious.  How can a photographer or a reviewer know every single trademarked or copyrighted subject?  There are going to be some mistakes made and it should be the buyers responsibility to make sure they are allowed to use the photo for their intended use.

I understand that there is some legal basis -in law and in court decisions - for what John Deere is doing.  What I am saying is that those laws and/or decisions are wrong, and make no sense.  

I draw a distinction between something like a logo - which is arguably a creative piece of work - and something like a color combination, which was simply chosen.   If a manufacturer can claim shades of yellow and green,  they can logically claim a geometric shape, or a particular curve, as their "trademark".  If every manufacturer of every product began to assert such rights,  it would be the end of a big part of stock photography.

The only thing I, as a photographer, could be expected to recognize as a trademark would be a logo or name.  I can't be expected to determine whether the color combination of any object in my photo is claimed as a "trademark".   If I took rural landscape photo with a JD tractor in the background, and JD came after me claiming damages, I can only hope that a judge would agree with me that a reasonable person might not be aware that any visible part of the tractor constituted a trademark.

Isn't that the whole meaning of "trademark" -  a recognizable, identifiable, registered "mark"?   "Tradecolor" and "Tradeshape" are not words.  Yet.

The only thing I, as a photographer, could be expected to recognize as a trademark would be a logo or name.  I can't be expected to determine whether the color combination of any object in my photo is claimed as a "trademark".   If I took rural landscape photo with a JD tractor in the background, and JD came after me claiming damages, I can only hope that a judge would agree with me that a reasonable person might not be aware that any visible part of the tractor constituted a trademark.

Isn't that the whole meaning of "trademark" -  a recognizable, identifiable, registered "mark"?   "Tradecolor" and "Tradeshape" are not words.  Yet.

I don't make the laws and whether you agree with them or think they make sense is irrelevant, and by the way what you mentioned above about claiming rights for geometric shapes and curves does happen, in fact it happens a lot in the car industry, trademarks are just one part of property law there are five parts in total.

Have a look on the Shutterstock website for the thread when Ford contacted them, be warned it'll probably raise your blood pressure.

I've already seen that Ford thread and had it in mind.   (As and aside, I'm sure protecting the Mustang "shape" from stock photography will help them avoid bankruptcy. Whoops, Fiat just bought them. )

Our feelings about whether a law makes sense aren't irrelevant, because bad laws can be rolled back or changed, if enough people kick back.  I think this "trademark" stuff has gone over the edge and will not stand the test of time.  It's already happening with junk patents.  Yes intellectual property deserves protection but choosing a color for a tractor doesn't qualify as an intellectual achievement.

I've learned some things from this discussion.

Bugger.  I just got busted for a John Deere as well.  My best selling photo at StockXpert is now offline....  Still for sale on Photos.com of course.  Oh well, soon it will no longer sell for less than 31 cents anywhere...

To me the issue is not whether there should be trademarks, or whether stock photos should not contain trademarks.  The issue  is - what can reasonably, fairly, logically, sensibly be claimed as a trademark?   

What is happening now isn't just the application of well-established trademark law to stock photos. It's a crazy extension of the term "trademark" to include things like color combinations.