In which I appear as a sideshow (but ABC gets the right result on TM/(c) claim based on news report)

Manigault v. ABC Inc., 17-CV-7375 (KNF), 2018 WL 5818101
(S.D.N.Y. Oct. 10, 2018)
I show up in this opinion because I wrote a
blog post
and the pro se plaintiff decided that I was some sort of
publicist for ABC (I am not). Manigault sued ABC for trademark
infringement/dilution, false advertising, and copyright infringement for
running a news story displaying the logo of his software, KeyiCam, which takes
a picture of a key and displays the “biting code” for the key.  ABC here won summary judgment.
Relevant uncontested facts: the news report at issue “examined
a smartphone application for a key duplication service called KeyMe, explained
how KeyMe works and showed several tests performed to assess how well KeyMe
works with two positive and one negative result. The news report also showed
materials published by KeyMe.” The reporter stated: “KeyMe isn’t the only game
in town, though; there’s also Keys Duplicated and KeyiCam” and the report
showed a screenshot from each business’s website for about one second. A text
version included hyperlinks to the websites of each of the companies mentioned
in the news report.
“ABC’s brief use of the KeyiCam mark in its news report did
not suggest in any way that KeyiCam: (i) is affiliated, connected or associated
with ABC; (ii) originates from ABC; or (iii) is sponsored or approved by ABC.”
Likewise, there was no evidence that ABC engaged in materially misleading
consumer-oriented conduct or commercial speech, dooming the false advertising
claims. Nor was there dilution or tarnishment. The news report reported on
KeyMe; no reasonable finder of fact could conclude that ABC used the KeyiCam
logo “in an unwholesome or unsavory context likely to evoke unflattering
thoughts about” KeyiCam’s services. [And even if the news report had been
unflattering about KeyMe, it would be unconstitutional to bar nonfalse
unflattering statements!]
The challenged use was fair. News reporting “is specifically
exempted from copyright infringement by statute.”  Not exactly, but the court then quoted the
more accurate rule that “there is a strong presumption that factor one [of the
fair use factors] favors the defendant if the allegedly infringing work fits
the description of uses described in section 107.” Nature of the work was
neutral: creative, but already published. Amount: the extremely brief showing
was “reasonable and consistent with the news report’s purpose, which was to
inform viewers about the existence of key duplication services other than
KeyMe.” Market effect favored fair use becaue a news report does not compete
with and has no effect on any market for the KeyiCam logo.
And me?  I’m
just irrelevant to the issues here.

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