January 14, 2008

Ford Shoots Itself In The Foot

There are a couple of blurbs floating around the internet about yet another Ford crisis. But this one doesn't have to do with slowing sales or workers on strike. No, this one is Ford's lawyers doing their best to destroy what little positive press Ford has left by threatening to sue a group called the Black Mustang Club for wanting to print calendars of their members' cars at CafePress. Now, printing items with trademarks is against the CafePress policy, but I'm pretty sure that even if it weren't, Ford would still have done shut this project down.

I have many problems with this incident. First, Ford is claiming that they own the rights to all of the photos taken, even though they were taken by the BMC members themselves. So, if I were to take a picture of my wife's Ford Focus, they would claim to own said picture. I find this hilarious. They don't even own the car (well, in two months they won't), much less my picture of it. Yes, Ford has trademarks, but they do not have a copyright. Your picture is copyrighted by you, not Ford. In all likelihood, I expect that this calendar will eventually be published, and in the unlikely event that this does go to court, Ford will be laughed out. I'm sure my wife will have some interesting comments on the IP aspect of this incident.

But what really makes me laugh and shake my head is that Ford is throwing away free advertising. I mean, if people were taking pictures of Ford vehicles and making fun of it, I could at least understand the possible motivation for this. But why on God's green earth would you stop a group of people who adore your product from printing calendars and spreading the good word of Ford as far as possible? The answer, plain and simple, is corporate greed, and it is destroying this nation, as well as the rest of the world. (Now, the AFL-CIO is not the most unbiased of organizations, but I think I can trust you to read past any embellishment to the facts. Some of the examples of exploitation on their site are pretty disgusting.) The line of thinking Ford is taking here just boggles my mind. Whoever approved this bone-headed move needs to be fired; Ford has enough problems as it is without people on the inside destroying what little good will people have left for the company.


After lots of further research and discussion with my wife (who knows a lot more about the trademark side of things than I do), it looks to me that what Ford did was not legally out of line and may have, in fact, been legally necessary. However, I do think it was a bit heavy-handed. I think that it could have been handled much better on the PR side of things, but then PR and lawyers seem to mix about as well as water and oil. It's all about appearances, and no matter what Ford says, most people who look at this are going to view it as a big corporation picking on the little guy. Hopefully, BMC will be able to get permission to print the calendar through proper channels (I see no reason why they shouldn't); the question will be if Ford is going to charge them some outrageous licensing fee. It will be interesting to see what direction this goes in.


Matt said...

So they did shoot themselves in the foot, but how many Ford enthusiasts are just going to sell their cars after this? A car is a significant investment and it isn't easy to jump ship just like that. All Ford needs to do is air a few more "BUILT FORD TOUGH" commercials on primetime TV. You know, the ones that show oversized trucks careening through desert landscapes at high speeds with a bass-voiced narrator and they'll be good. Also, make veiled references to America to suggest that one can contribute to national solidarity by buying cars from the right company.

Matt Silverthorn said...

I don't think this incident itself is going to make anyone sell/refuse to buy a Ford, but it just gives more ammunition to those already preaching the anti-Ford message. And there's already plenty of ammunition out there at the moment. All of these companies have a breaking point in terms of public relations, and sooner or later people are just going to stop buying their products.

Of course, you raise a valid point that the majority of Americans are too lazy to pull themselves away from the TV to see what's actually going on in the world for them to get the message in the first place.

Courtney said...

I won't comment on whether or not I think this is a good idea for Ford. But, I hate to disappoint you, Ford is legally correct in their stance. The difference lies between copyrights and trademarks.

Ford is not claiming that they own the copyright to these photographs; that's just the inane statute CafePress is using to keep themselves out of legal trouble. Ford is claiming they own the trademark, which may or may not only be limited to the logo but also the "dress" of the car (think the VW bug and such).

The idea behind a trademark is that it is backing a product by the full faith of the company that marks the product (known as "goodwill.") Ford has no control over the production, distribution, quality, etc etc of the product that the car enthusiast group is producing. However, it is highly likely that a purchaser could (mistakenly) assume that the calendars were produced or at least endorsed by Ford.

By legal precedent, the three rights considered by a court "...are the right of the prior user to enter a related field, the right to protect its reputation from association with inferior goods, and the right of the public in being free from confusion and mistake." (Intellectual Property in a Nutshell p. 196). This calendar would conflict with the second and third rights, and possibly the first should Ford decide to license their own calendar and offer it for sale.

And the "free advertisement" argument has never been a valid defense against accusation of infringement of any intellectual property - particularly trademarks. Unlike patents and copyright, trademarks are use 'em or lose 'em, and more specifically, any time Ford does not defend their trademark it creates a precedent that could be used as a future defense against other accusations of trademark infringement by other parties.

Courtney said...

A particularly good comment on this is on the BoingBoing article thread.

Matt Silverthorn said...

Sorry, Courtney, but I think you are wrong here.

1) The right of the prior user to enter a related field.

Ford can make their own calendar whenever they want. Any argument made that this does not allow that is weak at best.

2) The right to protect its reputation from association with inferior goods.

These people are not taking pictures of Fords and calling them Kias or any other kind of car or product that could be labelled inferior. They are not altering any trademarks. The trademarks are being associated with the items they should be associated with.

3) The right of the public in being free from confusion and mistake.

Again, they are not calling these Ford Mustangs anything but Ford Mustangs. They love their Ford mustangs. They would encourage other people to buy Ford mustangs. There is no confusion here.

I don't think you are correct in this instance. It would be hard to make a strong argument in the direction that this is trademark infringement.

Matt Silverthorn said...

There is another good comment in the same thread.