banjopilot.com

[banjordan]

Did Ice Mario and Subdrag purchase banjopilot.com? Very funny!

Wonder what Rare thinks of this...

EDIT: banjo-pilot.com too!

[Icy Guy]

This should turn out to be very, very interesting.

[Gold Jinjo]

Thanks to WHOIS, I think it's registered by SubDrag. I think. (The sentence structure on that page looks like Sub's typing, anyway )

In any case, heh heh heh.

[Grey Jinjo]

Lmao that banjo by the captain hat is priceless, but I think the redirect needs to go slower. By the time I noticed there was text it was off and I had it hit back >_>'.

[Icy Guy]

...which is precisely why it's been archived, sans refresh code.

[Jason]

I smell a lawsuit...seriously.

We know that rare is developing Banjo Pilot and we know that they have intentions of banjopilot.com. What Sub doesn't know is that he wasted money. Banjo Pilot is a copyrighted name, so Rare can just take those domain names. They don't have to pay you.

Sorry, Sub.

[John]

Originally posted by Jason
I smell a lawsuit...seriously.

We know that rare is developing Banjo Pilot and we know that they have intentions of banjopilot.com. What Sub doesn't know is that he wasted money. Banjo Pilot is a copyrighted name, so Rare can just take those domain names. They don't have to pay you.

Sorry, Sub.

So by that logic, I'm sure any site with the name of a game in it's title can be sued if it's not registered by the company that made the game... I guess that makes just about every fansite illegal, plus some other sites that have nothing to do with games too...

www.supermario64.com/
www.chronotrigger.com/
www.chronocross.com/
www.supermarioworld.net/
www.starfox.net/
www.halo.com/
www.finalfantasy12.com/

[Gold Jinjo]

Originally posted by Jason
Banjo Pilot is a copyrighted name, so Rare can just take those domain names.

Rare doesn't have anything to do with domain names anyway. They've never managed the websites of their games. I doubt any developer does. It would be either Nintendo's or THQ's job to manage banjopilot.com, and either case is rather unlikely. Is there a gruntysrevenge.com? Nope.

[banjordan]

If Rare really wanted the domain, they would take it. But yeah, they probably don't mind that much.

I still think that this is funny. It probably doesn't cost Sub that much since he doesn't pay for hosting. He uses his ISP's free service. And all the domain is a redirect. Still funny though.

[Grey Jinjo]

...

Good, now Sub, go register www.microsoft.org .

=)

[Jason]

What I'm trying to say, is IF Rare decides they want to use banjopilot.com, they have the right to just take it away from Sub without paying him.

[John]

Originally posted by Jason
What I'm trying to say, is IF Rare decides they want to use banjopilot.com, they have the right to just take it away from Sub without paying him.

Assuming that we are going by U.S. law...

http://www.law.cornell.edu/topics/copyright.html

The way I understand it is that the copyright covers the content of the game itself. They can't sue or take anything away unless they are actually distributing copies of the game. If you could copyright a title, then anyone could just make up some phrase and start suing anyone who used it. I've looked all throughout the links and stuff on that site, and I can't find anywhere where it says anything about a title.

"Limited exceptions to this exclusivity exist for types of "fair use", such as book reviews."

I'd think that fansites and such would be included within "fair use" anyway.

[Grey Jinjo]

Also, I'm pretty sure if they do have it copyrighted it is probably only in one country. IE, if it is in the UK SubDrag should be legally free in the US, and if it is in the US he can say Ice Mario bought it and he'll be legally free in the UK. Sort of like how the US can't touch KaZaA because it is based in Australlia.

Of course...I could be wrong, I'm not very up to date on legal restrictions.

[Jason]

I'm sorry. I said copyright before didn't I? I mean to say trademark. The title is a registered trademark.

[John]

Well, in that case.

http://cyber.law.harvard.edu/metasch.../domain/tm.htm

"In order to serve as a trademark, a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good."

It seems to me that the words banjo and pilot alone are not distinctive enough to be a trademark. Now, if they had used the actual title logo for Banjo Pilot on that page it might be different.

Now lets look at the section for Trademark infringement.

"7. What constitutes trademark infringement?

If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. §§ 1114, 1125. The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).

So, for example, the use of an identical mark on the same product would clearly constitute infringement. If I manufacture and sell computers using the mark "Apple," my use of that mark will likely cause confusion among consumers, since they may be misled into thinking that the computers are made by Apple Computer, Inc. Using a very similar mark on the same product may also give rise to a claim of infringement, if the marks are close enough in sound, appearance, or meaning so as to cause confusion. So, for example, "Applet" computers may be off-limits; perhaps also "Apricot." On the other end of the spectrum, using the same term on a completely unrelated product will not likely give rise to an infringement claim. Thus, Apple Computer and Apple Records can peacefully co-exist, since consumers are not likely to think that the computers are being made by the record company, or vice versa.

Between the two ends of the spectrum lie many close cases, in which the courts will apply the factors listed above. So, for example, where the marks are similar and the products are also similar, it will be difficult to determine whether consumer confusion is likely. In one case, the owners of the mark "Slickcraft" used the mark in connection with the sale of boats used for general family recreation. They brought an infringement action against a company that used the mark "Sleekcraft" in connection with the sale of high-speed performance boats. Because the two types of boats served substantially different markets, the court concluded that the products were related but not identical. However, after examining many of the factors listed above, the court concluded that the use of Sleekcraft was likely to cause confusion among consumers. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979)."

Hmmm... It seems that what constitutes infringement is selling a product with a similar logo to another product with the possibility of confusing people into buying the former. I see none of that here.

EDIT: Ooh! I found another!

"Finally, certain parodies of trademarks may be permissible if they are not too directly tied to commercial use. The basic idea here is that artistic and editorial parodies of trademarks serve a valuable critical function, and that this critical function is entitled to some degree of First Amendment protection. The courts have adopted different ways of incorporating such First Amendment interests into the analysis. For example, some courts have applied the general "likelihood of confusion" analysis, using the First Amendment as a factor in the analysis. Other courts have expressly balanced First Amendment considerations against the degree of likely confusion. Still other courts have held that the First Amendment effectively trumps trademark law, under certain circumstances. In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark.

So, for example, a risqué parody of an L.L. Bean magazine advertisement was found not to constitute infringement. L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 28 (1st Cir. 1987). Similarly, the use of a pig-like character named "Spa'am" in a Muppet movie was found not to violate Hormel's rights in the trademark "Spam." Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996). On the other hand, "Gucchie Goo" diaper bags were found not to be protected under the parody defenseGucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977). Similarly, posters bearing the logo "Enjoy Cocaine" were found to violate the rights of Coca-Cola in the slogan "Enjoy Coca-ColaCoca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Thus, although the courts recognize a parody defense, the precise contours of such a defense are difficult to outline with any precision."

I would say that it could be considered as a parody too.