On one hand, trademark preservation is important.
On another hand, how many companies would kill for a community of "Raving Fans" like this? And in addition to enthusiasm, the site seemed very high quality and thus complementary to Ikea's marketing.
All this would cost maybe one person per year, maybe one and a half. If I can raise a few hundred thousand dollars a year extra this way by heavily promoting products from the site, I can easily justify it. That shouldn't be too hard a target, given that Ikea is a massive multinational. That's maybe a few hundred extra sales per store per year.
It's possible that Ikea considered something like that already and it doesn't make sense to do. It's not presented like that though.
Buy the site and pay the owner to keep on running it. If it's owned by IKEA there's no trademark dilution problem...
I think that would send the wrong signal to would-be copycats. I think the chosen solution, allow them to continue but non-commercially is a pretty good one. If it's a fan site then it should be non-commercial.
IKEA Hackers wasn't just some site using the IKEA name, it was a high-quality and well-established community. If IKEA had purchased this establishment, I don't think a reasonable person would conclude they would give the same treatment to just any other trademark infringer.
And even non-profit sites need money to pay for hosting.
Buy the site. Acquisition style. Now they keep the community, the fan base, the long tail, and the passionate founder.
He gets to work on it full time and they get rid of other peoples ads.
The problem with these suits is usually not the specific case at hand but everybody else that will use the opportunity if they no longer defend their trademark vigorously. And buying out a site like that would probably not qualify as defense but as reward.
If the price was $0 or the former owner would pay a token fine and the site would then be run by the former owner but under the IKEA umbrella then it might work. But an actual payment for something that leveraged a brand would be a big mistake imo.
Just exactly what wrong signals did Google send when they bough Youtube?
Unless we are blind and skip the fact youtube willingfully hosted 90% of ifringe content.
Right now the majority of the OBL's on the site are to what appears to be his Amazon store:
http://i.imgur.com/PKrZAyR.png
Ikea could redirect all 18,000 of those links to Ikea.com product pages instead of his personal amazon store.
In addition that type of community that the webmaster built is gold! 100s of thousands of comments, a huge Facebook Page, a very well done Pinterest page along with other social media accounts all for the taking.
I don't know where the music would have stopped if this guy had chosen to fight. I don't blame him for not doing so, but I hope the outcome would have been that he was fully entitled to run his site as he chose, so long as he attempted to avoid anyone thinking the site was officially run by Ikea.
The bigger problem, possibly, is that the site as a whole generally echoes the Ikea brand (thought not particularly strongly). This, in conjunction with use of the word "Ikea" could possibly give rise to the overriding possibility of confusion. At most, Ikea should have asked ikeahackers to tweak the design of the site a bit (maybe use some different colors).
I am not a trademark lawyer, so I'm open to being corrected. But I think ikeahackers could probably have prevailed in court, especially after some design tweaks.
I disagree, especially in non-US courts, largely because of the "commercial" nature of the site. Any revenue makes it commercial, that doesn't obviate fair use but it makes extremely difficult to win on that claim. People arrive here because of Ikea's brand and products, they see Ikea livery and designs and then are forwarded to purchase other products to the gain of the site owners.
The "New Kids" case fits quite well with the case in hand and recapitulates the test for whether nominative use is infringing or not.
http://cyber.law.harvard.edu/metaschool/fisher/integrity/Lin...
One might feel that the Volkswagenwerk AG vs Church case mentioned makes Ikeahackers a winner [see the footnote for key differences!] but the test stands that there is (ibid.)
>"a nominative fair use defense provided he meets the following three requirements: First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; [7] and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder." //
1- The product or service in question is not readily identifiable without use of the mark. 2- Ikeahackers uses no more of the mark than it needs to to identify the products in question. 3- It is a closer question whether the design of the site implies endorsement (for the same reasons as I noted with respect to likelihood of confusion), but some cosmetic changes to the site could probably solve this problem.
They use the mark in the URL and site design, which is more than is necessary to identify the origin of the goods mentioned on the site. They use the livery and typefaces (or look-alikes) and the site style matches IKEAs - eg the line drawn cartoons are close in style - and I'd say all these factors suggest an endorsement that is not clearly and prominently disclaimed (it is disclaimed on the site however).
Now all that with no commercial aspects to the use (no advertising) and it's looking a bit thin on the plaintiff's side; but with the commercial use ... in short the use doesn't feel [!] purely referential (or "nominative" in the language of the US caselaw) to me.
Just run a Foundation / Charitable organization (Stichting) under Dutch law, which is not-for-profit. It's possible to gain money with ads, or sell products. So you can pay the hosting. It's even allowed to give people a monthly income. As long it's not making profit (in the end you'll need 0). A Charitable organisation (Stichting) is always 'non commercial' under Dutch law.
Just to mention Inter IKEA Systems B.V. is a company from The Netherlands.
Not sure what would happen if someone would host IKEAhackers.net from The Netherlands. To sue someone in the USA over "intellectual property rights" is quite easy, our system works quite different.
We're allowed to use someones name (Reclame Code Commissie), Dreft is allowed to make ads which say Ajax makes bad dish-soap. But this falls under another category, since IKEAhackers is not advertising for DealExtreme products.
http://www.iusmentis.com/merken/grappen-parodie/ Frew quotes: > Verwarring alleen is niet genoeg. Verwarring met een origineel merk is alleen inbreuk als het gebruik ook commercieel is. > Ook nietcommercieel gebruik van een merk kan merkinbreuk zijn. Het gebruik moet dan afbreuk doen aan de reputatie van het merk. Hier loopt een merkparodie al snel tegenaan.
Which says in English, that parodies are forbidden if "commercial use" and has "undermine the reputation".
IKEAhackers is a non-commercial (ads to pay hosting is NON profit) parody, right? And gains IKEA customers.
Would IKEAhackers.net be safer in The Netherlands?
That's really interesting. Perhaps then on can set up a charitable organisation to bankrupt your competition and flip it to be a regular company ... even giving things away can be commercial as that can effectively destroy another companies market.
Just not making a profit doesn't make you a "charity" in UK. You have to have different company structure, different accounting; different terms and operating conditions apply.
>We're allowed to use someones name (Reclame Code Commissie), Dreft is allowed to make ads which say Ajax makes bad dish-soap. //
That's pretty standard it's in UK and USA (15 USC 1115(b)) law too usually it goes along with reporting and parody exclusions and parallels copyright in this respect.
IKEAhackers.net isn't a parody. Parody means comic entertainment. If the hacks comprised throwing away the instructions and having at it with a nail gun then perhaps you'd qualify as a parody site.
>Not sure what would happen if someone would host IKEAhackers.net from The Netherlands. //
I don't think that matters. If you're addressing people in a country (and they're arguably addressing people in all countries that IKEA operate in) then there's likely to be redress against [alleged] IP infringements allowed for in the country where those people reside.
Based on what I see, the domain name was registered in "bad faith", shown by: "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location".
That seems reasonable, up to a point. To me it seems difficult to argue that point when the brand is already so large that some rinky dink site could never measurably impact the company's brand recognition/reputation.
This community of raving fans is less than a drop in a bucket for IKEA.
The best course of action from a legal perspective is often not the best course of action from a business perspective.
They could have easily just allowed him use of the name and if Ikea was ever in some kind of trademark lawsuit could have stated so. They chose not to for their own reasons, but the idea that business is forced to act this way and that Ingvar Kamprad is this grandfatherly old man who loves cheap furniture and not the ruthless head of a major world-wide corporation is asinine.