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Comment by jasode | Hacker News Reader

I understand that IMAX's demands look silly but if we accept that "trademark erosion"[1] is a real phenomenon, the question is: What forms of human communication are exempt from that?

In other words, no matter how silly and innocent the passing reference to IMAX is, is it possible that IMAX lawyers must pursue those genericized uses even though those lawyers (and the client IMAX itself) knows it generates negative publicity?

A natural human tendency is to speak with similes & metaphors. "Yosemite Valley is like a jacked up IMAX for nature lovers" or "my budding friend the film student with his overuse of lens flares thinks he's the second coming of J.J. Abrahams".

The tension between trademark enforcements and natural human tendencies to color conversations with innocuous references to pop culture creates silly-looking "cease & desist" letters.

[1] https://en.wikipedia.org/wiki/Generic_trademark#Trademark_er...

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Even presuming we accept "trademark erosion" as a thing, it's still irrelevant here: the author wasn't using a trademark to describe a generic good (i.e., they didn't mean "a 'large-format' movie theatre with surround sound"), they were literally referring to the product (or, rather, one of the confusingly different products) traded under the "IMAX" mark (i.e., they meant, literally, AN IMAX THEATRE).

I think the quotee (not the article author, mind you) was, albeit indirectly, comparing the VR product to IMAX.

> I think the quotee (not the article author, mind you) was, albeit indirectly, comparing the VR product to IMAX.

Yes, everyone agrees that they were refering to IMAX. It is also legal for them to do so (and for Ars to publish this opinion) without seeking permission from IMAX first. Some people on HN are surprisingly disagreeing with this (or at least condoning IMAX's response)

Both parties are guilty here. Ars should put at the bottom of its article "IMAX is a trademark of <whatever the entity that owns it>" which acknowledges the IMAX trademark. And IMAX's lawyers should be less obtuse in their writing when there's such a simple solution.

Also, the law shouldn't be that trivial uses of the mark like this work to erode it, but the law is not precise on the issue so mark holders tend to have to be verzealous in showing their defense of the mark.

This letter is just a lett-er not worth the non-paper it's not-written on.

The whole purpose of the letter is to be able to show diligence in court if the mark is threatened... not to attempt to get Ars to do anything different.

Are should know that too... but I guess they feel this is good link bait. (personally I think it adds tarnish to Ars's reputation, by making them look like rubes.)

>Both parties are guilty here. Ars should put at the bottom of its article "IMAX is a trademark of <whatever the entity that owns it>" which acknowledges the IMAX trademark.

No, this is absolute bunk. There is no reason for this. At least in the US this is protected by Nominative Use, which guarantees that "a person may use the trademark of another as a reference to describe the other product, or to compare it to their own."

Further: "Nominative use does not require that ownership of the trademark be acknowledged, for example by use of a sentence such as "UNIX is a registered trademark of The Open Group"."

https://en.wikipedia.org/wiki/Nominative_use

Do AMD, Intel, Nvidia, HP, Lenovo, Ford, Honda, and so on send a cease and desist letter to every publication that mentions them in passing during a review of a similar product? Product comparisons are inevitable. If I review, say, a Sony Smartwatch, you bet your ass I'm going to compare it to a Pebble and an Apple Watch, otherwise there's no real frame of reference.

IMAX's lawyers are clearly overreaching here.

Do AMD, Intel, Nvidia, HP, Lenovo, Ford, Honda, and so on send a cease and desist letter to every publication ...

I suppose they don't and I'm not disagreeing with you on that.

The IMAX situation may be different in that their trademark is very catchy sounding (2 syllables "eye"-"macks") and is getting pulled (by innocent human tendencies) into a lot of conversations unrelated to IMAX(tm) theaters. When people use words like "AMD" and "Honda", it doesn't seem to erode their trademark. But for some reason with "IMAX", and "google", and "kleenex", it does. In other words, most people haven't genericized "Honda" to the point of saying "I'm going to Honda my but to the grocery store."

Are the cultural references to "IMAX" trending towards trademark desctruction such as "kleenex" and "escalator"[1] or are the usages actually trademark preserving such as "AMD" and "Honda"?

[1]https://en.wikipedia.org/wiki/Escalator#Loss_of_trademark_ri...

I think that's a bit of a stretch. When I hear "Honda", I think of cars. When I hear "Ford", I also think of cars. When I hear "IMAX", I think of theaters. When I hear "SteamVR", I think of computer games and virtual reality. If anything, IMAX has even less footing than the other companies I mentioned.

Now, that's just me, but I can imagine it being similar for most people.

I think you're missing the point.

When most people think of fascial tissue, they think of Kleenex. They call any brand of fascial tissue Kleenex.

IMAX doesn't want people calling any large format theater IMAX. So they over-reach anytime someone mentions the word I assume.

Not justifying the actions, just trying to clear things up. Personally, I think it's ridiculous.

But who is calling just any theater "IMAX"? If I say to my wife, "hey let's go to the IMAX", she's going to ask me why we would pay that much when we can just go to the theater instead. If there's any dilution of the IMAX brand going on, it's by IMAX themselves by constantly lowering their standards.

Something else you have to consider is intent. It doesn't seem that Ars intended to dilute IMAX's brand by publishing a quote, and it doesn't seem to be the intent of the person quoted either. It was simply a frame of reference.

> IMAX doesn't want people calling any large format theater IMAX

Here's the thing: Nobody did that in the Ars article. A piece of VR tech was casually compared to the IMAX experience by someone being interviewed by Ars.

>But who is calling just any theater "IMAX"?

I'm not saying any theater but I have noticed that some visitors to Epcot refer to the Canada and China 360-degree movies as "IMAX". The actual designation is "CircleVision 360". But people don't remember that 7-syllable trademark. The first word that comes to the tip of their tongue is "IMAX" because that word has become a placeholder for "any immersive large screen experience".

>Something else you have to consider is intent.

Yes, but society's casual use of "Escalator" to "escalator" and "Kleenex" to "kleenex" didn't have any kind of mastermind conspiracy to dilute the trademark. It just happened. I'm guessing most trademarks erode without malicious intent.

Could Otis Escalator and Kleenex lawyers have done anything to stop the trademark erosion?

Kleenex could have rebranded as Snot Rag. "Hand me a Snot Rag?, I need to clean my glasses."

The difference is that Kleenex facial tissues and Otis Escalators (moving staircases?) are unique terms that have no other well known counterparts or alternative generic terms. It is unlikely that IMAX is going to replace the generic term movie theater, and even less likely that the general public is going to distinguish between movie theater and large screen format movie theater -- it's just a bigger screen for what is otherwise the same.

Do people make a distinction between THX and Dolby Digital sound systems in theaters and say let's go see something at the THX or Dolby Digital? That doesn't happen because those technologies only contribute to the experience, they don't define it as something unique.

I still think IMAX is barking up the wrong tree. If anything they should have sent the letter to the person who made the comparison, not Ars who simply quoted the person. Though that would be wrong as well, it would be slightly less wrong than attacking a news site for reporting the news.

> IMAX doesn't want people calling any large format theater IMAX.

Of course they don't. But that doesn't give them legal ground to send out C&Ds when people do. They're allowed to protect their trademark in specific, legally defined situations. This isn't one of them, no matter how much IMAX wishes it were so.

> > IMAX doesn't want people calling any large format theater IMAX.

Also, there is no evidence that this is what happened here! The developer quoted by Ars might/might not have literally been referring to IMAX(tm). Only he knows for sure. This is not what the lawyer was whining about either - they were claiming that Ars should have sought permission from IMAX before using the trademarked term in the article. Which is bullshit.

I don't understand how people can condone that - it's only a stones-throw away from a scenario where Google/Apple sues you for using their trademark without permission in your negative comment about one of their products.

When most people think of fascial tissue, they're probably recalling some medical terminology. People thinking of facial tissue may or may not think of Kleenex.

https://en.wikipedia.org/wiki/Fascia

According to that wikipedia article, Otis lost the 'escalator' trademark because of the way they themselves had generically used the term, not just because of the way others used it. Also, https://en.wikipedia.org/wiki/Generic_trademark#Avoiding_gen... gives several suggestions on avoiding genercization that don't involve legal threats.

Trademark erosion is about using a trademark to describe a similar but differently-branded product. Like if you said, "I saw Star Trek at the IMAX last night" when in fact that theater is not IMAX©®™ƒ branded, but some other big-screen movie theater.

Real-life examples include "give me a kleenex" when you just want any random facial tissue, "give me a coke" when you're just asking for any soft drink (this use is common in some places, while in other places it means only the actual Coca-Cola product), or "I xeroxed this document" when you have no idea of the actual brand of the copier.

Just using the trademark as a comparison doesn't do it, as far as I understand it.

> "I saw Star Trek at the IMAX last night"

This is actually still an example of trademark erosion, even if referring to an actual IMAX theater. This is using the brand to refer to the abstract thing. It's not an IMAX. It's an IMAX theater.

For a relevant example, look at Google's guidance to journalists. They say not to write "I googled X", but "I searched for X using Google". Using "google" as the verb, even when literally referring to Google, erodes the brand, because it conflates the brand with the thing.

Right, I think that's what was written. The post said that that use of IMAX would be trademark erosion.

I'm not sure what you're referring to as "the post". If you're referring to the article, my comment wasn't addressing that at all. My comment was a response only to mikeash's comment. He gave an incomplete description of trademark erosion and I thought it was worth clarifying. Using "IMAX" to refer to a non-IMAX screen would be trademark erosion. Using "IMAX" by itself to refer to an IMAX screen is still trademark erosion. Just as "googling" is an erosion of the Google trademark, even when referring to Google's searching service.

You see the impact of this sort of brand erosion with the iPad. The iPad dominates the tablet space, so the constant references to iPads have started to genericize the term to the point that other tablets are often called iPads (which erodes the brand to a greater extent). Contrarily, BMW for example gets away with this because BMWs do not dominate the market, so there is little danger of "BMW" becoming synonymous with the car. IMAX dominates its market so the brand is quite in danger of becoming a synonym for a giant screen. The smaller erosions are therefore a bigger concern.

No, the tension is between greedy corporate interests and the natural human tendency to create shared culture out of our shared experiences.

This is so, so far outside of the rights of trademark that it is just plain abusive. This sort of behavior comes about not from attempting to protect ones brand from unfair usage, but from thinking one's moneyed influence allows them to do whatever they want.

No, that's BS. The complaint letter was about an actual comparison to IMAX. This was obviously not an infringing use, and the letter is the sort of gross overreach that erodes respect for trademark law as a whole.

Just because you can philosophically conceive of a stretch by which an egregious abuse might possibly not be one, doesn't mean you're helping at all.

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