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May 26, 2011
NYSE Claims Photo Violates Trademark - WTF?
Posted by Alan Wexelblat
Do pictures of stockbrokers on the trading floor of the New York Stock Exchange belong in a story about insider trading?
If you're Talking Points Memo, yes. On the other hand,
if you're NYSE, no.
NYSE sent a letter to TPM claiming that the photograph accompanying that original TPM story violated NYSE Group's "Registered Trademarks." This is... um, hogwash I think is the polite term. First of all, a trademark isn't a copyright. To violate a trademark is to create confusion about the mark and anyone who thinks the TPM story was published or endorsed or paid for by NYSE is on crack. The use of the photo with that story isn't going to confuse anyone about what NYSE does, another purpose of a trademark.
This is pure legal FUD, and shame on NYSE's lawyers for it. (h/t to Volokh Conspiracy for the original pointer.)
(Full disclosure: I work for a company in the financial industry; as such I'm prohibited from trading in certain instruments related to the financial industry. The company I work for does send lots of order flow to NYSE and we have products and corporate agreements in conjunction with them. I've even partied on the NYSE trading floor, once. If any of that constitutes conflict of interest, well now you know about it too.)
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1. ron (yes I am an attorney) on May 27, 2011 5:03 PM writes...
I think the angle that they're gunning for is tarnishment of their trademark and the mark they're claiming infringed is "Conducting a securities exchange and related stock market services." Even if there were a valid claim here this mark might even be invalidated as generic.
Claiming any sort of market confusion I would think is DOA.
Claiming tarnishment is a dead letter also - 15 USC 1125 explicitly excludes news and commentary from uses that would give raise to a claim of tarnishment.
This is just a case of sabre-rattling bullies overreaching.
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