Burning Man’s placement team have used their newsletter to clarify for us exactly what the rules are in relation to their trademark – helping explain how to get sued by Burning Man.
And it’s just like I was saying in the last post. See for yourself – amongst other restrictions, camp fundraisers may not use any photos from the event – of the camp, or anything else.
Originally, I posted this at dinner from my iPhone, and didn’t have time to expand. I just thought it was so relevant to the post I’d just done, quoting Scribe’s essential division of Burners into 2 camps – those who think the BMOrg should be a totalitarian state and the founders should get all the profits and control it from a closed room committee, with no oversight or regulation…and those who think we Burners make the party, we are all stakeholders in the ownership of the intellectual property too. Read the latest statement of the official position, then I will discuss at the end..
What’s new? Well, you have to look at the use of the language. Someone there – and maybe it’s more than one person involved in this – is trying to claim ownership of more than they really have. A cheek, when their ownership in the first place has been disputed since the beginning. There’s a long history of arguments and lawsuits between the owners, the founders, and the Burners over all this stuff. I never signed a contract with Burning Man, did you? Maybe you did. They try to have implicit contracts in the legalese on the tickets, in your application on the web site, any chance they can – to make it seem like you’ve entered into a contract with them. This is similar to Apple’s 48 page license agreement – did you read it? Did you sign a contract? Or did you just click “Agree”? This is a VERY grey area of the law that has yet to be effectively tested for enforceability in the United States.
What do I mean by use of language? I only did one year of Law at college, my grades were pretty good but it was not my thing. However, in my career I’ve had to deal with lots of lawyers abouts lots and lots of different things. Particularly pertaining to software and intellectual property. I’ve asked Burners.Me’s resident Samoan Attorney General Counsel Toburn to chime in but he’s no doubt out at some fabulous musical event tonight.
So for now you’ll have to follow my lead, if I’m wrong or it’s arguable, please comment. Let’s look at the first blatant example:
Burning Man has federally registered symbols depicting The Man and words like “Burning Man,” “Black Rock City,” “Decompression,” “Burnal Equinox,” and “Flambe Lounge” as trademarks of Burning Man. We do this so that we can protect these symbols or words and make sure that third parties cannot use these items for commercial or other unwelcome purposes, or otherwise associate themselves with us, causing confusion as to Burning Man’s involvement. This also helps us preserve the Decommodification and Gifting Principles that are an important part of our culture. While Burning Man protects its trademarks from unauthorized use by third parties, Burning Man always encourages the community to incorporate and use the trademarks in their art and projects on the Playa
Weasel words. “Federally registered symbols” – the first red flag. What does that mean? Why don’t they just say trademarks? Perhaps it’s because they own copyrights, and design marks, and even some trademarks – but they do not AT ALL have control over the common English words “Burning Man” in the way this paragraph implies.
First of all, it’s common use words. They can trademark “Facebook” but they can’t trademark “Face” and “Book”. Sony owns “Playstation” but not “Play” or “Station”. If you make a logo with the words “Face” and “Book” in it, that is blue and white like the Facebook logo, you might encounter issues of trade dress – if not misleading imitation. But you can say “use my face book” or “face my use book” or “face book my use” as long as you want (although the last one is somewhat arguable, since “to facebook” has become a verb associated with the software company’s brand).
Next, there are different categories of trademark. So Apple Computer, Inc., owns the trademark on “Apple” in the computer space, but not in the food space. And not in the music space either – the Beatles’ label Apple Records famously got there first. We’ve covered this before: in the United States, Burning Man owns the trademark “Burning Man” for community festivals.
The BURNING MAN trademark is filed in the category of Education and Entertainment Services . The description provided to the USPTO for BURNING MAN is ORGANIZING COMMUNITY FESTIVALS FEATURING A VARIETY OF ACTIVITIES, NAMELY, LIVE MUSIC, ART DISPLAYS, AND PARTICIPATORY GAMES; CONDUCTING ENTERTAINMENT EXHIBITIONS IN THE NATURE OF ART FESTIVALS; AND ENTERTAINMENT IN THE NATURE OF ART FESTIVALS.
So you can’t have an art event with live music called Burning Man. And you might not be able to have a live music event with art, either. An electronic music festival? With VJs lighting the stage, but no art displays or participatory games? Seems to me that would be completely fine. Bring a few art cars, get Alex Grey there live painting, and you might get in trouble if you’re calling it Burning Man. Call them “light cars” or “flame cars” and you might be sweet. There’s no reason why you couldn’t have a clothing label – although they’ve sued against this in the past successfully. It’s the same thing for Decompression – you can’t have a musical event called that without their permission as mark owners, but you can sell diving equipment.
This is not legal advice, you want to do something like that go and get a professional opinion. But this is my armchair opinion. As long as you make it clear that you are NOT affiliated with the owners of the Burning Man trademark for the community festival category, which might confuse the consumer, you’re completely fine. And if your use of the trademark is not in the category of trademark they own (Community Festivals featuring Art, Live Muisc and Games), you’re fine (except if someone else owns a mark in that category). That’s what the law says, as far as I can tell.
You wouldn’t get that from reading the trademark ownership the way BMOrg describes it, would you?
I understand their request that “you can call this Tiki Island Burning Man fund raiser, but you can’t call it Burning Man Tiki Island fund raiser” is not unreasonable. That is: if they were the owner of the trademark “Burning Man” for fundraisers. But they’re not – they’re just using clever legalese to make it seem like they are.
Thirdly, relevant to the concept of getting there first, there’s the question of prior art. Some readers with more formal qualifications have pointed out that this applies to patent law, not trademark law. Still, I can’t just go out and trademark “The Bible” and say that I own that now.
A musical festival called “Burning Man” was held in the exact same space, with many of the same people, before Black Rock City, LLC was formed, and the words were in common use to describe a certain style of music festival by the time this trademark was filed in 2003. There was an original “service mark” filed on September 12, 1995, and there were some legal stoushes over its ownership before the refiling of the new trademark in 2003. The original event held on Baker Beach with a flaming effigy has its roots in the Cacophony Society, who first brought this motley crue out to Black Rock City in 1990; the first official use of the term “Burning Man” in relation to this festival is murky, but the other day when I was doing the historical research I called it as 1996. Anyway, years before the formation of Black Rock City LLC, and tens of thousands of people already using those generic words to describe a particpatory music festival. According to Wikipedia, Burning Man started in 1986, but 1996 was the year everybody gave it a name:
1996 was the first year a formal partnership was created to own the name “Burning Man” and was also the last year that the event was held in the middle of the Black Rock Desert with no fence around it.
Going back even further, pioneers in the American desert have been throwing events based around a “Burning Man” for over a hundred years:
Zozobra (“Old Man Gloom”) is the name of a giant marionette effigy which is built and burned every autumn during Fiestas de Santa Fe in Santa Fe, New Mexico, usually during the second week of September. As his name suggests, he embodies gloom; by burning him, people destroy the worries and troubles of the previous year in the flames. Anyone with gloom that they need to get rid of can come by the offices of the Santa Fe Reporter in the weeks leading up to the burn to drop off slips of paper with personal gloom written on them. Many people put legal papers in the gloom box as well. At the festival the papers from the gloom box are placed at Zozobra’s feet to be burned alongside him.
Fiestas de Santa Fe has been held since 1712 to celebrate the Spanish retaking of the city in 1692 by Don Diego de Vargas from the Pueblo tribes who had occupied the city since the Pueblo Revolt of 1680. The burning of Zozobra dates from 1924. William Howard Shuster, Jr. came up with the idea of creating the effigy, also called Old Man Gloom, and ritual burning. Zozobra means “anxiety” in Spanish. Shuster’s idea was probably influenced by Mexican cartonería (papier-mâché sculpture), especially the effigies exploded during the burning of Judas that takes place on Holy Saturday or New Year’s Eve, as a way of ridding oneself or one’s community of evil.
Today in Santa Fe more than 50,000 people go to watch Zozobra, who stands fifty feet tall. His burning marks the start of three days of celebration that includes traditional mass at St. Francis Cathedral; a reenactment of the Entrada, when Don Diego de Vargas returned to the city; a Children’s Pet Parade; and the Historical/Hysterical Parade. The Kiwanis Club of Santa Fe builds Zozobra and burns the effigy at Fort Marcy Park. The Zozobra that was burned on September 7, 2007, was certified by Guinness World Records as the largest marionette in the world, measuring 15.21 m (49.11 feet) in height.[2
‘an ere’s one for da ravahs…innit guv’na…