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Life of a Law Student, University of Houston Law Center

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Take Down Request Fail: A Guinness World Record in Unintended Consequences of Threatening Legal Action

Although not necessarily covered in law school, I think we all realize at some point that there is a difference between a legal right and a legal objective. An objective is what you want, a right is what you point at to justify your demand. The two do not always go hand in hand.

I propose that every lawyer who has occasion to send a take down notice on behalf of his or her client create a checklist and at the top of that checklist put “Will invoking this legal right meet my client’s objective?”

Consider the following scenario:

  • You represent Guinness, who in addition to making a mighty good pint, happens to publish the best-selling copyrighted series of all-time, the Guinness Book of World Records.
  • A bit of a gaff is made on the Guinness World Records website – below each record a link entitled “Break this Record” is programmed to appear below a description of the records described on the site, a clever promotion to encourage other record-breaking feats. Not so clever however, when it appears below the record for “Most Individuals Killed In A Terrorist Act”.
  • The Failblog picks up on the gaff and makes fun of it on their website. They include a screenshot of the website.
  • You notice that the screenshot of the website includes the copyrighted logo of the Guinness brand. Intellectual property law gives you the right to demand that others not use your trademarked/copyrighted material, subject to some exceptions for fair use, etc.
  • Choose your own adventure…

So intellectual property law gives you a legal right. Should you use it? It depends on your objectives doesn’t it? Possible objectives include:

  1. Assuring the record-book-buying public that your client does not in fact mean incite terrorism.
  2. Ensuring that the incident does not further damage your client’s brand by making sure that the incident goes away quietly and quickly.
  3. Making an ass out of yourself and out of your client.

I’m not so sure that last one was actually contemplated by the parties but that seems to be the most obvious result of their chosen course of action, so let’s assume rationality. You sent a fairly standard take down request asserting your trademark rights and giving them a week to remove the offending material. You got this in response: Failblog: OMG U FAIL SO HARD. Could you not see it coming? Did it achieve any of your objectives, other than bringing more shame and notoriety on your client by making them a poster child of cyber-bullying-by-lawyer? Did you not assure that the incident gets even more attention than it otherwise (and justifiably) has?

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