Apparently Best Buy didn’t think our blue polo shirts (with a yellow price tag reading “Improv Everywhere”) were quite as funny as we did. They sent a Cease and Desist letter to both us and our friends at Neighborhoodies who were selling the shirts. Neighborhoodies couldn’t afford to have their entire site taken down (as was threatened) during their busiest month of the year, so they pulled the shirts. We weren’t making any commission on the shirts ourselves (in order to have them be as cheap as possible), but it was a shame to see such a cool shirt go. We figured Best Buy was probably not in the right legally, but did not want to deal with the hassle of legal fees to prove our point.
Here’s where the story gets interesting. Today, Best Buy sent a C&D to our friend Scott Beale over at laughingsquid.com threatening legal action unless he removes the blog post referencing our shirts! They’re threatening to sue someone for just covering the news story of the shirts!
You can see his original post here: IE Best Buy Blue Polo Shirts
And see the mission that inspired all of this here: Best Buy Mission
Our T-Shirt version of the shirt is still for sale: Best Buy Logo T-Shirt ($5.99)
Other Improv Everywhere Missions in retail stores:
111 Shirtless Men in Abercombie and Fitch
Slow Motion Shopping in Home Depot
Dead Playwright Anton Chekov Speaks at Barnes and Noble
Hijacking Listening Stations at Virgin Megastore
Creating a Time Warp in Starbucks
UPDATE: Best Buy Apologizes to Laughing Squid!
UPDATE: Minneapolis local TV news covers the story!
Check out our C&D letter after the jump.
Don’t submit to them! That’s what they WANT you to do! You’re better than them!
My limited understanding of trademarks says Best Buy could lose their exclusive rights to their trademark if they did not enforce it like this. Even if IE’s use of the yellow tag symbol constitutes parody or is otherwise acceptable use, Best Buy still has to err on the side of C&Ding you guys in order to keep their trademark rights. When I first saw that IE/neighborhoodies were selling this shirt I wondered how long until Best Buy found out…
Look into Tom Forsythe. He did a series of photos including Barbie dolls. Mattel sued him and he won based on his work being a parody. Mattel had to pay for his legal fees & costs, around 1.9 million.
http://www.tomforsythe.com
best buy does not approve
Do you have any numbers of how many of the shirts made it out into the wild before the C&D?
Nathan,
I think they sold about 10 of them. So if you own one, you’ve got a pretty rare shirt on your hands.
F*ck best buy! I should have sued them when I had the chance!
I used to work for Best Buy. It’s one of the shadiest, shittiest companies out there. They treat all of their employees like potential thieves, management trains them to basically lie and cheat the customer, and don’t even get me started on Geek Squad. I will never shop there anymore. It’s such a shame CompUSA and other like stores are going out of business because of this yellow-tag monopoly. It’s the Wal-Mart of the electronics world.
Boing Boing just referenced the whole mess!
Let’s see if Best Buy now sues Boing Boing for daring to talk about this…they even posted the fake logo! Doesn’t BB have a bit of money with which they could defend against a frivolous legal action like this?
My opinion is that this is absolutely allowed since it is a parody, but IANAL.
Another T-shirt riffing off of a corporate theme. I’m hardly confused by this. If Best Buy thinks I’m so stupid, I’ll not shop there. There are plenty of other options for mass-market consumer electronic crap.
I’m guessing it crossed over from parody and free publicity into “making money without Best Buy getting a cut” when the shirts went on sale. Really not surprised at the C&D, and if you could get past the lawyers, there are probably plenty of people at Best Buy who were quite amused, fans even, as a result of your performance in their store. Just the lawyers won’t let them tell you that.
I have dealt with Best Buy and their Geek Squad and have found nothing to complain about. But i agree, the C&D is rdiculus but necessary
Here’s an idea, slightly alter the yellow color on the tag, rotate the tag 2 degrees. Oh and some advice for best buy: spread cheeks,remove stick.
Ask any lawyer – these C&D letters are completely baseless. They would have to demonstrate serious harm (monetary) to them and profit to you. There is neither. It’s utter crap, and Neighborhoodies is perfectly safe, as is Scott.
The NOLO press has some fine materials on the subject.
This is completely bogus. Trademark provides a protection to keep company A from selling similar, but lesser quality products under the guise of company B, thereby protecting consumers from knock-offs.
Trademarks are designed to do just that, protect consumers, it is not a system designed to allow companies to bully others.
You are not selling anything but a shirt, a parody at that. A parody is (quite) legal, ask the big purple dinosaur named ‘Barney’.
This is one more reason why I don’t shop there.
Maybe my C&D letter’s winging its way to me now, then. We covered the original stunt and then the shirts. Maybe we’ll get two. That would be cool.
I’ve heard that some lawyers, especially those hired by large sh$#@y companies like Best Buy, tend to just send out C&D letters without actually looking into whether there is sound basis for the C&D letters or not. But that’s just hearsay, which may or may not be true.
Hey Best Buy – I know some of your moronic geek squad will be reading this at work, can’t resist watching a car wreck and all, so pass this on – I was going to swing by tomorrow and buy a new 24″ LCD, but man are you all a bunch of jackasses! Luckily you sit right next door to office depot here in my town, so I can still keep my same planned shopping route tomorrow (it’s xmas bonus payday at long last!) and just get it there instead. Cheers!
Bob Barker should sue Best Buy for stealing his Price is Right contestant name tag design.
Charlie, you have a case against Best Buy based on the fact that your shirt is a Parody. Parody is protected by the First Amendment. Also the use of that shape is coincidental based on the fact that others besides Best Buy use that shape for other purposes beside a logo.
At least talk to a lawyer and see what your options are. The fight might be worth it.
Also, a nicely hand written letter to Best Buy is also a great way for us to let them know our thoughts on their C&D letter to IE.
New York has Anti-SLAPP laws; I suggest you look into them here: http://www.casp.net/stateny.html
A SLAPP is a Strategic Lawsuit Against Public Participation, basically where a business sues a person speaking against them and counts on the fact that they cannot afford to defend themselves. Best Buy has a lot of money and lawyers, and it could easily sue people who are using their trademark under rights of fair use or parody. Those people, even though their speech is legally protected, generally just give up because they can’t afford massive legal fees, meaning that even invalid lawsuits can have a chilling effect on free speech. If BB were to file a lawsuit against you, however, you would probably be able to get it dismissed using New York’s Anti-SLAPP statue with a minimum of cost and hassle. As it sounds like they haven’t filed suit yet, the statue may not apply; I don’t think it covers C&D letters, and I completely understand why you are taking the easier route instead of waiting for a lawsuit. But take heart: The little guys are protected.
Liza is correct. The use of the BB tag emblem on the shirt is clearly for parody purposes, and any court would acknowledge this. I find it interesting that with the thousands of IE readers, agents and participants, there is not a single attorney among us willing to do a little pro-bono work on a case that will likely get tossed out on its ass.
Hmm, Well what if the fans make them for the fans.. for the cost of manufacture and postage… and what say happens if one of the fans works in a printing shop…
I wonder were Best buy took there figure’s.
Worst Buy is a crapopoly. Their store representatives are smug and often misleading. Sorry if this is off-topic but I can’t hold off venting my angst against a company (and a work culture) that places greed and bottomline over stewardship and values (i know, the latter is an increasingly vanishing trait in corp America).
It would be harmful to the business if an interaction with an actual customer went the wrong way and they stormed off before you could tell them you were not an employee.
Why stop at Best Buy. There are plenty of retail chains with the polo and khaki uniform. You could also dress up like Geek Squad agents.
Although any chain you target would eventually take similar actions.
Send them a C&D letter telling them to stop sending you C&D letters. That’s what I would do.
I love you all, but I this is pretty clearly Trademark infringement (the shirts are “confusingly similar,” no dobut). It was fun while it lasted, and now someone can make some money auctioning their shirt off on eBay!
I’m really commenting because sometimes even Mr. Megacorp has a right to something, whether we like it or not. And I do believe Mr. Megacorp has a right to his logo in this case.
Rock on, everyone.
Sell a blue shirt and yellow sticker separately. Buyer puts them together. Simple work around?
Well we can find the design easy enough so i guess save it at home and make your own ;) or may be china will do it for us.
Sad state of affairs, corporations, governments, large orgs force their will upon us small peeps just because we don’t have the ways and means to fight back. Too bad they can’t just all be penalized severly at the moment they commit these harrassments of our civil rights.
Freedom of speech, not if you say anything someone bigger doesn’t want to hear.
Sense of humor, hah!
You’re right, you’re completely protected and they’ve just sent out the C&D to cover their arses… after all, lawyers are paid PER LETTER they send. It’s like they can print money – so keep up your parody, stick to your guns and don’t back down… I’ve been in several similar situations, and as long as you stick to your guns, they’ll back down eventually (as then they have to justify the cost to their client). I would also send a letter to the CEO of BestBuy asking them what their lawyers are upto, wasting their money and your time?
Rick
http://FriendSite.com
Please consider posting your C&D to the Chilling Effects site:
http://www.chillingeffects.org/
i’m not going to shop at corporate vampire with no sense of humor. fuck them.
Both are pretty funny. A bunch of people going into Best Buy dressed up as employees messing with customers is laughable but seems more like a 1 time funny kind of joke.
I also think it’s funny Best Buy is wasting its time & money in taking some legal action. You wanted a reaction well hear you go.
Unlike most of the people commenting I don’t pretend to be an expert in law. Just come up with another funny improv we can enjoy and sell us a different T-Shirt.
…”took there figure’s”
David, I wonder where you learned to spell?
I think no one can say that they own a specific design, the logo they use is standard format for a ticket found almost everywhere.
unless it says Best Buy sucks ass or something like that, they cant possibly win their case, that’s like saying that a smiley face is owned by someone.
If they win they hey let’s all create companies with Logos that are common and sue everyone else for using the same shape.
America sucks ass sometimes
INAL…
As others have pointed out, since Best Buy uses this as an “official” uniform they may have a case, but the question is have they registered that uniform under trademark laws? Or are they just puffing up their chest and in the back of their mind wondering, “Shit, did we trademark the blue polo shirt with the yellow tag?”
IMHO, this warrants further investigation.
Personally, I haven’t bought anything in Best Buy for years. DVDs are cheaper at Target and Walmart OR online at Buy.com. As for computer parts…. Considering the prices they charge for simple Cat5 cables, I can only wonder how much profit they make on other computer parts. No thanks. NewEgg.com is the way to go. Great prices. Great service. And no I don’t work for NewEgg, just a satisfied customer.
I have to leave a comment since a few people have been implying that Best Buy doesn’t have a case legally. Being a Canadian patent and trade-mark lawyer, I have a few comments, though perhaps a US trade-mark lawyer could correct any details I have wrong.
First of all, parody is only a defense to copyright infringement, not trade-mark infringement. A defense would be based on whether there is a likelihood of confusion between the marks (a very specific legal test looking at a number of factors). I’m not sure where one reader states that Best Buy would have to prove “serious harm (monetary) [to Best Buy] and profit [to Improv Everywhere]…” in order to succeed in an action for infringement, but this is incorrect as well. The above factors would affect the amount of damages that are awarded should the plaintiff be successful. I don’t believe an anti-SLAPP suit is applicable since Best Buy has only sent a cease-and-desist and has not filed a lawsuit, though I may be incorrect on this point.
To summarize, Best Buy has a reasonable (if not strong) case against the sale of the shirts based on their trade-mark registrations. Steve McFarland is closest to the truth when he says that this is likely trade-mark infringement. Best Buy may also have a case based on trade-mark dilution if their trade-mark is found to be a famous mark.
Another point by misterhaan is important, trade-marks have to be used and enforced in order to remain valid. There have been cases where a trade-mark owner lost rights to a trade-mark because they did not prevent others from using the mark, which led to the mark losing its distinctiveness (see for example the Yellow pages “walking fingers” trade-mark case). Also note that Best Buy has retracted the c and d sent to Laughing Squid since they clearly do not have a case against a website reporting on the situation.
Hopefully this information is helpful (not legal advice!) – I sympathize with you guys but I also understand where Best Buy is coming from.
Steve, I am not a lawyer but from your own link Wikipedia disagrees with you.
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the “infringer”, uses a trademark which is identical or confusingly similar to a trademark owned by another party,
[here is the part that matters]
in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration.
I don’t think the shirts insignia were for similiar products or service. Given this is the way the law is written, that it has to be confusingly similiar and be used for similiar products or services then they don’t have a leg to stand on.
Either way it is your call, in the end even if you can get them to back down it will take time from your life, and maybe some money even if not much.
They’re well within their rights. You got pwnd
Best Buy clearly sucks and has no humor. Go ImprovEverywhere t-shirts!!!
And, I’ll admit it, for about five minutes I thought that Cease and Desist were people. Damn capitals. :/
I rarely ever shop at Best Buy anyways. I always wondered what would happen if they had no idea who was in charge of the blog? How do they send out a C&D letter anyways?
After the new year sell the “opposite” shirt. Make it a yellow shirt with a blue tag facing the opposite direction and BAM you’ve got a legal shirt that your fans will still appreciate.
So … who is going to sue IE for the A&F event? Does A&F have a copyright on shirtless men? Or maybe God will sue. Does God have a legal department?
He really should. There are a lot of defective “products” God puts on the market … and they all work at Best Buy.
;)
Vernon~ Actually parody does appear to be a valid defense against trademark infringement, it falls under the general defense of fair use. The courts still seem to balance a number of factors in determining whether such a parody is fair use, but it is indeed a defense. For those interested, this link has a fairly well done outline. http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm
lol jean! i think god should have a legal department.
Anyway, I knew it was only a matter of time before Best Buy did something. It sucks, but that’s life, and y’all have made it very clear that you don’t want anymore trouble, so maybe I’ll hit up ebay to see if any of the shirts on there! ;)
Best Buy PR = fail.
Im thinking that all this negative publicity will probably hurt their company a lot more than the T-shirts on sale. Ultimately, large companies need to realize that sometimes the cost of using their lawyers to get what they want (rightly or wrongly) can have more of a cost than they expect.
I have been an intellectual property lawyer practicing in California for 13 years. Best Buy has NO solid legal grounds for suing you. They do not own a copyright or any other right to the colors blue and khaki on their uniforms, particularly if you have your name clearly marked on your shirt. But, as a practical matter, these big companies love to scare everyone else into submission with some fancy letterhead from a lawyer’s office. Don’t be fooled, its complete horseshit. I am salivating, hoping they go after me for this comment. Good luck to you, anyway, I’m a big fan. But be nice to people, and think through how people will react. Brighten, don’t ruin their lives.
Guess I won’t be buying anything from them anytime soon
Ha! Too funny, can I buy these anywhere?
Lee