The History Channel issues cease and desist to bloggers

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MarkLives received a cease and desist letter from AETN, parent company of The History Channel, demanding we remove advertising material for The History Channel from this site. For the record, the campaign in question was submitted by Multichoice agency Ogilvy Johannesburg, along with the information in the copy still below to MarkLives.com who published it in good faith.

The AETN letter read in part; “AETN is the owner of numerous trademarks associated with its History network, including the world famous marks THE HISTORY CHANNEL and the H logo (which are the subject of numerous trademark registrations worldwide).

Neither the use and display of AETN’s trademarks nor the purported advertisements themselves were authorized by AETN. As such, your display and hosting of this unauthorized content violates our rights under relevant law and constitutes, among other things, trademark infringement, dilution and tarnishment of our brands and marks, misrepresentation, interference with contract, and unfair business practices.

We therefore demand that you immediate cease and desist from all use and display of AETN’s trademarks, and take all necessary action to remove, delete, and disable the identified content from your website.”

It seems we were not the only site targeted by AETNs lawyers. Adsoftheworld.com removed the material from their site on the same day MarkLives.com received the threat of legal action.

MarkLives.com showcases great South African design. We believe in fair use. We believe in creative freedom and that governments and corporations have erred in insisting in ever tightening copyright laws. It stifles creativity and innovation rather than promoting it. Some laws are needed but we have allowed ourselves to be boxed in by greed and short-sightedness. Everything has to be inspired by something and piracy to our minds should be the primary concern of these laws rather than the diminishment of fair use.

Today corporations think they control calendar years – think 2010 – or letters of the alphabet. It has gone too far.

For the record we believe corporate lawyers are increasingly a threat to freedom of speech and therefore to constitutional democracy. They no longer have to win cases, only draw it out until under funded media independents go broke, as have been explained to me by one such lawyer trying to close down another unrelated article (in the end they failed).

Normally we would stand firm against such editorial interference. However, in an email to AETN, Ogilvy Johannesburg and MarkLives.com, Graham Pfuhl, Marketing and Sales Director at Multichoice, stated that the campaign in question was in fact rejected by Multichoice, and confirmed “no History Channel ads can be published without the prior authorization of AETN.”

Would an ad agency really go ahead and produce a campaign without some sort of authorisation? The point remains unclear as no official correspondence was received from Ogilvy Johannesburg at the time of publication.

While awaiting feedback from Ogilvy, we do believe everybody has a right to put their case after all, and having informed AETN of this fact, they sent us another note stating “We do not understand why, now that you have actual knowledge that this content was unauthorized, you continue to post it and to point to Ogilvy as the source, and this notwithstanding Ogilvy’s clarifications to you and apologies to AETN [Ogilvy has not yet publicly responded, only Multichoice has – ed]. We are sure that you realize that your continued actions subject you to liability regardless of who provided you the content or the circumstances of that delivery.”

This hard headed stance once it was clear that MarkLives.com had no malicious intent in publishing the images (they might be uninformed of this point in South African law) and that we needed some time to allow all the affected parties to respond should weigh heavily on AETN. The profound disrespect shown for proper journalistic practise in a country whose democracy is only 15 years old and where good media practice should be encouraged tells us much of the limiting stands corporations often seek out.

In the end MarkLives decided to remove the content in question though the ads can still be viewed elsewhere on the Web (mostly on Russian language sites it seems). Meanwhile the debate the ads sparked on other advertising sites, particularly Adsoftheworld and mostly around the perceived anti-American stance the ads take and from which we guess The History Channel wanted to disassociate itself has been cut short, brutally and effectively.

Herman Manson

Editor – MarkLives.com