Jul 29 2014

Whose Skyline Is It Anyway?

Looks like the Port Authority of NY and NJ which  operates many of the City’s tunnels and bridges and the World Trade Center site, has finally moved off of BridgeGate and corruption issues and to to bigger fish. Specifically Fish’s Eddy, a quirky NYC housewares store. The NY Times reports today that Port Authority Lawyer Veronica Rodriguez fired off a cease and desist letter to the popular store (now located on 18th and Broadway or on the web at www.fishseddy.com) regarding its series of dishes, glasses and other household items that are part of its “212 New York Skyline” series and “Bridge and Tunnel” series.

The Port Authority is concerned that these two product lines contain drawings of the Twin Towers and the entrances to the Lincoln and Holland Tunnel.  Specifically (and incredibly) the letter states that the depiction of the skyline with the Towers would “evoke thoughts of the Port Authority, the twin towers, W.T.C. and the September 11th terrorist attacks.”  Take a look at some of the offending items from the company’s online catalog:

 

212 dinner platebridge and tunnel items

 

Don’t these whimsical, original representations of City landmarks just make you immediately think of 9-11? Don’t they just scream “Port Authority!” at you?  Well according to Ms. Rodriguez’ the items  are  “unfairly reaping a benefit from an association with the Port Authority and the [9-11] attacks.”  But can a municipal agency control the depiction of its municipal property?  The government normally does not own any intellectual property – everything it owns is in the public domain. But it may have aright to trademark certain items or logos when it acts in a commercial enterprise. And that may be the crux of the Port Authority’s argument here.  Once you decide to pay $24 to visit the site of the World Trade Center Attacks, you will be led to a gift shop where you can purchase Freedom Tower and other site-related memorabilia. Since that just opened this year, that may explain why the Port Authority decided to write Fish’s Eddy now even though the lines have been available for sale for over 10 years the last thing you ever want to do is get in business competing with the government.- you’re better off opening up a pork store across the street from Tony Soprano’s place.

But to be a valid trademark claim they would have to prove that the sale of these items confuses consumers into thinking they are officially sold by the Port Authority or that hey diluted the market and trademark of the Port Authority items. Here are some items from the City’s Official “World Trade Center and 9-11 Commemorative Collection” (www.nycwebstore.com):

 

CA-WTC Statue clock_nyc_skyline_silver_WTC Ornament

 

I personally like the Christmas “We Will Never Forget” ornament. There is simply no chance that a consumer would think that Fish’s Eddy products come from the official City Store as they are markedly different and do not specifically even highlight the Towers.  Incidentally, I wonder if the Port Authority or the City got permission from the owners of the Chrysler Building and the Empire State Building to use their iconic buildings in the snow globe depicted above. Well guess what, chances are they would not have to because while their architectural plans are copyrighted   and it would be an infringement to recreate the buildings using those plans, making a simple representation of the shape or outline of the buildings would not violate that copyright.  These buildings, tunnels, and features of the skyline cannot be privately protected from this form of representation.

It is also disingenuous and startling that the PA would think that Fish’s Eddy sale of these products “interferes with the Port Authority’s control of its own reputation.”  How? And what reputation is that exactly? JFK and LGA are perennially on the top five list of worst airports in the country; we recently learned that the NJ Governor’s office shut down a PA bridge on political whim; it took forever to get an agreement on the design and construction of the Twin Towers’ replacement; try crossing the Holland Tunnel on a Friday evening and see how long it takes you.  In short, the Port Authority should be so lucky  to be affiliated with these products.If they were smart that ‘s why they would be writing to the store about -getting a working relationship established so that they can be added to the “9-11 Commemorative Collection” they hawk on their own.

The Times reports that Fish’s Eddy successfully stood up to a similar claim brought by the owners of the Chrysler Building about 15-16 years ago. If a private owner did not succeed, a public entity has even less of a shot. I think the PA should think of a better way of financing the site than by bringing an infringement claim with little to no chance of success. They should be addressing why their ticket prices are so high:  $24 for adults; $18 for Vets and Seniors; $15 for kids over 7;  and $12 for NYPD, NYFD and PAPD officers(though it is free on Tuesdays between 5pm and 7pm!). Making the 9-11 Memorial and Museum affordable for families and tourists would go a long way to enhancing the Port Authority’s reputation.   I don’t know why they think it has any value now worth protecting from this china.

 

 

 

 

 

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