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Court Rules MoveOn.org Can Use LA Slogan To Criticize Bobby Jindal (Trademark)

by Timothy Geigner

from the criticize-on dept on Thursday, April 17th, 2014 @ 8:06PM

Last month, Tim Cushing wrote about how the Lt. Gov. of Louisiana, Jay Dardenne, had sued Moveon.org over a billboard that used the state's trademarked "Pick your passion!" slogan. The suit was filled with so much technicality-probing nonsense, one wondered how a judge would be able to look through it without needing a couple of long naps. Chief among the claims was that folks seeing the billboard might somehow think the Lt. Governor was responsible for criticizing the Governor, Bobby Jindal, despite the fact the billboard wasn't meant for commercial purposes, criticized the same government Dardenne is a part of, and clearly denotes the responsible party as Moveon.org. It seemed like a pretty clear attempt to stifle criticism over the technicality of a frivolous trademark claim. More egregious, Dardenne wanted the billboard removed while the case was litigated.

Fortunately, while we hear so many stories like this that end up with courts being overprotective of any intellectual property claim, the court has sided with free speech and ruled the billboard will stay up while the trademark claim makes its way through the court.

U.S. Judge Shelly D. Dick, who is over seeing the case, said in an April 7 ruling that forcing the group to take down the sign while the trademark infringement issue is being litigated would deny MoveOn.org its right to free political speech. Dick said while the State of Louisiana’s tourism trademark is a legally protectable mark, the burden of proving trademark infringement is on the state which would have to present more compelling information that the infringement was occurring especially because the billboard was merely expressing a point of view.

“The State argues that viewers of the billboard will be confused into thinking that the Lieutenant Governor, as the alleged owner of the service mark, is being critical of the Governor. In this Court’s view, the Lieutenant Governor underestimates the intelligence and reasonableness of people viewing the billboard,” Dick’s ruling states.
It's an interesting distinction in the ruling, since to disagree would put Dardenne in the uncomfortable position of suggesting his own constituents aren't as intelligent as Judge Dick thinks. In any case, the ruling goes on to note that its the actual citizens of Louisiana that would get to claim ownership of the trademarked slogan, rather than any individual members of the state's government who were the billboard's actual targets, and that no irreparable harm had been proven.

So the billboard stays up and the justice system proves it thinks more of the citizens of Louisiana than some in the state's own government. Meanwhile, a small single billboard continues to find its way into the media spotlight, where it likely never would have found any purchase if the attempt to take it down hadn't been made. Well done all around, Lt. Governor!

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DailyDirt: How Old Can People Get? (Too Much Free Time)

by Michael Ho

from the urls-we-dig-up dept on Thursday, April 17th, 2014 @ 5:00PM
Some biblical characters lived for hundreds of years. (eg. Methuselah lived to be 969.) However, people living now don't quite get that old. Aging is a mysterious process that is slowly killing everyone, and there are more than a few projects working on ways to avoid death. Immortality could be a blessing or a curse, and maybe someday we'll find out which it is. If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.
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Nike, Huge IP Proponent, Blatantly Infringes Shawne Merriman's Trademark (Trademark)

by Timothy Geigner

from the live-by-IP-law,-die-by-IP-law dept on Thursday, April 17th, 2014 @ 3:47PM

Let's lay out a couple of things we know. First, trademark is one of the better IP laws out there, ostensibly designed to limit customer confusion between brands (though it's still open to significant abuse). We also know that Nike, maker of all things apparel, firmly believes in the strongest of protections against anyone infringing on any of their intellectual property. We also know that Nike firmly believes that limits on copying sure as hell don't apply to Nike.

But I'm not sure we knew just how brazen they could be. Such appears to be the case when Nike decides to just blatantly use someone else's trademark of which they were absolutely aware.

Former San Diego Chargers linebacker Shawne Merriman is suing athletic equipment giant Nike in San Diego federal court, alleging unfair competition and trademark infringement of his "Lights Out" brand. The suit, filed by Merriman's company, Lights Out Holdings, LLC, demands immediate injunctive relief to stop Nike's alleged actions, plus millions of dollars in damages. Merriman said he holds the federal trademark for the "Lights Out" brand on a Nike clothing line, which includes a broad range of apparel for men, women and children.
We deal a lot with frivolous trademark threats and suits that never appear to amount to much of the customer confusion the law is supposed to address, but this doesn't appear to be one of those cases. We're dealing with Nike using the mark, which Merriman holds, on similar sports apparel and clothes. Merriman is a sports figure whose company produces a clothing line. What makes this most egregious is that Nike was quite aware of the mark.
In late 2006 or 2007, according to the lawsuit, Nike entered into negotiations with Merriman for a "Lights Out" line of apparel. Negotiations between Merriman and Nike were unsuccessful but "after these discussions Nike decided to use the `Lights Out' clothing brand anyway," the suit alleges.
How nice of them. I'm sure they would look quite kindly on anyone who decided to just appropriate their infamous swoosh. Hypocrisy, thy name is Nike.

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Eli Lilly Enlists Congress In Fight Against Canada For Refusing Patent On Useless Drug (Patents)

by Mike Masnick

from the war-on-all-fronts dept on Thursday, April 17th, 2014 @ 2:29PM
Eli Lilly bet its entire business model on patents years back, rather than on creating useful products that people want to buy. Lately it's been having trouble getting new patents, and is reacting extremely poorly to the fact that its last-gasp efforts to get new patents aren't working. As we've noted, a few years back, Canada rejected some patent applications for some Eli Lilly drug after the Canadian patent board "determined that the drug had failed to deliver the benefits the firm promised when obtaining the patent." In other words, after realizing that the drug is not useful, Canada rejected the patent.

And Eli Lilly flipped out.

Eli Lilly has sued Canada for $500 million claiming "lost profits." How is this possible, you ask? Well, it's those corporate sovereignty provisions that are finding their way into various trade agreements lately. They're usually called "investor state dispute settlement" (ISDS) provisions, because supporters know that such a phrase will bore most people to death and they won't realize what's happening. Eli Lilly is arguing that Canada's decision to check to see if a drug is actually useful somehow violates its international agreements. And thus that a sovereign decision by Canada not to patent drugs of questionable benefit is not just a violation of trade, but stomping on Eli Lilly's expected profits.

Lilly is now raising the stakes. Not only has it asked the USTR to put Canada back on the wacky "Special 301 list" of "naughty countries" that don't bow before American corporate demands, but it's convinced 32 members of Congress to out themselves as corporate shills for Eli Lilly by demanding that the USTR follow through on this request.

Eli Lilly seems to have no shame about this, happily admitting that it's behind this effort to have the US punish Canada for daring to judge whether or not a drug is useful. As he told the Wall Street Journal:
“We’ve been unsuccessful in bringing about change by other means,” said Lilly chief executive John Lechleiter. “It’s an issue right at our back door. And unfortunately, we’re afraid it can lead to other countries attempting to undermine intellectual property.”
No, not "undermine intellectual property." It's about actually making sure, before giving you a decades-long monopoly right, that your drug is actually useful. Of course, if the USTR actually follows through and puts Canada on the Special 301 list, it will just cement what a complete joke the Special 301 list really is. For years, the USTR -- at the behest of Hollywood -- put Canada on the Special 301 list. Each year Canadian officials would specifically state that they "don't recognize" the process of the Special 301 list as being legitimate (because it's not) and then proceed to do nothing. Eventually, though, with a new government in place, Canada did change its copyright laws, and was "downgraded" on the Special 301 list. Upgrading them back up to a "pirate" nation will just highlight why Canada (and every other country) should totally ignore the nearly entirely arbitrariness of the list.

Meanwhile, shame on those 32 members of Congress for supporting such a blatant attempt by a company to interfere in the sovereignty of Canada and its crazy idea that drugs should actually be useful to deserve patent protection.

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Square Enix: DRM Is Here To Stay ((Mis)Uses of Technology)

by Timothy Geigner

from the no-it-isn't dept on Thursday, April 17th, 2014 @ 1:27PM

There may have been a time in the past few years when you'd have sworn DRM was on its way out the digital door. Between free-to-play games, strong consumer feedback, and the overall failure of DRM to actually stop anyone actually interested in pirating games, movies or music, there just didn't seem to be much point any longer. With the advent of new crowdfunding business models, DRM made even less sense. But not only is DRM still around, legacy players using it are actually torpedoing otherwise useful leaps forward in business in story after story. And, despite the fact that some entrenched industry players are wising up to the futile nature of DRM, others are digging in their heels.

Such appears to be the case with Square Enix, the game producer responsible for such franchises as Final Fantasy. Square says DRM is here to stay, despite all of its problems.

Adam Sullivan, Square Enix America’s Senior Manager of Business and Legal Affairs, informs TorrentFreak that the company’s choice to include DRM in its products has its roots in a simple concept – maximizing revenue.

“We have a well-known reputation for being very protective of our IPs, which does deter many would-be pirates,” Sullivan adds. “However, effectiveness is notoriously difficult to measure — in short, we rely on the data available to us through our sales team and various vendors, along with consumer feedback.”
It's an interesting comment, in that it doesn't make a great deal of sense. The consuming public is notoriously anti-DRM, all the more so assuming Square Enix is primarily listening to the feedback of actual customers. Why would they be in favor of DRM? They're already paying. As for the feedback of the sales and vending partners, I assume it's no secret to them how laughably easy it is for anyone interested to circumvent DRM and pirate simple games if they're so inclined. Here's the amazing thing: most people aren't so inclined. Assuming a product is of a certain quality, priced to meet customer demand, and convenient to purchase, most people aren't interested in pirating these items. I know this because, as already stated, piracy isn't that tough, yet Square makes a great deal of money.
“The key to DRM is that it can’t interfere with the customer’s ability to play the game,” Sullivan says. “It’s not uncommon for people to get a new computer every few years, or to have multiple computers. Sometimes they don’t have reliable internet connections. There’s no perfect solution yet.”
Sure, but such imperfections only effect paying customers, which is the entire problem. There isn't a single pirate out there jumping through your DRM obstacle course, or finding themselves unable to jump through it. Just the paying customers. And Square's reaction to this?
“This depends on your definition of DRM, but generally yes — I think DRM will be essential for the foreseeable future,” Sullivan explains.
Essential isn't the word you're looking for. The correct word would be futile. But, hey, go on throwing those obstacles up for your customers while the pirates walk around them; I'm sure that will work out well in the long run.

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