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IP Sanity: Boston Strong Trademark Applications Denied (Trademark)

by Timothy Geigner

from the strength-in-numbers dept on Wednesday, April 23rd, 2014 @ 3:42PM

With all of the trademark insanity we see here at Techdirt, it can occasionally seem like the USPTO doesn't ever render a good decision on whether or not to approve a mark. With that in mind, I occasionally like to highlight when trademark law -- one of the few IP laws that seems to get as much right as wrong -- is done correctly. Take, for instance, the case of the apparently zillions of organizations that attempted to trademark "Boston Strong" in the wake of the bombing of the marathon last year.

The Boston Beer Company, makers of Samuel Adams, was among many that had applied for the "Boston Strong" trademark. The USPTO, in a moment of uncommon clarity, denied it on the grounds that the phrase was both a poor representation of a brand and also had moved into the common lexicon surrounding the tragedy.

“It has resulted in a Facebook website; is used by the Boston Red Sox baseball club; appears on shoelace medallions; was the name of a concert in support of the marathon bombing victims; is the title of a planned movie about the marathon bombing; and appears emblazoned across the front of t-shirts provided by numerous different entities,” the decision said. “The use of the slogan is so widespread with respect to the marathon bombing as well as other uses, that its use has become ‘ubiquitous.' The applied-for mark merely conveys an informational social, political, religious, or similar kind of message; it does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.”
While many of the companies in question were looking to apply the attempted trademark to some wonderful endeavors (Boston Beer Company, for instance, donated proceeds to support victims and their families), denying the mark doesn't stop any of that, it simply stops anyone from locking up what has become a common term of support for the city and victims of the bombing. It actually would have been interesting, had the mark been approved, to see how the charitable organization LiveStrong, famous for its affiliation with horrible-person Lance Armstrong, would have responded. That, however, didn't occur.

The larger point is that while we live in a world of permission culture and language-lock-ups via IP laws, we still see moments of clarity. There's simply no way a "Boston Strong" trademark would have served any public interest, and to lock that phrase up, even for charitable purposes, would have been a poor decision. The USPTO got this one right.


Police Chief: Not Wanting To Talk To Police Officers Is 'Odd' (Legal Issues)

by Tim Cushing

from the and-following-a-woman-down-the-street-on-your-bike-ISN'T? dept on Wednesday, April 23rd, 2014 @ 2:34PM

This insight into how police think the public should interact with them is certainly enlightening. (via this tweet and Amy Alkon's Advice Goddess blog)

The backstory is this: a woman was walking down the street when a motorcycle cop approached her, asked her if she lived in the area and if she would talk to him. She says his approach made her feel uncomfortable, so she refused and continued on her way.

"I thought that maybe he was flirting," she said. "I just thought it was odd, I thought it was odd. I wasn't really sure but I felt uncomfortable because there wasn't anyone around."

She says she was worried he might not even a real cop, so she refused to stop and began jogging away from him.

"He just crept along beside me on his motorcycle and he started saying, 'Hey ma'am! I want to talk to you. Hey stop, ma'am! I want to talk to you.' Then my anxiety rose even higher," she said.
This was followed shortly thereafter by the cop dismounting, chasing her down, tackling her and placing her under arrest. The police chief claims this arrest was for "walking on the wrong side of the road," (as well as "evading arrest" and "resisting arrest") despite the fact that the woman wasn't ultimately charged with anything.

Even if the preceding events could possibly be dismissed as hearsay, or something tainted by false impressions and emotions, there's the police chief's responses to questions about this interaction.

Whitehouse Police Chief Craig Shelton says this:
Shelton says by law you're not required to stop and talk to an officer if there's not a lawful reason for them to be stopping you.
But then he says this:
"Normally if a police officer pulls up, in my opinion, it's awful odd for somebody just to take off and not want to speak to the police officer," Shelton said.
Yes, this may seem "odd" to a police officer, but it's not all that odd for citizens, even those committing no real crime (Shelton justifies the stop with the "walking on the wrong side of the street" crap) to have no desire to talk to police officers. A huge imbalance of power makes conversation uncomfortable. Anyone who's attempted small talk with their boss understands this. If someone doesn't want to talk to a cop, it's not odd, it's normal.

Only a cop -- someone who doesn't understand the strain caused by the imbalance of power -- would consider this response "odd." And when law enforcement officials use the word "odd," they actually mean "suspicious." (Hence this woman being chased, tackled and arrested -- all for "walking on the wrong side of the street.") Holding a conversation with a cop without somehow appearing nervous, fidgety or otherwise strained (all natural body responses that will be read by most cops as signs of guilt) isn't something many people can do. Knowing that these common reactions will only serve to "alert" cops to theoretical criminal behavior further exacerbates the situation.

Beyond that, there's the other assertions Shelton makes in defense of his officer's actions. First, he claims the cop's motorcycle and uniform clearly indicated he was a cop and not some bad guy seeking to do harm.
"The motorcycle has a patch on both sides of the gas tank. It's black and white and says 'Whitehouse Police,' and has red and blue lights on it," Whitehouse Police Chief Craig Shelton said. "So you have to take it for what it is. Do you think he's a Whitehouse police officer? Why would you think he's someone impersonating a police officer?"
Why would you assume he isn't? Shelton is completely divorced from reality. For one, most people can't determine the difference between a cop and an impostor, especially if they're making active efforts to disengage from the interaction.

For another, plenty of cops -- real cops -- have been charged with rape and sexual assault. So, being a legitimate cop doesn't really eliminate the danger for a woman walking on her own with no one else around. Sure, this cop may not be a rapist, but I would imagine those who have been raped by a cop probably thought the officer who violated them wasn't a rapist right up to the point they were being raped.

The fact is that the woman probably would have extricated herself from the situation no matter what. A strange man -- in uniform or out -- persistently trying to get a woman to talk to him in an area with few other pedestrians is almost always going to be treated as a possible threat. It's the persistence that sets off the alarms. If you're rebuffed and go away, the threat subsides. But if you persist, whether you're just some stranger or a guy in full uniform on a police motorcycle, it will continue to push the needle toward "threat."

But that's the problem. Despite all of this, Chief Shelton just thinks it's "odd" the woman wouldn't stop. Shelton makes things even worse by making this contradictory claim.
Bonnette hasn't been charged with anything, but the entire incident was caught on dashcam video and Shelton says it will be investigated further. He also says Johnson acted appropriately and won't be reprimanded.
There go the odds of ever seeing the video. Shelton has already cleared the officer ahead of his promise to investigate further. How does that even add up in his head? He's already made his decision. Unless, of course, he means he's going to investigate to see if any further charges can be brought against the "odd" woman who refused to talk to his officer until he had her pinned on the ground and handcuffed. But that would just be vindictive and surely the Whitehouse PD is above that. If that's not what Shelton meant, then the investigation he's performing will be open-and-shut, caged in by air quotes and quite possibly doing away altogether with the bothersome "open" half of open-and-shut.


NYPD Failed At Social Media This Time, But They Reacted Like Adults To That Failure (Failures)

by Timothy Geigner

from the what'd-you-expect? dept on Wednesday, April 23rd, 2014 @ 1:16PM

If you were alive yesterday and opened up a web browser, you likely saw the story of how the NYPD attempted to build some social media buzz and found that attempt turned around on its ass. The police force that has previously done a decent job at connecting with people on Twitter decided to run a campaign asking the public to share photos of themselves with police officers. They probably thought most of the pictures would be of smiling and appreciative citizens and local beat cops. Let's just say their expectations were slightly off the mark.

Almost immediately after the call went out from the department's official Twitter account, storms of users took the opportunity to instead attach some of the most unfavorable images of New York City officers that could be found on the Internet. And judging by the output on Tuesday, there are quite a few. Officers holding down a photographer on the pavement and a white-shirted supervisor twisting an arm, among scores taken during Occupy Wall Street protests. An officer knocking a bicyclist to the ground during a Critical Mass protest ride, and another dancing provocatively with a barely clad paradegoer. A dog being shot. Officers on trial, or sleeping in uniform on a subway train.
Oops. But this probably should have been expected in response to a police force that has had some very serious public relations problems revolving around some serious policy decisions. Stop and frisk, waste and fraud, and an apparent distaste for citizen journalists were on everyone's mind and the backlash was as severe as described above. Having found their campaign being turned into a PR nightmare, you might think the NYPD would react angrily to yesterday's mishap. It turns out they were prepared to be adults.
A spokeswoman for the department, Deputy Chief Kim Y. Royster, said in a two-sentence statement Tuesday evening that the department was “creating new ways to communicate effectively with the community” and that Twitter provided “an open forum for an uncensored exchange” that is “good for our city.”

The experience will not stop the department from pushing forward with social media endeavors, its top spokesman, Stephen Davis, said. “You take the good with the bad,” he said.
Look, I realize that praising Royster's statement in light of the larger problems the NYPD has in interacting with their own citizenry may seem strange, but the fact is that both spokespeople are absolutely correct. The entire point of social media is about engagement. If that engagement doesn't go exactly as they expected, and it certainly didn't, that doesn't mean there isn't value in it. Choosing to respond in an adult way means the trolling doesn't get any worse and may actually provide an avenue for dialog that results in real change. It may be a small thing, but it's still a good thing.


LG/Netflix Rebate Site Exposes User Data With AT&T-Esque Hole [Updated] ((Mis)Uses of Technology)

by Tim Cushing

from the self-hacking? dept on Wednesday, April 23rd, 2014 @ 12:15PM

[Update: hole has been closed by ACB's IT team]

The Computer Fraud and Abuse Act is so severely flawed that people are extremely hesitant to report security holes in websites, especially after witnessing what happened to Weev (Andrew Auernheimer), who went to jail for exposing a flaw in AT&T's site that exposed user info when values in the URL were incremented.

The same goes here with this submission from an anonymous Techdirt reader who added this note, along with a link to a post in the Computer Security subreddit.

"I remember a person was recently arrested for finding this same flaw in a website and told (at&t/apple??) about it. He was arrested and jailed if I remember right. This is the type of chilling effects that come when people view techies as hackers and are arrested for pointing out flaws.

The flaw is in:


By changing the number at the end you can harvest personal info.

I won't report the flaw, I could go to jail."
Is that overdramatic? Doubtful. People have reported security flaws to companies only to have these entities press charges, file lawsuits or otherwise tell them to shut up. Weev's only out because the government's case was brought in the wrong venue. The CFAA, which has been used to punish many helpful people, is still intact and as awful as ever.

As the (also anonymous) redditor points out, he or she has tried to contact the company but has found no avenue to address this security hole which exposes names, addresses and email addresses of customers sending in claims for a free year of Netflix streaming that came bundled with their purchase of an LG Smart TV. Incrementing the digits at the end of the URL brings up other claims, some with images of receipts attached. In addition, anyone can upload support documents to these claims.

Here's a screenshot of the hole in question:

As the original poster points out, with a little coding, someone could put together a database of addresses that most likely house a brand new LG Smart TV. And this may not just be limited to LG. ACB Incentives is the company behind this promotion, and it handles the same sort of online rebate forms for a variety of companies. These rebate submission sites all branch off acbincentives.com, which could mean it's just a matter of figuring out how each one handles submitted claims, URL-wise.

Now, I've contacted the company to let them know. Amanda Phelps at the Memphis branch says she's bringing it to the attention of programming. I also let her know that it may affect other rebate pages but that I can't confirm that. We'll see how quickly this is closed*, but all in all, the people at ACB seemed to be concerned and helpful, rather than suspcious.

*Very quickly, it appears. See note at top of post.

But the underlying point remains. Many people who discover these flaws aren't criminals and aren't looking to expose the data of thousands of unsuspecting users. They're simply concerned that this is happening and often incredulous that major companies would be this careless with customers' data. That the kneejerk reaction has often been to shoot the messenger definitely gives those discovering these holes second thoughts as to reporting them, a hesitation that could allow someone with more nefarious aims to exploit the exposed data. The law needs to change, and so does the attitude that anyone discovering a flaw must be some sort of evil hacker -- or that the entity must do whatever it takes, even if it means throwing the CFAA at someone, just to prevent a little embarrassment.


Google Appeals Moronic Court Order Demanding It Hunt Down Third Party Sites And 'Take' Offending Content 'Back' (Legal Issues)

by Tim Cushing

from the the-googlenet dept on Wednesday, April 23rd, 2014 @ 11:09AM

Search engines own the internet. The rest of us are just renting space. At least, that's what a Texas court seems to believe. Google is in court fighting a gag order telling it to chase down and remove certain mentions of a certain lawyer from the internet. (via WaCon)

[I]n a stunning and all-encompassing gag order signed over a year ago and now being appealed to Houston's 1st Court of Appeals, attorney Calvin C. Jackson, who was accused of forging attorney signatures on court records, demands Google erase all mention of those accusations from the entire Internet including other websites.
Jackson, who settled over these allegations (details also under a gag order), now wants it all to just go away. And he's gotten a Texas court to agree with him. Not only does he want the past erased, he's also seeking to bar "Google" from ever mentioning this unpleasantness again. So, we have both prior restraint and an impossibility, all wrapped up in a terrible gag order.

The requests Google is fighting play right to the edges of the "ridiculousness' envelope. Cleaning the internet isn't like expunging a criminal record, but this Texas court apparently feels Google (and other search engines) should be able to just go around deleting stuff, even stuff they doesn't own (which would be pretty much all of it).
The gag order, signed by visiting San Antonio Judge Richard Price in February 2013, forces Google and other search engines to wipe out all record of the allegations from the Internet. It also compels the search engine to find third parties who posted the information to get it back and destroy it.
"Get it back?" The hell? Does this judge really believe Google can just knock on the door of other sites and demand they hand over the "hard copy?" Once again, we have someone with power mistaking his home page for "The Internet." Google and other search engines index the web. They are not in charge of the web.

Judge Price doesn't seem to have any idea how Google is supposed to prevent future discussions of this case from appearing anywhere on the web. He just seems to feel a big company like this should be able to do anything he imagines it can. If he ever decides to leave the judicial racket, I'm sure the MPAA can set him up with an office, if UK Prime Minister David Cameron doesn't snatch him up first.

Let's not worry about that First Amendment. Let's just let Calvin Jackson control his past and future via court orders. Except that's not working out very well for him. The order may be sealed but the gag order doesn't cover this sort of discussion, or Google's arguments against prior restraint and impossibility. All he's done (with the court's blessing) is ensure more discussion of past allegations. And until this order gets reversed, every site discussing this (like us) will apparently be waiting for Google to knock on the door and ask that we turn over our "originals."


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