by Mike Masnick
Tue, Jul 28th 2009 7:18pm
by Mike Masnick
Mon, Jul 13th 2009 6:10pm
from the blame-the-real-party! dept
by Mike Masnick
Tue, May 19th 2009 8:20am
from the money-money-money-money dept
When I saw the NY Times coverage of the lawsuit, it caught my attention that the woman behind the lawsuit was named Audrey Spangenberg, because it reminded me of Erich Spangenberg, a rather notorious patent hoarder who has made millions producing nothing, but suing an awful lot. This is the same Erich Spangenberg who had to pay $4 million after he was caught shuffling patents around among his many different shell companies, so that he could sue Chrysler three times over the same patent, despite earlier settlements promising never to use the same patent against Chrysler again.
Still, I figured it must be a coincidence -- surely, there must be a fair number of Spangenbergs in the world. However, Joe Mullin, IP reporter extraordinaire, has a detailed post explaining that the two are, in fact, married, and also detailing how Erich Spangenberg has sued Google multiple times for patent infringement. Apparently, the family is branching out into questionable trademark lawsuits as well. Audrey Spangenberg claims (don't they always?) that the lawsuit is about "respect for intellectual property" rather than money. So, I'm sure that she'll gladly donate any money she and her husband make from all these lawsuits to groups that respect intellectual property, such as Creative Commons, EFF or the Free Software Foundation, right?
Fri, Apr 10th 2009 6:48am
from the speaks-to-credibility-your-honor dept
by Mike Masnick
Fri, Mar 20th 2009 12:39am
from the utah-politics-at-work dept
"We should be going after the Googles that are creating this problem. They're the villains." .... "If we're going to use the strength and resources of the state to go after businesses, then we ought to go after the business that is causing the harm. ... We ought to go after the Googles with the state's resources and reputation."Then, there's Rep. Jennifer "Jen" Seelig, who voted for the bill. But, that shouldn't be surprising. You see, even though she's an elected official in the state legislator, she's also still employed as a registered lobbyist for 1-800 Contacts, the company that has been pushing the bill. Apparently that sort of conflict of interest isn't seen as a problem in Utah.
from the complex-markets dept
A couple of years back we noted that the Utah legislature was considering legislation that would have banned companies from buying search ads related to their competitors' brand names. EFF and others said the law was likely unconstitutional, but the legislature passed it anyway. The legislation was such a disaster that last year the Utah legislature repealed it. Incredibly, despite all the negative publicity the 2007 bill received, and despite assurances from legislators that they'd learned their lesson, the backers of the legislation haven't given up. This year they introduced yet another bill restricting keyword advertising that passed the Utah House but died in the Utah Senate a few days ago. Given the tenacity of the bill's sponsors—1-800-Contacts is reportedly the leading backer of the proposal—the proposal may very well come back in future years.
Proposals to regulate keyword advertising have come in for a lot of criticism, but one person who's willing to defend the Utah proposal is Harvard's Ben Edelman. He argues that the Utah bill is necessary to avoid consumer confusion. He suggests that when consumers search for a trademarked term (say, "Hertz"), they're expecting to see search results related to that company, not to the company's competitors. He argues that if a consumer really wanted results from a variety of different companies, she would have chosen a generic term like "car rental" rather than a specific brand name. But James Grimmelmann points out a couple of problems with this reasoning. First, it shows an awfully low opinion of the intelligence of the average consumer. More importantly, there are circumstances where a consumer wants to see ads for a firm's competitors. For example, a consumer may be considering buying a particular company's products, but might want to check out that company's competitors before making her decision. Searching for that company's name is a quick and easy way to find out which other companies consider themselves to be in the same market. In contrast, the customer may not know which generic terms precisely describe that company's market. In Grimmelmann's example, it might be easier to ask for all companies in the same market as "Godiva" or "Hershey's", rather than having to describe precisely which segment of the chocolate market we're interested in.
by Mike Masnick
Tue, Feb 10th 2009 2:09pm
from the good-going dept
That didn't happen.
The USPTO flat-out screwed up and approved Nordstrom's application for publication (effectively moving the process forward). That meant that the small Beckons company had to spend thousands of dollars opposing Nordstrom's trademark registration. Thousands of dollars they shouldn't have had to spend if the USPTO had done its job right in the first place. Now, again, at this point, the facts are pretty straightforward, and even though the USPTO screwed up initially, the next step should be that the USPTO admits its mistake and everything moves on again.
But that's when Nordstrom's lawyers apparently got involved. Rather than recognizing the obvious truth (they have no claim on the mark Beckon and should give it up), they went into attack mode -- and tried to have the original Beckons trademark canceled, arguing that it really only was used for "yoga clothing" as opposed to a wider array of apparel. The case went to the appeals board -- meaning more legal costs for the small company. It was at this point, that the USPTO actually realized their original mistake, transferred Nordstrom's trademark app back to the original approver -- where it was rejected as being too similar to the Beckons clothing line. Again, at this point, despite the massive legal costs and mistakes and overly aggressive lawyers, you'd hope the matter would be done with.
No such luck.
Nordstrom's lawyers filed another complaint against the original Beckons trademark, claiming that they had abandoned their rights to the mark, once again sending everything to the Appeals Board (more legal bills!) only to have the filing dismissed, after it was realized that Nordstorm's original request to cancel the Beckons trademark was still out. And, in fact, that attempt to cancel the trademark is still active, but is in a long queue of cases to hit the Appeals Board -- meaning that the small company behind Beckons still has plenty more to spend on legal bills, and plenty of uncertainty concerning the simple trademark they filed for a few years ago.
While we often rail against problems with patent and copyright law, the purpose behind trademark law is entirely different It's a consumer or fraud protection law -- designed to make sure consumers aren't tricked into believing one product is associated with another company. Yes, it's all too often abused, but the small clothing company behind Beckons was doing exactly the right thing... and a mistake and some aggressive lawyering seem to have left them in a bad spot. The USPTO should fix things and Nordstrom's should drop its ridiculous vindictive legal attack against the much smaller company.
by Mike Masnick
Mon, Feb 9th 2009 2:31pm
from the doesn't-look-that-way... dept
Of course, advertisers can still advertise using the keyword "netbooks" but are apparently barred from actually using the word in the advertisement itself. So a search on "netbooks" still shows ads -- just none of those ads say "netbooks" anywhere. Thus, if you look at the netbooks search, you see all the ads refer to things like "mini notebooks."
This seems pretty pointless all around. As much as Psion may wish it still holds onto the name of a product it stopped selling years ago, the term has become generically accepted as referring to this generation of small and cheap notebook computers. Psion has had nothing to do with the current value in the word, and its attempt to take back control over the word it abandoned years ago is not, at all, what trademark law was intended to allow.
by Mike Masnick
Thu, Feb 5th 2009 10:48pm
from the this-again? dept
It's hard to see how this makes any sense at all. First, unless the ads are designed to confuse someone, there should be no question that ads against a competitor's keywords are perfectly legal. There's no customer confusion (the point of trademark law). It's no different than having your product placed on the grocery store shelf next to competing products, or (as is quite common in supermarkets these days) having a coupon print out for your product when you buy a competing one. Claiming this is trademark infringement is just a weak attempt to stifle competition by brands that don't want to compete.
That said, even if you somehow think that this is trademark infringement, it's an even bigger stretch to then pin the liability on Google. The actual party doing the "infringing" would be whoever bought and created the advertisement. Going after Google is a Steve Dallas defense: going after the biggest company that, tangentially, is involved just because it has the biggest bank account. Sure, Google makes money from the ads, but that shouldn't create liability any more than the guy who sells the paints that are used to paint a trademark-infringing billboard is liable for what's painted. Like the paint seller, Google is just a tool provider and has nothing to do with the content. Unfortunately, this bit of common sense still hasn't made it into the French court system.
by Mike Masnick
Tue, Sep 23rd 2008 12:38pm
from the uHauled-what-now? dept
The main gist of the story is that Michael Glanz had signed up with a uHaul subsidiary, named eMove, offering his services as a mover. Later, Glanz ended up starting his own startup called HireAHelper, in part claiming that his experiences with eMove made him believe he could do a better job helping people find a variety of helpers (beyond just moving help apparently). Of course, here in the US, there's a long history of people breaking off from a service or company they found inadequate and creating a better competitor. That's competition, and it drives innovation. But, to uHaul, apparently it's a threat that needs to be stamped out.
The lawsuit covers a variety of different charges, almost all of which seem questionable from what's presented. The most complete charge appears to be trademark violations, but the two trademarks in question seem highly questionable by themselves: "Moving Help" and "Moving Helper" which are both generic and descriptive -- which are two no-nos in getting a trademark. If we applied our ever popular moron in a hurry test, it seems unlikely that anyone (even folks who worked for uHaul) would be confused and believe that HireAHelper was somehow connected to eMove/uHaul.
After that, it appears that uHaul's lawyers just threw everything they could think of at Glanz and his company: including copyright infringement (of what? not clear), "business method material" (here in the real world, we call that competition and think it's a good thing), design logos (of what? not clear) and trade secrets. There may be more to the trade secrets claim, as the lawsuit provides almost no details other than to suggest that the trade secrets are from being a member of eMove -- something that many, many, many other people are, so it's difficult to see what the trade secrets are since most of the info is widely known.
Given how there are so many different claims without a clear explanation, I contacted uHaul by phone and email a week ago with a list of questions, hoping they might provide some more details and clear up some of the confusion over the lawsuit. To date, there has been no response (I can't even get a "no comment" apparently). From what we've seen, it certainly sounds like uHaul is simply lawyering up to get a much, much smaller competitor to shut down, in part because he was better at getting his site listed well in Google compared to eMove. Consider it the crime of being a better marketer.