Techdirt. Stories filed under "confusion"

Ridiculous: Trademark Board Lets Yankees Control 'Evil Empire' Despite It Being An Insult Used By Another Team

Mike Masnick — Wed, 27 Feb 2013 15:41:00 PST

Two years ago, we wrote about a ridiculous situation in which the NY Yankees (disclosure: I'm a lifelong Yankees fan) were opposing a trademark application by a small company who sought to trademark "Baseball's Evil Empire" for the sake of selling merchandise with that brand on it. As we noted at the time, it wasn't that long ago that it was considered perfectly legal for anyone to make t-shirts and other merchandise bearing the names of your favorite sports teams. But then the trademark lawyers got involved and, with sports leagues seeing the potential for lots of money, they shut that down. This seems to be another case of that sort of thing, but with a twist. In this case, the NY Yankees, who were opposing the trademark, have never used the term "evil empire" to reference the Yankees. Instead, the team was called that a decade ago by an executive of the rival Red Sox. In fact, in its own opposition, the Yankees even made the point that the term had a "negative connotation" and they didn't like it -- so it seems extra bizarre to then take "ownership" of the term via trademark.

But, in this case, the Yankees still won. The Trademark Trial and Appeal Board ruled that even though the team has never used the name, and even though it's a pretty generic and overused term, there is a likelihood of confusion and that people now associate the term with the Yankees. While I could see rejecting the term as not deserving any trademark at all, the idea that this is likely to cause confusion seems like a stretch. The team has shown no inclination in embracing the term (and its own filing showed that it felt the phrase was negative). The TTAB and the Yankees seemed to put a lot of weight in the fact that the Yankees sometimes use Star Wars music to suggest they were directly embracing the term, but that seems extremely weak, at best.

There's also a good conversation at Mike Madison's blog post on the story, in which someone notes that it would be fine if the TTAB made it clear that no one should have the trademark, but in this case, the court seemed to act as if the Yankees have the trademark, despite having nothing to do with the phrase. It repeatedly refers to the phrase as if it were the Yankees' own mark.

Meanwhile, it appears that the company that originally filed for the trademark, Evil Empire Inc., isn't giving up either, claiming it will continue making and providing Evil Empire gear, saying that the team "has never shown any indication that it plans to sue for trademark infringement over the use of the name on apparel." In other words, it's betting that despite blocking its own trademark application, the Yankees won't now go on to sue over Evil Empire's continued usage. That seems like a pretty big risk.

That said, the whole situation highlights (yet again) the nuttiness that is the end result of an "ownership society." Evil empire is a simple phrase that references Star Wars. The idea that it alone should be controlled by the New York Yankees seems preposterous.

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Why Using Creative Commons Licensed Materials Is Not As Easy As It Looks

Glyn Moody — Wed, 6 Feb 2013 20:02:00 PST

Creative Commons recently celebrated its tenth anniversary, with well-deserved praise for its work flooding in from around the world. There's no doubt it has played an important role in raising people's awareness of the problems with copyright, and in offering some alternative licenses that ameliorate some of its worst aspects. But there is a danger that people think that CC-licensed works are trivially easy to use, not least because they typically give users more rights than traditional copyright. In fact, there are a number of subtle issues that can crop up that make using such liberal licenses harder than it looks.

That's underlined by an interesting blog post from Bobbi Newman about a problem she encountered when using CC-licensed photos in presentations:

Like many librarians I often turn to Creative Commons licensed photos on Flickr for use in my presentations and blog posts. Flickr makes it incredibly easy to search for photos with a Creative Commons license. Unfortunately it also makes it ridiculously easy for users to change the license on all their photos at any time with the click of a button. There is no way to prove the license at the time of use.

She then goes on to detail what happened, and how it was finally resolved, but here I want to focus on a couple of points raised by this episode. First, on the issue of changing licenses. Perhaps because CC licenses give creators a flexibility missing in copyright itself, there is a belief in some quarters that things can be changed after a work has been published under one of them. Although the licence attached to the work on Flickr, say, might indeed be altered "with the click of a button", the Creative Commons FAQ says the old one cannot be taken away: CC licenses are not revocable. Once a work is published under a CC license, licensees may continue using the work according to the license terms for the duration of copyright protection.
However, proving that something was originally available under a CC license when its owner claims that it is only available under restrictive conditions is more problematic. Interestingly, there are services that try to address this problem by keeping "dated, independently verified copies of license conditions associated with creative commons images," which suggests that this is an issue faced by quite a few people.

Another aspect of the situation discussed in the blog post revolved around whether the use of an image was non-commercial or not. You might think this is "obvious", but in fact, it's proved a hugely problematic issue for Creative Commons licenses, with heated arguments about what are the key factors that make something commercial or otherwise. This lack of clarity is one reason why the use of the term "commercial scale" without further definition was so dangerous in ACTA.

Although using works released under a CC-license, with the additional flexibilities that it offers the user, is less onerous than handling those under traditional copyright, which lacks them, it is nowhere near the "use and forget" level of simplicity that many probably assume.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Netflix Provides 'Knock-offs' After Contract With Disney Ends

Timothy Geigner — Wed, 15 Aug 2012 05:30:58 PDT

We recently talked about the steady progression of cable cord-cutting occuring in this country. As that trend progresses, we're also seeing constant friction from the major movie studios about how they think they're offering enough in the way of online access to entertainment, so won't we all just shut up about it? And the truth is consumers will shut up about it, but not because they appreciate the studios' almost-effort at providing the product customers want how they want it (also known as being good at business), but because one way or another they will be satisfied. Often times these stories devolve into tales of piracy and woe, but that's far from the only option people have.

Forbes has a story of how those folks with both youngens and a Netflix account at home are dealing with Disney and Pixar electing to not renew the streaming portion of their contract.

Since the contract between Disney and Netflix came to an end, you won’t find any Pixar films on the Netflix streaming website. For a while you could watch Toy Story 3 and some other good Pixar titles but alas, those days have come to an end.

On the other hand, you can watch a host of Disney and Pixar knock-offs, as well as some really blatant rip-offs of DreamWorks movies.

Keep the terms "knock-offs," "rip-offs, " and "blatant" in your head, because we'll be coming back to them later. But, to demonstrate the point, here are some examples of what the movie industry likes to call "drafting films", a nod to a race car technique in which one sits behind a car to alleviate headwind and save fuel: I'll have to plead ignorance here, or perhaps plead lack-of-children, because I haven't heard of this one. But there are more obvious examples, like: And: Now, perhaps, like me, you're wondering what the legal status of these types of "drafting" movies is. A couple of things should be noted here. First, as you can see, in the summary descriptions of these movies, they tend to flatout tell you that they aren't affiliated with the movie by which they're "inspired." Some, like the linked Forbes article, call this an admission rather than a warning, but this is another nugget to keep in the back of your head for further down the post. Secondly, the plot and characters in these "drafting" films have zero correlation to the movies they're "drafting". There's no copying of plot or characters. As the Forbes piece states:

To be fair, the movie looks (both graphically and plot-wise) nothing at all like Pixar’s fantasy. Indeed, one suspects it was produced as soon as the first trailers came out.

On top of that, the most recent litigation cited by the article ended up finding against Disney and for the film studio accused of "drafting".

Disney lost a lawsuit claiming that Good Times Entertainment had been packaging its videos – this time specifically its version of “Aladdin” – to resemble Disney’s own films, and that this caused confusion among consumers. Good Times Entertainment had released its own versions of “Aladdin” and “Beauty and the Beast” among other popular Disney films.

Judge Miriam Goldman Cederbaum ruled against Disney, arguing that a resemblance simply wasn’t enough unless all of Disney’s own packaging was distinctly uniform. In other words, unless each Disney film was packaged in a very specific way and that style was copied by Good Times Entertainment, Disney didn’t have enough proof to build its case.

So, in case you weren't playing along at home, we have "drafting" films filling the void for consumers in the Netflix streaming service, these films do not reproduce any semblance of core plot or character devices, and the court has previously ruled that without copying the packaging the "drafters" are in the clear. On top of that, the summary descriptions of these knock-off movies tell you flat out that if you're looking for the feature film from a studio like Disney you're in the wrong place.

Remember all those tidbits I asked you to keep in mind? How these movies were "blatant knock-offs"? How including a non-association disclaimer in the summary was "an admission" that the film's marketing had been inspired by the feature film? Because, with that in mind, here's the conclusion the Forbes piece reaches:

And while the law may be on its side, there’s something unsettling about all these drafted films. Is it ethical to market your product in a way purposefully designed to confuse consumers?

Forgive me, but that's just completely wrong. You can't call something a "blatant knock-off" in one breath and worry about customer confusion in the other. Particularly when the first line in most of these films' summaries inform people to avoid such confusion. Indeed, many of the films in question are built off of Public Domain material, which often times might eliminate any need for such a disclaimer. As Joe Cayre, former President of Good Times Entertainment, an alleged "drafting" film studio, says:

“If [Disney] spent so much money to create a big to-do, what better time to put [Good Times' Aladdin] out? And it being a public-domain vehicle, there’s nothing wrong with that.”

I'd suggest the major studios dive back into streaming and compete with these "drafting" films rather than attempt any further litigation. Because customers are going to get some flavor of what they want. And, if the movie trailers are any indication, and if given a level choice, they'll pick the major studio's product most of the time for reasons of quality and brand. If they have a choice.

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Is Anyone Buying The Avengers' Box Set thinking They're Actuallying Buying A Rimowa's Topas Case?

Mike Masnick — Mon, 6 Aug 2012 10:34:36 PDT

The latest example of nutty trademark claims comes from Rimowa, makers of various luxury luggage cases, including the Topas briefcase that has been seen in various movies over the years -- including The Avengers. The case is distinct, and Rimowa actually cultivates its appearance in movies, hiring a product placement firm with the ridiculous name PRO.P.AG.AND.A G.E.M. to get its products into movies. As Marvel was working on the movie, it apparently got one of the Rimowa Topas cases itself, but also asked the product placement firm for some backup cases, which it provided on the condition that they be returned to the company after filming (which they were). However, with Marvel announcing its box set being packaged in a "replica" case, Rimowa is not happy: Rimowa has now sued Marvel and Buena Vista Home Entertainment claiming trademark infringement over the case. The lawsuit notes:

Images of the replica briefcase on Marvel’s advertising materials, and fan video from Marvel’s product display at this year’s ComicCon convention, show the plastic ‘replica case’ to be a close copy of Rimowa’s Topas attache case in every respect but quality -- from the proportions and coloring, to the style of the handle and latches, and, of course, in the use of the trademarked parallel ridges around the body of the case.

Of course, for there to be a straight trademark infringement claim, (1) they have to be competing in the same market and (2) there must be a likelihood of confusion. It's difficult to see how either thing is true. A movie box set is not in the same market as an overpriced travel case. And no one's buying one thinking it's the other. In fact, I'd think that having the replica used for the box set would likely increase interest in buying a real Rimowa case. And isn't that why the company wants its cases in movies in the first place?

There's a separate "dilution" trademark claim, suggesting that this packaging somehow dilutes the company's trademarks, but again, I just don't see it. It seems to reinforce the value of the original cases, not take anything away from it. Of course, the company's actions have ensured that I'd have no interest in ever buying any of its products in the future -- in which case, filing silly petty lawsuits is likely to do a lot more harm to its brand than the fact that Marvel is playing up its style in the box set packaging for a hugely popular movie.

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Courts Losing Patience With Clearly Bogus Trademark Claims; Dismissing Them Early

Mike Masnick — Mon, 23 Jul 2012 20:03:00 PDT

Eric Goldman has a post about a district court (Eastern District, NY) dismissing a trademark claim against the site PissedConsumer, by a company that was upset about what people were saying about it on the site. Of course, that's a pretty clear abuse of trademark law, which isn't about letting trademark holders block any usage -- especially not reviews or criticism. Instead, trademark law is supposed to be about protecting consumers against confusion over products and services for sale. That is, it's about stopping Bob's Cola from pretending to be Coca Cola -- not necessarily because it protects Coca Cola, but because it protects the consumer doing the buying.

In a case like this -- which we've seen all too often -- Devere Group got upset about what people were saying about them on PissedCustomer, and tried to pretend that was a trademark violation. Similar cases tend to get thrown out eventually, but what struck Goldman as interesting about this is that it got tossed out early over a lack of consumer confusion at the "motion to dismiss" stage. At that point, the court is supposed to assume that everything the plaintiff is saying is true (later stages of the case can explore if that's true). So, to throw out the case at this stage is really early. As Goldman notes:

Running through a truncated likelihood of consumer confusion mutli-factor analysis, the court says PissedConsumer isn't deVere's competitor, there's no chance PissedConsumer will "bridge the gap" to become a competitor, deVere didn't allege bad faith and deVere didn't allege actual consumer confusion. The court bypasses the remaining factors, something an appeals court probably won't do. Instead, the court says that judicial precedent has held that gripe sites don't create consumer confusion.

Goldman notes that even if this is a good result (having a court dump an obviously bogus lawsuit at the earliest possible point), he expects an appeals court to overturn this for happening too early. However, in an update, he also highlights a few more cases pointed out by Rebecca Tushnet of courts doing something similar:

Rebecca sent some other recent examples of trademark claims failing on a motion to dismiss, including The Hangover II case, Forest River v. Heartland RV and Architectural Mailboxes v. Epoch.

While it may be slightly procedurally questionable, I'm wondering if this shows that courts are very, very aware that companies are seeking to abuse trademark law these days and they're having none of it. Combined with some similar early dismissals in copyright trolling cases, and it seems like judges are showing little patience for companies trying to abuse IP laws to silence others.

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How Drunk Would You Need To Be To Confuse Jack Daniel's With Cayman Jack?

Leigh Beadon — Fri, 6 Apr 2012 14:41:00 PDT

Apparently JDPI, the company behind Jack Daniel's whiskey, has no trademark inhibitions. Through LexisNexis we learn that Mark Anthony International, another alcohol company, has filed a lawsuit (pdf and embedded below) seeking declaratory judgement that they can obtain and use the trademark "Cayman Jack", after JDPI disputed their trademark application and sent them a legal threat.

Quick, look at these two bottles:

How hurried and moronic would you have to be to get them mixed up? Yes, they both use the name "Jack". If a customer is drunk enough to confuse the world's best selling whiskey with a "margarita-flavored malt beverage", they are probably well past the point of distinguishing individual words, let alone of thinking, "Wow, this clearly Jack Daniels-endorsed luxury liquor certainly changes my opinion of that brand". If such a person does exist, they must get pretty confused sometimes, since as Mark Anthony points out in its filing, the liquor store has no shortage of Jacks:

The [trademark] application was examined by the United States Patent and Trademark Office ("USPTO") and found to be entitled to registration and published in the Official Gazette on March 9, 2010.

The fact that the USPTO believed CAYMAN JACK to be entitled to registration is wholly unsurprising given the prevalence of other "Jack" named drinks in the marketplace. The JACK DANIEL'S mark already coexists with other "Jack" named alcoholic beverages, including PANAMA JACK and CALICO JACK for rums; CACTUS JACK for tequila; PAPA JAC for alcoholic cocktails; YUKON JACK for liqueur; SCRUMPY JACK for cider; DEADEYE JACK, THIRSTY JACK, BLACK JACK STOUT, JACK RABBIT PALE ALE and JACK'S PUMPKIN SPICE ALE for malt beverages; HONEYJACK for mead and hydromel; and BLACKJACK PASTURE, JUMPIN JACK and BLACKJACK WINES for wines.

The lawsuit gets into a lot more detail, showing how the products are marketed in different ways to entirely different audiences, and walking through the entire brand development process for Cayman Jack to demonstrate that it had nothing to do with Jack Daniels. Hopefully the court sees that there's no chance of confusion here and grants them their declaratory judgement—but as we've seen in similar cases, some judges prefer to feed the ownership culture by granting companies total control over simple symbols and words.

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Bath & Bodyworks Goes To Court To Explain To Summit Entertainment That The Word Twilight Existed Before The Movie

Mike Masnick — Thu, 10 Mar 2011 22:05:00 PST

We've covered many examples of movie studio Summit Entertainment being ridiculously overprotective when it came to the trademark on Twilight. Among other things, it's sued Zazzle for merchandise made by others (hello, secondary liability), it's shut down a Twilight fanzine, it's claimed that only it can make a documentary about the town where Twilight is supposed to take place and even shut down a silly 8-bit YouTube game that plays off of Twilight.

Apparently Summit is now going after totally unrelated products that have "Twilight" in their name. It sent a threat letter to retailer Bath & Bodyworks, because that company sells "Twilight Woods" body lotion. Rather than fold, or wait for a lawsuit, the retailer has gone to court to get a declaratory judgment that it doesn't infringe. It notes there's quite a difference here:

"The term 'Twilight' is used so as to evoke the idea of a particular time of day when the sun is just below the horizon, illuminating the landscape," the lawsuit says. "Whereas defendant uses the term 'Twilight' to refer to defendant's teen vampire saga."

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Mount Washington Hotel & Resort Says Only It Can Offer Lodging Under The Name Mount Washington

Mike Masnick — Wed, 17 Nov 2010 18:02:25 PST

The Mount Washington Hotel & Resort is located in Bretton Woods, New Hampshire, alongside (you guessed it) Mount Washington. But, apparently the operation, which has been around for a while, but which was taken over by new owners a few years back, is now sending cease and desist letters to other "lodging" businesses in the area who also use the Mount Washington name. Yes, despite taking the name themselves from the place where they are, they're now claiming that only they can use that name when it comes to lodging. The article is a little unclear, but it says they never registered a trademark on the name... but still say that the USPTO "has agreed with the company that there is a likelihood of confusion when it comes to other lodging properties that share the name." Of course, the fact that all these places have coexisted without problem for years certainly seems to suggest otherwise....

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Creative Commons' Branding Confusion

Nina Paley — Thu, 21 Oct 2010 15:05:05 PDT

About a year and a half ago I released my film Sita Sings the Blues under a Creative Commons Attribution-ShareAlike license. That license allows truly free distribution, including commercial use, as long as the free license remains in place. But my experience is that most people see the words "Creative Commons" and simply assume the license is Non-Commercial -- because the majority of Creative Commons licenses they've seen elsewhere have been Non-Commercial.

This is a real problem. Some artists have re-released Sita remixes under Creative Commons Non-Commercial licenses. Many bloggers and journalists assume the non-commercial restrictions, even when the license is correctly named:

The film was made available under a Creative Commons Attribution-Share Alike License, allowing third parties to share the creative content for non-commercial purposes freely as long as the author of the content is attributed as the creator of the work. --Frontline, India's National Magazine

Initially I tried to explain what "ShareAlike" means, and asked "Sita" remixers to please switch to ShareAlike, per the terms of the ShareAlike license under which I released it. I felt like an ass; I don't want to be a licensing cop. After a while, mis-identifications of the project's license became so widespread I gave up trying to correct them. "Creative Commons" means "Non-Commercial" to most people. Fighting it is a sisyphean task.

So I'm stuck with a branding problem. As long as I use any Creative Commons license, most people will think it prohibits commercial use. Hardly anyone seems to register, let alone understand, CC-SA. Worse, those who do notice the ShareAlike marker combine it with Non-Commercial restrictions on their re-releases, which compounds the confusion (CC-NC-SA is the worst license I can imagine).

ShareAlike is an imperfect solution to copyright restrictions, as it imposes one restriction of its own: a restriction against imposing any further restrictions. It's an attempt to use copyright against itself. As long as we live in a world wherein everything is copyrighted by default, I will use ShareAlike or some other Copyleft equivalent to attempt to maintain a "copyright-free zone" around my works. In a better world, there would be no automatic copyright and thus no need for me to use any license at all. Should that Utopia come about, I will remove all licenses from all my work. Meanwhile I attempt to limit other peoples' freedom to limit other peoples' freedom.

It would be nice if the Creative Commons organization did something to address this branding confusion. We suggested re-branding ShareAlike licenses as CC-PRO, but given that Creative Commons' largest constituency is users of Non-Commercial licenses, it seems unlikely (but not impossible!) that they would distinguish their true Copyleft license with a "pro" brand.

If only Creative Commons offered this!

It would also be nice if everyone, including and especially representatives of Creative Commons, referred to their licenses by their names, instead of just "Creative Commons." "Thank you for using a Creative Commons license," they tell me. You're welcome; I would thank you for calling it a ShareAlike license. Almost every journalist refers to all 7 licenses as simply "Creative Commons licenses." And so in the popular imagination, my ShareAlike license is no different from a Non-Commercial, No-Derivatives license.

This branding crisis came to a head recently when the Canadian Broadcasting Corporation banned all Creative Commons licensed music in its shows:

The issue with our use of Creative Commons music is that a lot of our content is readily available on a multitude of platforms, some of which are deemed to be 'commercial' in nature (e.g. streaming with pre-roll ads, or pay for download on iTunes) and currently the vast majority of the music available under a Creative Commons license prohibits commercial use.

In order to ensure that we continue to be in line with current Canadian copyright laws, and given the lack of a wide range of music that has a Creative Commons license allowing for commercial use, we made a decision to use music from our production library in our podcasts as this music has the proper usage rights attached. link

The Creative Commons organization wants to get the CBC to separate out its different licenses. They could help by calling their licenses by their different names. If the Creative Commons organization itself calls them all "Creative Commons Licenses," how can they expect others to distinguish the licenses from each other?

Perhaps Creative Commons should only offer the Non-Commercial/No Derivatives licenses everyone associates with the name. Then they could create a new name/brand for their Free licenses. FreeCommons? CultureSource? CopyLove?

Meanwhile, I'm wondering how to clearly communicate my work is COPYLEFT. In addition to the CC-SA license, if there's room I write "COPYLEFT, ALL WRONGS REVERSED". Unfortunately, the term "Copyleft" is growing increasingly meaningless as well. For example, Brett Gaylor's mostly excellent film RIP: A Remix Manifesto gets a lot of things right, but it misunderstands and misuses the term "copyleft". Copyleft actually means this:

the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work. In other words, copyleft is a general method for making a program (or other work) free, and requiring all modified and extended versions of the program to be free as well. -Wikipedia

But in RIP it means this:

See that dollar sign with the slash in it? That means Non-Commercial restrictions, which are most definitely NOT Copyleft.

Anyone introduced to the word "Copyleft" in that film will have no idea what Copyleft actually means in terms of licenses.

I need a license that people understand. I'm tempted by the WTFPL but I would have to fork it to add a copyleft provision. The Do Whatever You Want And Don't Restrict Others From Doing Whatever They Want Public License? WTFDROPL?

Are there any other useable Copyleft licenses out there that aren't associated with non-commercial restrictions? I'm open to suggestions.

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Intel Refiles Questionable Trademark Lawsuit Against Newsletter About Latin America

Mike Masnick — Mon, 17 May 2010 18:46:54 PDT

Late last year, we wrote about the latest in an unfortunately long line of overreaching trademark lawsuits filed by Intel. Intel tends to act as if no one else can use the word Intel at all, leading it to get involved in legal disputes with companies in industries about as far away from Intel's business as can be -- including a travel agency and a maker of jeans. The dispute last year, was focused on the small producer of a newsletter about Latin America, which used the domain name LatinIntel.com. There was no way anyone would be confused by this site or think that it was somehow associated with Intel, even using my favorite "moron in a hurry" test.

So, we were happy, earlier this year, to get a report that Intel had dropped the lawsuit. Except... that turned out to not be exactly true. Intel got in touch quickly to insist that they had only dropped it because they planned to refile the lawsuit with much more detail to make their case. What Intel left out was the pretty serious skepticism the judge had expressed concerning their original filing: The key lines here being:

It really is lacking in enough specificity which would demonstrate that there was confusion or that you're even addressing the same markets. I mean, my understanding is that there may be no customer overlap at all in connection with this.

Intel, of course, shot back with the claim that this has nothing to do with likelihood of confusion, but it was really about dilution. Dilution is a more recent element of trademark law, which was not considered applicable for quite some time, but today has become more widely accepted, and keeps expanding in dangerous ways. It simply goes against the basic concept of trademark law -- which is supposed to be about protecting consumers from buying a product that is falsely labeled. That's why trademark law is limited to the areas where your trademark is actually being used in commerce. The judge's point that there is no customer overlap should be all that matters here. At that point there is no trademark issue. At all.

But Intel has, in fact, now refiled the lawsuit, and tries to get around this claim by pointing out that both Intel and this newsletter have customers that are Fortune 500 companies. Seriously. And then it still claims there is customer confusion, despite the judge making it pretty clear that he didn't believe there was any customer confusion at all:

I asked the spokesperson from Intel who had contacted us about the last post if he could offer an explanation of why it made sense for Intel to continue to pursue this lawsuit, and I got back the basic explanation for why dilution is considered trademark infringement -- which didn't answer the question I was asking. But it appears that Intel's definition of dilution goes way beyond even the current (already troubling) concept of dilution in trademark law. The way Intel sets it up, no one can use the word "intel" even if it's already a widely generic term in a totally different industry (as is the case with the newsletter). That makes no sense.

While I'm sure Intel's lawyers would claim that they have to defend their trademark to avoid it being declared generic, that's also a misrepresentation of trademark law. You do have to defend, but only in cases where there's actual confusion or actual risk of dilution. Someone doing business with a term that is generic in that industry, which is about as far away from Intel's industry as is possible, is not doing any harm, whatsoever, to Intel's mark. Intel should have just dropped the case and left it alone.

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Intel Realizes No One Is Going To Confuse A Newsletter About Mexico With Its Processors [Update]

Mike Masnick — Tue, 6 Apr 2010 22:46:00 PDT

Last year, we wrote about Intel's trademark lawyers getting over aggressive in suing the owners of the Mexico Watch newsletter for using the domain name LatinIntel.com In this case, it was clear that "intel" was the commonly abbreviated version of "intelligence," and no one was going to be confused and think that a newsletter about Mexico had anything to do with a company making microprocessors. ~~For whatever reason, it appears that common sense has finally prevailed, and we've been alerted to the fact that Intel has dropped its lawsuit~~. Or not. Instead, it appears the details are that the court dismissed most of the claims, but left Intel the right to amend and refile its complain -- which Intel tells us it's going to do. We've asked for more info from Intel on its reasoning. Of course, a simpler course of action would have been to have not sued in the first place...

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Want To Get A Sense Of Just How Complex And Confusing Copyright Law Really Is?

Mike Masnick — Thu, 9 Apr 2009 23:03:00 PDT

Michael Scott points us to an article concerning the Library of Congress issuing a report on how copyright law applies to libraries who possess unpublished audio works recorded prior to 1972. The problem, you see, is that no one was exactly sure whether or not these recordings were actually covered by copyright law. The real problem, though, becomes pretty clear pretty quickly as you read through the article: copyright law is a house of cards. We just keep layering new rules on top of old rules, and figure the courts will sort out the places where they contradict, overlap or confuse. But that leaves a ton of uncertainty in a variety of situations -- including this particular one. It should be a simple question: if a library is in possession of an unpublished sound recording from before 1972, what's the copyright status? But the mess that is copyright law makes it such that it's hardly an easy question at all -- and actually requires an 85-page report from the Library of Congress to go through all of the nuances. And then your everday individual is expected to understand what is "right" and "wrong" in copyright law?

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Latest Digital TV Transition Hiccup: Not Enough Converter Boxes

Carlo Longino — Fri, 27 Mar 2009 13:20:14 PDT

The transition from analog to digital TV has turned into a real mess, thanks to the bungled converter-box coupon program, but also because of the ham-fisted way in which the delay of the transition's been handled. Earlier in the week, it seemed things might be getting back on track as the coupons started flowing again, but today we come to find out that officials are now worried about a shortage of boxes. You'd think somebody might have looked into the supply situation earlier, but hey, apparently it didn't really matter as long as there weren't any coupons. Once again, this illustrates how poorly the government has managed this situation. The coupon plan has been flawed from the outset, and if the government was so concerned about the supply of boxes, it should have taken steps to ensure it would be sufficient long ago. Stay tuned for another delay...

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Do Morons In A Hurry Buy Real Estate?

Mike Masnick — Thu, 12 Mar 2009 16:06:16 PDT

I was going to pass on this particular story, but so many people have been submitting it that it seemed worth at least a quick post. Real estate giant Re/max apparently has some lawyers with free time on their hands now that the housing market has collapsed. It seems like they must, because they felt it was necessary to oppose the trademark application of a small real estate agency in North Carolina that goes by the name Rehava. Remax and Rehava aren't particularly similar, and neither are their logos: But, that hasn't stopped Re/max from complaining. It goes beyond just the "Re" at the beginning. Apparently Re/max lawyers think that the line somewhere near the "e" will confuse people. And then, it just gets ridiculous:

"If you chop the top off of the 'h,' you (almost) have the 'm' in Re/Max. The next letter is an 'a,' and if you take the 'v' then you have half of an 'x.' "

This certainly seems like a situation where the moron in a hurry test should apply. Tragically, however, our legal system never seems to be in much of a hurry, and so its costing Rehava plenty of time and money to respond to the opposition by Re/max.

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Maybe The DTV Transition Delay Wasn't Such A Bad Idea

Carlo Longino — Fri, 20 Feb 2009 18:47:00 PST

While most reports say that those TV stations switching their broadcasts to digital aren't seeing many problems, there are some significant exceptions. Like, for instance, a 70-year-old guy in Missouri who shot up his TV (via Engadget) after he couldn't get his converter box to work. Apparently, he'd been drinking, too. Perhaps we need to revisit the transition delay legislation, and ban booze until June 12, too?

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FCC Says Not So Fast To TV Stations' Itchy Switch Fingers

Carlo Longino — Fri, 13 Feb 2009 14:29:00 PST

The digital TV transition mess rolls on. After lots of TV stations said they planned to move ahead with the shutdown of their analog broadcasts, as the recently passed delay allows them to do, the FCC is now telling more than a quarter of them they can't do so without first meeting a number of regulations. The FCC contends (PDF alert, thanks to Fat Tony for sending it in) that 123 stations' plans to switch their analog signals off soon pose "a significant risk of substantial public harm," not because people who haven't figured out the switch was coming will miss Judge Judy and Wheel of Fortune, but because they need their TVs for access to "local news and public affairs."

The regulations say that one station in the broadcasters' metro areas must maintain analog service until at least the middle of April, but also that the stations must increase their "educational" programming about the switchover, and also provide both "local or toll-free telephone assistance, including engineering support" and "provide a location and staff for a consumer 'walk-in' center to assist consumers with applying for coupons and obtaining converter boxes, to demonstrate how to install converter boxes, to provide maps and lists of communities that maybe affected by coverage issues, and to serve as a redistribution point for consumers who are willing to donate coupons, converter boxes, televisions and for those in need of these items."

If this didn't involve the government, it would almost be remarkable. The government botched the converter coupon program, has caused more confusion with the delay, and now wants TV stations to set up call centers and walk-in locations to deal with it. What's even more galling is that stations will be forced to toss resources at an issue that effects a small sliver of the population: take the small subset of Americans that watch TV, but don't have cable or satellite, then the subset of those that haven't yet gotten with the program. From those few people that are left standing, will they be any more ready in June than they would be on the 17th, when the switchover was supposed to happen? And why should broadcasters have to devote so many resources to them, particularly when it's the bungled coupon program that's largely to blame?

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TV Stations Say Thanks, But No Thanks To Analog Switch Delay

Carlo Longino — Thu, 12 Feb 2009 07:11:00 PST

As was widely expected, Congress voted last week to delay the switch-off of analog TV signals, sort of. It did move the hard deadline of February 17 until June 12, but it is also allowing TV stations to switch off their analog broadcasts any time before then, and many stations say they'll do so as soon as they can, beginning next week. Over a third of the nation's TV stations plan to move ahead with the switch, as planned, eager to shed the additional cost of broadcasting both in digital and in analog. So instead of a hard deadline, some stations will drop off of the analog air next week, others not until June, and others somewhere in between -- a situation that hardly seems easier to understand for the confused and lost among us that the delay was supposed to help. Furthermore, how does this sort of staggered transition help sort out the converter box coupon mess?

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Consumers Union Wants Congress To Delay Digital TV Transition

Mike Masnick — Thu, 8 Jan 2009 03:43:40 PST

Now, we all agree that the FCC has screwed up the conversion to digital TV for over-the-air TV watchers, especially with the "coupon" program running out of money. But, it's still pretty ridiculous for Consumers Union to ask Congress to delay the transition (found via Consumers Unions' newly owned Consumerist).

The transition to digital TV has been delayed for years. It was amazing that we finally got a hard deadline of February 2009 given how many forces were fighting against it. Part of the problem was always some ridiculous sliding scale of when we'd be "ready." But, a hard deadline was set, and now it's important to just get it over with. The end result will be much better for consumers, because the old spectrum will finally be put to good use where it can provide an awful lot of value. Yes, the transition coupon program has been poorly run. Yes, it would be better if we figured out a better way (even now) to get converter boxes to people. Yes, there are still a number of people who haven't gone out and picked up a convertor box. Yes, there will be some confused people who turn on their TV and discover it won't work, but it's a very small number of people at this point, and given how much time they've had to deal with it, having their TVs not work should be the final kick in the pants to move forward. There's simply no good reason to delay the transition yet again. Update: Unfortunately, it looks like the incoming Obama administration supports a delay as well.

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Trying To Figure Out How DTV Conversion Program Could Run Out Of Coupons

Mike Masnick — Tue, 6 Jan 2009 18:11:05 PST

There are plenty of reports going around about how the federal government's program to supply coupons for TV digital converter boxes has run out of money while plenty of folks who need them still haven't converted (meaning their TVs won't work next month). Because there's still some confusion about this, it bears repeating: this conversion does not matter in the slightest for anyone who uses cable or satellite TV. It only impacts those who just get over-the-air TV through an antenna. Yet apparently, somewhere around 7% of those people aren't yet prepared for the changeover -- though, assuming they care (i.e., they watch TV) they'll figure out what went wrong pretty soon.

What I'm still trying to figure out, though, is how the program ran out of money. The setup of the program now seems pretty silly. Basically, the feds offered coupons to people to use when buying the boxes, and the feds funded the difference. But why didn't the feds just buy the boxes itself and sell them off at a discount? Part of the problem now is that many of the coupons haven't been redeemed, and no one's sure if they will be redeemed or not -- leaving the amount of money available in question. It seems like there are about 30 different ways that uncertainty could have been averted, such as by just having the sellers report the sales to the Feds and get the "coupon fee" directly. Either way, it seems like yet another program where the FCC didn't do a very good job planning out how this transition would work.

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Digital TV Switchover Looking Like Massive Confusion-Generation Plan

Carlo Longino — Tue, 23 Dec 2008 09:09:00 PST

The switchover from analog to digital broadcast TV signals, on tap for February, has been publicized for some time and the necessary converter boxes for older TVs have been made available relatively easily and cheaply. But concerns that the FCC wouldn't be able to manage the transition are looking well-founded. After an earlier test in Wilmington, N.C., that threw off warning signs about the nationwide reaction to the switch, further tests are being carried out across the country, in hopes that the tests will give people an idea if their DTV gear is working, or reinforce to the estimated 19 million Americans who need the converters that the deadline is coming. But the tests themselves are causing plenty of confusion: one writer notes that the test in her area generated both passing and failure messages on different channels, suggesting a problem with the stations, rather than her equipment. The failure messages came despite the TV getting its signal from DirecTV, when the FCC's been saying all along that people connected to cable or satellite don't need to do anything. Again, just an estimated 19 million Americans still get their TV directly from the over-the-air broadcast signals, so a fairly small chunk of the population should be affected by the switchover. But you get the feeling the FCC's feeble education campaign won't prevent confusion for many, many more.

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Cable Companies Hold Off On Digital Conversion To Avoid Confusion (And Potential Lawsuits)

Mike Masnick — Wed, 17 Dec 2008 18:40:00 PST

There's tremendous confusion out there about February's required switch for broadcast TV from analog to digital. For example, an awful lot of people who have cable or satellite TV don't realize that this conversion basically has no impact on them. It's only for over-the-air TV (you know, the kind you used rabbit ear antennas for). Many assume, incorrectly, that it has something to do with cable TV's "digital TV" or (even less related) needing to get HDTV. Digital TV and HDTV are two separate things. Yet, there has been some accusations that cable companies are taking advantage of this confusion to get people to upgrade, even if they don't need to. In response to such criticism, cable TV operators have now all agreed to put their own digital conversion plans on hold until after the over-the-air conversion is complete, to avoid "complexity." It might also help them avoid lawsuits for misleading consumers...

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European Court Notes That Using A Competitor's Trademark In An Ad Is Not Trademark Infringement

Mike Masnick — Fri, 13 Jun 2008 14:12:00 PDT

We've said it probably 100 times, but trademark was never designed to be about "ownership." Rather, it's always been about consumer protection from fraud: making sure that you didn't buy one product, believing it was made by someone else. Yet, unfortunately, trademark is often lumped into the category of "intellectual property" with patents and copyright, and that falsely leads people to believe that trademarks are about ownership and, with it, full control over the mark. That leads to some really questionable situations, where companies overreach in trying to block others from using their mark. Luckily, some courts are pushing back on this. Steven Hoy writes in to let us know that a European court has ruled that there's absolutely nothing wrong with a company using a competitor's trademark in an advertisement for comparative purposes, just so long as there's no confusion on the part of the customer. This is exactly the way it should be. Hopefully, we'll start seeing European courts use the good old "moron in a hurry" test more frequently. After all, that "moron in a hurry" trademark test was a European invention in the first place.

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Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat

Mike Masnick — Thu, 12 Jun 2008 22:22:00 PDT

We were just discussing how copyright has been stretched and twisted so many times that it really just isn't designed properly to handle internet communications -- and a good case in point may be the funny little spat we covered a few weeks back between Prince and Radiohead. If you don't recall, Prince performed a cover of a Radiohead song at a concert. Someone in the audience videotaped it and put the video on YouTube. Prince's representatives demanded that the content be taken down under a DMCA request -- raising all sorts of questions. After all, Prince didn't own the copyright on the song. That's owned by Radiohead, whose lead singer wanted the video back online. Prince didn't own the copyright to the video either, since he didn't take it. So how could he use the DMCA to take down the video?

But, it's not that simple, apparently. As Ethan Ackerman details, as lawyers began to think about the situation, the more confused they got, noting that maybe there was a right under anti-bootlegging laws. Only, then things got more confusing, because it turns out that anti-bootlegging laws aren't actually a part of the copyright act (though it does fall under the same "title" just to add to the confusion), and the DMCA (under which the takedown occurred) only applies to copyright law.

However, again, we're left in a situation where the "law" is hardly clear at all, and even those who follow the space were somewhat confused over whether or not Prince had any sort of legal standing here. A law is not useful if the boundaries of that law are not clear, and if someone has no clue if their actions go against the law. In the internet era, copyright certainly falls under that category of laws in which it is no longer clear what is and is not legal -- and that should be seen as a problem.

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How The Digital TV Transition Will Accidentally Help HDTV Sales

Mike Masnick — Wed, 11 Jun 2008 10:28:18 PDT

There's been a huge amount of confusion concerning the February 2009 transition from analog over-the-air TV to digital over-the-air TV, but one of the big points of confusion is the false assumption by many that this has something to do with HDTV. It doesn't. It's just about the television content that's available freely over the air -- as opposed to via cable or satellite TV. For anyone who is a subscriber to cable or satellite (i.e., the majority of Americans) the transition basically means nothing. Yet, thanks to years of FUD from folks resisting the transition (mainly the TV broadcasters who wanted to keep their spectrum) many people are quite confused about what this means. Some new studies have looked at public readiness for the switch, and while most of the headlines focus on the fact that about half of those impacted are unready for the shift, what may be much more interesting is a tidbit not found in most of the coverage, but tucked into the Washington Post coverage:

About 30 percent of the respondents indicated they had plans to ready themselves for the transition, even though they do not have to do anything to maintain service.

In other words, an awful lot of people who already have a digitally enabled TV, cable service or satellite service somehow think they need to upgrade to keep service after February. Obviously, they're confused, and it would be a good guess to assume the root of at least a significant percentage of that confusion is that idea that this has something to do with HDTV. So, it sounds like a large group of cable or satellite TV subscribers are planning to upgrade to HDTV, not because they want to, but because they incorrectly think they need to to keep getting TV after February of next year. HDTV providers must be thrilled.

As for the percentage of folks who will be impacted and haven't done anything about it yet, that doesn't seem too troublesome. After all, there's still seven or eight months to get it done, and people sure do like to procrastinate. What's more troubling, perhaps, is the fact that the $40 coupons for converter boxes that are being sent out to those who request them expire after 90 days. Why? No one seems to have any clue, and its leading to many of these coupons expiring before people have a chance to redeem them.

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PlaysForWhatNow? Microsoft 'ReBrands' Misnamed DRM

Mike Masnick — Wed, 12 Dec 2007 22:40:48 PST

Sometimes you wonder if Microsoft is just messing around with people for the hell of it. Remember Microsoft's fairly useless DRM offering called PlaysForSure? The one that was (like pretty much all DRM systems) easily hacked? The one that was used to convince a bunch of partners to sign up as Microsoft partners? The one that Microsoft itself then ditched itself when launching the Zune, abandoning all of the partners who could only laugh at the irony of Microsoft devices not playing content using Microsoft's own "PlaysForSure" system? Well, Microsoft has decided that perhaps it was time to change the name of PlaysForSure. Given how inaccurate the name is, perhaps that makes sense -- though, not nearly as much sense as just letting the damn thing die. However, even in changing the name it appears Microsoft has bungled the situation. The new name is "Certified for Windows Vista" which (oops) just so happens to be the same classification used for the Zune and its content... yet, as just noted, PlaysForSure content doesn't work on the Zune. Confusing enough for you? To recap: we've got DRM from Microsoft called PlaysForSure that surely doesn't play on Microsoft's own Zune player -- so Microsoft changes the name to "Certified for Windows Vista" using the same logo as found on the Zune, even though the content still won't play on the Zune. And the company thinks this isn't going to confuse and upset even more people?

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