Techdirt. Stories filed under "legal"

How To Resolve A Trademark Issue Politely & Without Legal Threats

Timothy Geigner — Mon, 18 Feb 2013 07:47:21 PST

Another trademark dispute, another horrible and negative story where the mark owner acts like a jackass, right? I mean, the trend is clear, from 60's rock legends suing over penis-apps, to game producers suing over terms nearly a century old, you get the idea that everyone with a trademark is Oscar the Grouch. They just can't help but call in their big shot lawyers, who immediately send out the cease and desist notices, even though they'd rather mail out one of those Harry Potter howler letters or possibly a small nuclear weapon. It's inevitable.

Or, then again, perhaps it isn't. Nick writes in with the tale of an absolutely brilliant response to a trademark dispute from the mark holder, who not only left the lawyers at home and replaced them with a polite letter, but was so over the top kind about the whole thing as to suggest other words for the violator's product, turning him into a potential customer.

Early in December here at Wordnik we got a nice email from one of our loyal users, letting us know that there was a word game in the app store using the name “Wordnik.” It didn’t have our heart logo (or even our “gearheart” ) so our correspondent wasn’t sure it was ours … and it wasn’t. So we took a look at the game, and it was called Wordnik. And there was contact info for the developer.

This is typically where we'd see a hateful C&D notice sent, filled with accusations of theft, reports of untold gazillions in very real harm done by the violation, and the promise that if the violation doesn't cease the lawyers will swing by soon to eat the faces off of their children.

Pictured: Trademark lawyer
Image source: CC BY-SA 2.0

For some strange reason, however, the Wordnik folks decided that there just might be a better way to go than all out war. While acknowledging that their initial reaction was to be somewhat upset over the use of their mark, they instead chose to send the following email (edited only for formatting):

One of the users of our website, Wordnik.com, pointed out to us that your iOS app is also using the name “Wordnik”. You may not be aware that we have applied for a US trademark for the name “Wordnik” and our application has been approved for registration. Since the Wordnik API powers many word games on the web and on mobile devices, our trademark filing for the name “Wordnik” also includes its use in combination with computer games.

I’d rather not drag our lawyers into this (expensive for both of us) — but given our trademark status, you probably want to consider renaming your app (and maybe even using our API, check it out at developer.wordnik.com). How about:

Wordify
Wordista
Wordian
Wordeur

This list of English suffixes may help, too: http://en.wiktionary.org/wiki/Category:English_suffixes

I hope to hear back from you by Dec 31, 2012.

The response was everything they had hoped for. Not only did the other developer respond promptly, promising to change the name of his app and acknowledging that he hadn't realized his error, but the two sides continued to communicate about several topics, including background on the suggestions the Wordnik folks had made and Wordnik's own API and how it could be used to enhance the previously offending app. Not only was this a kind way to handle a trademark request, but it turned out to be an advertisement for the Wordnik product itself. Then, because apparently Wordnik is trying to win some kind of peace award here, they sent the guy a Wordnik T-shirt. The offending app has since changed its name to Wordogram and all is well.

Wordnik notes that this approach may not work universally, but why shouldn't it be the first attempt in most instances? They say it best themselves:

From our point of view, this was the best possible outcome. We defended our trademark; we met a cool, kindred-spirit developer and had a fun conversation; and we found a new word game to play (and possibly gained another API client). And it’s likely none of this would have happened if we’d sent a pissy email, guns blazing.

Let's hear it for kindness and sanity.

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Portugal: File Sharing For Personal Use Is Legal And IP Addresses Are Not People

Timothy Geigner — Thu, 27 Sep 2012 14:28:00 PDT

In a move that should remind you of Spain's ruling that personal file-sharing was legal, before America's entertainment industry helpfully wrote the Spanish people a new law (wait...what!!?!?), file-sharing for personal use has been declared legal in Portugal. How could something so monumental happen, you wonder? Well, funny story: the entertainment industry made it happen.

The tale goes something like this. An anti-piracy group sponsored by the entertainment industry called ACAPOR got all uppity about Portuguese filesharing a year ago and decided to helpfully deliver boxes (yes, physical boxes) of IP addresses suspected of filesharing infringing files to Portugal's Attorney General's office. They did this while wearing shirts that proclaimed "Piracy is illegal" in case anyone thought they were there for a cause that is actually useful and/or interesting.

“We are doing anything we can to alert the government to the very serious situation in the entertainment industry,” ACAPOR commented at the time, adding that “1000 complaints a month should be enough to embarrass the judiciary system.”

Secure in their knowledge that justice would be done, ACAPOR's minions then went home and did whatever it is these kinds of people do when they aren't making fantastic amounts of noise and generally making fools of themselves.

Well, as is their duty, the folks at the Attorney General's office did look through the boxes of evidence ACAPOR had provided...and promptly threw them out.

The Department of Investigation and Penal Action (DIAP) looked into the complaints and the prosecutor came back with his order this week. Contrary to what the anti-piracy group had hoped for, the 2,000 IP-addresses will not be taken to court. Worse for ACAPOR, the prosecutor goes even further by ruling that file-sharing for personal use is not against the law.

“From a legal point of view, while taking into account that users are both uploaders and downloaders in these file-sharing networks, we see this conduct as lawful, even when it’s considered that the users continue to share once the download is finished.”

Oops. Turns out those "Piracy is illegal" shirts are as ill-informed about the law in Portugal as the people wearing them. Especially since, for good measure, the AG informed ACAPOR that IP addresses are not people, so their evidence wasn't so much "evidence" as it was "a horrific waste of time and trees".

Now, not one to let facts get in the way of saying something stupid, ACAPOR boss Nuno Pereira pushed back on the AG's office.

“Personally I think the prosecutors just found a way to adapt the law to their interest – and their interest is not having to send 2,000 letters, hear 2,000 people and investigate 2,000 computers,” Pereira says.

Sure, that makes sense. Everyone knows if you're looking to avoid having to send letters and do paperwork, becoming a lawyer is the way to go. But did you really expect an anti-piracy group to take a sane thumping gracefully?

Of course, as we've seen elsewhere, whenever a country reacts sensibly concerning things like file sharing, the entertainment industry lobbying engine revs right back up... and suddenly the countries are described by US politicians in the worst possible terms. Any bets on whether or not Portugal just wrote itself onto the USTR's Special 301 list and the Congressional Anti-Piracy Caucus' "watch list"?

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Sony Ericsson Shows How Not To Connect With Fans: Forces Shutdown Of Xperia Fan Blog

Mike Masnick — Mon, 24 Oct 2011 15:03:00 PDT

Via Reddit we learn of yet another bad move by a shortsighted company. This time it's Sony Ericsson, who sent a legal nastygram to the Xperia blog at xperiablog.net -- a blog that talks up and promotes a bunch of things happening with the Xperia device that Sony Ericsson is pushing. Since it sounds like the blog itself, and the post explaining this, is likely to go away pretty soon, we're reposting it here:

It is with great sadness that we have to bring you the news that this will be the last post on this website. Sony Ericsson has filed a formal complaint about the use of the trademarked 'Xperia' name in our domain name and have requested that the domain names, including that of XperiaX10.net, be transferred to them.

Sony Ericsson is alleging that we have used the domain names in "bad faith". We are stunned and disappointed that Sony Ericsson, a company that we have spent much of our free personal time in promoting, especially the Xperia brand, has decided to take this formal action against us. After all we are just like you, passionate Sony Ericsson users, who have strived to bring the community breaking news and an independent viewpoint.

We do not have the resources to fight Sony Ericsson on this and therefore this is the last you will hear from us. Sony Ericsson has made great strides in its Xperia portfolio, especially in listening to the community. This makes it all the more confusing as to why Sony Ericsson would want to shut us down. We genuinely believe that 2012 could be a bumper year for the company, we just wish we could have been there along for the ride.

It's too bad they decided to cave. I would imagine they might be able to find some pro bono legal help on this, because the claim that the domain was registered in bad faith seems pretty freaking ridiculous. Plenty of "fan sites" have been allowed to continue, as long as there's no likelihood of confusion. It really is too bad that Sony Ericsson not only chose to go this route, but also went all the way to a formal dispute resolution (they don't say what, but I'm guessing a UDRP claim). It's amazing how many companies do really dumb things, just because some lawyers know they can.

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Making Sure Your Ass Is Covered

Nina Paley — Wed, 13 Jul 2011 14:59:43 PDT

Your dangerous ass
Point that thing away from me
Too many lawyers

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Greek Site That Links To Legal Videos By Rightsholders... Sued For Infringement

Mike Masnick — Mon, 4 Apr 2011 09:29:21 PDT

TorrentFreak has the details on yet another ridiculous story of "anti-piracy" groups going way too far. In this case, it's the Greek Society for the Protection of Intellectual Property (AEPI), who has sued the site LiveMovies.gr for infringement, claiming the site is making available unauthorized content, and saying that it has "suffered damages worth 10,000 euros for each illegal act." The only problem? LiveMovies.gr does not link to unauthorized content. It only links to content that is being officially streamed by the authorized rights holders. In other words, they've set up a "TV guide" of sorts to legitimate online streaming of content. They've explained this to the AEPI who apparently can't comprehend that the site is only linking to authorized content, and continues to press forward with the lawsuit. In response, LiveMovies.gr is filing a countersuit against AEPI, claiming both fraud and perjury. Should be interesting to see what happens next...

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Spanish Gov't Moves Forward On New Law To Make File Sharing And Links Sites Illegal

Mike Masnick — Tue, 23 Mar 2010 15:25:00 PDT

A bunch of free culture sites got pretty excited recently when a Spanish court ruled that file sharing sites, as well as links sites, weren't illegal. Of course, we noted this was hardly a new thing. Spanish courts had already made similar rulings in the past. In fact, the timing of this ruling seemed particularly bad, since we'd noted a few months ago that there were proposals being pushed to change copyright law in Spain. So it should come as little surprise that just days after that last ruling, the gov't has started moving forward with getting the new law approved, and many expect it will be in place within a few months.

The new law sounds particularly bad as well. It would set up a governmental bureaucracy that could simply denounce any site as illegal, if it feels that it offers links to infringing content. Once "denounced," the Spanish high court would get a grand total of four days to determine if the site should be shut down -- and the only reason why it would be allowed to not shut the site down would be if there were clear concerns about freedom of expression. Basically, if the gov't feels a site has too many "unauthorized" links, it gets shut down with minimal review. So much for a more balanced approach to copyright law.

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Judge Rules P2P Legal In Spain Yet Again

Mike Masnick — Mon, 15 Mar 2010 12:58:08 PDT

Spain continues to be one of the few countries out there that seems to not have its judges lose their critical thinking abilities the second anyone mentions the word "piracy." We've pointed out a few times in the past that Spanish courts have ruled that file sharing is legal and it looks like they've done so again. Infophage was the first of a few to send in an article about the latest ruling, which again found that just linking to infringing material is not copyright infringement. The judge apparently went further, though, also noting that using P2P file sharing systems does not appear to violate copyright law in Spain, as long as the user isn't doing so for monetary profit.

Of course, this isn't over by a long shot. Late last year, entertainment industry lobbyists got Spanish politicians to propose new copyright laws that would (of course) ratchet up copyright to make it more like it is in other countries (i.e., more draconian). And, as we recently noted, a bunch of Spanish record labels have sued the gov't for not doing enough to stop file sharing. But, hopefully, this country that has explicitly rejected three strikes laws will stick to its guns and recognize that perhaps the court rulings make sense -- and that the first response to an industry unwilling to adapt to a technologically-changed market isn't to change the laws, but to ask those companies to start adapting.

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Should It Be Illegal To Get Hacked?

Mike Masnick — Tue, 26 Aug 2008 12:06:00 PDT

A few years back, we asked if it should be illegal to get hacked. In that case, we were referring to some fines that the FTC had handed out to companies that had leaked data to hackers. This raised some troubling questions -- as it's often difficult-to-impossible to stop your computer systems from getting hacked, and putting liability on the company could lead to some serious unintended consequences. Yet, at the same time, over the past few years, we've heard about large security breaches on a regular basis (thanks, in large part, to new disclosure laws) -- and often those breaches definitely seem to be due to negligence on the part of a corporate IT team that failed to lock down the data in any significant manner. That seems to be leading more people down the path of saying that companies should be liable for getting hacked.

For example, Slashdot points us to a blog post at InfoWorld, where it's suggested that companies should be criminally liable for leaking such data. I can certainly understand the sentiment, but it may go too far. Again, it's impossible to totally protect a system from getting hacked. Sooner or later there's always going to be some sort of leak. Increasing penalties could make companies take things more seriously -- especially in cases of gross negligence (which do seem all too common). But making the rules too strict can have serious negative unintended consequences as well, even to the point that some companies may stop accepting credit cards altogether, since the liability would just be too great. Would people be willing to give up the convenience of credit cards to protect their safety? From what we've seen, for most users the answer would be no. They know their credit cards are at risk, but they still use them because the benefit of the convenience still seems to outweigh the danger of the risk.

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