Earlier this year, Moosehead Brewery made the wonderful decision to get into a trademark dispute with the makers of a different beer, called Müs Knuckle, I imagine because trademark lawyers now know both that I'm paying attention to these cases and that I have the sense of humor of a high school sophomore. Moosehead essentially asserted that it owned the trademark rights to anything remotely close to "moose", including made up words that are homonyms but which have delightfully vulgar connotations. Other than the issue of the word "moose", none of the trade dress in question had anything remotely to do with one another.
Which is slightly different in another trademark suit that Moosehead Brewery has initiated. In the case of Moosehead Brewery v. Moose Wizz Root Beer, the labels are somewhat similar in color and logo, though there is certainly differentiation within them as well. The real issue here, instead, is that one of these is an alcoholic drink while the other is just a soda.
In its claim, Moosehead states: "Moose Wizz root beer products are so similar to Moosehead's beer sold under the Moosehead Registered Marks as to create a likelihood of confusion." The Canadian company is seeking damages, including the pulling of all Moose Wizz out of the market and the profits that Adirondack has made on the soda.
Adirondack owner John Carr says no one would confuse Moosehead and Moose Wizz. He points out that one is a beer and the other is a soda.
Which brings us all the way back to a point I've been making about trademarks in the alcohol industry for several years now: the USPTO and its Canadian counterpart, CIPO, need to start differentiating between types of beverages. Given the explosion in craft brewing, craft wines, craft spirits, and even craft soda, it simply can't be enough any longer to get a trademark on "beverages" or something of that sort. It must start being more specific, or we're going to start to see the trademark dispute carnage currently plaguing the beer industry spilling over into not just other alcohol industries, which has already started, but into other beverage markets as well.
Not to mention the question as to whether or not CIPO should actually be approving trademark registration in Canada that revolve around the word "moose" at all. It certainly feels like a heritage word being carved out of the language of business. Carr certainly doesn't seem to think that makes any sense.
"I mean, we're in the Adirondacks, guys," he told syracuse.com in a story about the case published in November 2015. "Do you mean we have to take 'moose' out of our vocabulary? I don't like to be bullied,'' he said. "I say to them, 'You don't own the moose.' "
Unfortunately, a jury at the trial disagreed and found in favor of Moosehead, awarding the brewer a meager eight thousand dollars.
The jury awarded Moosehead Breweries of New Brunswick $8,800 in damages. Federal court judge Norman Mordue will decide at a later date whether to prohibit Moose Wizz from continuing to use the name and the depiction of a moose's head on its label, as Moosehead has demanded.
Rather than focus on the similarity of the labels as I had expected, Moosehead apparently instead directly took on whether or not root beer and beer-beer could be conflated by the public. Adirondack argued as I have in the past, stating that the difference between the beverages makes them distinct in the marketplace. Moosehead, however, rather smartly pointed out that root beer has become the new alcohol flavor du jour, and that this suddenly meant that non-alcoholic root beers could be confused as alcoholic.
Moosehead's lawyers contended the recent surge by beer brewers moving into the hard root beer and alcoholic soda marketplace has blurred those lines.
"Really, that was the central issue in this case," said Moosehead lead attorney Mike Garvin, of the Vorys law firm in Cleveland.
He cited products like Not Your Father's Root Beer, an alcoholic soda made by a brewery in Illinois. (The trend has reached Central New York, where, for example, Matt Brewing of Utica now makes hard sodas in a line called Jed's).
"Really, Moosehead might not have brought this case ten years ago," Garvin said. "The point we tried to make is that the beverage world has changed. The lines between breweries making beer and other beverages is less clear than it was."
We're now playing the degrees of separation game, but with beverages. Because what Moosehead is really suggesting isn't so much that Moose Wizz will be conflated with Moosehead directly, but that Moose Wizz will be conflated with other root beer-flavored alcoholic drinks, which then puts it in the category for which a trademark case would make logical sense. I can understand why the jury bought this argument, but I still find it odd that a beer and a soda are considered to be in the same marketplace.
And, more importantly, if we're going to start playing this degrees of separation game in the alcohol arena, then the trademark dispute glut that has plagued the industry these past few years might be a mere warm-up act.
"US defends mass surveillance programs with 'If you have nothing to hide, you have nothing to fear' but opposes live streaming of my hearing," Dotcom, who attended some of the hearing, said on Twitter.Honestly, it's not at all clear why the government lawyers are opposing this other than to just oppose stuff and be generally obstructionist. However, it doesn't appear to have worked. A little while ago, Dotcom's lawyer Ira Rothken announced that the court had agreed to allow live streaming:
The Court granted Livestreaming today in the @KimDotcom case this is a victory for transparent justice in NZ - on YouTube soon live— Ira Rothken (@rothken) August 29, 2016
Live stream will start tomorrow. The cameraman needs to set this up professionally and implement the Judges live streaming rules. #winning— Kim Dotcom (@KimDotcom) August 29, 2016
FBI Says Foreign Hackers Got Into Election Computers ((Mis)Uses of Technology)
The FBI has uncovered evidence that foreign hackers penetrated two state election databases in recent weeks, prompting the bureau to warn election officials across the country to take new steps to enhance the security of their computer systems, according to federal and state law enforcement officials.The report apparently noted that Arizona and Illinois were the two states whose systems were exploited -- with both attacks coming from the same IP addresses. From the report, it does not look as if the hacks were specifically about modifying vote totals, but rather accessing voter registration data -- but that's still a pretty big concern.
The Louisiana First Circuit Court of Appeals has just ended Terrebonne Parish Sheriff Jerry "Censorious Dumbass" Larpenter's attempt to silence a critic through the magic of abusing his power. The sheriff obtained a warrant to raid a blogger's house, using the state's mostly-unconstitutional criminal defamation law to justify the search. The blogger had pointed out that Larpenter's wife works for an insurance agency that provides coverage for the local government -- something that looked just a wee bit corrupt.
Larpenter didn't care for this, so he took his search warrant application -- and a complaint by Tony Alford, who runs the insurance company that Larpenter's wife works for -- to an off-duty judge to get it signed. This same judge later declared the warrant to be perfectly legal when challenged by lawyers representing the blogger. The blogger's lawyers appealed [PDF] this decision, which has resulted in the warrant [PDF] being killed. Naomi Lachance of The Intercept has more details.
An appellate court in Baton Rouge ruled Thursday that a raid on a police officer’s house in search of the blogger who had accused the sheriff of corruption was unconstitutional.
The Louisiana First Circuit Court of Appeals argued that Sheriff Jerry Larpenter’s investigation into the blog ExposeDAT had flawed rationale: the alleged defamation was not actually a crime as applied to a public official.
The unanimous ruling from the three-judge panel comes after police officer Wayne Anderson and his wife Jennifer Anderson were denied assistance in local and federal court.
The one-paragraph decision [PDF] points out that Tony Alford is a public figure and cannot avail himself of the state's criminal defamation law.
Anthony Alford, the supposed victim, is President of the Terrebonne Parish Levee and Conservation Board of Louisiana, and a public official. Consequently, the search warrant lacks probable cause because the conduct complained of is not a criminally actionable offense. The ruling of the district court denying the motion to quash the search warrant is reversed, the motion is granted, and the search warrant is quashed.
So much for Judge Randall Bethancourt's declaration that the warrant he signed was valid. And so much for the Terrebonne Sheriff's Department's "look see" Bethancourt granted earlier. The seized devices -- which included a laptop belonging to the blogger's children -- have been held by the clerk of courts, which hopefully means Sheriff Larpenter didn't sneak some peeks before having his bogus warrant tossed.
The state's top prosecutor won't be humoring Sheriff Larpenter any further.
“We respect the First Circuit decision, we have no plans to appeal, and as far as the attorney general is concerned, the case is closed,” Ruth Wisher, press secretary for the attorney general, told The Intercept.
Sheriff Larpenter still seems willing to abuse his office to shut people up, as evidenced by his inability to do so himself.
Over the month of August, Larpenter had publicly defended his position. “They need to upgrade [criminal defamation] to a felony,” he recently said on local television station HTV10.
“The media come and all the different outlets, even our local media, wrote unsatisfactory accusations about me like, ‘Oh, they got freedom of speech. They can say what they want.’ Well that’s not true,” he said.
Larpenter is wrong on both counts. Defamation shouldn't be a criminal offense. Ever. And his definition of "free speech" doesn't sound very "free." Instead, it sounds like Larpenter would prefer limits to speech he doesn't like, which is a stupid and dangerous ideal to hold while in an elected office holding considerable power. I have my doubts Larpenter thought he'd really end up with a criminal prosecution, but he's probably satisfied that he was allowed to walk into someone's home, take their stuff, and force them to spend money defending themselves from a completely bogus criminal charge.
Of course, intimidation tactics like these can sometimes backfire completely. Larpenter now looks like an easily-bruised bully and his BS attempted prosecution will likely only encourage his critics to speak up more loudly and frequently. In addition, The Intercept reports the blogger's lawyers will be moving forward with a lawsuit against the parish for Sheriff Larpenter's actions, so this may end up costing taxpayers some cash as well. Hopefully, this unneeded spending will be on their minds when Larpenter's up for re-election.
The report notes that lawyers have increasingly looked to ISDS not as a system of last resort, as it was originally intended, but as a creative way to
A Dubai real estate mogul and former business partner of Donald Trump was sentenced to prison for collaborating on a deal that would swindle the Egyptian people out of millions of dollars — but then he turned to ISDS and got his prison sentence wiped away. In El Salvador, a court found that a factory had poisoned a village — including dozens of children — with lead, failing for years to take government-ordered steps to prevent the toxic metal from seeping out. But the factory owners’ lawyers used ISDS to help the company dodge a criminal conviction and the responsibility for cleaning up the area and providing needed medical care. Two financiers convicted of embezzling more than $300 million from an Indonesian bank used an ISDS finding to fend off Interpol, shield their assets, and effectively nullify their punishment.
Driving this expansion are the lawyers themselves. They have devised new and creative ways to deploy ISDS, and in the process bill millions to both the businesses and the governments they represent. At posh locales around the globe, members of The Club meet to swap strategies and drum up potential clients, some of which are household names, such as ExxonMobil or Eli Lilly, but many more of which are much lower profile. In specialty publications, the lawyers suggest novel ways to use ISDS as leverage against governments. It’s a sort of sophisticated, international version of the plaintiff’s attorney TV ad or billboard: Has your business been harmed by an increase in mining royalties in Mali? Our experienced team of lawyers may be able to help.There are even lawyers who basically just scour the world for any regulatory change, and then go hunting for companies who can bring ISDS corporate sovereignty cases over those regulatory changes. In other words, the cart is not just in front of the horse here, it's dragging it down the hill.
A few of their ideas: Sue Libya for failing to protect an oil facility during a civil war. Sue Spain for reducing solar energy incentives as a severe recession forced the government to make budget cuts. Sue India for allowing a generic drug company to make a cheaper version of a cancer drug.
The report then goes on to detail some specific case studies of people accused of criminal activity using corporate sovereignty tribunals to effectively get away with it.
Reviewing publicly available information for about 300 claims filed during the past five years, BuzzFeed News found more than 35 cases in which the company or executive seeking protection in ISDS was accused of criminal activity, including money laundering, embezzlement, stock manipulation, bribery, war profiteering, and fraud.
Among them: a bank in Cyprus that the US government accused of financing terrorism and organized crime, an oil company executive accused of embezzling millions from the impoverished African nation of Burundi, and the Russian oligarch known as “the Kremlin’s banker.”
Some are at the center of notorious scandals, from the billionaire accused of orchestrating a massive Ponzi scheme in Mauritius to multiple telecommunications tycoons charged in the ever-widening “2G scam” in India, which made it into Time magazine’s top 10 abuses of power, alongside Watergate. The companies or executives involved in these cases either denied wrongdoing or did not respond to requests for comment.
Most of the 35-plus cases are still ongoing. But in at least eight of the cases, bringing an ISDS claim got results for the accused wrongdoers, including a multimillion-dollar award, a dropped criminal investigation, and dropped criminal charges. In another, the tribunal has directed the government to halt a criminal case while the arbitration is pending.
That means that even though domestic people aren't supposed to be able to use ISDS against their own governments, it still can happen:
A key service offered by the ISDS legal industry goes by various euphemisms: “corporate structuring,” “re-domiciling,” “nationality planning.” Critics have a different term: “treaty shopping.” It amounts to helping businesses figure out which countries’ treaties afford the most leeway for bringing ISDS claims, then setting up a holding company there — sometimes little more than some space in an office building — from which to launch attacks.
So it is that a private equity firm based in Texas can fly the flags of Belgium and Luxembourg, enabling it to sue South Korea, which convicted one of its executives of stock manipulation. The private equity firm declined to comment.
ISDS was designed to protect foreign investors, not people suing their own government. But members of the once-prominent Turkish Uzan family — accused of perpetrating a fraud worth billions and derided at one point by a US federal judge as “business imperialists of the worst kind” — found a way to sue their native land through a variety of companies primarily under their control in Cyprus, Poland, and the Netherlands. (Turkey won each case, but at a cost of tens of millions in legal fees.) The family’s telecommunications company, however, remained Turkish so it could bring a claim against Kazakhstan, with which Turkey has a treaty — and win a $125 million award.And, yes, lawyers specializing in this kind of money making effort are also the ones (shocker!) using the infamous revolving door at the US Trade Representative's office to cash in:
Nice work, if you can get it.
Daniel M. Price negotiated the section of NAFTA containing ISDS when he was a lawyer at the Office of the US Trade Representative. He later served as a top international trade official in the George W. Bush White House.
In between these government stints, he worked as a private lawyer helping clients in ISDS cases. Twice he used the treaty he himself had helped negotiate to help US-based businesses pursue claims against Mexico.
He founded and chaired the unit handling ISDS claims at Sidley Austin, a leading global law firm. Today, he promotes his services as an arbitrator and, along with a powerhouse team that includes other former government lawyers, sells international expertise on ISDS and related matters.
To prove that ISDS is not biased in favor of businesses, they point to the outcomes of known cases: Governments have won about 35% of the time, while business interests have won only about 25%.There's much, much, much more in this story, and it's just the first in a series. Hopefully things like this will start to wake people up to just how incredibly bad ISDS corporate sovereignty provisions really are. They're not just some obscure system that involves big companies fighting. They're becoming an alternative court system for the super powerful and connected -- and letting them literally get away with criminal behavior.
But that statistic is anything but straightforward. It pertains only to the outcomes of known cases; ISDS is so secretive no one even knows how many additional cases there have been. Also secret are most of the settlements. Roughly a quarter of the known cases were settled, but the terms are almost never disclosed.
Moreover, subtract the cases that arbitrators tossed out because they didn’t have jurisdiction to hear the claim, and that win–loss balance flips: Business interests have won 60% of the time. Even then, cases recorded as losses for the corporation can actually be wins. In one case, an executive failed to garner a monetary judgment but obtained a finding that helped him wipe away a criminal punishment.