DailyDirt: If People Were Meant To Fly In Space... (Too Much Free Time)
We've been talking about the insanity occurring in the beer industry regarding trademark for quite some time now. If you haven't been following along, the short version of this is that as the craft beer revolution has exploded the number of breweries taking part in the industry, so too has it exploded the number of trademark spats within it. In some senses, we should have seen this coming. Given the number of new players in the market with the limited linguistic resources available with which those players could name their companies and products, perhaps it was somewhat inevitable that some of the companies involved would try to lean on trademark law to fend off what they saw as impeding competition with too-close brand names. That said, many of these conflicts fail to live up to the purpose of trademark law, many of them giving barely even a nod towards an actual concern over customer confusion. Instead, protectionism reigns.
That seems to be the case in a spat between two Canadian breweries, with Moosehead Brewery claiming that the much smaller District Brewing Company's Müs Knuckle brew is too close in name and therefore infringing of the former's trademark.
Moosehead and Müs Knuckle are two breweries in a battle over trademarks. Short version, Moosehead says that Müs Knuckle is too close to their trademark for beer. The idea is that Müs Knuckle could be confused for a Moosehead product, or at least that’s what Moosehead thinks, and that’s why they are going after the smaller, Saskatchewan-based brewery.Left out of the analysis above is the, um, colorful connotation of the term "moose knuckle", the explanation of which I'll allow you to discover for yourself should you need to. What the above should indicate to you is that this trademark action is all about the word "moose", including variations of the word that are entirely made up, such as "müs", which isn't a real word. Beyond that word, nearly everything else to do with the packaging and trade dress is different, save for them both being in a green bottle. Which, you know, how many types of bottles can you use for a beer? So, the question to be answered here is whether customers will find themselves confused into thinking two different breweries selling beer that incorporate differently spelled versions of the word "moose" are actually the same, despite everything else to do with the packaging of the products.
The case is a bit of a stretch, largely due to a lot of the specific choices that Müs Knuckle has made. The packaging is not very similar outside of the glass used, the Regina company going with a predominantly blue label design in a diamond shape, whereas Moosehead is oval, green, and has a moose as part of the logo itself. The fact that Müs is also deliberately misspelled is another aesthetic choice that works to the advantage of the smaller company, it can be argued that they are trying to distance themselves from their more established competitor by stylizing their name.
Confused? Yeah, I didn't think so. In addition to having different fonts, colors, label shapes, names, and spellings, Moosehead includes and image of a moose's head, while Müs Knuckle doesn't include any images of a moose knuckle, because that would be porn. The original post appears to agree.
It’s our natural inclination to go for the underdog in cases like this, but in this case it’s the right instinct. The reason is that the Müs Knuckle brand is far enough out from the design and image of Moosehead that it’s clear this is a very flimsy case, as well as a case that is meant to push just how far the larger brand can take their trademark. It’s also a case where the intended purpose of the trademark – reducing consumer confusion – is being used to push competition in the sidelines. A smaller company, Müs Knuckle would have difficulty paying for a massive re-branding, especially as it would have to spend a great deal of effort trying to get their audience to recognize the new name and package. It could be a death blow to a brand that is quietly establishing itself, and a blow caused by a brand that is not substantially similar to the new product.Expect this dispute to meet a quick demise. If not, then good luck to the Canadian brewery industry in developing new brands.
The state of Maryland's defense of the Baltimore PD's warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones.
The last brief it filed in this criminal prosecution claimed "everyone knows" phones generate location data, therefore there's no expectation of privacy in this information. As commenters pointed out, people may know lots of stuff about records they're generating, but that doesn't mean law enforcement should have warrantless access to those records.
Everyone Knows… That my Doctors generate medical data about patients, so how about we get their medical records on public display without warrants!With no expectation of privacy, there's no need for a warrant. And with no warrant requirement, there's no chance of having evidence tossed. That's a win Maryland needs, considering the Baltimore PD alone has deployed IMSI catchers several thousand times without obtaining warrants. Everything runs through pen register orders, which both lower the burden of proof and (in many cases) obscure the technology actually being used.
While cell phones are ubiquitous, they all come with "off" switches. If a cell phone is turned on, it is receiving signals from cell towers, and sending signals back out to cell towers. The cell site simulator used in this case took advantage of that fact in order to locate Andrews's phone. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties. Under the doctrine set forth by the Supreme Court in Smith, supra, he cannot claim a Fourth Amendment privacy right in this case.The "Smith" the state refers to is 1979's Smith v. Maryland, which law enforcement loves to use in cell phone surveillance cases, because:
Andrews complains that the police "invaded" a "constitutionally protected area," and therefore this search triggered Fourth Amendment protections under United States v. Karo, 468 U.S. 705 (1984) and Kyllo v. United States, 533 US. 27 (2001). But in Karo, the suspect was unaware that he had brought a police transponder into his home, and in Kyllo, the suspect was unable to prevent grow-lights (or his body) from emitting heat. Andrews, by contrast, was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it offThe government's argument, while technically solid when used in conjunction with these precedent-setting decisions (Smith's outdated view of phones notwithstanding), but it becomes completely disingenuous when it describes the "sharing" of identifying phone data.
Just as the telephone company in Smith used transmitted phone numbers in a way quite distinct from the way in which the police used them, so, too, Andrews's cell service provider used the ID number broadcast by his cell phone in ways quite distinct from the way in which the police used it. The way in which the information was used does not alter the "expectation of privacy" in the information itself. Smith controls here. Andrews's addition of the adjective "exact" to the noun "location" does not alter that fact. The issue is not whether Andrews was aware that the police could find the location of his cell phone to within 20 yards. The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times. Under Smith, the answer is no.The "rest of the world?" Really? Andrews may have been able to talk his cell phone provider into turning over a copy of all the data his phone had generated, but it's not as though the general public has access to this information, expectation of privacy or no. Just because law enforcement can access this information with warrants or (more likely) pen register orders does not make it information "shared" with "the rest of the world." It is not shared indiscriminately and it's only because cell providers are legally compelled to cooperate with law enforcement (CALEA, etc.) that cops can obtain this information with a pen register order, rather than a warrant.
There is no Fourth Amendment right to evade a valid arrest warrant. Andrews was wanted on multiple counts of attempted murder. A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use. There is no constitutional right to avoid being arrested for one's crimes, and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him.