One of the things that's always coaxed a wry laugh from me is when there is some trademark dispute between two entities that results in a claim that customers will be confused between two products which, if that were true, would make the plaintiff's product sound really gross. Examples include that time Benihana suggested the public might eat a rap artist thinking it was their food, or when Makers Mark thought that people might somehow mistake its whiskey for tequila, which doesn't say much for its whiskey.

Perhaps Monster Energy saw these and other past examples of this and was all, "Hold my beer.", because it filed a trademark opposition against Monster Dip, which makes industrial paint and coatings.

Monster had filed the appeal with the EU General Court after the European Union Intellectual Property Office (EUIPO), in April 2016, dismissed its opposition to a trademark registered by German resident Marco Bösel. Bösel applied to register a figurative trademark for ‘Monster Dip’ in 2014. The classes covered by the trademark are 2, 37 and 45. These include paints, coating preparations and the painting of vehicles.

Monster opposed the registration, arguing that it would infringe its registered trademarks for ‘Monster Energy’. The Opposition Division of the EUIPO rejected Monster’s claim in April 2016, with the EUIPO also rejecting Monster’s subsequent appeal in February 2017.

As Monster Energy doesn't have trademarks for those classes, all it can really be suggesting is that there would be some confusion in the public that Monster Dip's products were associated in some way with Monster Energy's. And that suggestion sure sounds like Monster Energy suggesting that the public may not be able to tell its energy drink beverages from industrial paint. Which is amazing. I mean, I've had this exact thought for years, but getting Monster Energy to admit as much is deeply satisfying.

Fortunately for Monster Dip, Monster Energy's final appeal to the EU courts failed.

Monster’s most recent appeal was brought to the General Court in July last year, seeking a rejection of Bösel’s registration for the trademark and an order for the EUIPO to pay costs. The court ruled that there was not sufficient similarity in the goods and services covered by each company’s respective trademark to cause confusion over the provider of those goods and services. Affirming the EUIPO’s decision, the court found that the sections of the “relevant public” who would understand the words ‘monster’ and ‘energy’ would also be able to distinguish between the two brands.

The court ordered Monster Energy to pay costs.

It's the last bit of this result that has me so very confused as to why Monster Energy continues to do this to itself.

Philadelphia's asset forfeiture programs have subjected the city's residents to all sorts of abuse. Cops have taken cars away from their owners because a child, relative, or friend was arrested while driving the vehicle. Law enforcement has tried to take entire homes away from grandmothers because their kid sold $140-worth of marijuana to an undercover cop.

A recent court settlement is reforming the program -- something the city's legislators have had zero success doing. Cash under the amount of $250 can no longer be forfeited. Seizures under $1000 need to be accompanied by an arrest and charges. The city's law enforcement has been flexing its creativity, using the new arrest requirement to seize vehicles as "evidence" and hoping the wheels of justice grind slowly enough it would be cheaper to relinquish ownership than pay to get the car out of the impound lot.

We know cops directly profit from asset forfeiture, but when we say that we generally mean their agencies get new toys, vehicles, and other niceties by converting other people's property into discretionary spending. But there's an actual personal profit angle to forfeiture that hasn't been discussed. An investigation by PlanPhilly shows police officers have personally and directly benefited from property seizures tied to drug enforcement efforts. (h/t Wendy Cockcroft)

Maleny Vazquez remembers when the police came and took the house across the street. Vazquez has only lived on this block of Waterloo Street for a few years, but in this chaotic section of Kensington, riven by the drug trade, she has gotten used to seeing police empty homes.

“There were lot of guns and a lot of drugs in there,” she recalls. “They took 30 guns out of there.”

In neighborhoods across Philadelphia, the city sells homes that owe back taxes, or have fallen into foreclosure. But the sales in Vazquez’s neighborhood were different. Here, police seized properties after drug raids. Once they were taken, the district attorney auctioned them off to the highest bidder, for cash that went back to the law enforcement agencies.

This program saw Philly law enforcement rake in as much as $6 million a year for most of the past quarter-century. But it's not just the indirect benefit incentivizing property seizures. With this incentive, drug raids could just be home shopping.

[R]ecords showed that members of Philadelphia law enforcement directly benefited from these sales. This investigation detected at least 11 properties that were sold to Philadelphia police officers trying their hands at real estate investment.

The number may not seem like much over the course of twenty-five years, but PlanPhilly says there's no way of knowing exactly how much property ended up in the possession of law enforcement officers. It was only able to examine 1,682 records held by the District Attorney's office, which handled the sale of forfeited homes. The Philly PD conveniently decided not to retain records on forfeited property, ensuring it had nothing to give to PlanPhilly when it started asking questions.

The Philly PD does not actually prohibit officers from buying seized property. It notes it "gives the appearance of impropriety," but apparently feels it isn't actual impropriety worth deterring. Nothing prevents officers from buying up houses they've seized except their better judgment. For at least 11 officers, an appearance of impropriety isn't enough to deter them from looking like they're headed out home shopping every time they don their SWAT gear.

The innovator's dilemma, and the concept of disruptive innovation, is an idea that sits at the core of a lot of what we talk about here at Techdirt, and it has been embraced by different people in very different ways — though not always good ones. This week, for our final episode of 2018, we've got returning guest James Allworth joining the podcast to talk about the growth of disruptors into incumbents, and how they respond to the next wave of disruptors.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

By now, of course, you're aware that the Verizon-owned Tumblr (which was bought by Yahoo, which was bought by Verizon and merged into "Oath" with AOL and other no longer relevant properties) has suddenly decided that nothing sexy is allowed on its servers. This took many by surprise because apparently a huge percentage of Tumblr was used by people to post somewhat racy content. Knowing that a bunch of content was about to disappear, the famed Archive Team sprung into action -- as they've done many times in the past. They set out to archive as much of the content on Tumblr that was set to be disappeared down the memory hole as possible... and it turns out that Verizon decided as a final "fuck you" to cut them off. Jason Scott, the mastermind behind the Archive Team announced over the weekend that Verizon appeared to be blocking their IPs:

On Sunday, Scott announced that the Archive Team has figured out a way to get past the blocks:

Still, this is a pretty fucked up thing for Verizon to do. It's one thing to decide to completely change the kind of content you host. That's their call. But, at the very least, allow the people who focus on archiving the internet for historical purposes the chance to actually do what they do best. Blocking the Archive Team is a truly obnoxious move, cementing Verizon's reputation as really not caring one bit about the damage the company does.

In one of the more blatant attempts at censorship we've witnessed, a Minnesota politician tried to trademark the name of a politically-focused blog that often criticized her. Tax board member Carol Becker tried to take the name "Wedge LIVE!" away from its owner, John Edwards, who had been using the name for years to cover local politics. Becker first claimed she thought of the name herself, which she thought would be perfect for her yet-unrealized podcast covering… local politics.

After receiving a bit of heat from Tony Webster, John Edwards, and Edward's supporters, Becker finally admitted she was attempting to take the name away from her critic, who had built his unregistered brand over the past several years. After more backlash, she decided to withdraw her trademark applications but warned she would try again in six months if Edwards didn't register them first.

Four months later, it appears Edwards has prevailed. His post at Wedge LIVE! notes he has dropped his lawsuit against Becker seeking an injunction blocking her from filing for Wedge Live-related trademarks. Becker has agreed to drop her censorial pursuit of the name "Wedge LIVE," bringing an end to this ridiculous and particularly inept attempt to silence a critic.

The legal effort to defend Wedge LIVE from Carol Becker has ended in victory. In a settlement reached late Monday, and fully executed yesterday, Becker has acknowledged my ownership of the name “Wedge LIVE.” Additionally, Becker has agreed that she will “never assert any claim to these marks in the future.”

Perhaps this debacle will lead Becker to exit the public sector. Becker attempted to use the federal government's IP protections to undermine a critic -- one she also baselessly accused of being funded by "dark money" and called a tax fraud. She also denied being aware of Wedge LIVE!'s existence when first confronted by journalists, only belatedly admitting she knew exactly what she was doing when she filed the disingenuous trademark applications. She's proven she can't really be trusted to handle even the small part of government she's staked out.

The Complete Robotics eBook Bundle gives you 5 eBooks focused on Robot Operating System (ROS) and learning how to build your own projects. ROS is one of the most popular software frameworks for modeling, simulating, and prototyping robots, but the first book will help you get your feet wet as you walk through building a self-driving car, creating an autonomous mobile robot, and even tinkering around with image recognition and deep learning. The next three books help you become more comfortable and more advanced with ROS. The fifth book covers robotics projects based on the original ESP8266 microcontroller board and some variants of ESP8266 boards. The bundle is on sale for $19.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

The entire Article 13 debate is a weird one. It appears that both the recording industry and the film industry are going for broke on this one. The lobbying on this started a few years back, with the rather clever but completely bogus idea of the "value gap."

In case you haven't followed it, the idea of the "value gap" is that (1) YouTube pays less to musicians record labels than Spotify and Apple Music do for streams. (2) YouTube's general purpose video hosting platform is protected by intermediary protection laws (DMCA 512 in the US, Article 14 of the E-Commerce Directive in the EU) allowing users to upload whatever they want, and YouTube only has to takedown infringing works upon notice. (3) Services like Spotify and Apple Music license all their works. (4) The "lower rates" that YouTube pays must be the result of the safe harbor, and the difference in payments is the "value gap." Article 13, then, is supposed to "fix" the value gap by completely removing any notice-and-takedown safe harbor for copyright-covered works.

Of course, almost all of this is bullshit. YouTube is used in very, very different ways from Spotify and Apple Music. While YouTube does have a competing music streaming service that is similar to Spotify/Apple Music, its payment rates there are equivalent. But on the general open platform, the rates are different. This is not because of the safe harbors, but because people use the platforms very, very differently. People use Spotify/Apple Music almost like radio -- to put on music that is constantly streaming playlists of songs. YouTube has all sorts of content, most of it not music, and while some may use it as a radio-style experience, that is fairly rare. And the recording industry has always received different rates based on different platforms and different kinds of usage.

Meanwhile, Article 13 will do nothing to solve the "problem" that all the "value gap" people keep insisting is a problem. That's because Article 13 will basically require an upload filter that will spot infringing works and block them before they get on the site (there's more to it than that, but that's a basic approximation of what the law will require in practice). Basically the only company that has actually done this already... is YouTube! YouTube has its ContentID system, which it has spent over $100 million developing, and which can block uploads and pull down content.

And... let's take a look at just how much damage such a system causes. Remember, YouTube has spent more on its filter than anyone else (by far) and it is considered easily the most sophisticated and advanced such filter.

And it sucks.

Last week, I saw musician Dan Bull (who wrote/performed the Techdirt podcast theme song) complaining that he had he had received a copyright claim on a video that was his own work, and from someone whose work was not in the video at all:

The issue, apparently, was that both Dan Bull and the claimant -- another independent rap artist -- had used used the same instrumental, that was available on a "non-exclusive" basis, meaning lots of artists could use it. That indie artist then tried to monetize their own work, but ContentID found anyone using the same properly licensed instrumental and gave people a strike.

And, even the way in which YouTube communicated with Dan Bull was ridiculous:

If you can't see that, YouTube told him that "your copyright dispute is currently being reviewed by the copyright owner," to which Dan Bull rightly pointed out that's bullshit, because it's not "the copyright holder" who is reviewing it.

A day later, someone else pointed me to a nearly identical situation with another super popular YouTube musician, The Fat Rat. A third party claimed copyright on his song and YouTube rejected The Fat Rat's dispute.

And, then, soon after that, he posts a similar frustration to Dan Bull when YouTube incorrectly tells him that this is in the hands of "the content owner," when that's not whose hands its in at all:

That's just two examples of YouTube's $100 million upload filter system claiming copyright on music incorrectly that I randomly came across in just the past few days. But it's not hard to find tons of other examples of this happening. Here's someone pointing out that each and every one of his videos is being copyright claimed one after another:

And that seems to happen quite often too. Here's an incredible video from a popular YouTuber explaining in great detail how every single one of his videos had been copyright claimed:

In case you can't watch that, basically the guy legally licensed some music to be used as his outro music (paid the musician $50 for it, as per their request, even though the musician later claims anyone is free to use the music, so long as they include a Spotify link to his stuff). But, then a bunch of companies get involved, including Distrokid and Audiam, who claimed basically every single one of his videos, and his email conversation with both companies is maddening, as they don't seem to understand or care about what's going on -- and basically tell him that every time this happens he would need to email them again and hope they remove the claims, but they refuse to whitelist his account.

And here's another person highlighting that all 3,000+ of his videos just got a ContentID copyright claim:

And here's someone who got a copyright claim on a private, unlisted video that the uploader needed for a class assignment:

Those are just the first few results that pop up for a quick search on Twitter of "Youtube" and "copyright." There are lots more. Indeed, there's an interesting one from the super popular YouTuber @Jack_Septic_Eye (Sean William McLoughlin) who explains that he accidentally caused a ton of bogus copyright claims by switching YouTube networks:

In short, the $100 million ContentID system is a total fucking mess.

Bring that back around to Article 13, which will create massive fines should YouTube fail to catch any copyright-covered works with (per the industry's wishes) no safe harbors for platforms, and this problem will only get significantly worse. Under Article 13, YouTube would be crazy to give anyone even the benefit of the doubt if they receive a copyright claim. Not only that, it would be effectively required to not just block all of these works, but to prevent many of them from ever being uploaded in the first place.

What the various people pushing for Article 13 don't seem to realize is that bogus copyright claims happen all the time. Or there are mixups around content that multiple people license. Or there are multiple middle men making claims on behalf of copyright holders with no knowledge of who has licensed and who has not. Article 13 doesn't take any of that into account. It just says "license everything." Of course, the big labels/studios don't give a fuck if this leads to censorship of you piddly little independents and amateurs. They just want YouTube to hand them a giant check to "license" their entire catalog. That's the real endgame here. That it would block out independents and amateurs (i.e., competitors) is just icing on the cake. And, of course, it ignores that if YouTube spent $100 million on this system and it already has so many problems, just imagine how poorly everyone else's mandatory filters will work.

Article 13 is a horrible solution to a "problem" that doesn't even exist. The fact that YouTube's $100 million ContentID system is so full of bogus claims shows just one of the many problems with filters -- and making them mandatory won't suddenly make YouTube pay. The whole thing is just designed to be leverage. The labels and studios want to use Article 13 as a weapon against YouTube, basically saying "give us all your money in a giant license or we'll sue you over and over and over again." And, of course, should they actually get that, the money is unlikely to make its way back to any of the actual artists.

Europe is doing a big thing badly, and Article 13 is an unmitigated disaster.

So a few months back, a group mysteriously calling itself "Protect Amerca's Wireless" popped up on the internet and began attacking the Sprint, T-Mobile merger. The campaign, which has all the usual signs of astroturf, takes particular aim at both companies' use of Huawei network hardware -- gear that the organization insists "could give countries like Saudi Arabia, China, Germany, and Japan direct access to our networks through the use of foreign-made networking equipment and billions of foreign money."

In short, the mystery group is piggybacking on the recent hysteria surrounding Huawei to try and scuttle the merger, which is certainly a problematic merger, but largely for employment and competition reasons.

Like most policy and political influence efforts, the campaign doesn't list its funders on its website, simply insisting it's an organic coalition of a few think tanks and some "foreign policy and national security professionals." I reached out to the group for more details on its financing, and was told (falsely) that the group couldn't tell me who finances it because as a 501(c)(3) it's prohibited by law from doing so.

So we've noted for a while that while some of the criticism of Huawei has been justified, much of it has been manufactured by Huawei competitors like Cisco.

And while recent allegations that Huawei may have tap-danced around Iranian sanctions may or may not be true, the claims that the company routinely spies on Americans for the Chinese government has never been publicly proven. In fact, an 18 month study by the White House in 2012 (the last time this hysteria crested) found no evidence supporting such allegations. Germany just this week stated it wouldn't join the Huawei vilification party until somebody provides, you know, actual evidence.

US press coverage of the Huawei story usually fails to mention any of this. Nor is it mentioned that the United States has routinely been busted doing far worse. The Snowden docs, for example, showed how the NSA broke into Huawei, stole source code, and implanted backdoors, something that seems kind of important in conversational context. It's a solid example of how the US tech press isn't particularly keyed into its own nationalistic myopia. It also exemplifies the States' bad habit (both by government and the press) of pushing the idea that dubious and unethical behavior is only okay when we do it.

I'm still digging into who runs Protect America's Wireless (it's worth at least noting that former Rep. Mike Rogers, now an AT&T consultant, was at the outfit's launch). In the interim, it looks like both Sprint and T-Mobile believe are being told by the government that they'll likely have their competition-eroding merger approved if their owners (Deutsche Telekom and Softbank) are willing to remove all Huawei gear from their network and stop using the supplier moving forward:

"T-Mobile US Inc and Sprint Corp believe their foreign owners’ offer to stop using Huawei Technologies equipment will help with the United States clearing their $26 billion merger deal, sources said, underscoring the lengths to which Washington has gone to shut out the Chinese company."

Having watched the Trump FCC's other efforts to help blacklist Huawei, I'd be willing to bet that one of their only meaningful conditions affixed to their gushing approval of the deal will be promises by T-Mobile and Sprint that they won't use Huawei gear (omitted: the fact that neither currently does). This will help the FCC pretend that it hasn't abdicated its role as watchdog, with national security chatter obfuscating many of the terrible aspects of the deal (like the 30,000 potential job losses or the dramatic reduction in overall competition).

The duo get their unpopular merger, Cisco gets more business thanks to facts-optional protectionism, and consumers get bupkis. See how this game works?

Given all of the legitimately dubious things China routinely does, defending Huawei isn't exactly a hill I'm excited to die on. Still, I've been absolutely fascinated by the selective reasoning and hypocrisy as Huawei is increasingly blacklisted. It's particularly odd since the lax security in the internet of things and consumer network hardware space -- arguably just as big of a threat to national security -- receives only a tiny fraction of the same breathless attention by many of these same folks.

Huawei gets oddly singled out as some kind of unique bogeyman. In reality most major telecom operators, including US operators like AT&T, are every bit as sketchy as the allegations levied at Huawei. Dubious lobbying efforts? Check. Illegal and unethical efforts to screw consumers? Check. Massive corruption scandals? Check. Massive, legally-dubious wholesale domestic spying operations? You betcha. Most major telecom operators are government-pampered natural monopolies that don't have to play by the rules and more often than not win the most lucrative government contracts, thanks to their cozy relationship with intelligence.

Huawei may or may not have actually been involved in spying. Maybe someday somebody will actually provide public evidence proving they do. In the interim, it's pretty clear a sizable chunk of the current Huawei hysteria is being generated by the same companies that don't want to compete with Huawei, a layer of protectionism the press should at least mention in passing during the next round of pearl clutching.

The FBI has the power to collect massive amounts of data and communications during its investigations. This power periodically ingests NATSEC steroids, pumping the FBI's data stores full of stuff not relevant to the NSA's work, but possibly relevant to the FBI's crime-fighting duties.

You would think the FBI would toss anything not relevant to an investigation. Just in terms of storage and haystack-sorting, it would only make sense to discard data/communications not needed for ongoing investigations. But you'd be wrong. The FBI holds on to everything it gets because you never know: the irrelevancies you hoovered up yesterday might be useful today.

That's pretty much what happened to Aaron Swartz, according to documents published by Dell Cameron of Gizmodo.

Nearly two years before the U.S. government’s first known inquiry into the activities of Reddit co-founder and famed digital activist Aaron Swartz, the FBI swept up his email data in a counterterrorism investigation that also ensnared students at an American university, according to a once-secret document first published by Gizmodo.

The email data belonging to Swartz, who was likely not the target of the counterterrorism investigation, was cataloged by the FBI and accessed more than a year later as it weighed potential charges against him for something wholly unrelated.

The data collected -- most likely obtained with an NSL -- came from Pittsburgh University. It was part of a data haul associated with the FBI's terrorism investigation. Swartz was never the target of this Al-Qaeda investigation but the information obtained remained in the FBI's data stores even though the FBI had no reason to hold onto non-hit data.

When the FBI did start looking in Swartz's activities, it found his email address in the stored data it had obtained from the university in 2007. This apparently happened in 2008, around the time the FBI was trying to determine if Swartz had violated any laws by freeing millions of court documents from PACER.

The FBI targeted a foreign terrorist entity but ended up with an untold amount of email metadata originating from US persons' accounts. The only reason we're seeing any evidence of the FBI's backdoor domestic searches come to light is Aaron Swartz's inadvertent involvement. If it hadn't been for a high-profile prosecution and Swartz's tragic suicide, public interest in the FBI's investigative activities surrounding Swartz would likely have minimal public interest. But Swartz's prosecution and death have put more eyes on the case, including those of transparency group Property of the People, which obtained this document through an FOIA lawsuit against the agency.

This document is more evidence the FBI abuses its investigative privileges. The agency engages in foreign-facing terrorism investigations, hoovering up as much "relevant" data as it can. Rather than discard everything not related to the investigation, the FBI stores it indefinitely. When the FBI opens a domestic investigation, it can give itself a head start by digging through its data stores for info it has "inadvertently" gathered on American citizens. The information the FBI already has on hand -- info it really can't justify keeping -- helps build cases against Americans while depriving them of their right to challenge the evidence against them. Americans don't know about this evidence because it's laundered by NSLs, warrants, and whatever else the FBI needs to deploy to duplicate the results of data store searches the agency has already performed.

Fresh off our post discussing the EU refusing the famous St. Andrews Links golf course a trademark for "St. Andrews" due to that term being primarily a geographical location, we have a similar situation in Europe centering around Oxford University's attempt to trademark "Oxford" for a whole swath of categories. And, just to make what might seem like a banal trademark opposition a little more spicy, much of this has to do with Brexit.

The university wants to trademark the city's name on more than a hundred products from stickers and pencils to DVDs and bibles.

However the move has sparked concern that if granted, makers of maps, tickets, newspapers, journals and 122 other goods could potentially face a bill for using the word ‘Oxford’ in the wrong way.

The application to the Intellectual Property Office has so far garnered three objections.

And that number is likely to grow, with several objectors thus far essentially running to the press in a call to arms for anyone who could be targeted by the university if this application is granted. All of the objections make the same argument: Oxford was a city before it was a university and locking down the name of a city for broad categories such as those requested in the application is a big no-no in the EU. Just like in the case of St. Andrews, this makes sense. If the application is granted, it could be used as a weapon by Oxford University to keep any shopkeeper in Oxford from selling stickers with the word "Oxford" on them. That obviously isn't the point of trademark law.

Interestingly, however, the school already has a trademark in the EU. It probably never should have been granted one. This trademark application is for the UK, as the school attempts to get its business in order in anticipation of Brexit.

Oxford University Press (OUP), a division of the university, lodged the application in October as the world-renowned institution looks to sure up protection of its 'brand' ahead of Brexit.

The university currently has a trademark in the EU, however, if the UK withdraws, as is currently planned in March, a new trademark would have to be sought for the UK.

It would be nice if the UK IPO could handle this better than the EU, actually, and recognize the problems of granting a trademark for a school that itself is named after the town in which it resides.

For its part, Oxford University is making a lot of noise about its promise not to keep people from using the term "Oxford" and to only go after other entities that are "infringing on its rights." That's the whole rub, of course, in that after the trademark is granted, legal teams far too often err on the side of protectionism, including in cases where protectionism isn't warranted.

The EU got this one right with St. Andrews. Hopefully the UK gets it right as well.