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I am a technology consultant, contributor here at Techdirt, and an author. I hope to someday get enough people reading the books I sell to garner a scathing review.




Posted on Techdirt - 18 September 2020 @ 7:39pm

Ubisoft Bows To Monster Energy To Rename An Upcoming Game Horribly

from the scared-of-the-monster dept

Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we've covered in the Monster's attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn't be terribly surprising; the company's decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster's bullying choose to actually concede to the bullying, given that losing track record.

But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.

Ubisoft's Gods & Monsters recently underwent some rebranding, switching its name to the demonstrably-worse Immortals Fenyx Rising a few weeks ago. It has gone over like a lead balloon. In fact, it had our team wondering if we should just refuse the new name and stick with the old one!

As uncovered by TechRaptor, Monster Energy opposed Ubisoft's trademark for the title "Gods & Monsters." The logic goes that Monster has enough of a presence within video games that Ubisoft's use could reasonably cause confusion among consumers.

Logic which runs counter to the purpose of trademark law, to how trademark law actually works in terms of market designations, as well as to good business and marketing. Taking those in reverse order: the name change is almost objectively terrible. I have yet to find any publication that thinks the title switch was even a wash for Ubisoft, never mind beneficial. The universal opinion seems to be, and I agree with it, that Ubisoft to one extent or another participated in a bit of self-harm by this rebranding.

Now, on to the actual legal question. The consensus here too seems to be that Ubisoft could have easily have won this battle on the merits, but didn't want to simply to avoid any delay stemming from a legal battle.

Playing armchair attorney, this seems like something Ubisoft probably could've won, no? My guess is that it has less to do with whether or not Ubisoft cared to spend the money on this legal battle, and more to do with just getting the game out on shelves. Immortals has been delayed already, and its sales factor into Ubisoft's fiscal year that ends in March 2021. Fighting a protracted trademark infringement case would further delay the game. Going ahead with the name Gods & Monsters would result in an injunction. Ubisoft may be in the right, but it doesn't have the time to prove it.

Which is all probably true, but only if Ubisoft couldn't have gotten a declaratory judgement when Monster Energy first opposed the trademark application. Because it is quite clear that there is no infringement here. Whatever participation Monster Energy has in the video game space, most of which is mere sponsorship and advertising, it still isn't a maker of video games. Ubisoft should have needed merely to point that out to get its use declared legit. Couple that with the broader question as to whether literally anyone would make the association between a video game called Gods & Monsters and an energy drink company and I would guess getting a court to side with it would have been fairly easy for Ubisoft.

But Ubisoft decided against that route and bowed to Monster Energy's bullying. Which is how we get Immortals Fenyx Rising instead of Gods & Monsters. An objectively worse name. For no reason, other than trademark bullying.


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Posted on Techdirt - 17 September 2020 @ 7:30pm

Twitch Experiments With Intrusive Ads That Piss Off Its Most Important Asset, Its Talent

from the twitch-ain't-tv dept

As any internet platform matures, the growth it undergoes will inevitably lead to experimenting with revenue models. For a healthy chunk of the internet, advertising plays some role in those experiments. And, like anything else, there are good experiments and bad experiments.

But I am very much struggling to understand who in the hell at Twitch thought that breaking away from live streams to force viewers to watch commercials, all without the control or input of Twitch streamers, could possibly be a good idea.

“Beginning in September, as part of an ad experiment, some viewers may begin to notice that they are receiving ads during streams that others in a channel aren’t receiving,” the company wrote on its website. “Like pre-rolls, these are ads triggered by Twitch, not by the creator.”

Crucially, these ads utilize Twitch’s “picture-by-picture” functionality, which basically means that the stream you’re watching pops out into a smaller window while the ad rolls in the main window. However, ads will still steal the show from some viewers, with streamers none the wiser as to who can hear what they’re saying (picture-by-picture mutes streams) and, therefore, understand what’s happening on stream while ads are playing.

If this reads as though Twitch were trying to turn its platform into some flavor of broadcast television, where the content is broken away from in the service of displaying advertising, that's because that's exactly what this is. Which doesn't make any sense. Twitch is not television. Sure, some streamers choose to break away from their own content for advertising. In fact, doing so staves off this new process of forced breakaways. But many streamers don't do that. For a viewer to be torn away from the content that continues on, muted, all while they're forced to view ads, would be stupid on its own. To give streamers not only almost zero control over whether this happens, but also zero visibility into when and to whom it's happening, can only serve to piss everyone off.

Which is exactly what it did.

“You’re not YouTube,” said Twitch partner ThatBronzeGirl on Twitter in response to Twitch’s announcement. “When ads play in the middle of the stream, viewers actively miss out on content (muted or not). Add this to the fact that viewers are hit with an ad as soon as they enter a stream, so channel surfing is cumbersome. Idk why y’all hate viewer retention.”

“This means either one of two things happens: 1) I schedule a break in the stream to have control over ads running that are proven to drive viewers away. 2) Viewers get an ad randomly that is all but guaranteed to drive them away. Which of those is for us though?” said variety streamer Deejay Knight.

“If I don’t play enough ads, Jeff Bezos literally comes to my stream and pushes the ad button, what do I do,” said former Overwatch pro Seagull.

Let's be clear, Twitch is a thing because of the talent that chooses to use it. It's bad enough to put a new advertising model in place that pisses off viewers. But piss the talent off and they'll simply go somewhere else, particularly when the viewers voice their frustration by removing their eyeballs. Some of this seems to also be Twitch not understanding that the platform is no longer video game let's-plays. The content is wide and varied and much of it cannot function with this sort of intrusive advertising.

“A streamer could be talking about suicide prevention, and up pops an ad,” said Scottish Twitch partner Limmy. “Depending on the implementation, the streamer would either be unaware, which is bad, or the streamer has to announce a forced ad break at an inappropriate time.”

“We’re not all Overwatch and Fortnite,” said dungeon master MontyGlu. “In narrative streams such as DnD live shows and RPG game streams, 10-30 seconds removed could completely deprive people of story, context and investment.”

As the Kotaku post notes, part of the problem here is that all the monetary incentives for streamers compared with the platform are horribly misaligned. Many streamers make most of their money through subscriptions and brand partnerships. The money they get from Twitch is mostly an afterthought. Twitch, on the other hand, makes gobs of money from advertisements. It's a scenario in which the platform is incentivized by advertising while the talent is very specifically incentivized by a lack of advertising. More ads drive eyeballs away, which means less lucrative partnerships and subscriptions.

If Twitch wants to push more ads, it desperately needs to get the streamers on board.

“While I’m not allowed to say specifics, Twitch has the worst CPM ad-revenue share to creators with their standard contracts (read: not the big shots with custom negotiated rates),” said Minecraft YouTuber and Twitch streamer KurtJMac. “They want ads to run because they make bank. Pay a fair rate to creators and we’d be glad to run ads!”

Somewhat amazingly, Twitch has stated that it isn't backing down. The experiment will run its course, the company said, and it will review the data afterwards. I simply can't imagine that said data will show that intrusive ads that everyone hates are good for the company.

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Posted on Techdirt - 16 September 2020 @ 7:55pm

EA To Rebrand Its Origin Platform As It Bows Out Of The PC Gaming Platform Wars

from the white-flag dept

It has been a long and largely fruitless road for Origin, EA's PC gaming client that it had planned on building into a rival of Valve's Steam. What was originally supposed to have been the chief antagonist to Steam in the ongoing PC gaming platform wars instead is best described as a failure to launch. Released in 2011, Origin began life as it lived in total: the walled garden for most EA games. Critics appeared almost immediately, stemming from odious requirements to relinquish personal information, the use of DRM, and security flaws. Couple that with a game library that was relatively stilted compared with Steam, by design mind you, and it's not difficult to understand why the adoption numbers for the game client just never took off.

Several weeks ago, to the surprise of many, EA suddenly released its gaming catalog on Steam. Given the long history of the company keeping its toys for itself, it left many scratching their heads in confusion. This week, the inevitable occurred, with EA announcing that Origin will be no more. Instead, the PC gaming client will rebrand, rebuild, and become an optional place for EA gamers to play, rather than a Fort Knox for EA games.

EA has yet another piece of interconnected news to share: it's rebranding its Origin desktop app to simply be called the EA desktop app, alongside giving its PC platform a visual refresh.

Speaking to GamesIndustry.biz, EA SVP, strategic growth Mike Blank says the overhaul is intended "to create a more frictionless, fast, socially-oriented experience for our players, where it becomes the best place for them to connect with the people they want to play with in the games they want to play."

I'm frankly not used to giving EA a ton of kudos in these pages, but the overall strategy is a good one. The company appears to have finally realized that being permissive with gamers that just want to play the company's games is better business than trying to lock them into a failed client few want to use. The revamping of the UX was long needed, too, but the real star of the show here is that EA is looking to be more open in general.

"All of that is signaled by creating a common and consistent brand that is centered around EA and what EA stands for," Blank says. "And what signals it is this inflection about how EA stands for bringing your players together around the games they want to play on the platforms they want to play on. So yeah, it's not just a name change. It really signals an ethos that is critically important to us and that we know that's important to our players.

It's been a long journey for EA in this regard to where our games show up and where they don't. One of the things that we value is democratizing gaming, which is: how do you enable more people to play? And how do you make it easy for them to do so? And by bringing our games to Steam, we are doing just that. So whether we were there in the past or not, I look towards the future. And what I think today is that we are stronger and healthier. And I think we're responding more effectively to the needs of our players today than we ever have, and Steam is part of that journey."

Again, this is EA we're talking about, so it's going to take more than just the right words to convince most of us that this truly is a new direction for the company. Still, these are the right words. EA has long built a reputation for itself as being anti-consumer in many ways, but all of those ways come down to one thing: control. For a company with that history to suddenly start giving up that control, not out of surrender but out of a belief that it's good business, is a positive step.

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Posted on Techdirt - 15 September 2020 @ 7:31pm

How Not To Be A School District Superintendent: The Elmhurst, IL Edition

from the learning-opportunity dept

It should serve as no surprise that school district superintendents are not somehow universally amazing people. Like any population, there will be good ones and bad ones. All of that being said, it seems that the COVID-19 pandemic has been particularly good at highlighting just how bad at the job, not to mention at public relations, some superintendents can be. The most useful example of this came from Georgia, where a school district suspended, then un-suspended, students for posting pictures of just how badly their schools were failing at managing bringing students back during the pandemic.

But a more recent example comes to us from -- checks notes -- huh, my hometown of Elmhurst, Illinois. Dave Moyer, the superintendent for the Elmhurst public schools, kicked up a local shit-storm for himself a couple of weeks ago when he decided to have an exchange with a revered teacher in his district over the use of masks by teachers.

Last week, District 205 technology teacher Jennifer Leban tweeted, "Maybe I'm in the minority here, but I feel like parents would much rather have teachers talking to students via Zoom WITHOUT masks on instead of WITH... Seems like an obvious choice?"

Moyer responded, "Then take your mask off."

But Leban, a 2020 Illinois Teacher of the Year finalist, said she does not have her own room, so state regulations bar her from taking off her mask.

For context, while new case counts have been dropping across much of the country, the same is not true for the Midwest. Here in Illinois specifically, new cases have been on the rise since July, including a breathtaking day mere weeks after Moyer's suggestion that a teacher remove her mask where the state saw nearly six thousand new cases get reported. Leban, by the way, is immunocompromised, making Moyer's suggestion that she simply remove her mask all the more idiotic. She presented the district with a doctor's note that recommended she get a remote placement, for which there are some slots in the district, but that request was denied without explanation.

Others, of course, saw the Twitter exchange as well.

In the Twitter discussion, Kim Gwizdala, an English teacher from Glenbard West High School, said it was "absolutely wild to me that your own superintendent would suggest a thing when it is in direct violation with health guidelines and science."

Moyer took exception to that comment.

"Excuse me. The attorneys have indicated that the interpretation from the State is as follows: Teachers can take their mask off when they are in their rooms by themselves facilitating remote learning. Get your facts straight before you pontificate."

To Leban, he wrote, "Your entire media center isn't good enough? OK then."

Shortly after that, for reasons that should be obvious, Moyer deleted several of those tweets. No public apology came, however. Also, as parents began jumping into the conversation, Moyer chose to block them on Twitter, even though his account is that of the school district's website, not a personal account. It's worth noting here that the courts recently ruled that Donald Trump, as a public official, could not block the public from his official account because his control over the account and his status as a public official made that specific space a public forum. Why Moyer's account, tied to the district's website, should be any different is anyone's guess.

In a Twitter discussion last week about an Elmhurst teacher's position on masks, Alicia Duell, the director of technology and information services at Wheeling School District 21, said Moyer blocked her from his Twitter account. An Elmhurst resident, Duell noted Moyer was the superintendent of her children's school district.

Meanwhile, an Elmhurst resident emailed Patch over the weekend that she, too, had been banned from the superintendent's account.

Which brings us to the present, where the public has taken notice of Moyer's behavior at a recent board meeting and is voicing their complaints.

Last Monday, a number of written comments were read during the public comment portion of the meeting, including those critical of Moyer. Eileen Espinosa, a local resident who once served on a school council in Chicago, said she has "extended grace" to Moyer during the pandemic, but could no longer remain silent.

"His utter lack of leadership is overwhelming and you're ignoring it is no longer acceptable," Espinosa said to the board in her comments. "Dr. Moyer's inability to send communications that help the community to come together in the spring and throughout the summer and into the school year are a repeated reminder that he does not lead our district. He continues to air his grievances and personal opinions on social media."

There are more, as well. The ultimate lesson here is in just how badly Moyer handled this at every step. One-liners to immunocompromised teachers advising them to take of their masks against both state regulations and common sense is an obvious misstep. Doubling down with sarcasm and snark when called on it, all the more so. Deleting those tweets and thinking this would all go away, rather than simply apologizing, put this on the tee at the Streisand National Open. Going on a parent-Twitter-blocking spree to try to stifle dissent hit the ball right in the middle of the fairway. And the refusal to publicly comment to date on the matter made the Streisand crowd go wild.

When asked for comment about his deleted tweets late last month, Moyer did not directly answer. In an email, he said his public messages should be interpreted as seeking "a balance between safety for all and creating the healthiest learning environment for students. It is time for all of us to move beyond the negativity and keep the focus where it belongs."

Right now the focus may just be on whether Moyer is the best person to be leading a school district during a pandemic in a state that is suffering under a surge of the virus.

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Posted on Techdirt - 14 September 2020 @ 8:20pm

Craft Brewing Trade Mag Argues Beer Is The Most IP Product Ever, Ignores History Of The Industry

from the calling-all-lawyers dept

And now, we shall talk about one of life's great pleasures: beer. This nectar of the gods has been something of a focus of mine, particularly given the explosion of the craft brewing industry and how that explosion has created an ever-increasing trademark apocalypse over the past decade. It is important context for the purposes of this post that you understand that the craft brewing industry, before it exploded but was steadily growing, had for years operated under a congenial and fraternal practice when it came to all things intellectual property. Everything from relaxed attitudes on trademarks, to an artistic bent when it came to beer labels, up to and including the regular willingness of industry rivals to regularly collaborate on specific concoctions: this was the basic theme of the industry up until the past decade or so. It was, frankly, one of the things that made craft beer so popular and fun.

With big business, however, came corporatized mentalities. Suddenly, once small craft breweries doubled in size or more. Legal teams were hired and there was a rush to trademark all kinds of creative names. The label art, once the fun hallmark of the industry, became a wing of the marketing department. This is how, now in 2020, you get trade publications like Craft Brewing Business arguing that beer is one of the most all-encompassing products when it comes to intellectual property.

To be fair, given the current climate, you can see some of the logic in the following:

Beer aficionados worldwide can easily describe the nuances of pilsners, IPAs, milkstouts, and lagers. More hazy is the fact that beer is a product that touches upon nearly every type of intellectual property. Indeed, the names of breweries and beers are subject to trademark; label art and packaging are works of authorship covered by copyright law; and hops—that critical component of a beer’s aroma and flavor—can be patented.

It's a fair point, certainly. Though, left entirely unsaid in the entire post is whether any of this is a good thing. Instead, the post goes on to explore in some detail just how all things IP can be applied to brewers' products. Even when it gets absurd, the post hand-waives away any concerns. We'll start with the patenting of hop varieties.

The short answer to this seemingly straightforward query is the plant patent. By statute in the United States, whoever:

” invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, . . . may obtain a patent therefor. . . .”

Hops can be among these new plant varietals, and as part of the bargain for inventing a novel strain, brewing innovators release their work into the public domain after 20 years. But until that two-decade window closes, the creator and owner of a plant patent gets to cash in exclusively on the agricultural brainchild.

A couple of things here. First, the idea that mild differences in varieties of particular plants should get patents doesn't strike me as a great thing. And, given the longstanding practice of patent-extending by making minor tweaks to the biology of the plants and then re-patenting them, I can't imagine why the craft beer industry, once rife with creative brews, would want any of this protectionism.

Second, as the post mentions, though barely, patent holders for even some of the most well-known hop varieties regularly fail to hold up their end of the patent deal with the public.

Of note, if a patent owner does not adequately teach the world (translation: the public domain) about the plant at issue and how to make it upon the patent’s expiration, the patent’s owner—by effectively keeping the invention secret and taking advantage of the 20-year monopoly bestowed by patent law—has not kept up its side of the bargain. This unfortunately seems to be the case with respect to the Citra hops patent, which does not offer much in the way of substantive direction for replication of this varietal, meaning it may not be enabled and, therefore, subject to challenge.


When it comes to trademarks, the post does a decent job of articulating how trademarks are chiefly meant to avoid customer confusion. While true, the industry survived for decades without putting any real emphasis on trademarks. That seems worth mentioning. Instead, the post goes on to use an absolutely awful example of trademarks being used to protect an industry brand.

To be clear, marketplace confusion is what trademarks are meant to prevent. That being said, if a shopper strolls down a grocery aisle, peruses the beer selection, and confuses a bottle of Stone IPA with and a Keystone Light by virtue of packaging—and advertisement—encouraging drinkers to “grab a Stone,” Molson Coors Beverage Company (owner of the Keystone brand) may be infringing upon Stone IPA’s trademark. If this scenario sounds familiar, that is because this very dispute between Stone Brewing and Molson Coors is scheduled for an October trial in federal court.

Here again we have errors of omission. While Stone is indeed in a fight with Molson Coors as described above, the article fails to point out that Stone Brewing, in service of getting a huge judgement in this court case, has turned on a ton of other craft breweries with which they used to coexist peacefully, and has started bullying them with its trademarks as well. And, what's more, Stone went on to piss and moan when the wider public thought it was behaving like bullying dickheads in all of this. This seems like exactly the sort of thing craft breweries could learn from, yet it's all totally absent from the post.

And, while the post goes on to ignore the question of copyright in label art, the most glaring absence of information has to do with the history of the industry. Again, this is an industry that exploded before everyone decided to have corporatized legal firms challenging every trademark application that's even close to infringement. If there is a lesson in the last decade for the craft beer industry, it's that it should have striven really hard to retain its roots when it became big business.

And the real shame of it is that new brewers reading trade magazines like Craft Brewing Business may not know, and now won't learn, of those far better times.

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Posted on Techdirt - 11 September 2020 @ 7:39pm

The Next Generation Of Video Game Consoles Could Be The Beginning Of GameStop's Death

from the stop-discing-around dept

Predictions about the death of video game retailer GameStop have been with us for at least a decade. There have been many reasons for such predictions, ranging from the emergence of digital downloaded games gobbling up market share to declines in retail stores generally. But there are two recent new headwinds that might frankly be the end of this once ubiquitous franchise as we know it.

The first headwind is one common to all kinds of retailers currently: the COVID-19 pandemic. The pandemic is actually almost certainly worse for GameStop compared with retailers for other industries. As noted above, sales for the industry have long been trending towards digital downloads. Yes, there are still those out there who insist on buying physical media games, and in many cases there are good reasons for doing so, but the truth is that market was shrinking steadily for a long, long time. With the pandemic both shuttering many retail stores and keeping scared consumers out of those that remain open, the digital market share in the gaming industry has grown quickly. Whether anyone will want to go back to buying physical copies of games, new or used, is an open question.

All of which might not ultimately matter, as the other headwind is the next generation of consoles being released with options for no built in disc drive at all.

The latest quarterly earnings report from GameStop doesn't show much sign of a turnaround for the long-troubled game retailer. Sales were down 26.7 percent year over year for the April through June quarter. Even accounting for permanent store closures and COVID-related reduced operating hours, so-called comparable "same-store" sales were still down 12.7 percent year over year. GameStop's already depressed stock is down nearly 8 percent on the news, as of this writing.

GameStop still publicly sees an "opportunity to capitalize" on the upcoming release of new Sony and Microsoft consoles, which could help turn its business around in the short term. But there's some reason to believe the coming generation of consoles could actually make GameStop's long-term prospects worse, thanks to console options that get rid of disc drives entirely.

During a recent earnings call, CEO George Sherman tried to spin this in the opposite direction, pointing out that the new consoles include an option for a disc drive as a reason for optimism. A huge chunk of GameStop's money is made reselling used games that are marked up considerably. If the best a cheerleader for the company can muster is pointing out that, at least for this generation, some of the consoles will still have drives... well, that isn't great.

Especially when you put this all in context. Both Microsoft's Xbox and Sony's PlayStation forthcoming consoles have options for discless devices that are priced significantly less than the alternative. That represents yet another reason why some gamers, who might not have gone all digital otherwise, will be jumping ship. Between the virus pushing more gamers to download games digitally, lower priced consoles in the middle of an economic downturn, and the general trends that pre-date the pandemic, the analogies some are drawing to GameStop's future aren't pretty.

Sherman confirmed in the earnings call that GameStop will sell these disc-drive-free consoles in its stores, a move akin to a world where Tower Records decided to sell iPods as its physical album sales cratered.


Now, none of this suggests that every gamer everywhere is ready to give up discs. Nor should this be taken to indicate that retail game stores are going to become fully extinct. In fact, I don't think the Tower Records analogy is the best that can be drawn, even if we stay in the music space. Instead, it is beginning to feel inevitable that GameStop, or other companies, will be become like modern day record stores: there to cater to the niche market of those that want CDs and vinyl, with all of the nostalgia that's as important for buyers as the product itself.

But it sure as hell won't be the GameStop of the last two decades.

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Posted on Techdirt - 10 September 2020 @ 8:19pm

AB InBev And Patagonia Trademark Dispute Will Proceed To Trial

from the busch-league dept

A little over a year ago, we discussed a lawsuit brought by Patagonia, famed West Coast clothier for all things outdoor lifestyle, against AB/InBev, famed macro-brewer. At issue was AB/InBev's decision to sell a Patagonia-branded beer line at pop up stores at ski resorts, the exact place where Patagonia clothing is quite popular. Within those stores, AB/InBev also sold Patagonia-branded clothing. Coupled with the beer maker's decision to do absolutely nothing with its "Patagonia" trademark for six years, you can see why Patagonia sought to invalidate AB/InBev's trademark. It's also understandable that the court ruled against AB/InBev's attempt to have the suit tossed last summer, with the absurd claim that the Patagonia brand for clothing isn't actually well-known at all. In the meantime, Patagonia asserted in filings that AB/InBev actually defrauded the USPTO when it got its trademark in the first place.

Which brings us to the present, where the beer maker attempted to get at least some of the claims against it dismissed, arguing that the claims about defrauding the USPTO were simple clerical errors and that Patagonia had failed to protect its mark for too long. The court ruled in favor of Patagonia, meaning this will now go to trial. We'll start with the claims of Patagonia failing to protect its mark, which center around AB/InBev's registration for trademark indicating the company had been using "Patagonia" continually for five years.

Argentinian brewer Warsteiner Importers Agency Inc. first filed the intent-to-use application for a Patagonia beer trademark in 2006, based on its intent to sell its beer in the U.S., the court said. It filed several extension requests, including one in 2011 that said it still intended to use the mark, but didn’t intend to import its beer. Anheuser-Busch asked it to file one more extension and then bought the application in March 2012. It filed a statement of use, claiming it began using the trademark in July 2012 and received the trademark registration later that year.

Patagonia learned of the trademark in 2013 but believed that Anheuser-Busch had legitimate rights, according to the opinion. But shortly after the beermaker launched Patagonia beer at a pop-up stores at ski resorts in 2019, with the beer and promotional apparel featuring a mountain logo that allegedly infringed Patagonia’s trademarks, Patagonia sued.

In other words, the company picked up on a long-delayed application by another beer maker, bought the application rights to the trademark, and then claimed it had been using the mark for five years, which it had not. When Patagonia learned of the application, it thought AB/InBev's application was legit, but learned after the pop-up stores began selling clothing that it was not. Patagonia, to add to all of this, sells some beer under its mark as well. Trademark law includes "anti-trafficking" rules that prevent companies from buying applications like this prior to the mark in question actually being used in commerce. The rules for this are complicated, but the claims Patagonia is making as to how AB/InBev tried to get around these rules most certainly are not.

Patagoina also argued that the beermaker fraudulently had Warsteiner change the date on the document assigning the trademark to suggest compliance with the anti-trafficking rule. Anheuser Busch said the change was to correct an error.

The court rejected Anheuser-Busch’s bid for a judgment that its Patagonia trademark had become incontestable, finding it hadn’t been used continuously for five years as required. Incontestable marks can only be challenged if they became generic, abandoned for nonuse, or acquired by fraud.

Anheuser- Busch also still faces allegations of fraud through its alleged violation of the anti-trafficking rule and false claims of continuous use.

In addition to all of the above, the court also decided that the branding AB/InBev decided to use was similar enough that a jury should decide if there was true trademark infringement here.

What should perhaps be most striking in all of this is just how callous AB/InBev appears to be when it comes to the trademark rights of others, especially compared with how protective and expansionist the company is of its own trademarks. It is quite silly to expect virtue and consistency from a multi-national corporation, of course, but the hypocrisy is still quite glaring.

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Posted on Techdirt - 9 September 2020 @ 8:03pm

Esports Milestone: Guild Esports Looks For London Stock Exchange Listing

from the prospecting dept

For years now, we've covered various milestones the esports industry has hit as it has exploded in popularity. Once relegated primarily to a few overseas markets, the past decade has seen an acceleration of the industry hitting the mainstream, from features in sports media on participants, college scholarships for esports, IRL leagues getting in the game, and even the betting markets opening up to esports gambling. While this trend began long before the world's current predicament, it's also true that the COVID-19 pandemic, which shuttered live sports for months, acted as a supercharger for all of this.

All of which contributed to the latest milestone the esports industry has managed to hit, as famed footballer David Beckham's Guild Esports franchise has announced it plans to get listed on the London Stock Exchange.

Guild Esports, a UK-based owner and developer of esports teams, confirmed plans for an initial public offering in a statement Wednesday. The company said it wants to build a global sports franchise modeled on the English Premier League, NBA and NFL. It will float 40% of its shares next month and hopes to raise £20 million ($25.9 million) to recruit new players and invest in the business.

Beckham, a former Manchester United and England footballer, will use his global influence and following to support the Guild Esports brand, the company added. Beckham is also co-owner of Inter Miami CF, a Major League Soccer team in the United States.

The CNN post goes on to note that ad revenue in the industry for 2019 was just under a billion dollars. The point in all of this is that the difference between a beloved hobby and professional sports is the "professional" part. In other words, money. Now that esports has not only emerged as a major force in competition when it comes to ad revenues and eyeballs, but also now a place for potential owners of sporting franchises to invest very real money, the only question is just how popular and dominant esports will grow to become.

Based on the company's plans, it has some very lofty goals.

The company plans to recruit up to 20 esports players by the end of next year, modeling player training and scouting on the talent academies pioneered by Premier League football teams.

The last milestone is probably one we're hurtling toward at speed: when the maturity of the esports industry is so accepted that these posts on Techdirt no longer make sense to write.

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Posted on Techdirt - 8 September 2020 @ 7:47pm

Game Creator Has His YouTube Video Of Game Demonetized Over Soundtrack He Also Created

from the on-the-money dept

Content moderation, whether over social or intellectual property issues, is impossible to do well. It just is. The scale of content platforms means that automated systems have to do most of this work and those automated systems are always completely rife with avenues for error and abuse. While this goes for takedowns and copyright strikes, it is also the case for demonetization practices for the big players like YouTube.

But how bad are these systems, really? Well, take, for instance, the case of a man who created a video game, and the soundtrack for that game, having his YouTube videos of the game demonetized due to copyright.

Doki Doki Literature Club creator Dan Salvato is being demonetized for his own music on YouTube because the platform claims the soundtrack included in his videos - which he himself composed - is "someone else's content."

Salvato took to Twitter in order to share his grievances. Apparently, his videos have been subjected to demonetization for several months due to purported copyright infringement for the music he used in them - however, Salvato himself composed all of said music, meaning that YouTube is claiming that he is essentially stealing his own intellectual property.

We have of course heard of this sort of thing in the past: a person has videos demonetized despite the content being of their own creation. Still, there is something perfectly simplistic about this case. A game and music maker puts videos up of his own game and music...and it gets demonetized. While no system is ever perfect, that YouTube's system allows for this sort of thing to not only happen, but to go on for months without correction, is an indication that the system sucks and something else should be done.

Now, as often happens, once Salvato complained publicly, YouTube got in touch to investigate. People will point to this as though future rectification made all of this acceptable. But that's absurd. After all, you're forced to wonder just how often this sort of thing occurs and doesn't ever get fixed.

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Posted on Techdirt - 4 September 2020 @ 7:39pm

Students, Parents Figure Out School Is Using AI To Grade Exams And Immediately Game The System

from the teacher-bot dept

With the COVID-19 pandemic still working its way through the United States and many other countries, we've finally arrived at the episode of this apocalypse drama where school has resumed (or will be shortly) for our kids. It seems that one useful outcome of the pandemic, if we're looking for some kind of silver lining, is that it has put on full display just how inept we are as a nation in so many ways. Federal responses, personal behavior, our medical system, and our financial system are all basically getting failing grades at every turn.

Speaking of grades, schools that are now trying to suddenly pull off remote learning for kids are relying on technology to do so. Unfortunately, here too we see that we simply weren't prepared for this kind of thing. Aside from all of the other complaints you've probably heard or uttered yourselves -- internet connections are too shitty for all of this, teachers aren't properly trained for distance learning, the technology being handed out by schools mostly sucks -- we can also add to that unfortunate attempts by school districts to get AI to grade exams.

This story begins with a parent seeing her 12 year old son, Lazare Simmons, fail a virtual exam. Taking an active role, Dana Simmons went on to watch her son complete more tests and assignments using the remote learning platform the school had set students up on, Edgenuity. While watching, it became quickly apparent how the platform was performing its scoring function.

She looked at the correct answers, which Edgenuity revealed at the end. She surmised that Edgenuity’s AI was scanning for specific keywords that it expected to see in students’ answers. And she decided to game it. Now, for every short-answer question, Lazare writes two long sentences followed by a disjointed list of keywords — anything that seems relevant to the question. “The questions are things like... ‘What was the advantage of Constantinople’s location for the power of the Byzantine empire,’” Simmons says. “So you go through, okay, what are the possible keywords that are associated with this? Wealth, caravan, ship, India, China, Middle East, he just threw all of those words in.”

“I wanted to game it because I felt like it was an easy way to get a good grade,” Lazare told The Verge. He usually digs the keywords out of the article or video the question is based on.

And Lazare appears to have been right, as he now gets perfect scores on all of his tests. This is obviously both lazy teaching and lazy technology. Relying on software to grade tests that are essentially short-form essay tests, as opposed to multiple-choice Scantron style tests, make zero sense. Human grading is needed.

But the technology is quite lazy as well. How can a platform that is grading exams of this nature not build in a check against proper grammar, for instance? The fact that a student can simply toss in a bunch of disjointed words at the end of an answer, like some kind of keyword metadata, and get away with it is crazy. Especially when Edgenuity informs everyone that it's supposed to work this way.

According to the website, answers to certain questions receive 0% if they include no keywords, and 100% if they include at least one. Other questions earn a certain percentage based on the number of keywords included.

Whatever that is, it sure as hell isn't good education. And while testing practices in education are generally under scrutiny wholesale at the moment, there is little reason to issue tests at all if everyone involved is going to be this lazy about it.

And, to be clear, this is happening all over the place, with students finding more than one way to game the system.

More than 20,000 schools currently use the platform, according to the company’s website, including 20 of the country’s 25 largest school districts, and two students from different high schools to Lazare told me they found a similar way to cheat. They often copy the text of their questions and paste it into the answer field, assuming it’s likely to contain the relevant keywords. One told me they used the trick all throughout last semester and received full credit “pretty much every time.”

Another high school student, who used Edgenuity a few years ago, said he would sometimes try submitting batches of words related to the questions “only when I was completely clueless.” The method worked “more often than not.”

I think it's fair to say that Edgenuity probably doesn't get a passing grade for its platform, now widely used thanks to COVID-19.

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Posted on Techdirt - 3 September 2020 @ 8:11pm

Sony May Just Be Loosening The Reins As Gaming Brings In A Plurality Of Its Revenue

from the money-games dept

Any trip down Techdirt's memory lane when it comes to Sony is not going to leave you with a good taste in your mouth. This is a company that has been almost comically protective of all things intellectual property, engaged in all manner of anti-consumer behavior, and is arguably most famous for either using an update to remove features from its gaming console that generated sales of that console or for installing rootkits on people's computers. When it comes to any positive stories about the company, in fact, they mostly have to do with the immense success Sony had in the most recent Console Wars with its PlayStation 4 device.

Positive results and gaming aren't a crosstab of coincidence for Sony, it seems. There are couple of converging stories about Sony, one dealing with its revenue and another with its plans for its gaming divisions opening up a bit, that point to positive developments. To set the stage, let's start with the fact that the video game industry is now the biggest revenue generator for Sony.

Sony’s full year corporate report was published over the weekend Australian time, and as always it covers Sony’s PlayStation division as well as the other units within its business. Naturally, the coronavirus was a big factor, with Sony estimating a ¥68.2 billion loss ($876.3 million) in operating income just from COVID-19.

But gaming has done well for Sony. The PlayStation business now generates more sales and operating income than any other part of Sony:

Now, it's worth noting that Sony's gaming revenue is actually down for 2019, but the percentage as revenue generator for the company is up. And, as noted above, gaming is now the single largest revenue generator of any market Sony is in. And what's really interesting in all of that is that it's happening while Sony has famously limited its own reach with walled gardens. PlayStation exclusives have been the norm wherever Sony can sign them. Sony's first-party games, many of them among the best that gaming has to offer, have of course been siloed on PlayStation consoles. For years, Sony limited PS4's remote play function to Sony Xperia phones that never broke ground in market share. Everything, it seemed, was designed to be as locked into Sony's walled garden as possible.

But we're starting to see signs that the company has recognized that it needs to change.

All that said, explicitly mentioning the potential for PC ports in its annual report is the latest sign that Sony continues to slowly loosen its tight, walled-garden approach to game hardware and software. In 2017, for instance, Sony expanded its PlayStation Now streaming service to work on Windows PCs as well as PS4 hardware. That service now has 2.2 million regular subscribers, Sony says, up significantly from the 1 million subscribers claimed last November.

In 2018, Sony finally opened PS4 titles to cross-platform online play with other consoles after years of public reluctance on that score. Then, earlier this year, Sony said MLB: The Show will come to non-PlayStation consoles as soon as 2021, after decades of PlayStation exclusivity.

It all speaks to a company that's more aware that "competition from online PC games and players from other industries is expected to continue to intensify," as it says in its annual report. Even as Sony pushes hard for the exclusive "speed, haptics, and sound" improvements of the upcoming PlayStation 5 this year, it is hedging its bets somewhat with support for non-Sony hardware as well.

If gaming is your best revenue generator, these moves only make sense. MLB The Show is fantastic; why should Sony only sell it to PlayStation owners? While Horizon: Zero Dawn took over three years to make it to the PC... it still made it. Why wouldn't Sony want to sell its game to PC gamers that may never want to buy a PlayStation, but would love to play some of the games previously exclusive to it?

It's long past time Sony teared the walls of its garden down. Let the revenue streams in. Increase availability of its products. Make more money.

The only surprising aspect of all of this is how much work it took to convince Sony that more money was good.

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Posted on Techdirt - 2 September 2020 @ 7:37pm

Animal Crossing Continues To Be An Innovative Playground As Biden Campaign Begins Advertising On It

from the sign-of-the-times dept

For nearly half a year now, especially when this damned pandemic really took off, we've been bringing you the occasional story of how Nintendo's Animal Crossing keeps popping up with folks finding innovative ways to use the game as a platform. Protesters advocating for freedom in Hong Kong gathered in the game. Sidelined reality show stars took to the game to ply their trade. Very real people enduring very real layoffs used the game's currency as a method for making very real money. As someone who has never played the game, the picture I'm left with is of a game that is both inherently malleable to what you want to do within it and immensely social in nature.

So perhaps it was only a matter of time before one of the major Presidential candidates got involved.

Joe Biden's presidential campaign is rolling out a series of official virtual yard signs designed for display on islands in Animal Crossing: New Horizons for the Nintendo Switch.

As first reported by The Verge, the four virtual sign designs squeeze supportive messages for the Democratic candidate into a 32 x 32 pixel, 16-color custom pattern square, suitable for displaying on a sign in front of your virtual house. In addition to the standard "Biden Harris" and "Team Joe" designs, the campaign has also released a version with a rainbow pride logo integrated into the "JOE" branding and a design featuring Biden's signature aviator sunglasses in red, white, and blue.

Putting any thoughts about individual candidates aside, it's a pretty fun and low-risk use of a social video game by the Biden team. How much effort did it take to put these images and in-game items together? Not very long, to be sure. And, with turning out the youth vote being such a premier goal of literally any political campaign, this is at least an innovative way to try to build some momentum with younger voters.

And, thankfully, it won't be terribly intrusive, unlike the politics of this stupid real life hellscape we all live in. Nobody is going to see these signs unless they visit the island of the person using them. This isn't any more in-your-face than real life yard signs for a candidate.

All that being said, the Biden campaign should probably be on the lookout for some unintended fuckery, given historical attempts to do this sort of thing.

Political campaigns using video games to get their message out has a short and spotty history. Former Virginia Gov. Mark Warner was among the first politicians to be interviewed in Second Life's virtual world back in 2006, an interview locale which later became known for attacks by flying penis griefers.

Not going to lie, I'm sort of sorry I missed that one. Either way, it remains interesting to see how folks are finding new ways to use open and social worlds like Animal Crossing.

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Posted on Techdirt - 1 September 2020 @ 3:43pm

SafeSpeed Executive Charged With Bribing Cook County Officials For Red Light Camera Contracts

from the safe-bet dept

In January of this year, we discussed how the Illinois Comptroller had decided to opt out of collecting red light camera fees for motorists ticketed by these automated revenue generators. Susan Mendoza said in a statement that while her office was taking this action due to the feds investigating the contractor for the cameras, a company called SafeSpeed, it was also her position that red light cameras were revenue generators with little efficacy at impacting public safety.

All very true... but about that federal investigation.

Omar Maani, a former co-owner of politically-connected red light camera company SafeSpeed, has been charged with scheming with a former high-ranking Cook County official to bribe the relative of an Oak Lawn village trustee in order to install new red light cameras in the southwest suburb.

Maani is charged with one count of bribery conspiracy in a two-page document known as a “criminal information,” which is typically used in cases [w]here the defendant intends to plead guilty.

If true, such a guilty plea and quick conviction would lay bare the truth that red light cameras for years have been used to bilk money from taxpaying citizens to fill the coffers of both state governments and the contractors those governments work with. In this specific instance, the accusations against Maani suggest fairly brazen behavior. Maani is accused of attempting to pay a close family member of trustee from a Chicago suburb in exchange for installing SafeSpeed cameras in the city. While that is good old fashioned Chicago area politics, it's also textbook bribery.

And if you might think this was some one-off scheme, it came about in coordination with the chief of staff for Cook County's Commissioner, Patrick Doherty, among others.

In February, Doherty was indicted on two counts of bribery and one count of conspiracy to defraud, accused of conspiring with a fellow SafeSpeed sales agent and one of the company’s owners to pay $4,000 in bribes to the relative of an Oak Lawn village trustee, in exchange for influencing that trustee to help approve the installation of additional cameras.

The charges against Doherty came about two weeks after former Illinois State Sen. Martin Sandoval pleaded guilty to taking $70,000 in bribes to act as a “protector” for red light camera company SafeSpeed. Sandoval said he agreed to take bribes in exchange for blocking proposed legislation to ban red light cameras.

This again should lay to rest what the purpose of red light cameras is: revenue generation. They aren't about safety. They aren't about the law. They aren't about influencing driving habits. They are about money, full stop.

Which is why they should not exist.

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Posted on Techdirt - 31 August 2020 @ 7:57pm

If A College Is Going To Make COVID-19 Contact Tracing Apps Mandatory, They Should At Least Be Secure

from the tracer-round dept

One of the more frustrating aspects of the ongoing COVID-19 pandemic has been the frankly haphazard manner in which too many folks are tossing around ideas for bringing it all under control without fully thinking things through. I'm as guilty of this as anyone, desperate as I am for life to return to normal. "Give me the option to get a vaccine candidate even though it's in phase 3 trials," I have found myself saying more than once, each time immediately realizing how stupid and selfish it would be to not let the scientific community do its work and do it right. Challenge trials, some people say, should be considered. There's a reason we don't do that, actually.

And contact tracing. While contact tracing can be a key part of siloing the spread of a virus as infectious as COVID-19, how we contact trace is immensely important. Like many problems we encounter these days, there is this sense that we should just throw technology at the problem. We can contract trace through our connected phones, after all. Except there are privacy concerns. We can use dedicated apps on our phones for this as well, except this is all happening so fast that it's a damn-near certainty that there are going to be mistakes made in those apps.

This is what Albion College in Michigan found out recently. Albion told students two weeks prior to on-campus classes resuming that they would be required to use Aura, a contact tracing app. The app collects a ton of real-time and personal data on students in order to pull off the tracing.

Aura, however, goes all in on real-time location-tracking instead, as TechCrunch reports. The app collects students' names, location, and COVID-19 status, then generates a QR code containing that information. The code either comes up "certified" if the data indicates a student has tested negative, or "denied" if the student has a positive test or no test data. In addition to tracking students' COVID-19 status, the app will also lock a student's ID card and revoke access to campus buildings if it detects that a student has left campus "without permission."

TechCrunch used a network analysis tool to discover that the code was not generated on a device but rather on a hidden Aura website—and that TechCrunch could then easily change the account number in the URL to generate new QR codes for other accounts and receive access to other individuals' personal data.

It gets worse. One Albion student was able to discover that the app's source code also included security keys for Albion's servers. Using those, other researchers into the app found that they could gain access to all kinds of data from the app's users, including test results and personal identifying information.

Now, Aura's developers fixed these security flaws...after the researchers brought them to light and after the school had made the use of the app mandatory. If anyone would like to place a bet that these are the only two privacy and security flaws in this app, then they must certainly not like having money very much.

To be clear, plenty of other schools are trying to figure out how to use technology to contact trace as well. And there's probably a use for technology in all of this, with an acceptable level of risk versus the benefit of bringing this awful pandemic under control.

But going off half-cocked isn't going to help. In fact, it's only going to make the public less trustful of contact tracing attempts in the future, which is the last thing we need.

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Posted on Techdirt - 28 August 2020 @ 7:39pm

More Video Game Art Is Being Sanitized, Likely To Appease China

from the fragility-on-display dept

Mere days ago, we were talking about Activision's decision to do a delete and replace for the trailer for the latest Call of Duty game worldwide due to pressure from the Chinese government. That pressure came about over 1 second's worth of footage in the trailer that showed an image from pro-democracy protests in 1989. While only a trailer for an un-released game, the point I attempted to make is that this was a terrible precedent to set. It's one thing to sanitize games, a form of art, for distribution within China. We could spend hours arguing over just how willing companies should be in bowing to the thin-skin of the Chinese government when it comes to art in favor of making huge sums of money, but that's at least understandable. It makes far less sense to apply those changes to the larger world, where China's pearl-clutching sensibilities aren't a thing.

And now we're seeing this continue to occur. Kotaku has a quick write up for several changes made to a handful of re-released retro games and this appears to be more of the same. We'll start with the re-release of Baseball Stars 2, a Neo Geo classic.

Baseball Stars 2 was released on the Neo Geo in 1992 (one year after the greatest baseball game ever made, with which it has a lot in common), and for the last 28 years has been just fine with teams like the “Tokyo Ninjas” and “Spanish Galleons”. The “Taipei Hawks”, however, have just been removed from a console version of the game following an update earlier this week. As noted on this Reddit post and this Twitter thread by users, an update for the PS4, Xbox One and Switch version released in 2019 had removed the team names (and country flags) for both the “Taipei Hawks” and the “Taiwan Dragons”, while leaving all the other names like the “Seoul Dragons” in place.

This 2019 console version of the game was ported by Japanese studio Hamster Corporation, but the rights to the game are held by publisher SNK, which in 2015 was purchased by Chinese company 37Games.

Again, while these are small changes, we now have a trend. That trend consists of changes made to appease the Chinese government in video games being applied to worldwide releases. And this isn't merely some workload thing, where game companies don't want to make changes to regional distributions of games. The Steam version of the game, for instance, is even more different, with teams not having real-world locales, instead only the mascot nicknames.

Why is an American, a Russian, or a South American gamer having to feel the effects of Chinese censorship?

This isn't the only retro game in which this occurred, in fact. Art of Fighting 2 was recently re-released on the PC. In that game, the Japanese "rising sun" flag, which still serves as the Japanese Navy's flag, was removed from the game and replaced with a banner that just says "karate".

At the same time, it appears that another SNK-published title, Art of Fighting 2 on the PC, received a similar update this week, where a depiction of the controversial “Rising Sun” Japanese flag was replaced with a white flag that says “KARATE”:

This one is harder to pin on China. After all, most complaints about this flag, which occasionally shows up in real-world sporting events, come from South Korea. During plans for the 2020 Olympics, in fact, South Korea requested the flag be banned from the games entirely due to the sordid history of the Japanese Navy during Japanese occupation of South Korea. But South Korea wasn't the only country occupied and terrorized under that flag.

Based on a historical experience of Japanese invasion, China's reaction to the rising sun flag at the Olympics could be similar to South Korea's. After the Japanese military took the Chinese city of Nanjing in 1937, Japanese troops embarked on a months-long campaign of murder, rape and looting in what became one of the worst massacres of the war.

According to Chinese estimates, around 300,000 people were killed, many of them women and children, and around 20,000 women raped. Yet there's little protest from China about the flag.

So which country was this change made to appease: China or South Korea? We don't know, but neither answer is good. If it's China, this is now at least the third instance of the trend of appeasing that country's government in a way that effects art worldwide. If South Korea, then it indicates that the trend instead might be for other countries that want to engage in the same kind of censorship jumping on the bandwagon.

We're still at the "video game art and trailers" level of all of this, so it's understandable for some not to care all the much. But how much further does this have to go before people will care?

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Posted on Techdirt - 27 August 2020 @ 7:47pm

Aldi, Brewdog Brand War Ends In The Best Possible Way: Collaboration

from the take-note-congress dept

The world may well feel like a terrible place to you right now. A pandemic is sweeping much of the world, with leaders from many countries playing the ostrich, or else treating the victims as though they were mere idiots. Racial tensions and brutal police practices are on full display, with the most surprising aspects being that they continue even as the world is shining a spotlight on the offenders. World leadership appears to be in full retreat, leaving space for truly nefarious actors to shoulder their way into ever more troubling activities.

Just last week, the White Sox beat the Cubs in two out of three. These are dark, dark times indeed.

But, hark, all ye who may despair, for I bring good tidings. Mere days ago, we talked about a brand war that appeared to be brewing (heh) between grocerer Aldi and Brewdog, a self-styled "punk brewery." It started when Brewdog released a "Punk IPA", fully in line with its branding motif. Aldi then released a beer called "Anti-Establishment IPA", in a similar looking blue can. This led to Brewdog suggesting on Twitter that maybe it should release a "Yaldi" beer. Aldi said "ALD IPA" would be a better name... and Brewdog agreed, rebranding the beer under that name.

Notably absent from the whole episode were cease and desist notices from either side, lawyers filing trademark lawsuits, or any legal machinations of any kind. Instead, there was much good-natured ribbing and a fair amount of congenial creativity at play. In the end, Aldi's social media accounts had a laugh at Brewdog taking its suggestion, and even mentioned it might have to save some aisle space for the newly branded beer.

Which, in conclusion, appears to be happening.

Were you like me, where some part of your professional life is spent writing stories about ever more stupid trademark disputes and far too may of them ending in even more stupid litigation, you would realize just how satisfying this is. Compared with pointless protectionism, this is such good business on so many levels.

Lawyer fees are completely avoided. Trademarks for all sides are still fine. Just fine. And, most importantly, an entirely new business arrangement, one which will make some good money judging by the response to this news, is entered into by both sides. Everyone is fine, everyone is happy, everyone makes money.

And everyone has at least a little bit of fun with all of this on top of it. Bravo all the way around.

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Posted on Techdirt - 26 August 2020 @ 7:26pm

On Appeal, 'Star Trek Discovery' Still Doesn't Infringe On Video Game's Copyright

from the making-the-tardigrade dept

As one of the most beloved science fiction series in history, it's no surprise that the Star Trek franchise has seen its share of intellectual property flare ups. With Viacom manning the IP enforcement guns, it only makes sense that the series has been the subject of the company's failed attempt to pretend Fair Use doesn't exist, the company's failed attempts at copyright enforcement taking down an authorized Star Trek panel, and the company's failed attempt to actually be good humans to the series' adoring fans.

But this is not a story of Viacom failing at yet another thing. Instead, Viacom/CBS, along with Netflix, won in court, defeating an appeal by a video game maker that tried to claim that one episode of Star Trek Discovery infringed on the copyrights for a video game.

CBS and Netflix re-affirmed an earlier win in the U.S. Court of Appeals for the Second Circuit over a copyright infringement lawsuit filed against both companies due to a plotline in the first season of Star Trek: Discovery that a video game creator alleged infringed upon the plot of his unreleased game. The video game was about a giant tardigrade who traveled through outer space and a similar creature played a key role in Star Trek Discover Season 1.

After the Second Circuit lower court had already dismissed the claims, the Court of Appeals agreed in upholding the lower court ruling that both the video game and the TV show were relying on uncopyrightable scientific facts about tardigrades and their ability to survive in outer space.

While it's a wonder the lawsuit was ever filed in the first place, why in the world Anas Osama Ibrahim Abdin went on to appeal that initial ruling is a complete mystery. The issue at hand was a story arch in the first season of Discovery which dealt with a giant tardigrade. Tardigrades are real life, tiny creatures that typically survive within water droplets. The most interesting aspect of tardigrades is that they have been shown to have been able to survive in the vacuum of outer space. Abdin's video game also dealt with tardigrades that survived the outer reaches of space. On essentially this basis alone, Abdin filed both his original suit and the appeal.

This is yet another instance where the idea/expression dichotomy of copyright law comes into play. This dichotomy dictates that copyright can be afforded to specific expression, but not to a general idea. And certainly not to an idea comprised essentially of real life scientific discovery. So, if Discovery told the same story about the same tardigrade creature, merely having a tardigrade in its plot is not somehow infringement just because both works are set in space.

While "[t]he distinction between an idea and its expression is an elusive one," Crichton, 84 F.3d at 587-88, Abdin's space-traveling tardigrade is an unprotectible idea because it is a generalized expression of a scientific fact -namely, the known ability of a tardigrade to survive in space.

While the court's opinion is 40 pages long, that one paragraph does all of its work in affirming the lower court's ruling.

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Posted on Techdirt - 25 August 2020 @ 8:20pm

Activision Deletes And Replaces 'Call Of Duty' Trailer Worldwide Over 1 Second That Hurt China's Feelings

from the bow-down dept

While China-bashing is all the rage right now (much of it deserved given the country's abhorrent human rights practices), it's sort of amazing what a difference a year makes. While the current focus of ire towards the Chinese government seems focused on the COVID-19 pandemic and a few mobile dance apps, never mind the fully embedded nature of Chinese-manufactured technology in use every day in the West, late 2019 was all about China's translucent skin. Much of that had to do with China's inching towards a slow takeover of Hong Kong and how several corporate interests in the West reacted to it. Does anyone else remember when our discussion about China was dominated by stories dealing with Blizzard banning Hearthstone players for supporting Hong Kong and American professional sports leagues looking like cowards in the face of a huge economic market?

Yeah, me neither. But with all that is going on the world and all of the criticism, deserved or otherwise, being lobbed at the Chinese government, it's worth pointing out that the problems of last year are still going on. And, while Google most recently took something of a stand against the aggression on Hong Kong specifically, other companies are still bowing to China's thin-skin in heavy-handed ways. The latest example of this is an admittedly relatively trivial attempt by Activision to kneel at the altar of Chinese historical censorship.

The debut trailer for Call of Duty: Black Ops Cold War has been blocked in China, and subsequently edited everywhere else, after featuring around one second’s worth of footage from the Communist government’s crackdown on pro-democracy protesters in 1989. When the game was first announced last week, a trailer running for 2:02 was released to the world and hosted on the official Call of Duty and Xbox YouTube pages, along with major trailer sites like IGN and Gamespot.

On August 21, however, the videos on Call of Duty and Xbox’s YouTube pages were replaced with a much shorter, 1:00 version. This isn’t an additional trailer, it’s a replacement, which we know because...the original 2:02 video we embedded in our own story is no longer working, having been marked as “private”.

So here's the, ahem, tik-tok on this. Activision, which also owns Blizzard, releases a new trailer for a new Call of Duty game. That trailer includes a single second of an image from Chinese protests against the government from three decades ago. The Chinese government, true to form, flips the fuck out and bans the trailer entirely. One imagines there were also threats of banning the game entirely, but that is yet to be confirmed. Activision then, seeing the Chinese government go full carpet bomb over the trailer in its country, decides to try to out-carpet-bomb the carpet bomb by doing a delete/replace of the offending trailer worldwide.

While we're talking about a mere video game trailer here, the implications aren't as insignificant as they might seem. Games are a subset of culture and commerce. While much of the discourse over how companies do business in China is overstated to say the least, what Activision did here is something different. Indeed, it could probably be best summarized as: Activision allowed the Chinese government to censor the company's art throughout the world.

And, sinophobia aside, that is a very dangerous precedent to set. That it was an action taken on a trailer for a game called Call of Duty: Cold War, in fact, is probably proof that the universe is not without a sense of irony.

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Posted on Techdirt - 24 August 2020 @ 8:09pm

Brew Dog, Aldi Get Into Brand Battle With Good Nature, Not Cease And Desists

from the yaldi dept

It's been quite a brief but impactful journey for Brewdog, a self-styled "punk brewery." The history starts with Brewdog first going after a pub in the UK over trademarks, getting a fair amount of backlash for it, and then having Brewdog ownership not only rescinding all the threats, but inviting the pub to collaborate on a gin together. As part of that whole episode, Brewdog promised to "do better" when it came to IP enforcement and even covered the pub's legal costs. It was a nice story.

One which the brewery has by all accounts lived up to. Subsequent stories about them here dealt only with a strange attempt by the Estate of Elvis Presley trying to stop the brewery from trademarking a craft brew entitled Elvis Juice. Brewdog won that one, by the way.

And now again Brewdog is making news for itself by poking at a larger entity, but has once again managed to do it in such a human and awesome way that Aldi of all companies appears to be a willing participant in the fun. The whole thing started with Brewdog putting out an on-brand IPA beer entitled "Punk IPA." From there, Brendan Palfreyman, an IP attorney that specifically focuses on the craft brew industry and is a fantastic follow on Twitter, picks up the back and forth when Aldi decided to poke the Brewdog.

Yeah, this is actually happening. Consider the back and forth here for a moment. Brewdog makes a Punk IPA in a blue can. Aldi decides to release a Establishment IPA in a blue can, one that harkens specifically to Brewdog's. Rather than go full IP lawyer-rage, Brewdog takes the whole thing in stride and announces the release of an IPA called Yaldi, which mimicks Aldi's branding. The whole thing is enough to make an IP maximilist keel over and die from an embolism.

And, yet, no trademark threats. The only mention of a cease and desist comes from a third party that has a Yaldi brand beer. Aldi never gets in on the threats. Instead, the game continues.

Take notice: this is a major brand basically showing a brewery a better way to create an homage to its own brand. IP maximilists they are not. And, because the folks at Brewdog are apparently made of that old craft brewing DNA, where you treat this business with equal amounts reverence and irreverence, all while maintaining a sense of humor... they did as Aldi requested.

Aldi's response? It said it's looking forward to getting a case of ALD IPA and might even clear some aisle space for it. In other words, there might actually end up being a lucrative business deal coming out of this whole thing.

And what's really striking in all of this is just how easily this whole thing could have gone ass up if anyone on either side had decided to play IP fun-police rather than act so human and cool about this whole thing. Brewdog could have gotten pissed at an obvious knockoff beer at Aldi and tried to threaten the grocery chain. It didn't. Aldi could have decided that Brewdog's retort was a bridge too far and tried to threaten the brewery. It didn't.

Instead, we might have a business deal in the works. One wonders if this will get the rest of the craft beer industry to pay the slightest bit of attention so it can go back to its old, better ways.

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Posted on Techdirt - 21 August 2020 @ 7:39pm

Apple Goes In Even Harder Against Prepear Over Non-Apple Logo

from the this-is-an-apple dept

A couple of weeks ago, we wrote about Apple opposing the trademark for Prepear, a recipe sharing phone app, over its pear logo. The whole thing was completely absurd. The logos don't look anything alike, the color schemes and artistic styles are different, and also a pear is not an apple. I likened the whole thing to those absurd CNN commercials, which should give you some idea of just how dumb this whole thing was. So, thanks to this idiocy being exposed and the public backlash, Apple finally realized the error of its ways and backed off the opposition.

Just kidding. Apple, in fact, has decided to double down in opposing Prepear's trademarks, now going after the Canadian trademark registration for the logo as well.

However, despite the petition now having hit 200,000 signatures, it doesn’t look like Apple is about to let this one go. As further evidence of Apple’s intransigence in this area, iPhone in Canada, which broke the original story earlier this month, is reporting that Apple has in fact doubled-down in its efforts to block the pear-shaped logo trademark registration, taking the fight beyond the U.S. and into Canada, likely as the next step in continuing its opposition to the logo globally.

Worth noting is that Prepear, the threat to Apple as it is, has five employees. That's one less than it previously had, actually, since it had to lay off one staff member due to the ongoing legal fees to fight for its right to have a trademark that is a pear. To try to put public pressure on Apple to stop being the trademark bully, Prepear started an online petition to Apple to back off. After getting thousands of signatures to the petition, Prepear sent it to Apple's PR wing and suggested that everyone get in a room and find an amicable way to end this stupid fight.

Apple's PR group didn't even bother to respond.

This is not just Apple’s lawyers being lawyers, it appears that the organization at Apple stands behind its lawyers. As is the case in all bullying, silence about the behavior of the bully is the same thing as support.

Now, Prepear could just go ahead and change its logo, though what type of pear-based logo Apple would find acceptable is an open question. And, besides, that should be entirely besides the point. Prepear is right to think it should be able to use a pear logo. It doesn't look like Apple, isn't going to create any confusion, and Apple is purely a bully here.

While Prepear expects that its fight with Apple will still cost tens of thousands of dollars before it can see it through to the end, it’s stated that it has no plans to do any kind of fundraising through services like GoFundMe, although they’re still asking for moral support via their Change.org petition, and of course still hoping more people will show their support by downloading and using their app.

How this will turn out is anyone's guess. Prepear seems to want to fight, but Apple can almost certainly squeeze the company out in court until it dies if it really wants to. More public pressure might help, I suppose, but Apple has thus far seemed perfectly willing to ignore the will of the same public it claims to be defending from confusion.

This is how trademark bullying works and it's a lesson being taught by a master at the art.

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