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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 - 20 January 2017 @ 1:15pm

Red Cross Claims Makers Of 'Prison Architect' Violated The Geneva Conventions By Using A Red Cross

from the virtual-war-criminals dept

Let's start this off by stipulating that the Red Cross is an organization well known for doing very real humanitarian work. While some have raised questions as to exactly how ethically it spends donor money, the organization is still on the front lines in helping those suffering from natural and man-made disasters. All that being said, the Red Cross has also shown itself to wander over the line of sense when it comes to both video games and policing some of its iconography. Recall that the Red Cross insisted, for instance, that games that allowed players to commit what would constitute war crimes also be required to include virtual punishments for those actions. On policing the use of its icons, the organization has suggested in the past that the use of its red cross symbol on theatre costumes constitutes a violation of The Geneva Conventions.

These two realms in which the Red Cross likes to play crazy have now converged, with Mark Morris and Chris Delay, makers of the notorious video game Prison Architects, having received notice that the game's inclusion of an ambulance emblazoned with a red cross constituted a violation of The Geneva Conventions.

Days before Christmas, Delay and Morris received a concerning email from the British Red Cross.

"My immediate reason for writing is that it has been brought to our attention that in your game ‘Prison Architect’ a red cross emblem is displayed on vehicles," it reads. "Those responsible may be unaware that use of the red cross emblem is restricted under the Geneva Conventions for the Protection of War Victims of 12 August 1949, and that unauthorised use of this sign in the United Kingdom is an offence under the Geneva Conventions Act 1957."

The two had made a mistake stemming from a common misconception that a red cross denoted health services. It doesn't. And The Geneva Conventions do indeed offer international protection to the Red Cross icon, theorizing that allowing other uses of it would dilute Red Cross worker's safety when operating in war zones and elsewhere. The idea is that the rules of war ought to prevent opposing military forces pretending to be Red Cross workers in order to gain a strategic advantage.

How the Red Cross believes this goal bleeds into the virtual world of running a prison is anyone's guess.

Yet the use of the red cross for just those reasons is common. A Google search for 'health pack' returns dozens of results for everything from Doom to Halo. Outside of videogames, it appears in comic books, movies, and even theater. With misuse of the symbol so apparently widespread, Delay tells me he was a bit upset to find that Prison Architect had been one instance where the hammer would fall.

"Red crosses are such a minor five-pixel wide symbol in Prison Architect," he argues. "There's one on the ambulance and one on the back of a health pack. They are so tiny. I think it's ridiculous. It's not like we had these enormous red crosses everywhere on the sides of vans in war zones. It's this miniscule pixelated red cross you can barely make out."

Trademark bullying is one thing, but to throw around something as important as the international rules of war in order to keep a few pixels out of a video game is both silly and disrespectful of those same rules. No reasonable person would think that those that wrote The Geneva Conventions intended it to be used in this way. Nor can anyone explain why this kind of protectionism is levied so randomly. And there are grave consequences associated with the threat the Red Cross is issuing.

The real issue, at least where Delay and Morris live, seems to have more serious consequences than just being sued. In the United Kingdom, the provisions of the Geneva Conventions were incorporated into British law in 1957. Prison Architect's misuse of the emblem wasn't just breaking the Geneva Conventions (which feels kind of like some distant bogeyman), but the laws of their own country. That's why, upon getting the email, they were quick to comply. Boot up Prison Architect and call in some paramedics, and you'll no longer see that red cross. Now it's green. Delay tells me the change took seconds to make in Photoshop. "It's not worth taking the stand," Morris says. "You have to pick your battles."

True, but that doesn't render what the Red Cross did any less silly. If having lawyers draft these kinds of threat letters is how the organization is spending donor money, that doesn't say much for its otherwise notable reputation.

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Posted on Techdirt - 19 January 2017 @ 7:57pm

EU MEPs Call Again For 'Robot Rules' To Get Ahead Of The AI Revolution

from the beep-boop dept

Questions about how we approach our new robotic friends once the artificial intelligence revolution really kicks off are not new, nor are calls for developing some sort of legal framework that will govern how humanity and robots ought to interact with one another. For the better part of this decade, in fact, there have been some advocating that robots and AI be granted certain rights along the lines of what humanity, or at least animals, enjoy. And, while some of its ideas haven't been stellar, such as a call for robots to be afforded copyright for anything they might create, the EU has been talking for some time about developing policy around the rights and obligations of artificial intelligence and its creators.

With AI being something of a hot topic, as predictions of its eventual widespread emergence mount, it seems EU MEPs are attempting to get out ahead of the revolution.

In a new report, members of the European Parliament have made it clear they think it’s essential that we establish comprehensive rules around artificial intelligence and robots in preparation for a “new industrial revolution.” According to the report, we are on the threshold of an era filled with sophisticated robots and intelligent machines “which is likely to leave no stratum of society untouched.” As a result, the need for legislation is greater than ever to ensure societal stability as well as the digital and physical safety of humans.

The report looks into the need to create a legal status just for robots which would see them dubbed “electronic persons.” Having their own legal status would mean robots would have their own legal rights and obligations, including taking responsibility for autonomous decisions or independent interactions.

It's quite easy to make offhand remarks about all of this being science fiction, but this isn't without sense. Something like the artificial intelligence humanity has imagined for a century is going to exist at some point and, with advances beginning to look like that may come sooner rather than later, it only makes sense that we discuss how we're going to handle its implications. After all, technology like this is likely to impact our lives in significant and varied ways, from our jobs and employment, to our interactions with our electronic devices, not to mention warfare.

I think the most interesting philosophical and moral questions surround these MEPs call to grant robots and AI with the designation of "electronic persons." The call has largely focused on saddling robotic "life" with many of the obligations humanity endures, such as tax obligations and being under the jurisdiction of humanity's legal system. But personhood can't only come with obligations; it must too come with rights. And there would be something strange in recognizing a robot's "personhood" while at the same time making use of its output or labor. The specter of slavery begins to rear its head at this point, brought on only by that very designation. Were they electronic "beasts", for instance, the question of slavery wouldn't arise outside of the fringe.

The MEPs report does also deal with the potential danger from AI and robots in its call for designers to "respect human frailty" when developing and programming these machine-lives. And here the report truly does delve into science fiction, but only out of deference to great literature.

Things descend slightly into the realms of science fiction when the report discusses the possibility of the machines we build becoming more intelligent than us posing “a challenge to humanity's capacity to control its own creation and, consequently, perhaps also to its capacity to be in charge of its own destiny.”

However, to stop us getting to this point the MEPs cite the importance of rules like those written by author Isaac Asimov for designers, producers, and operators of robots which state that: “A robot may not injure a human being or, through inaction, allow a human being to come to harm”; “A robot must obey the orders given by human beings except where such orders would conflict with the first law” and “A robot must protect its own existence as long as such protection does not conflict with the first or second laws.”

While some might laugh this off, this too is sensible. There is simply no reason to refuse to have a discussion about how a life, or a simulacrum of life, that is created by humanity, might pose a danger to that humanity, either at the level of the individual or the community.

But what strikes me most about all of this is how the EU seems to be the ones out in front of this, while any discussion in the Americas has been either muted or occurring behind closed doors. If this is a public discussion worth having in the EU, it is certainly one too worth having here.

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Posted on Techdirt - 19 January 2017 @ 3:23am

Game Developer Tried Threatening Game Reviewer And Posting Fake Steam Reviews To Be Successful; It Didn't Work

from the bye-bye dept

You may recall the rather short saga of video game studio Digital Homicide. That studio attempted to find success with a strange formula: sue game reviewers over negative reviews, sue Steam accounts for likewise negative reviews, find its game suddenly delisted from Steam entirely, and then declare itself dead. Not exactly the end that Digital Homicide was hoping for, certainly. One would have hoped that its story would serve as a warning to other game studios. And perhaps to some extent it has, as another game developer, Matan Cohen, ever so slightly altered the formula in probably the worst way possible.

It still starts off with abusing the DMCA process to take down negative reviews and threatening the reviewer with legal action, of course. In this case, we once again find Jim Sterling, the same reviewer threatened by Digital Homicide, being the victim of a game developer's abuse. After having first filed a DMCA claim on Sterling's review of the game Art of Stealth, Cohen then allegedly went on a legal threat binge against Sterling.

These kinds of threats never work, but behaving as though you were specifically attempting to follow the playbook of a now-dead game studio, even mimicking its targets in the game review community, seems like a terrible business strategy. But, as I said, Cohen does indeed deviate from the Digital Homicide playbook at this point. Cohen has by all accounts not attempted to sue Steam users for what have likewise been fairly negative reviews on his game's Steam page.

Instead, he appears to have decided to simply make up a bunch of Steam accounts and have them post fake reviews for his game instead. It was apparently blatant enough that Steam investigated and decided to push the button on the nuclear option and remove the game from Steam entirely.

We (Valve) have identified unacceptable behavior involving multiple Steam accounts controlled by the developer of this game, Matan Cohen. The developer appears to have created multiple Steam accounts to post a positive review for their own game. This is a clear violation of our review policy and something we take very seriously.

For these reasons, we are ending our business relationship with Matan Cohen and removing this game from sale. If you have previously purchased this game, it will remain accessible in your Steam library.

When, oh when, will content makers realize that making war on negative reviews of their works is a losing proposition. The focus needs to be on making great content and connecting with people, not wielding legal threats as a cudgel. And, for the love of the universe, attempting to fake positive coverage can only serve to torpedo your career.

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Posted on Techdirt - 18 January 2017 @ 4:54pm

LA Chargers Already Face Trademark Opposition To Their Name Over The Term 'L.A.'

from the la-la-land dept

There may be nothing more frustrating than trademarks being granted for terms that serve as simple geographic identifiers. With a couple of recent stories revolving around names of cities, or acronyms of them, it's probably time to consider whether some kind of official reform of trademark rules needs to be undertaken to keep companies from locking up such broad terms for commercial purposes. And there may be at least a slim chance that this conversation is starting, with the high profile example of the newly minted Los Angeles Chargers NFL team serving as notice.

It was only this past week that the Chargers finally announced what everyone already knew was going to happen: the team is moving to the city of angels. As is SOP for an organization of its size, the team filed trademark applications for several iterations of its team name, including the term "LA Chargers." And that, almost immediately, is where the problems began to arise.

Unfortunately for the team, its “LA Chargers” trademark application ran into an issue. On Dec. 20, LA Gear, the ‘80s-era athletic apparel company, filed a Notice of Opposition with the Patent and Trademark Office’s Trademark Trial and Appeal Board related to the apparel portion of the “LA Chargers” application, on the grounds that it conflicts with LA Gear’s trademarks, and is likely to cause consumer confusion as to the source of the goods.

In the opposition, the Chargers are referred to as “Applicant” and LA Gear is “Opposer.” The document lists 22 U.S. trademark registrations owned by LA Gear. The oldest dates back to 1985. Two of LA Gear’s registrations are in the form of logos that consist of the letters “LA” – meaning those logo registrations do not include the word “Gear.”

This. Is. Ridiculous. Allowing for a monopoly on all things apparel over the acronym of the second largest city in the United States has absolutely zero to do with protecting the consuming public from confusion, no matter what LA Gear's opposition filing states. This is all to do with pushing the Chargers instead into some kind of lucrative licensing deal. And, for once, there is actually going to be some validity in common claims that failing to police the mark can result in it no longer being protected, particularly given that examples of LA Gear's failure in doing so includes examples analogous to the Chargers.

Back in 2008, Major League Soccer’s LA Galaxy received a trademark for a logo that includes the words “LA Galaxy.” The Trademark Office records for that application show no opposition filed by LA Gear. It’s possible that the MLS team may have negotiated a private agreement with LA Gear to avoid these issues, and the Chargers/NFL haven’t been willing or able to do so. It seems more likely that LA Gear’s opposition to the LA Chargers trademark is a new tactic, and that the company intends to test the boundaries of its trademark rights in phrases including the word “LA,” at least as they apply to athletic apparel.

And that's hopefully a test that it will flunk, should the Chargers seek to have LA Gear's trademark protections repealed. And they should be, just as the mark never should have been granted in the first place. Were employees of the Trademark Office to have simply asked themselves whether approving the LA Gear trademark application did more to serve the public or the applying company, the conclusion would have been clear, as would have been the appropriateness of rejecting the application to begin with. Instead, this must happen on the back end, hopefully with a challenge to the mark by the Chargers.

Sadly, some are predicting that the team won't bother.

LA Gear’s claim may be a bit of a stretch, but it’s not impossible that the Trademark Office – or a court, should this dispute go that far – would rule in its favor. With all the drama around the team’s departure from San Diego, I’d bet the Chargers will simply come to a settlement agreement with LA Gear rather than put their incredibly valuable brand at risk of an adverse court ruling.

Here's hoping the team shows some backbone instead. No single entity ought to be able to control the acronym for a major city in this way.

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Posted on Techdirt - 13 January 2017 @ 7:39pm

New Study Essentially Suggests That Publishers Should Do CwF + RtB Instead Of Going Legal To Combat Piracy

from the yup dept

We have talked about the power of connecting with fans and giving them a reason to buy, along with using public shaming, as tools for combating piracy in its various forms. Tools far better, in fact, than twisting in litigious winds hoping that the construct of law will be sufficient to curb natural human behavior... and finding out that it isn't. What these routes offer content producers is a way to ingratiate themselves with their fans, building a community that not only wants to buy content themselves, but also will decry any attempt to pirate that content by others. Morality is shaped by the herd, in other words, so having the herd on your side finds content producers a powerful ally.

But philosophy like that doesn't penetrate industry in and of itself. Perhaps, then, data and academic studies may. The International Journal of Business Environment recently released just such a study suggesting that content providers are far better off reaching out and connecting with fans, including those pirating their works, rather than trying to fight piracy legally.

According to Eva Hofmann of the Centre for Trust, Peace and Social Relations, Coventry University, UK and Elfriede Penz of the Institute for International Marketing Management, at Vienna University of Economics and Business, in Austria, the unauthorised sharing of digital content is well-entrenched in popular culture. However, they have discerned a difference in the way those downloading pirated content and the legal downloaders decide on how to obtain the content they desire from the Internet.

The researchers note that inherent in the problem for copyright holders is that digital goods can be duplicated endlessly without loss of fidelity, making piracy easy but also suggesting that the value of such goods as being less than traditional, physical items in the realm of content, such as CDs and DVDs.

This nicely outlines why piracy exists at the levels it does: there is something natural in deciding that something that can be reproduced infinitely in a digital manner at no cost differs from a physical good that cannot. It's the reason why piracy and theft simply aren't the same thing. This doesn't make copyright infringement or piracy morally acceptable, of course, but it explains why the moral equation for those doing the piracy is inherently different. Everyone knows this intrinsically, even if some major content industry players want to pretend otherwise.

The study's abstract itself suggests that the best method for combating this is to engage with the public to change that moral equation.

Respondent groups differ in the effect of social consensus on the decision-making process. Additionally, the entire issue-contingent model is important in internet piracy research. From a practical view and based on social consensus results, it is essential for companies to establish sentiments that unauthorised downloading is an unacceptable behaviour within a specific social group that is highly relevant to downloaders.

In other words, creating a real connection with fans that are also given a real reason to buy content alters the moral equation for those that seek out that content. If enough minds are changed in that manner, it will have an exponential moral effect as those fans of the producer both promote the buying of the content and speak out or subvert attempts to pirate it. It works on both levels: convincing more people to buy the product and creating a fan-base hungry for the content provider to succeed so as to get more content.

CwF + RtB, in other words, along with a fan-based army willing to publicly shame pirates.

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Posted on Techdirt - 13 January 2017 @ 9:40am

Rudy Giuliani To Head Up Trump's Cybersecurity Team As The Internet Laughs At Giuliani's Security Bona Fides

from the sigh dept

Our soon-to-be American President has made quite a show about bolstering the country's efforts for cybersecurity. The "cyber", as he is wont to call the issue, is claimed to be in disrepair and requires brave new minds to protect the country's computer systems from hacks and attacks from outside forces. We've already discussed in the past how depressing it is to learn just how little actual computer science knowledge exists floating in the minds of our elected leaders and their top-level appointees. There is an opportunity to get very smart, very well-educated people on matters of cybersecurity involved in government.

But it appears that Trump is choosing instead to pass on that opportunity, instead tapping Rudy Giuliani to head up his cybersecurity task force. Giuliani runs a consulting firm that claims to be involved in cybersecurity, of course, except that the extent of its work on the subject appears to be the claims that it does so.

Giuliani does head a consulting firm in New York called Giuliani Partners that supposedly focuses on cybersecurity, but Vice’s Motherboard reported yesterday, it’s tough to tell what they actually do, and it’s even tougher to tell what Giuliani does for them, besides being the face of the operation while saying outrageous things on television.

As Motherboard’s Jason Koebler and Lorenzo Franceschi-Bicchierai wrote, “Unlike many other cybersecurity firms, Giuliani Partners does not publish white papers about malware and large-scale hacks, or push for increased adoption of encryption, which would enhance cybersecurity across the board. In fact, it doesn’t talk much about cybersecurity at all, instead choosing to focus on its more traditional anti-crime consulting work.”

So we're off to a great start. Instead of bringing in someone with actual knowledge and experience in cybersecurity, the President Elect has instead put a cybersecurity cosplayer in charge. And not even a particularly good impersonator of a cybersecurity expert, it seems, as the internet has already begun poking fun at the security measures, or lack thereof, Giuliani Consulting has deployed for its own website.

We might be better off if Trump decided to employ one of the four-hundred pound slobs in their mother's basement he's referenced previously, as they seem to have a better handle on the very basics of web security than Giuliani. And they'd probably be cheaper as well, as the former mayor is on the record that his "cybersecurity firm" was more a venture of opportunism than one of added value for his clients.

Look, combating risks on "the cyber" (sigh) may indeed require a high-profile face, if only for the purposes of reassurance and PR. Sadly, those purposes are not fulfilled by a former mayor with a cybersecurity company that doesn't do cybersecurity, even for its own website.

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Posted on Techdirt - 13 January 2017 @ 3:25am

Streisand Effect Derails Man's Analog Plan To Buy Up All The Newspapers Detailing His DWI Arrest

from the oops dept

The concept of buying up all the newspapers in town to avoid some embarrassing story or picture of oneself is old humor. The concept, featured in sitcoms of yester-yore, relies on a couple of things: newspapers being the single source of a story or photo and for news stories to not travel quickly nor beyond the insular community in which they occurred. Because of that, the joke doesn't really work in a hyperconnected world with digital media.

This was a lesson painfully learned by Joseph Talbot of Newark, it seems. Talbot, an otherwise apparently well-respected businessman, was arrested recently for driving while intoxicated. Understandably, he was embarrassed upon learning that news of his arrest had been written up in the local newspaper. His solution was to deploy the sitcom-level chicanery previously discussed.

Several Newark store clerks told the Times of Wayne County they saw Talbot buy hundreds of copies of the newspaper over the weekend, said Ron Holdraker, the editor and owner of newspaper. He estimated Talbot purchased somewhere between 900 and 1,000 copies of the paper from at least eight locations.

Holdraker, who graduated from Syracuse University in 1974, said the newspapers cost about $1.25 each, meaning Talbot would have spent at least $1,125 to buy the papers.

And that's roughly when the Streisand Effect took over. Talbot may now be wondering how much it costs to buy up all the internets, because the once-mundane and localized story of his arrest in the community newspaper has instead become a far more widespread story about his attempt to cover it up, featured across many websites. Spending over a thousand dollars to buy up the local papers is one thing. Trying to silence all of these internet sites would likely be far more expensive. Our own price tag, for instance, is a hundred million and one dollars, and we're likely to be on the cheap end of things.

Look, there's no joy in understanding that Talbot's emarrassment has multiplied because of his admittedly hilarious attempt at a coverup, but the world does need to understand that attempts to hide information in this manner will only result in it being further spread.

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Posted on Techdirt - 12 January 2017 @ 1:13pm

Trump Not Even Waiting To Get Into Office Before Threatening The First Amendment, Press Freedoms

from the quick-on-the-draw dept

During the campaign and after his win, President Elect Donald Trump has been remarkably consistent on his calls for curtailing the rights afforded to the American people and our news organizations by the First Amendment. Between threatening lawsuits over campaign ads, suggesting that political protests ought to be stopped, and mocking free speech in more general terms, the soon-to-be President has positioned himself to be a challenger to long-held freedoms for which very real blood has been shed to protect.

But it seems the President Elect is not content to wait to enter office to try to begin this erosion of the First Amendment. Amidst a week of turmoil over the publication of comments about the classified briefing he, amongst others, received detailing intelligence findings about Russian involvement in the previous election cycle, Donald Trump has called upon Congress to investigate how this information was leaked to NBC News.

“I am asking the chairs of the House and Senate committees to investigate top secret intelligence shared with NBC prior to me seeing it,” he tweeted. "Before I, or anyone, saw the classified and/or highly confidential hacking intelligence report, it was leaked out to @NBCNews. So serious!" he added on Sunday.

We should note first the dissonance in Trump's stance and the Inception-esque nature of NBC's reporting. Essentially, NBC was reporting on a leak of a classified briefing that accused Russia of actively hacking, and then leaking, internal DNC communications. It's a leak about intelligence of a leak, in other words. And the DNC leaks were prominent talking points by Trump during the campaign, at times being read verbatim by the candidate at rallies, while at other times he simply read to the crowd news reports of the leaks. Those leaks were kosher, it seems, yet the NBC reports deserve Congressional investigation.

Perhaps more importantly, the prospect of Congress hauling journalists before the government to answer questions about their sources for the leaks takes the country back to a time prior to the precedent of not doing this.

Congressional committees, including the House and Senate intelligence committees, do technically have the authority to investigate the leak and subpoena NBC News reporters. But they are not likely to do so, media attorney Mark Zaid told POLITICO.

“I’d say there is little to no chance that Congress would get involved with any kind of classified media leak investigation,” he said. “Could they? Sure. Do they? No.”

In fact, the last time Congress did something like this was back in the 1970s, when a CBS reporter, Daniel Schorr, got his hands on a classified report from the House intelligence committee about illegal conduct perpetrated by the CIA. Schorr refused to name his source for the document in front of Congress, risking imprisonment, a punishment that was never actually levied. Given that the document Schorr used in his reporting, and subsequently shared with other news organizations, detailed only internal CIA practices and the government's assessments of them, returning to this kind of dangerous meddling by the government into news reporting over a document that deals with foreign spycraft would be strange indeed.

Strange, and dangerous, according to Joseph Califano, Jr., the man who represented Schorr during the ordeal.

Califano was dismayed after hearing about Trump’s tweet.

“That is a savage attack on the First Amendment,” he said. “We’ve been through this. Reporters have confidential sources. That’s become a hallowed part of the First Amendment and the ability of reporters to report. … These committees should not be getting into that.”

"If the government wants to find out who leaked and it’s somebody in the government, and if the intelligence community wants to find out who leaked, the Justice Department can go look at the CIA and look at all the national intelligence agencies," he said. "Not the reporter. That’s the wrong way to do it. That is really a serious erosion of a freedom that is essential."

But, as we've said, President Elect Trump has shown little regard for either the First Amendment or for the customs and norms of government action. Instead, he at times looks to wield government power as though it were his personal cudgel against his perceived political enemies. For anyone interested in a thriving and free America, whatever your political proclivities, whomever you may have voted for, the warning bells should be ringing loud and clear.

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Posted on Techdirt - 11 January 2017 @ 10:45am

Verizon Insists Higher Phone Upgrades Are Being Used To Enhance The Network Instead Of Make Up Revenue Decline

from the uh-huh dept

Within Karl Bode's post about Verizon's insistence that all of the people who continue to use grandfathered unlimited data plans don't actually exist was a brief note about the company's decision to increase the cost to upgrade the phones themselves. As mentioned in the post, Verizon claimed that the reason to push upgrade costs from $20 to $30 was due to increasing costs. Fleshing that out a tiny bit, a Verizon spokesman commented for Ars Technica.

When asked why the upgrade fee was raised, a Verizon spokesperson told Ars, "These fees help cover increased cost to provide customers with America’s largest and fastest 4G LTE network."

As both Karl's and the Ars post note, there's a bit of a problem with this statement. Verizon's earnings reports are publicly available, you see, and the company's own reporting details a fairly significant decline in operating costs compared with the previous year. So, what was sold as a need to make up for increased expense appears instead to be something else. Once the post went live, another Verizon spokesman reached out to Ars again.

After this story published, Verizon responded that it was referring to "ongoing costs to maintain and enhance the network," but did not provide any further details.

Making the additional comment rather useless, I would say. We still have source material in the form of Verizon's own financial statements that suggest lower expenses for the company, not higher. What you do find, in addition to that, is a slightly smaller decline in revenue. It would make some sense for the company to try to make up for a revenue decline by raising upgrade fees. If that were the case, however, why not just say so? Why instead invoke the expense and the spectre of the future without anything concrete to back that up? It's not like the telecom industry has some sterling reputation when it comes to how and when it deploys the cost of maintaining or upgrading their networks as the reason to take certain actions. And why on the one hand charge extra fees to burgeon the network while at the same time eliminate data plans that could take advantage of a beefed up service?

The only thing that's certain in this is that Verizon appears to be dipping ever-further into tactics that are designed not to provide its customers with additional value, but to instead merely prop up a decreasing revenue number.

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Posted on Techdirt - 6 January 2017 @ 4:41pm

Bushy's Brewery, Isle Of Man Govt. Have Trademark Hissy Fit Over Two Letters: TT

from the seriously? dept

If there is one lesson you take away from writing about trademark law and disputes, it's how simple it would be to avoid a massive percentage of the conflicts by holding trademark applications to a far higher standard then they often are. If the world's many trademark offices kept in mind that the entire point of this form of intellectual property is supposed to be keeping the public confident in their ability to determine the source of a given product or service by its trademarked branding, then it would be obvious that approved trademarks should be unique and distinct.

As a counterexample to that line of thinking, consider the current dispute going on between Bushy's Brewery, located on the Isle of Man, and the Manx government, all over the government's trademark for exactly two letters: TT.

The company was hit with a legal warning by the Isle of Man government over the government’s ‘TT’ trademark, registered at the UK Intellectual Property Office (IPO). Since 1998, Bushy’s has operated a beer tent at the Isle of Man TT Race, a motorsport event held annually since 1907 in the crown dependency, which is located in the Irish Sea between England and Northern Ireland.

According to broadcaster ITV, the government’s Department of Economic Development issued a warning in response to controversy over the brewery’s use of the “iconic initials” (TT) and said that it needs to protect the famous TT brand.

Okay, some background for those of you non-racing enthusiasts. The Isle of Man is a small nation off the coast of England. It's main tourist attraction is a motor race called the Isle of Man Tourist Trophy, or "TT" for short. For the island's economy, it's a big deal. The brewery, also located on the island, has been a constant participant at the race, with a tent and sponsorship contribution. Bushy's Brewery registered a trademark for "TT" to cover beer, clothing, and catering services in March of 2015. The company was apparently taken aback when only recently the Manx government fired off its warning letter over the trademark it holds on the "TT" mark.

“Bushy's has been told by the Isle of Man government that it can't use the letters ‘TT’ because it's trademarked. Bushy's is synonymous with the TT, its beer and the beer tent.

“It also employs local people year-round, and contributes to the Manx economy. If the government believes in supporting the local economy, it should stop threatening legal action and let Bushy's ... use the letters ‘TT’.”

Basically everyone involved in all of this is being a bit ridiculous. The Manx government, were it so concerned about the brewery's use of the letters "TT", ought to have objected to the trademark when it was first applied for. To allow the registration first and to only later fire off a warning letter smacks of dysfunction. It's also unlikely that anyone is going to go to Bushy's beer tent and somehow think it's an arm of the government-operated event. Bushy's, meanwhile, registered and somehow attained a trademark on two letters. Acronym for a race or not, that itself is absurd. Which brings us to the Intellectual Property Office, which somehow saw fit to approve a trademark registration for exactly two letters in the English alphabet. Had it not done so, none of the parties would be in this mess.

But this is what you get when something like trademark law is allowed to stray so far from its original purpose.

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Posted on Techdirt - 5 January 2017 @ 5:41pm

Trademark Dispute Between Coffee Companies Over 'Detroit' Trademark Demonstrates The USPTO's Carelessness

from the motor-city-mayhem dept

It bears repeating: far too many of the trademark disputes we cover here at Techdirt are in large part the fault of a USPTO all too willing to grant trademarks on terms that are overtly either broad or based on geography. One would hope that it went without saying that trademarks, designed to inform the public as to the source of the products they buy, cannot work to that end if the identifying marks are not specific or original within the marketplace. Yet the Trademark Office too often doesn't seem to consider this when rubber-stamping applications.

For example, there is currently a trademark dispute going on between two coffee companies over the name of the city of "Detroit."

A local company’s Detroit-branded java doesn’t jive with an East Coast entity that claims it was the early bird in the Motor City joe business.

But the target of the complaint insists the Dec. 22 lawsuit filed by New York-based Detroit Coffee Co. is nothing more than a shakedown.

“This is a Wall Street-versus-Woodward type of mentality,” said A.J. O’Neil, owner of Hazel Park-based Detroit Bold Coffee Co. “They think the little guy will fold.”

Detroit Coffee Co., a Michigan LLC with a New York City address, filed a complaint alleging trademark infringement against Detroit Bold. It demands a jury trial in U.S. District Court for the Southern District of New York.

It's only through the absurdity of granting a trademark on something like "Detroit Coffee" to begin with that you can generate a reality that includes a New York City business suing a Detroit-based business over the name of a city combined with the name of a common product. When considering trademarks that incorporate geographic names, the bar for infringement is supposed to be much higher. And, should the case move forward, perhaps that higher standard will be applied, but it's still worth considering whether a trademark like "Detroit Coffee" ought ever to have been approved in the first place. After all, whatever the resolution in court ends up being, the monetary burden on such legal action isn't meager.

“It’s not like I have all this extra income to hire a big legal team and go (to New York) to fight this,” he said. “Those folks in New York are conjuring up something that at best has no merit.”

Adding to the strangeness of this particular case is that Detroit Coffee allowed its trademark to lapse until 2016, when it re-registered after Detroit Bold Coffee trademarked its two logos for "Detroit Bold Coffee Company."

O’Neil told The News he and his attorney, Mark Schneider, haven’t seen any evidence that Detroit Coffee actually sells any coffee under the Detroit Coffee name, or has ever sold coffee or other merchandise branded with that name. The trademarks the company pulled in the early 2000s were dead at the time Detroit Bold registered new logos bearing “Detroit Bold Coffee Co.” in early 2016, according to trademark office records.

Detroit Coffee renewed trademarks on the “Detroit Coffee” name for use on brewed coffees, teas and beverages on April 14, 2016, roughly two months after O’Neil registered two logos bearing the words “Detroit Bold Coffee Company.”

If true, that would seem to leave Detroit Bold Coffee in the clear, except it still would have to take on the burden of the court case. Which means this is all still ultimately the fault of a USPTO too willing to liberally approve trademarks.

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Posted on Techdirt - 4 January 2017 @ 4:55pm

Chicago Field Museum Decides To Embrace Cross-Promotion Instead Of Trademark Protectionism With Brewery

from the to-sue-or-not-to-sue dept

When it comes to trademark issues, we tend to keep our pages filled with stories about disputes, bullying, and over-protectionism. While we try to highlight good-actors on matters of trademark, those stories are too few and far between for our tastes. With that in mind, why not start off the new year with one such example?

Toppling Goliath is a brewery in Iowa with a number of regular and seasonal beers. One of those is PseudoSue, an ale with a label that features a roaring Tyrannosaurus rex. Anyone from the Chicago area is likely already thinking of our beloved Field Museum and the enormous T. rex fossil skeleton of Sue, who the museum tends to dress up like some kind of prehistoric barbie doll whenever one of our local sports teams has themselves a particularly good season. The museum has a trademark registration for Sue that covers all kinds of mechandise and initially reacted as readers of this site will have come to expect.

“Initially the Field Museum was very hard line about” wanting to protect their trademark of the name Sue used with the image of a T. Rex, said Martha Engel, an intellectual property attorney who represents Toppling Goliath.

But, instead, the stance of those at the museum -- ahem -- evolved into one more cooperative with the brewery. Rather than going the protectionist route, both parties talked through a more amicable solution: a full-blown partnership to benefit both sides.

But, ultimately, the brewery owners and the marketing executives at the museum got together and decided to create a cross-promotion scheme rather than launch a legal fight.

“It became obvious that we could work well together,” Clark Lewey, a co-owner of the brewery, said. As part of the deal, Toppling Goliath will print new labels for PseudoSue and another beer called King Sue that promote the Field Museum and Sue, the T. Rex.

This example set by a brewery and a museum ought to serve as the antidote to the poison that is the most common excuse for trademark bullies: trademarks must be protected jealously or they will be lost. As this story shows, that isn't remotely true. Nor, by the way, is such protectionism the most optimal route for the trademark holder. By partnering with the brewery, the museum gets the promotion through the beer label and name. It also gets a nice PR story, along with an exclusive untapping of a beer within the Chicago market.

And all without the billable hours charged by the museum's attorneys.

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Posted on Techdirt - 4 January 2017 @ 2:46pm

Facebook Censors Art Historian's Photo Of Neptune's Statue-Penis

from the pics-or-gtfo dept

It's probably time for Facebook to give up trying to be the morality police, because it isn't working. While nobody expects the social media giant to be perfect at policing its site for images and posts deemed "offensive", it's shown itself time and time again to be utterly incapable of getting this right at even the most basic level. After all, when the censors are removing iconic historical photos, tirades against prejudice, forms of pure parody, and images of a nude bronze statue in the name of some kind of corporate puritanism, it should be clear that something is amiss.

Yet the armies of the absurd march on, it seems. Facebook managed to kick off the new year by demanding that an Italian art historian remove an image of a penis from her Facebook page. Not just any penis, mind you. It was a picture of a godly penis. Specifically, this godly penis.

That, should you not be an Italian art historian yourself, is a picture of a statue of the god Neptune. In the statue, which adorns the public streets of Bologna, Neptune is depicted with his heavenly member hanging out, because gods have no time for clothes, of course. Yet this carved piece of art somehow triggered a Facebook notice to the photographer, Elisa Barbari.

According to the Telegraph, Barbari got the following notification from Facebook. “The use of the image was not approved because it violates Facebook’s guide lines on advertising. It presents an image with content that is explicitly sexual and which shows to an excessive degree the body, concentrating unnecessarily on body parts. The use of images or video of nude bodies or plunging necklines is not allowed, even if the use is for artistic or educational reasons.”

Even were I to be on board with a Facebook policy banning nudity and, sigh, "plunging necklines" even in the interest of education or art -- which I most certainly am not on board with -- the claim that the image is explicitly sexual and focused on "body parts" is laughably insane. There's nothing sexual about the depiction of Neptune at all, unless we are to believe that all nudity is sexual, which simply isn't true. Also, the depiction focuses not on one body part, but on the entire statue. Nothing about this makes sense.

And that's likely because Facebook is relying on some kind of algorithm to automatically generate these notices. Confusingly, the site's own community standards page makes an exception for art, despite the notice Barbari received claiming otherwise.

Strangely, an exception is made for art. “We also allow photographs of paintings, sculptures, and other art that depicts nude figures.”

Except when it doesn't, that is. Look, again, nobody is expecting Facebook to be perfect at this. But the site has a responsibility, if it is going to play censor at all, to at least be good enough at it not to censor statues of art in the name of prohibiting too much skin.

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Posted on Techdirt - 27 December 2016 @ 5:09pm

Sufferin' Trademarks: The Trademark Dispute Over The Word Succotash

from the generic-defined dept

If there is a common theme that runs through much of the posts we do on trademark disputes, it's that the ultimate responsibility for them lies at the feet of a USPTO that's only too willing to grant privilege on words and terms when it should not. The examples of this abound, from a video game trademark on the term "candy" to trademarks being granted in the entertainment market for the word "live."

And now we can add to this list that the USPTO apparently granted a trademark for the restaurant industry to a company on the word "succotash." This came to light when that company, Knead Hospitality + Design, sent a cease and desist notice to Beth Barden, who runs a restaurant in Kansas City that goes by the name Succotash.

Barden learned via email that Knead Hospitality + Design filed a trademark registration for Succotash and requested she remove the trademark symbol from her website. But the D.C. company's move has bigger implications: The filing gives it the nationwide right to use that trademark in connection with bar, catering and restaurant services. If Barden wanted to expand or franchise outside the Kansas City area, she could be subject to trademark infringement, said Cheryl Burbach, a partner in Hovey Williams LLP, an Overland Park intellectual property law firm.

"All of a sudden, your name isn't yours anymore," Barden told the Kansas City Business Journal. "It's a little terrifying because clearly they have more money than I have, more opportunity to fight this thing than I do."

Now, notably, Barden's restaurant is over a decade old, while Knead Hospitality + Design came to be only in 2014. As such, Barden likely has all sorts of protections available to her via common law trademark rights. She has hired an attorney to fight the C&D... and to get Knead's registration cancelled. And that really should happen, because allowing a trademark in the restaurant industry that consists entirely of the name of a common dish is insane. So insane, in fact, that that's the reason why Barden herself never even bothered to attempt to register the trademark herself.

Barden said she never registered a Succotash trademark because she didn't think a common vegetable dish could be trademarked. Even so, Barden is considered a senior user who owns prior common law trademark rights in the Kansas City area. Knead filed its trademark application on March 14, 2015, well after Barden began using the name in Kansas City.

Her naiveté would be quite sweet, had it not led to her now having to pay an attorney to keep a trademark bully with a mark that never should have been granted in the first place at bay. Which brings us all the way back to the original point: if the USPTO can't be bothered to think about a trademark application for long enough to realize it never should have granted this particular mark, the time for new oversight is at hand.

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Posted on Techdirt - 23 December 2016 @ 9:23am

Denuvo Spins Doom Dropping Its DRM Into A Victory Dance

from the managing-expectations dept

The speed with which the prevailing opinion of Denuvo, the DRM unicorn de jour, has changed has been nearly enough to make one's head spin. It was only at the start of 2016 that the software was being rolled out en masse by many game publishers, leading some normally bombastic cracking groups to predict that the video game industry had finally found its final solution to piracy. That lasted until roughly the middle months of the year, when several games using the DRM were cracked. While Denuvo's makers remained fairly silent, the opinion of it shifted from "final solution" to "hey, it's still the hardest DRM to crack." Cracking groups that typically measure their work in weeks were finding cracking Denuvo to be a project measured in months. That likely explained why so many big-ticket games still used it. Until, somewhat suddenly, multiple big-name games began dropping Denuvo from their code via patches and updates. The latest example of this was Doom silently nixing Denuvo, with id Software not even referencing the move in its patch notes.

And so the speculation began as to what was going on. Some said the game makers were finally realizing that DRM is pretty much useless at everything other than being a minor inconvenience for cracking groups and a major inconvenience for many legitimate customers. Others suggested that perhaps Denuvo offered some kind of money-back deal if a game using it was cracked within a certain time-frame. Still others claimed that publishers were only using the DRM during the initial release window of the game to protect it during the most crucial sales period, and then dropping it afterwards.

Denuvo, just recently, publicly endorsed the last theory.

“The simple reason why Denuvo Anti Tamper was removed from Doom was because it had accomplished its purpose by keeping the game safe from piracy during the initial sales window,” Denuvo’s Robert Hernandez said to me in an email. “The protection on Doom held up for nearly four months, which is an impressive accomplishment for such a high-profile game.”

Hernandez also insisted there is nothing like a money-back program if a game using Denuvo is cracked. And perhaps he's correct about why these games are suddenly dropping the DRM, although it should be clear that this theory is the best one available for Denuvo's business. The other two theories mean Denuvo is a failure. At least the idea that game publishers are using it during the initial release window allows the company to claim it's still providing a benefit to publishers.

But for how long? Given the precipitous drop in the posturing around Denuvo from "un-crackable" to "hey, we kept the game safe from piracy for a couple of months", it's reasonable to wonder why that downward trend shouldn't continue in that direction. Unless the company has some serious tricks up its corporate sleeve, it's not like cracking times are going get longer rather than shorter.

And the bigger question is one of math. If Denuvo carries negatives in its use, as its being dropped by several games clearly suggests, are those negatives really made up for by a couple of month's worth of protection? At four months, perhaps id Software thought it was. But if that protection window shrinks, there is going to be a line which, once crossed, makes Denuvo more trouble than its worth. You know, like every other DRM ever created. Denuvo's business still relies on its software being a unicorn, although one it already acknowledges has a horn much less shiny than originally believed.

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Posted on Techdirt - 22 December 2016 @ 5:11pm

Butterball Sues Australian Wine Company Over Its 'Butterball' Chardonnay

from the whine-pairing dept

It just won't stop when it comes to trademark disputes involving the alcohol industry. Such disputes between wine, beer, and liquor companies are legion. In such a crowded industry, it needs to be hammered home that the purpose of trademark law is not so that big companies can bully smaller companies, but rather so that customers are protected from imitation products and from being confused as to who they are buying from.

The latest such dispute is between Butterball, the turkey-selling king based out of North Carolina, and a small wine company in Australia. At issue is one of McWilliam's Wines Group's chardonnays, which the company has branded as its Butterball Chardonnay.

According to a complaint filed Dec. 12 in the U.S. District Court for the Eastern District of North Carolina, Butterball states that McWilliam’s Wines Group Ltd. “produces, sells, distributes, and imports into the United States a variety of Evans & Tate branded wines, including a type of chardonnay named ‘BUTTERBALL.’”

Butterball states that its trademarked goods and services range from turkeys and marinades to fat fryers and mobile device software. The complaint goes on to say, “The consumer goodwill associated with the BUTTERBALL Marks is one of Butterball’s most valuable assets. Accordingly, the integrity of the BUTTERBALL Marks is extremely important to Butterball and crucial to the continued vitality and growth of Butterball’s business.”

Notably absent from Butterball's list of goods and services using the Butterball trademark is anything having to do with wine in particular, or even beverages in general. And there is good reason for this: Butterball doesn't make wine. A brief look at its products page confirms what everyone already knows: Butterball makes meat products, along with a few ancillary items. In other words, when you think of Butterball, you think of turkey. It seems unlikely that the company can argue it is in a competitive marketplace with a wine seller at all, never mind that there might be any kind of customer confusion that could occur due to the name.

And the branding of both companies doesn't make confusion any more likely. Here are both brands side by side.

Yeah, the branding of the wine label looks nothing like Butterball's branding, and it has the name of the wine company clearly depicted on it. Now, I'm sure that Butterball will at some point trot out the trademark bully's favorite excuse and claim it had to file this lawsuit or risk losing its trademark, but that isn't actually true. It would only be true if there were actual potential confusion or a real demonstrable infringement within Butterball's marketplace. Neither are the case.

This lawsuit is a real turkey, in other words. I'm so, so sorry...

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Posted on Techdirt - 22 December 2016 @ 2:58pm

Nintendo Opens Up New Front In War On Fans: ROM Mods

from the nintendo-hates-you dept

Let it never be forgotten that Nintendo hates you, Nintendo fans. The gaming giant has a long and decorated history both of anti-consumer practices, such as attempting to poison the roster of YouTuber game reviewers, bricking consoles if gamers don't agree to its post-release EULA updates, and attacking some of its biggest and most creative fans by issuing takedowns and threats for fan-made game levels, fan-made games that have barely anything to do with its IP, and shutting down fan-made remakes of games that are decades old.

Yet Nintendo has been notably lenient in some areas in enforcing its intellectual property as well. The most prominent of these would be what's referred to as "ROM hacks", in which the original Nintendo ROMs are modded to include new and original content. These ROM hacks abound and are readily available, requiring the original game (or a pirated version) in order to be used. Now, for the first time reported, one of these ROM hacks has fallen into the sights of Nintendo's lawyers.

A fan-made Pokémon ROM hack in the works for eight years was set to launch this Sunday. But a letter sent by Nintendo's Australian law firm on Wednesday has stopped those plans in their tracks. According to Adam "Koolboyman" Vierra, developer of the fan-made Pokémon Prism project, Nintendo's Australian law firm sent him a cease-and-desist letter, which he uploaded to Google Drive with identifying information redacted. (American representatives for Nintendo were not able to confirm the letter's authenticity as of press time.) The request alleges that Koolboyman's project, which alters the source ROM of the 1999 game Pokémon Gold to create an entirely new adventure, violates multiple Australian laws.

The location of all of this requires some explanation. Vierra lives in California and Nintendo's legal team is based out of the United States, but Vierra had been planning on releasing the game via Rijon.com, which is based in Australia. It was Nintendo's Australian legal team that sent the threat letter. That team has previously taken action against downloaders of pirated Nintendo games, but not on creative fans producing these kinds of ROM hacks. As noted before, the company worldwide has generally allowed these add-on mods to exist. Not so much in this case, for reasons not currently being offered by Nintendo.

But let's all not lose sight that this is a mod on a game nearly two decades old created by a fan to incorporate brand new gameplay and story elements into the existing game and engine, and was going to be offered free of charge. It's CounterStrike, in other words, except using a Nintendo product. And there are entire sites and fan-groups built around these sorts of mods. They're a boon to gaming companies by extending the life of the demand for a game for free, as fans take on the work of adding on to it in a way that still requires the original in order to play it at all.

And this isn't even Vierra's first go at this sort of thing.

Vierra himself might have assumed Nintendo would allow a Pokémon ROM hack, because his last one, Pokémon Brown, launched in 2004 with nothing in the way of dispute from Nintendo. That hack's new "Rijon" region would have been hugely expanded upon in Pokémon Prism. It would have contained other tweaks, such as Brown's special monster types (wood, gas, wind, abnormal, and sound), a tweak to the game's "clock" system, and new music compositions. (Other Pokémon ROM hack depositories are easy to find online.)

One could say that this all reeks of a legal team in a foreign country not being on the same page as the HQ back home. Except that it can also be said that expanding IP enforcement to this new front is perfectly in line with Nintendo's general heavy-handed approach to protectionism. Because Nintendo can't help itself. Because Nintendo hates you.

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Posted on Techdirt - 22 December 2016 @ 11:43am

Universal Studios Misses A Chance To Be Awesome And Instead Tries To DMCA Leak Of Unfinished 'Mummy' Trailer

from the sigh dept

Universal Pictures, it will not surprise you, has a long history of being overtly protectionist on anything to do with its intellectual property. This has led to stories both funny and infuriating. The studio's legal team, for instance, once asked Google to delist for piracy, with that IP address essentially serving to denote the machine currently in operation. It's "home", in other words. On the other side, Universal's lawyers sent out licensing bills to fans its marketing team had asked to pimp one of its movies for free.

Universal keeps a tight grip in an attempt to control everything to do with its products, in other words. But when the internet is involved, such attempts at control can go horribly, horribly wrong. Such is the case with the recent leak of an unfinished trailer for the upcoming film The Mummy.

Yesterday morning very few people knew that a new version of The Mummy will be on the big screen next summer. That changed quickly when an unfinished trailer of the film was accidentally put online by IMAX’s YouTube account. As it turns out, the trailer where Tom Cruise is screaming without sound effects is quite an entertaining watch. Soon, the mistake was reposted all over the Internet, where it triggered a meme fest. Great promotion for the film, one would think, but the bosses at Universal Pictures weren’t smiling.

Let me make this more clear: this trailer, and memes incorporating it, were everywhere these past couple of days. And, to a lesser extent, they still are out there. Not with any sort of approval by Universal, of course, whose lawyers have been firing off DMCA notices to take down the trailer wherever they can find it.

On Twitter alone, several people had their postings removed over copyright infringement claims. According to the movie studio, the “leaked” trailer is not for the public’s eyes.

“The uploaded trailer was a leaked version without sound fx. This was accidentally released online but is not intended to be available for public viewing. We have removed it from YouTube, but it is still populating on Twitter,” they write.

Indeed it is, and it's not difficult to understand why. On the one hand, the trailer without sound effects and music is truly hilarious and entertaining. In fact, one wonders if any polished and completed trailer could garner so much attention as this unfinished one. On the other hand, it's quite interesting to get a glimpse at what the unpolished footage looks like, and to understand how much a musical score and sound work add to the experience. Whichever angle you come at it from, it's fun.

And it was a massive opportunity for Universal Pictures to join in on the fun, be awesome and human, and enjoy all of the massive and free publicity its unreleased movie was suddenly getting. Sure, the trailer is goofy without the production values the completed product will enjoy. But so what? Everyone understands that. And everyone realizes that the studio had no intention of the public seeing this version of the trailer. But now that it's out, Universal should be doing everything it can to supercharge the viral nature of all of this free publicity and bending some good will from the public. Instead, they are trying to shut the whole thing down.

Which, of course, isn't working.

As a result, many copies that were posted on Twitter, YouTube and elsewhere are no longer working. However, there is so much interest in the trailer that Universal can’t really keep up. For every video that’s pulled offline, several others appear elsewhere. It seems virtually impossible at this point to put the genie back in the bottle. In fact, the trailer has become a fertile breeding ground for memes, with people adding their own soundtrack or using Tom Cruise’s scream as the modern-day Wilhelm scream to pimp other videos.

And this sort of thing will only be furthered now that reports are out about Universal's attempt to unring the bell. So, the lawyers will accomplish nothing other than to create animosity where there was once only interest. Great job all around.

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Posted on Techdirt - 21 December 2016 @ 5:05pm

Winery Loses Trademark Suit Against Other Winery Over The Term 'Signature'

from the drink! dept

I'm going to keep ringing the warning bell about how the explosive growth in the beer and wine businesses has resulted in a similar explosion in trademark disputes until people start listening. An industry that has benefited from so much interest and competition is eventually going to find itself with a massive litigious roadblock on its hands if something isn't done. That said, the typical trademark dispute in the alcohol spaces normally deals with fairly creative names, artistic labels, or cross-industry trademark concerns. Less common are the types of trademark disputes in which the trademark in question is laughably broad or common.

Less common, but not completely absent, however. In Australia, for instance, one winery sued another over a trademark it holds on the word "signature." The suit failed for exactly the reasons you're thinking of.

Yesterday the court dismissed an application by Yalumba against the Jacobs Creek Reserve Barossa Signature range, which claimed the Pernod Ricard term infringed on the Yalumba trade mark, “THE SIGNATURE”. The fight was provoked by Yalumba owner Robert Hill-Smith when Pernod Ricard released three Jacobs Creek red wines in September 2015 with “Barossa Signature” on the label.

In her judgment today, Natalie Charlesworth said the case came down to three questions: whether Pernod Ricard used the words “Barossa Signature” appropriately under the Trade Marks Act, whether it was deceptively similar to the Yalumba Trademark, and whether Pernod Ricard used the term “in good faith to indicate the kind, quality, intended purpose, geographical origin or some other characteristic”.

In the ruling itself, Charlesworth goes on to answer those three questions, though she stops herself after the second of them. She reasons that if Prenod Ricard used the words appropriately under the law, as she affirms, and that such use is not going to confuse the public into the origin of the product, as she also affirms, then the answer to the third question doesn't matter. She goes on to note the differences in trade dress and also notes that the trademarked term "The Signature" is devoid of origin-defining value. Therefore, the lawsuit is dismissed.

As is typical, the ultimate fault for all of this is upon whoever thought approving a trademark for a term like "signature" for an industry overflowing with "signature" labels was a good idea. The term is generic in identifying premier products within a brand. It's used all over the place. How this trademark application ever passed the smell test in Australia is beyond me.

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Posted on Techdirt - 19 December 2016 @ 5:26pm

Dunks And Drunks: Jagermeister Blocks Milwaukee Bucks Logo Trademark Application

from the deer-milwaukee dept

Just when you think you've seen it all in silly trademark filings, along comes a liquor company to block the trademark application for the logo of an NBA basketball team. Jagermeister, a liquor I haven't thought about since my college days because I'm a grownup that drinks grownup drinks, has decided that the logo for the Milwaukee Bucks is too similar to its own logo and must be stopped.

Germany-based Mast-Jägermeister SE has filed its opposition to the Milwaukee Bucks trademark application with the U.S. Patent and Trademark Office. The notice, filed Thursday, argues that there is a likelihood of confusion between the two logos, a false suggestion of connection and a dilution of the Jägermeister logo’s “distinctive quality.” Jägermeister says the services provided by the two organizations “are so related” that it creates the potential for confusion. The potential for confusion “is enhanced by the extraordinary fame” of Jägermeister’s trademarks, the notice says.

Here are the logos in question.

Similar? Sure, I suppose, although there are fairly distinct differences between the two logos that would probably keep any customer confusion at bay. There are those lines within the circle on Jagermeister's logo, for instance. Also that big cross at the top, there, I suppose, because Jesus was a huge fan of Bavarian digestifs. Also, and this is a minor point only, the basketball franchise's name is right there on their logo.

Regardless of all of that, whatever involvement Jagermeister has in markets other than beverages is minimal, it doesn't have anything to do with basketball, nor would it amount to creating any confusion within the public. All of which Jagermeister has essentially acknowledged in a statement saying that that it is really just wasting everyone's time with all of this while trotting out everyone's favorite excuse for paining someone else's ass with trademark law.

On Monday, Jägermeister's trademark attorney, Katrin Lewertoff of Connecticut apologized for the delay and issued a statement suggesting there really is no trademark tiff.

"Jägermeister and the Milwaukee Bucks have been cooperating on this issue for months," she said. "The filing was a formality to preserve our intellectual property rights. We expect to come to an agreement with the team soon and appreciate the climate of partnership and fair cooperation with the Milwaukee Bucks in the process."

Soon after, the Bucks chimed in with, "“The Bucks have been working amicably with Jägermeister throughout this process and we are confident that we will come to a resolution very soon.”

So everyone is going to end up playing nice over this, but Jagermeister had to block the application in order to preserve it's trademark rights. It's the same excuse we see time and time again and it's almost always false. In this case, for instance, the law only obligates Jagermeister to police it's trademarks in the face of true infringement or confusion. There is none in this case, so the blocking of the application was not necessary.

Whatever the purpose of trademark has become in modern times, I doubt the framers had intended it to simply create busy work for lawyers and USPTO employees.

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