Posted on Techdirt - 25 November 2015 @ 3:24pm
Comcast has been dutifully modeling its behavior in such a way so as to fill up Techdirt's story pages for years now. So, when we come across a story somewhere discussing how Comcast is doing some bad new thing, it's tempting to simply assume it's true and move on. Such might be the case for some readers of ZDNet's recent post about how Comcast was injecting notices into browsers warning of potential copyright infringement.
The cable and media giant has been accused of tapping into unencrypted browser sessions and displaying warnings that accuse the user of infringing copyrighted material -- such as sharing movies or downloading from a file-sharing site. Jarred Sumner, a San Francisco, Calif.-based developer who published the alert banner's code on his GitHub page, told ZDNet in an email that this could cause major privacy problems.
Well, sure, this is horrible, and it is a privacy issue -- but it isn't new. In fact, Comcast as been doing some flavor of this sort of browser injection for the better part of a decade. The company started this practice way back in 2009, using the tactic to warn users of potential malware infections
, and there was even discussion about expanding the use for other security purposes in 2011
. More specifically on browser injections being used as a copyright warning system, our own Karl Bode noted in 2013 that this was all specifically laid out in Comcast's six-strike plan
. Per Karl's post, Comcast isn't even alone in using this tactic.
Comcast has now put information on their implementation of six strikes online. According to the nation's largest broadband company, their version of the program will involve a persistent nagging pop up that continues to alert the user after the fourth warning. Time Warner Cable, who outlined their version of the plan to me last November , stated they're using a similar pop up warning system that blocks browsing until users acknowledge receipt of "educational" copyright materials.
None of that is to say that the privacy and security concerns aren't very real, of course, and ZDNet does a nice job of discussing those concerns. But it's not new. Perhaps the better conversation to be had is why anyone in their right minds would think that Comcast deserves anyone's trust to the level where users' browsers should be injected with copyright violation notices in a system rife with abuse from pretty much every player involved.
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Posted on Techdirt - 24 November 2015 @ 11:30pm
We had just been talking about the awkward place the Washington Redskins most recent legal filing has left the government in, regarding the team's trademark. In that filing, the team pointed out the sheer hypocrisy of the government's stance that the term "Redskins" is too offensive to receive trademark registration status, yet the government has seen fit to award that status to all kinds of terms and phrases that are equally if not more offensive on any number of levels. But it isn't only for already-registered marks that the awkwardness exists. For new applications too, the courts now have to weigh whether offense applies to granting new trademarks. And, frankly, it's causing some in the Trademark Trial and Appeal Board to employ some serious mental gymnastics when ruling.
The most recent example of this concerns a brewery out of Georgia named Left Nut Brewing Company. A recent ruling has allowed the brewery to trademark its name.
On November 16, the Trademark Trial and Appeal Board decided to allow a Georgia-based brewery to register their name as a trademark . Established about 30 years ago, “Left Nut Brewing Company” will finally be allowed to register after the reversal of an examiner’s decision that the brewery’s name was too vulgar for registration.
To get the appeal board to allow this, the brewery pointed to langauge on its own website about how the name was derived. The site claims that its name is not of the vernacular one might initially think, but is instead a vernacular use with, according to the site, a different meaning.
Instead, it is “built on a vernacular which epitomizes the willingness to give up something of extreme value to do something or create something unique.” In allowing the name to become a trademark, Judge Shaw used such meaning for the phrase to defend his ruling saying that the figure of speech can mean a multitude of things and only one was arguably vulgar.
Okay, let's not play around. The only meaning this refers to is
indeed about a willingness to give up something of value: a man's left-leaning testicle. That's it. That's what left nut means. Now, I happen to love the brewery's name and think it should be adopted in every kind of industry, but the claims about the name having some other etherial meaning is laughable at best. But the judge's ruling claims to have bought the brewery's argument so as to grant it a trademark.
What's becoming clear is that even having to go through these mental gymnastics is dumb and nothing more than a waste of time. The easiest solution would be for the government to get out of the offense-measurement business entirely on trademark matters.
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Posted on Techdirt - 24 November 2015 @ 11:48am
Likeness and publicity rights have become a popular tool for censorship these days, often with a focus on someone whining about something they don't think is fair, despite it being perfectly legal. What's been allowed to occur has been the expansion of a permission culture that is squarely at odds with First Amendment principles in almost every respect. The depiction of public figures in art and entertainment, particularly when serving as some kind of commentary or comedy, should so obviously be protected as speech that I wonder how we even got to a point where our culture is now entertaining court cases over such things. And yet the cases keep coming,
Such as the recent lawsuit filed by famous arcade-playing star Billy Mitchell, most famous for holding the world record in the classic arcade game Donkey Kong. He recently sued the Cartoon Network over a parody depiction of him in the show "Regular Show." You see, Mitchell brought this suit because the show includes a disembodied floating head of a character named Garrett Bobby Ferguson, whose main attributes appear to be his being incredibly annoying and flamboyantly self-promoting, and his being a world record holder of an arcade game. Mitchell's filing describes his problems with this head-character thusly:
Defendants, CN and CNS, have developed a television show entitled Regular Show which utilizes a character named Garrett Bobby Ferguson (GBF), which character is clearly based exclusively on the likeness, appearance, mannerism and persona of Billy Mitchell.
Just so that's clear, Mitchell saw a cartoon character that's a floating, annoying head and decided that it was of sufficient likeness to himself to sue over it. And, to be fair, the character is
admittedly based on Mitchell and his reputation. But so what? The depiction of the character within the show, in addition to having a completely different name, is so cartoonishly skewed and exaggerated for comedic effect as to be clear parody. If any depiction loosely based on someone's likeness deserves First Amendment protection, it's this one.
And the court's ruling heartily and hilariously agrees
The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff’s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent’s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”
Yes, as it turns out, basing a character off of a real-life self-promoting arcade-game champion and then bending the character by making it a floating head with cartoonishly evil character traits such that it is an obvious parody for humor purposes qualifies as transformative and, therefore, worthy of First Amendment protections. Mitchell is left in the unenviable position of claiming that the character is violating his rights by being evil and obnoxious, while at the same time arguing that he's not evil and obnoxious.
Also, his head doesn't explode, as the court rightly notes:
than merely being recognizable by his hair and beard, GBF appears as only hair and a beard.
Rather than holding the world record at a well-known game, GBF holds the record for the entire
universe. Rather than questioning his opponents’ honesty, GBF simply begs his opponents to let
him keep his high score. And when GBF loses his title, the character literally explodes, unlike
The ruling really only points out the obvious, but it's still nice to see the courts get a likeness rights case right when we see too many go the other direction.
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Posted on Techdirt - 23 November 2015 @ 11:06pm
We've had a few instances in the past involving wine-makers and needless trademark spats with companies in completely unrelated industries. The time Trek Bicycle went after a winery, comes to mind for instance. More recently, and somewhat more appropriate to this post, was the trademark dispute between a winery and brewery with similar names. The question in that case was whether or not wine and beer were distinct enough products so as to be essentially operating in different industries and, therefore, not fall under the trademark provisions for their respective marks.
This case is even dumber, as Barefoot Wine is contesting the trademark registration of Barefoot Kombucha. Kombucha, you may not be aware, is a tea drink, and Barefoot Kombucha isn't even an alcoholic drink.
A Virginia husband-and-wife kombucha operation is defending its name in trademark court against the world’s largest winery. Ethan and Kate Zuckerman, the couple behind Barefoot Bucha, are currently involved in trademark litigation with E. & J. Gallo, the parent company of Barefoot Wine, which opposed the craft kombucha brand’s trademark application earlier this year, claiming the brand is “confusingly similar in appearance, sound and meaning to the Barefoot Marks.”
So the side discussion of this spat could revolve around the logos of the companies (which are somewhat dissimilar), whether or not the inclusion of the specific kind of drink, wine vs. Kombucha, would negate any customer confusion, or exactly how similar the total packaging of the two company's products is (not very). But we shouldn't really have to do any of that. One of these products is tea and the other is wine. One of them is alcoholic and the other is not. If that isn't enough of a distinction to declare that the two companies operate in different marketplaces, then I don't know what is.
Kate Zuckerman echoed a similar sentiment in a call with BevNET Wednesday, saying “Trademark law was written to protect consumers but in practice a larger company can challenge a smaller business in court and it’s a lengthy, time-consuming, expensive, stressful process.”
Zuckerman also argued against the wine corporation’s aforementioned “confusingly similar” claim that consumers would mistake the products for one another in stores.
“Kombucha is a totally different product from wine,” Zuckerman added. “We’re carried in different retailers, we’re in different bottles We just don’t believe it’s likely consumers drinking kombucha are going to mistake our product for their product.”
I went to get a bottle of wine but ended up with this bottle of tea... said nobody ever in the history of drinking. And, look, I take this seriously as an avid wine-drinker. I'm the exact kind of consumer Barefoot Wine purports to be concerned about. I assure you there's no confusion here.
The post mentions that the two companies have been in contact in order to settle this issue. Hopefully that amounts to Barefoot Wine backing off.
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Posted on Techdirt - 20 November 2015 @ 3:10am
I have to be honest: I have no idea how this whole "Ferguson Effect" became a thing. The general claim by those touting the theory is that, after the backlash over the Michael Brown shooting and several other high-profile deaths at the hands of law enforcement, police are so fearful of the general public that they are no longer taking the risks necessary to do their jobs properly, which is resulting in an uptick in violent crime in several major cities. It's a fascinating theory in that it is so often promoted by those who claim to be champions of the police, even as the theory itself claims that police are abdicating their primary responsibilities. As with any good theory built to draw on division and emotion, it only helps that this theory is essentially made up of a combination of anecdotal evidence and the simplistic reading of statistics without context.
Now, I won't go so far as to say that anecdotal evidence is entirely worthless. Testimony, after all, is a form of evidence. But those touting the theory so vociferously ought to be able to point to some kind of empirical data as opposed to the rumor mill. Unfortunately, as US Attorney General Loretta Lynch indicated before the House Judiciary Committee, no such data-based evidence for the Ferguson Effect exists.
US attorney general Loretta Lynch said on Tuesday there was “no data” to support the idea that law enforcement officers are policing less aggressively because of increased scrutiny of their tactics following a series of highly publicized killings mostly of black men. Lynch spoke during a House judiciary committee hearing on Tuesday and discussed the controversial theory, termed the “Ferguson effect”, in the wake of the fatal police shooting of unarmed black teenager Michael Brown in the Missouri city last year.
“While certainly there may be anecdotal evidence there, as all have noted, there’s no data to support it,” she said during an oversight hearing on the Justice Department held by the committee.
Now, I'm sure nobody would want to suggest that we make policy in a climate completely lacking data for that policy, so this really should table any discussion of the Ferguson Effect pending any actual, you know, data coming to light. What data is
available suggests that major cities in America, and indeed America as a whole, have ridden a downward trend in violent crime for at least a decade. In that context, a regression to the mean in violent crime shouldn't be treated as particularly extraordinary. Crime can't always trend downward ad infinitum, after all, and it would be trivially easy to associate any uptick in violence with whatever the news of the day might be. Which is exactly what's happening.
Yet this doesn't work in the other direction. Violence in media, for instance, has been on the rise at the same time as the general downward trend in violent crime, yet few want to argue there's a correlation there. Why? There's no real hard data to suggest that a correlation exists. We ought to treat purveyors of the Ferguson Effect theory the same way. It's not enough to claim that police are too scared to do their jobs properly; they have to show their work.
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Posted on Techdirt - 19 November 2015 @ 11:11pm
When we encounter stories of trademark bullying over broad language, it's fairly common to find that the fight is between a large corporate entity pushing around a much smaller one. This case is no different. For some reason, retail toy giant Toys R Us is apparently opposing the trademark registration of a small Miami-area hair extension company.
Hair Are Us, a popular hair extension business in midtown Miami, has drawn the attention of Toys R Us, one of the world’s largest retail toy chains. The parent company of Toys R Us, Geoffrey LLC, filed an opposition to Hair Are Us' trademark application. In the opposition, the company alleges Hair Are Us infringes on its established trademarks.
Geoffrey LLC apparently has a registered trademark on the "R Us" phrase and is suggesting that this trademark is in conflict with Hair Are Us. But, given both the business that Toys R Us is in and the very fame the company has for being in that business, it seems ridiculous to request that the Miami company's "Are Us" name is going to somehow confuse consumers into thinking the hair extension business was in any way affiliated with the toy retailer. And because trademark law includes provisions that companies must be competing within the same market in order for infringement to occur, it's difficult to see exactly why Toys R Us is pushing around a small hair extension business at all.
Of course, the usual excuses are trotted out when pressed on the question.
Toys R Us declined to comment for this story, but in court filings the company argued that Hair Are Us sounds too similar and could deceive the public into thinking it is connected to Toys R Us. The toy retailer also said allowing Hair Are Us to trademark would dilute its famous brand which has been in existence since 1960.
Trademark experts say Toys R Us has a legal duty to police its brand, but the growing hair company contends its name is different enough from Toys R Us and that the toy giant should back off.
The excuse that brands have to actively police their trademarks is always the excuse for these types of things, but, as in this case, that argument is often false. Brands must police actual
infringing instances, not every instance of anything even close to similar uses. The difference is one that allows a small hair extension company to exist, as it represents no threat to a major toy retailer. It'd be nice to see a large company like Toys R Us acknowledge that, for once.
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Posted on Techdirt - 19 November 2015 @ 3:30pm
You likely already know the story of the Church of the Flying Spaghetti Monster. If you don't, go read up on it, because it's a delightful example of how a cause can be fought with humor and derision without taking itself too seriously. The admittedly silly non-organization is actually quite an important story for secular government and how it must treat free speech in the context of religious exemptions offered to citizens. Not all governments do this well, as you may recall the story of Australian authorities briefly confiscating a man's legally-owned firearms after he insisted on wearing a pasta strainer on his head for his government ID photo.
Well, reader dave blevins writes about the story of a woman in Massachusetts who made a similar request, and the government managed to allow her to wear the strainer without instigating any such backlash.
A woman who belongs to the Church of the Flying Spaghetti Monster is allowed to wear a pasta strainer on her head in her driver's license photo due to religious beliefs, the AP reports. Lowell, Mass., resident Lindsay Miller says wearing the colander allows her to express her beliefs, like other religions are allowed to do, according to AP.
The silliness here is clear, but there is also an important point to be made: a government that promotes free speech as one of its values must allow mockery and criticism of the very things that people may hold most dear. I think that's going to become only more important in the days ahead, given terror attacks, given violence by white supremicists against innocent victims, given the easy divisions that can be created by some of the hardships we face. I don't want to aggrandize this too much, but criticism, reflection, doubt and humor can't become rare currency in the times ahead, and it's great to see any examples of government willing to tolerate, if not actively promote, that kind of speech.
So, while this example may be silly in nature, we ought keep in mind that conversation is, in the end, all we have as a weapon to keep humanity moving forward. And that is going to, at times, include speech that we may not agree with.
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Posted on Techdirt - 19 November 2015 @ 2:15pm
Hey, remember that time I was thoroughly fooled by two hoax sites into reporting that Survivor band members had filed a copyright suit against Mike Huckabee for using Eye of the Tiger at that gross rally for Kim Davis? And remember my simpering excuse, suggesting that copyright as it stands today makes it difficult to separate the absurd from the fake? Well, suck it, universe, because now that Survivor's Frank Sullivan really has filed a copyright lawsuit against Huckabee for using the song at the rally, I am now claiming that instead of being the victim of a hoax, I'm actually some kind of prophetic modern-day Nostradamus.
Sullivan, one of the founding members of the band Survivor, is co-author of the song "Eye of the Tiger," the theme song for the movie "Rocky III." His company, Rude Music, co-owns the rights to Sullivan's songs, court records show. Rude Music sued Huckabee for President Inc. in Federal Court, claiming the Republican presidential candidate used "Eye of the Tiger" without permission at a campaign stop.
The suit itself goes to great lengths to position Huckabee and his campaign staff as a group that really should know better than to use music during the campaign without permission from the artists. After pointing out that this isn't the first such instance of Huckabee facing backlash over the use of music by artists that don't support him, it points out:
Huckabee for President’s infringement of “Eye of the Tiger” is willful. Mr. Huckabee is sophisticated and knowledgeable concerning the copyright laws, both as a private individual and media-savvy business owner. According to the records of the United States Copyright Office, Mr. Huckabee is the author or co-author of more than a dozen copyrighted works. Mr. Huckabee operated television stations in Arkansas, and for years he has hosted political commentary shows on the radio and on Fox News. Mr. Huckabee is himself a musician whose band, Capitol Offense, has performed at political and other public events; in 2007, Mr. Huckabee received a Music for Life Award from the National Association of Music Merchants. Moreover, Huckabee for President has a legal team.
That last bit is my favorite. What's not mentioned in the filing is any reference to any performance licenses the Huckabee campaign must certainly have purchased for music. That's likely to become the central issue, as all major campaigns purchases these licenses to cover rallies (and many venues separately have their own PRO licenses anyway -- though it's doubtful the jail did here) and typically complaints from artists go nowhere because of them. What may make this suit different is whether or not Huckabee can bill the Kim Davis rally as an official campaign stop, where the license would apply. It seems to strain credulity to suggest that the release of a third person from jail somehow qualifies as any kind of official campaign stop, but then again the suit specifically is targeting Huckabee for President, Inc., rather than Huckabee himself, which might muddy the waters a bit.
Either way, as we've said before, it would be trivially easy for campaigns to just clear musical choices with artists first to avoid these dustups. Even if they're not legally required to do so, it's the easiest solution.
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Posted on Techdirt - 17 November 2015 @ 1:56pm
Fallout 4 was recently released to a world full of ready gamers eager to get their paws on the latest installment in the franchise. And, because the game was released on the PC, modders immediately got to work on the title, coming up with fun little customizations for it. Those mods ranged from altering the companions players can recruit within the game to more cosmetic changes. One of those cosmetic changes included a custom outfit which allowed for players to don a David Ortiz Boston Red Sox jersey while cracking skulls with a baseball bat for a weapon. And, of course, Major League Baseball got its knickers in a twist over it.
If you're not aware, this latest game takes place in post-apocolyptic Boston. The player can roam the streets of the once-great city, picking up any number of items along the way to aid in their quest. The game even includes a bombed out depiction of Fenway Park, where the Red Sox play. One modder took the next logical step.
Richie Branson created a David Ortiz mod, and gave players the chance to bash baddies in a full Red Sox uniform. (Kindly overlook the fact that Big Papi’s actually a lefty.) It was a neat, free customization, but MLB was not as receptive. Steve Annear of the Boston Globe received a terse comment about the mod from a league spokesman:
“The use of these marks is an infringement of our rights. We plan to enforce those rights,” an MLB spokesman said in an e-mail Thursday.
Branson had reportedly said that if MLB actually requested it, he would voluntarily take the mod down. It seems likely that request came, because the mod is no longer available for download. And for what? The modding community regularly makes use of existing material in doing their work. Characters from one series are brought into another. Weapons from one set of fiction are foisted in a game where they did not originally appear. And, yes, David Ortiz's Red Sox jersey made its way into Fallout 4
. The mod wasn't being sold. The mod wasn't made by the folks behind Fallout 4
. This was an independent modder having a little bit of fun.
And MLB shut it down. Is there really commerce to consider here in protecting the team's trademarks? Please. No, this is permission culture run amok. Thanks to this little power play, gamers are denied the opportunity to bash in mutant skulls while wearing an Ortiz jersey. Just like the framers of trademark law intended, I guess.
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Posted on Techdirt - 16 November 2015 @ 10:57pm
Texas A&M has a long history of defending its registered trademark of "12th Fan" to ridiculous lengths. Between threats to breweries, threats to double-amputee cancer-survivors, and generally serving as the template for the Seattle Seahawks' own idiotic over-enforcement of a rival 12th fan trademark, the university has managed to foster a climate of permission-culture over a phrase that has become commonly used in American football circles. See, the 12th man refers, in most cases, to fans of football teams that show up and make so much noise as to influence the opposing team on the field. Lots of teams have used the phrase over the years, including the Indianapolis Colts. Well, the Texas A&M lawyers have finally had enough and have brought suit against the Colts, hilariously claiming that football fans might see the Colts' use of the phrase and think there's a connection between the school and the professional football team.
Texas A&M president Michael K. Young said in a statement from the school that the Colts have used the trademark "without our permission after repeated attempts to engage on the matter."
"We bear no ill will toward the Indianapolis Colts," Texas A&M University Chancellor John Sharp said in the statement. "We simply want them to respect our trademark rights. Our actions are consistent with our previous trademark enforcement efforts in this regard."
certainly true, but the point is that those past actions were equally ham-fisted and hilariously disingenuous when they claimed that football fans would somehow draw a direct association between a Texas university and a professional football team or beer-maker over the use of the phrase. This is no different, in that it isn't at all about customer confusion, but rather about licensing deals that are quite lucrative for the school. The previous spat with the Seattle Seahawks, for instance, resulted in the Seahawks licensing the use of the phrase. That particular deal wasn't as lucrative, because the Seahawks can afford skilled lawyers, too. In fact, the $5,000 whole dollars per year
the Seahawks pay Texas A&M every year for use of the phrase is so small as to be laughable. But if you can string a bunch of those licensing agreements together, while bullying smaller entities into other licensing arrangements? Well, then you have a decent amount of money to talk about.
Still, it's high time that somebody out there pushed back on the laughable claims Texas A&M makes in its trademark filings. Keep in mind that the use of the "12th Man" phrase by the Colts amounts to it appearing in one place in its stadium to honor fans and in solicitations for tickets. From this, Texas A&M claims:
Defendant's unauthorized use of the mark 12TH MAN in connection with its professional football entertainment services and its various products is likely to cause confusion, or to cause mistake, or to deceive customers and potential customers as to an affiliation, approval, license, endorsement, sponsorship, or other connection with Texas A&M, when none exists.
That's obviously not true. The phrase, at this point, has become so commonplace for use among football fans that nobody is even thinking about origins when they hear it. Certainly nobody going to a Colts game is thinking about the A&M Aggies. By my reading, the filing doesn't even attempt to show any instances of actual confusion, probably because none exists.
Hopefully the Colts will do what the Seahawks didn't and mount an aggressive defense.
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Posted on Techdirt - 13 November 2015 @ 6:32pm
I've talked about the coming and evolving world of wider streaming in professional and major college sports for quite a while now. Even measuring only the past few years, streaming of sporting events has seen immense progress, from the leagues themselves getting on board and expanding options, to broadcast partners opening up their product online, to forward-looking team owners recognizing that the future is in streaming. Wide-spread streaming sports is going to happen, due to all of the above and the fact that cord-cutting is simply not going to go away.
Which isn't to say there aren't barriers to hurdle as progress is made. Today, I want to talk about one of them: the horrifically small advertising inventory too many sports streams have. Ads that become annoying due to repetition isn't a new concept. There is even a TV Tropes page for it. But what for television is repeated ads as a mild annoyance due to poor scheduling or the notion that repetition makes ads more effective is something entirely different for the current crop of online stream ads. What we're dealing with today is repetition of the same ads or ads for the same products/services over and over and over again, in break after break, often times repeated within breaks, all because the inventory is too low.
Contrary to what you might think, this isn't a small problem. Not every person needs to use the bathroom at every commercial break. For sporting events in particular, this becomes a greater issue because the natural breaks in game action often times mean that commercial breaks will occasionally occur in near proximity to one another. Repeated ads in this case over the course of an entire event aren't just annoying, they're absolutely jarring to the viewer.
An anecdote: most of my NFL viewing occurs in my kitchen, typically using one of the streaming services, while I cook my family's Sunday dinner. It's a tradition in my house that I do dinners on Sunday. Having the NFL Foxsports.com stream on my tablet in the kitchen made my wife angrily leave the room entirely and refuse to come back. I'm not exaggerating. There was a particular commercial featuring a certain quarterback saying random things in the sing-song of a particular company's jingle that, over the course of roughly fifteen minutes, was played no less than ten times. It made her hate the stream, the advertiser, and probably me for having it on in the first place. Whatever advertising is hoping to achieve, the broadcaster cannot accept it causing viewers to literally leave the room in annoyance.
Television doesn't have this problem currently, because the ad inventory is much higher. If you see an ad repeated two or three times during a single game, it's no big deal. I'd guess that I saw three or four total ads on Fox's stream something like thirty times each during the course of one game. That can't go on. It makes the streaming product less valuable and less desirable. If advertising is content, and it is, then that content must never cause us to turn away and hide from it.
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Posted on Techdirt - 13 November 2015 @ 6:15am
Our Facebook, who art on the internet, mashup be thy name. My question's one, will Comcast come, to our church as connectivity has ended? Give us this day, at least one technician, and forgive us our addresses, as we forgive those whose customer service sucks. And leave us not without our Netflix, but deliver us from downtime, amen.
This, I propose, might need to be adopted as a modernized propitiation by at least one church on Chicago's South Side, and offered to the regulation-creating internet lord, Comcast. That's because, as reported by a rather well-known preacher here in my beloved city, Comcast refused to send a service technician to work on a service issue because the neighborhood was way too scary.
On Wednesday, Father Michael Pfleger said that Comcast will not come out and fix the Internet connection at St. Sabina Church because of the neighborhood violence in Englewood. Classes in the St. Sabina computer lab were disrupted in the morning, not by violence outside, but by Internet problems that made doing anything online slow or impossible. The director called Comcast and set up a repair appointment for the afternoon only to have it canceled five minutes later.
“They told me due to the violence in the area, the increased violence in the area, that they were not dispatching any technicians into the area,” said Phil Hunter, who's the Director of the St. Sabina Community Employment Center.
Now, Father Pfleger is a notorious figure here in Chicago, and nationally, for being quite vocal on racial issues, to the point that he can occasionally come off as being ridiculous. Case in point was his insistence that Hillary Clinton freaked out about Barack Obama running against her because she thought she shouldn't have to compete with a black person (whatever you think about Clinton, Pfleger doesn't have mind-reading powers such as this). But we can leave his reputation aside for the moment, because Comcast didn't deny the accusation. Instead, Comcast insisted that it was cancelling all kinds of appointments in the area due to safety issues. Think about that: Comcast is happy to collect money from internet service customers, but not service them. In a city, mind you, that is carved up by ISPs for exclusive areas to such a degree that it's almost funny.
So, how frightened of the violence was Comcast? Well, this ought to give you some idea.
So, either Chicago's violence problem was suddenly solved in a matter of hours, or Comcast cares more about PR than it does the safety of its technicians, which it had invoked only hours previous as to why it wouldn't come. It's frankly difficult to think of a worse tack Comcast could have chosen to follow: refuse service calls due to safety, get smacked with backlash, ignore safety concerns and do the service call. As Father Pfleger rightly points out, not everyone in the neighborhood is a preacher with a platform.
But that's Comcast for you. They're only answering your prayers for internet service that you're paying for if you've got those media indulgences, I guess...
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Posted on Techdirt - 12 November 2015 @ 11:12pm
Just when you think you've heard it all, along comes a story so ridiculous it's hard to write headlines for it that do it justice. We can still try, I guess. For pure hilarious complications, it's hard to outdo the state of Texas denying Rodeo Austin, which puts on a fair and rodeo down south, a registration for its name because its name is supposedly too similar to El Rodeo Inc., a Mexican restaurant that doesn't appear to exist.
This all came about because a well-established rodeo fair that had previously been known as The Star of Texas Fair and Rodeo has since become better known simply as Rodeo Austin. The rodeo has a federal trademark registration on that new name and likewise sought to register it as its official business name with the state of Texas. The Texas Secretary of State rejected the application.
In its decision, the Secretary of State’s office wrote that Rodeo Austin was too similar to El Rodeo Inc., a Mexican restaurant located – or at least once was -- north of Houston in the city of Conroe. In its rejection, the Texas Secretary of State wrote that “the only significant difference between your proposed name and the entity name on file is the geographic designation at the end of the name,” and ruled the two names to be deceptively similar. Thus, Rodeo Austin would be required to get permission from El Rodeo to use its desired corporate name.
If this has the ring of trademark law to it, it unfortunately doesn't borrow enough
from trademark law. A brief persual of the rules for registering businesses in Texas
, and specifically what constitutes business names that are too similar to be registered or are deceptive in nature, leaves out any language about actual consumer confusion or competitive markets. This is one of the most important provisions in trademark law, one which disallows for the ownership of common langauge for every use in every industry. And it also has the happy benefit of putting the public interest in the forefront. The rules in Texas don't do either. Specifically concerning what constitutes deceptively similar business names
which cannot be registered, the statute reads:
§79.37: Entity names are deceptively similar if on comparison of the names by the secretary of state there is an apparent difference, but the difference is such that the names are likely to be confused.
Be confused by who, exactly? Because it's difficult to understand how El Rodeo Inc. and Austin Rodeo are going to result in anyone heading to the bull ring for a burrito, or wearing a matador suit to a taco stand. The Secretary of State in Texas makes a big deal about how the foreign nature of words doesn't eliminate the potential for confusion or the similarity of the business names, which, fine, but if this all comes down to the word "rodeo", in Texas of all places, how can the state allow that word to be locked up for the purposes of registration?
Oh, and how about the fact that El Rodeo probably doesn't exist any longer?
Court documents place the restaurant at 2105 W. Davis St., Suite G in Conroe, at least as of 2004. But a Smoothie King operates at that address presently. Attempts to contact the owners of the restaurant for comment on this story at a phone number listed for El Rodeo in an online business directory were not successful, answered only by a voice prompt asking for a corporate access code. That same phone number is listed as the franchise phone number for Smoothie King’s Conroe Location on the Smoothie King website.
The only confusion in this entire story appears to be just what the hell El Rodeo is and whether or not it currently exists. Austin Rodeo has filed suit to get the state to recognize its name, which it has had a federal registration for since the late nineties. I would expect them to win on the merits. The more important point is that we ought not let the permission culture bred by intellectual property propagate this way.
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Posted on Techdirt - 12 November 2015 @ 2:07pm
There's something a bit strange going on over at Rockstar Games. The makers of the Grand Theft Auto series have reportedly banned several players in the past week, all of them associated with a particular GTA5 game mod called "FiveM." Rockstar's reasoning for the ban will sound familiar to many observers of gaming in the online space.
Last week, Rockstar banned a number of Grand Theft Auto V players associated with the "FiveM" mod, which offers players an online playspace separate from the game's official "Grand Theft Auto: Online" mode. Yesterday, a Rockstar representative told Ars that the bans were made because the mod is "an unauthorized alternate multiplayer service that contains code designed to facilitate piracy."
This is the increasingly common refrain from companies handing out bans for online games for players that develop things like cracks, which are designed to allow those pirating the game to participate in the online portion of the game. Were you to not dig into the story any further, you'd likely assume that's exactly what was going on, given that Rockstar raised the piracy boogeyman in its statement.
Except FiveM doesn't appear to be anything remotely resembling a crack at all. Instead, FiveM appears to be a mod with its own launcher that allows GTA5 players to play online on dedicated servers
, with a relaxed stance on player mods being used in the online experience. The whole point of FiveM is that Rockstar doesn't allow mods in its official online experience, so the modders created their own online play-space where mods would be allowed.
"FiveM is not a crack for GTA V nor does it actively try to facilitate piracy," said Qais Patankar, who goes by qaisjp online. While Patankar didn't contribute code to the FiveM mod directly, he says he was caught up in Rockstar's bans for promoting the mod through online channels like Reddit. Patankar argues that those behind FiveM shouldn't be penalized just because the mod fails to check if the underlying game is a legitimate copy. "Whilst the mod doesn't prevent people who have illegally obtained the game to play FiveM, it does not behave like a crack: [it doesn't] bypass the verification system so that you can play the game without paying," he said.
While Rockstar's stated policy does ban "online" mods (as opposed to mods to the single-player game), Patankar argues that FiveM shouldn't be targeted by a policy designed to prevent cheating in a centralized playspace. "There's different ways you can 'spin' this," he said. "FiveM is a mod that works online, but it doesn't modify anything in the [core] online experience. It does mod online code, and it does utilize online things, but it does not affect [GTA:O]."
And that changes how we see Rockstar's statement. Instead of banning players for facilitating piracy in the common way we typically see it, this sure does look like Rockstar banning modders for creating an online GTA experience that might in some way compete with its own. That this separate online space was developed specifically for players that want to play the game online differently than Rockstar allows seems to suggest that even the worry over competition is theoretical at best, since these are players using mods that Rockstar doesn't want used.
But the strangest part of the story is that one of the developers of the mod reportedly is suggesting that Rockstar sent private investigators to his home
, apparently just to scare him.
So I just got a pair of PIs at my door claiming to be sent by Take Two, handing me a phone with a person somewhere in the UK or US or whatever to 'discuss how to cease my activities with regard to Grand Theft Auto', that 'they know what happened before with Activision and want to not get the lawyers involved at this time', however they 'have tested their legal standing already and are quite certain of their point' and 'aren't willing to accept any solution other than ceasing my activiites'. Oh, they also 'couldn't disclose any conversations they're having with other modification developers', didn't want to talk about general modification policy as 'it was just about my case' and admitted they 'looked through my source code'.
Is a little mod that creates a unique GTA: Online experience really so terrifying that Rockstar felt the need to send the Stasi knocking on the modder's door? How about just offer another online experience that allows mods? Why is that the more difficult route to go, compared with hiring PIs and raising the piracy boogeyman?
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Posted on Techdirt - 12 November 2015 @ 12:24am
We were just discussing the University of Kentucky's asshat-ish bullying attempts concerning Kentucky Mist Moonshine's gall in selling hats and t-shirts featuring the distillery's name and logo. The whole episode has been entirely silly from the outset, with the school essentially declaring itself the sole owner of the name of its home state for the purposes of its use on apparel. This attempt to throw aside even the question of actual customer confusion made the whole thing a strange power-play against a distillery, with some questioning how a trademark over a state's name could be granted in the first place. Kentucky Mist itself filed a lawsuit against the school, requesting that the trademark it has chosen to flaunt so brazenly be either declared invalid entirely or reformed to protect the school only against any attempts to actually be associated with the school as opposed to the state of Kentucky.
Again: none of this should be happening. If the University of Kentucky had simply kept its nose out of an unrelated business' business, no suit would have been filed. But now, as the silliness continues, we get news that the judge originally assigned to preside over the case has recused himself. Why? Because he's a graduate of UK.
Jim Francis, Kentucky Mist's attorney, had on Monday filed the motion for recusal, citing [Judge] Hood's status as a graduate of UK and its college of law. In addition, Francis said in his motion, Hood is a university donor designated as a UK Fellow and a member of the UK Alumni Association.
I can understand why Kentucky Mist would want the most impartial judge possible for its case, especially when Judge Hood was in some way affiliated with a school that has proven to be a complete bully on the very question the court was to decide. Still, I keep coming back to the fact that we shouldn't even be here. The fallout from the USPTO's unwillingness to cast a critical eye when it comes to trademark registrations is what's impacting all of this. If, instead of granting UK a trademark on the state-name "Kentucky" for apparel back in 1997, it had instead applied some critical thinking and understood what a massive problem such general and common-word trademarks might present, no recusal would have been necessary.
Instead, another judge will be assigned, and we might get the outcome, through the challenge of the trademark, that should have occurred back in the nineties.
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Posted on Techdirt - 9 November 2015 @ 11:20pm
As you may recall, we had written about the University of North Dakota getting trolled by a jackass over attempts to give themselves a new school team name. Once called The Fighting Sioux, the school bent to local tribes' requests and agreed to abandon that name and come up with a new one. After soliciting suggestions from the public, a guy who wanted the school to keep its old team name went ahead and registered for trademark all of the new possible team names. It was a move as annoying as it is ineffective since, as we pointed out at the time, this man would have to prove he was using those marks in the same marketplace as the school in order to allege any kind of trademark violation. UND was the victim of trademark bullying.
But now the shoe is on the other foot, as UND lawyers have sent cease and desist notices to a Denver UND alumnus who has created clothing featuring a parodied version of the old UND mascot logo. Here are the two logos side by side.
So, yeah, there isn't a ton of differences there, but what changes were made make a significant impact. Parody only works if there's similarity, of course, and it seems unlikely that anyone is going to miss the outstretched tongue and think they're buying official UND clothing. That isn't stopping the school from sending out the letters, though.
Karl Larson is still making and selling clothing that parodies UND's retired Fighting Sioux logo after the school's legal counsel sent a letter asking him to stop. The Fighting Sioux nickname was controversially retired in late 2012 after the NCAA threatened sanctions, but UND still owns the trademark to the logo, which was designed by American Indian artist and sculptor Bennett Brien. The cease and desist letter from UND dated Sept. 23 states Larson's logo is an "unauthorized reproduction," and is likely to cause confusion, constituting copyright infringement.
"While your website includes a self-serving referenced to 'parody,' we do not believe that there is any legal authority that would even remotely suggest that the minor, almost imperceptible modification to the work here qualifies as permissive use."
The use clearly is
parody. The entire point of the change in logo is to mock the school for abandoning its trademarked name and associated images. Finally, the school abandoned the trademark and images
. That should end the trademark argument right there. For a trademark to be valid, it needs to be actively used in commerce. The school abandoned its nickname and logo in 2012. Spend some time on the school's athletics page
and you won't find the old logo anywhere.
Larson has reportedly retained counsel out of Fargo to respond to the letter, but I wouldn't expect much other than an explanation of how trademark law works to be required.
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Posted on Techdirt - 6 November 2015 @ 6:18pm
As we were just talking about the recent consternation over daily fantasy football sites like FanDuel and DraftKings and whether they ought to be considered forms of gambling or games of skill, news recently broke about one player's personal war with FanDuel over likeness rights. NFL player Pierre Garcon of the Washington Redskins has filed a federal suit against the daily fantasy company, alleging it used his name and likeness for commercial value, as well as alleging that FanDuel included images of Garcon in advertisements, falsely implying endorsement. There are details to unpack here, but you can see the filing for yourself here.
Those details I mentioned are all bad for Garcon's suit. First, the Forbes link above notes that filing this case in Maryland is an odd choice, as Maryland doesn't actually have a publicity rights statute. That means this is all going to boil down to common law rights, which puts a great deal of onus on Garcon to demonstrate the commercial value of his name and likeness, should it even get that far.
It isn't going to get that far. As the article notes, the case law here is decidedly against Garcon's claims.
Garcon’s name, image and likeness has been used in connection with statistics and to a very limited extent on certain TV and Internet advertisements. Such use is likely to be deemed nominal and for informational use only. To the extent that it is deemed to be an improper commercial use, it would be extremely difficult to determine damages. It should never get that far.
Publicity rights offer substantially broader protection than those laws preventing false endorsement, which are raised by Garcon in the second count of his Complaint. The first count deals with the misuse of his publicity rights. That leads to a review of an 8th Circuit U.S. Court of Appeals decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. from 2007.
And in that case, the court ruled that the use of player names and statistical information was not considered use for commercial advantage. That's exactly the opposite of Garcon's claim in his claim for publicity rights. Simply showing his name and accurate statistical information in a commercial doesn't rise to the level of a publicity rights violation. And even if he got a court to buy that it was, previous rulings have indicated that First Amendment protections come into play here as well, which would likely win out over any nominal publicity rights violation such as this.
As for the claims of false endorsement, the claim, on its face, seems destined to fail. After all, his name and stats simply appearing in ads doesn't even suggest that Garcon in any way endorses FanDuel. In fact, the only reason fantasy football can function is if all players
are represented, so anyone viewing the ad and seeing Garcon's name included as part of the game will realize that his is one name among all the rest of the players in the league. Complicating Garcon's claim further is the fact that he did
endorse FanDuel until recently.
Many have pointed out that Garcon previously endorsed FanDuel contests. As Daniel Roberts of Fortune wrote, Garcon “repeatedly shilled for FanDuel in the past.” Garcon promoted his own fantasy league on FanDuel’s platform with a unique link that likely provided him credit for clicks. If Garcon was signed to a contract with FanDuel that previously expired, then perhaps this could actually bolster Garcon’s claim against the company. It would allow Garcon to effectively argue that FanDuel contracted for his publicity rights and improperly continued to use them after expiration of the deal. Yet, that also assumes any such promotional arrangement included a grant of rights clause. Otherwise, FanDuel can easily argue that a promotional deal is just that and nothing more — there was never an effort to gain a license to be able to use Garcon’s name, image and likeness in a commercial endeavor.
That defense probably won't even come into play due to the previously mentioned case law, however. It's actually quite strange to see a player take on a fantasy football outfit this way -- merely for using his name and stats to promote the product. Regardless, it doesn't look like anyone expects this suit to survive for long.
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Posted on Techdirt - 6 November 2015 @ 3:33pm
As you may recall, over the summer we wrote about the Marilyn Monroe Estate's second attempt to extract money from AVELA, a company that produces consumer products with images of nostalgia affixed to them. The first attempt the Estate made was way back in 2012, when it tried to apply publicity rights under California law to AVELA's products featuring the image of Marilyn Monroe. The problem in that case was that the California law only applied to celebrities living in the state at the time of their deaths and Monroe's Estate had previously affirmed she did not live in California at the time of her death, so as not to have to pay the relevant taxes on her estate. With that attempt dashed, Monroe's Estate has instead turned to trademark law in attempt to do exactly the same thing. The court allowed the suit to proceed after hearing form AVELA on matters of whether customers can be confused that a dead celebrity is endorsing, well, anything.
And now things are getting even more twisted in knots. AVELA has managed to get another company, X One X Movie Archives, to enter the fray with its own claims, designed to completely invalidate and cancel the trademarks held by the Monroe Estate. X One X also argues that the estate has actually been engaged in monopolistic and shady business.
Now, another merchandising company, X One X Movie Archives, associated with AVELA and dragged into this dispute, has asserted its own counterclaims against the Marilyn Monroe Estate. This time, an attempt is being made to go the distance by cancelling trademarks and holding the Marilyn Monroe Estate liable for alleged monopolization and deceptive business practices. The court filing on Friday (read here) says that when Monroe died in 1962, she bequeathed $25,000 to her personal secretary and divided the rest of her assets between her psychiatrist Dr. Marianne Kris and her acting coach Lee Strasburg. After those two died in the early 1980s, the estate landed in the hands of Strasburg's widow Anna and Aaron Frosch.
In 2010, after more events happened including legal fights with some prominent photographers, an entity named ABG is said to have purchased Marilyn Monroe LLC, registered trademarks and established themselves as The Estate of Marilyn Monroe LLC. X One X regards this all as misleading, reporting that other entities own trademarks and copyright to Marilyn Monroe films and characters while the purported official estate run by James Salter works with Leonard Green & Partners to bully others and perpetuate the idea that it holds exclusive rights to Monroe.
So, the way this supposedly works is that the Monroe Estate claims exclusive trademark rights on Marilyn Monroe when it knows it doesn't have those exclusive rights, all so the Estate can license Monroe's image for sale on products sold only in retail stores that Leonard Green & Partners owns. This effectively disallows any competition for nostalgia products on the basis of exclusive rights that the Estate doesn't actually have. Any trademarks it does have, X One X argues, are not distinct and don't actually provide the consumer with information about the origin of the associated products.
Cancellation of trademark registrations is being sought on the grounds that contested marks (like "Marilyn Monroe") lack distinctiveness, only identify a deceased person rather than the source or origin of any product, and are purely functional in that they are used to describe a famous person in the public domain. The ABG group is also alleged to have made false statements to the U.S. Patent & Trademark Office to obtain trademark registrations.
The counterclaim goes on to say that a judgment in favor of the Marilyn Monroe Estate would perpetuate a monopoly and that it "would outlast any period of copyright, would usurp the right of the public (and X One X) to make commercial use of public domain images, and would enable the ABG Parties to unlawfully restrain any use of Marilyn Monroe’s image, likeness or name in commerce."
Meaning that the upshot of all this is that the Monroe Estate's decision to try to bully AVELA using trademark law after losing on publicity rights might result in the estate losing its trademarks entirely. That's the kind of poetic justice I can get behind.
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Posted on Techdirt - 6 November 2015 @ 2:20pm
Facebook has brought out the ban-hammer on its competitors in the past. Most notably, the social media giant banned advertisements from users for links to Google+, when that was still a thing. That said, the most recent example of Facebook banning what can be seen as a competitive product has gone even further, preventing users from linking to Tsu.co in status updates or on its messaging service.
Try mentioning the social media website Tsu.co on Facebook or Instagram -- or even in a private conversation on Facebook Messenger. It won't work. Facebook is blocking any link to Tsu.co on every platform it owns, including Messenger and Instagram. It even went back and deleted more than 1 million Facebook posts that ever mentioned Tsu.co, making pictures, videos and comments disappear in an instant. You can type the name "Tsu," but you'll be blocked if you write "Tsu.co" or post any link from the site.
I tried this for myself and found that it's in fact true. When simply attempting to update my status with nothing other than "tsu.com", Facebook returned the following popup.
Now, it is worth mentioning that Tsu appears to be somewhat sketchy. The premise of the site seems to be that it keeps a small percentage of ad revenue it generates, while the rest of the revenue gets split up between users with ads being displayed on their Tsu site, the users that originally invited those users to Tsu, and up the ladder. If this all sounds familiar to you, it should, because it's a classic pyramid model. The nature of the model means that the spread of the site will only pace more quickly, making it entirely possible that Facebook users could suddenly find their feeds inundated with Tsu links and ads.
And that's exactly what Facebook has encountered. Tsu users were creating fake accounts to boost their pages. Facebook says its users started reporting Tsu.co links as spam, which Facebook defines as "sending bulk messages, excessively posting links ... and sending friend requests to people you don't know personally." On September 25, Facebook cut off Tsu.co completely.
And, in light of what was going on, you can understand why Facebook wanted to get out in front of this. But, as is always the case with these situations, there are other options beyond outright control through the banning of all links to a competitor's site. If the Tsu links and premise result in the annoyance Facebook claims, it shouldn't be particularly difficult to allow users to inform Facebook that it doesn't want to see any links or posts involving Tsu. That solution achieves Facebook's stated desire -- not allowing users to become annoyed with spammy deluges of Tsu links -- while still allowing users who may find Tsu useful to continue on as usual.
What it doesn't allow Facebook to do is suppress the spread of another site with whom it is competing.
Carolina Franco, a 28-year-old model in Colombia, thinks Facebook's strategy is an attempt to keep its users from flocking to a competitor.
"Very few people even know about Tsu," she said. "I don't believe that Facebook and Instagram want Tsu to go viral. it would cost them a lot of money."
Whether that's true or not, it's easy to see how this perception exists. Given that another option -- empowering users instead of exerting control --would have avoided this perception, it's difficult to see why Facebook would have gone this route except that it concerns a competitor.
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Posted on Techdirt - 5 November 2015 @ 11:16pm
We've already established that the University of Kentucky is sort of insane when it comes to overly restrictive trademark practices. We've also established that many other educational institutions are equally asshat-ish when it comes to trademark issues, in particular, for some reason, on any matter that in any way has to do with alcohol brands. The beer and liquor industries are dealing with their own trademark issues resulting from the explosion in craft brewing, but this is the story of how the University of Kentucky has managed to convince itself and, apparently, the USPTO that it has sole ownership of the very name of the state in which it is located for use on apparel.
This all started when Kentucky Mist Moonshine opened its doors recently and, along with ostensibly selling moonshine (mmm!), the company also created apparel to sell at the distillery. You know, hats and T-shirts and whatnot, all of which had "Kentucky Mist Moonshine" branded on them. That's when the University of Kentucky stuck its nose into the distillery's business for reasons I can't even begin to understand.
UK threatened legal action against Kentucky Mist Moonshine for its pursuit of a federal trademark registration for the Kentucky Mist Moonshine mark for hats, hooded sweatshirts, jackets, pants, shirts, shoes and socks in international trademark Class 25 based on its registration of the Kentucky Mist mark.
As a result of the threat letters, Kentucky Mist has filed suit against the university, requesting either that the school's trademarks be declared invalid or, the more likely outcome, reform the registration to limit the protection of the marks to apparel that clearly attempts to trade off of an implied endorsement or association with the school. This only makes sense in terms of the purpose of trademark law, of course, which centers around customer confusion and the ability of a brand to identify itself as the source to the consumer. Kentucky Mist apparel, on the other hand, does nothing to even remotely associate itself with the school. This is all about the control of the word "Kentucky," which is the name of a location and is so generic as to never deserve trademark protection to begin with.
The school's response amounts to stating that it registered the mark and that's the end of the story.
In an email message provided to the Herald-Leader on Oct. 29, UK spokesman Jay Blanton said the university has used the word Kentucky as a trademark to identify its athletic uniforms and various articles of clothing sold to fans since at least 1940. Blanton's letter said the university registered in 1997 with the U.S. Patent and Trademark offices for the word Kentucky for clothing, educational services and collegiate athletic services.
But that's not really true. Established trademarks are reviewed all the time, particularly in the cases of glaringly generic marks such as the name of a state or other geographical location. The message went on to note just how much money the university generates by licensing the use of the word "Kentucky" for clothing, claiming that their tradedmark is "incontestable." We'll find out shortly just how true that is, given that Kentucky Mist intends to contest it via this suit, but the larger point is that a government that permits so much restriction in the name of trademark needs to do a better job of not approving such general trademarks to begin with.
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