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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 - 27 May 2016 @ 6:18pm

Apple, Arbiters Of Art, Say Game About Surviving The Gaza Strip Isn't A Game, Even Though It Is

from the art-thou-kidding? dept

Search for stories about Apple's App Store in the Techdirt archives and you will quickly notice a theme. That theme is that Apple routinely appoints itself as the arbiter of artistic quality and morality when it comes to content within the app store, particularly gaming content, and that its application of these standards swings like some kind of absurd pendulum. Ban a game over here for telling a bible story that includes violence against children, but allow the actual bible to be sold as well. React to the South Carolina massacre by pulling down games about the Civil War because they include images of the Confederate flag. Reject a wargaming simulation, then approve it, and nobody knows how the company might decide to react tomorrow. You often hear that stability breeds a good ground for business, whereas Apple runs its App Store like some kind of experiment in chaos.

And in order to apply its standards in a way that apparently makes the folks at Apple feel all warm and fuzzy inside, it occasionally has to truly lower its explanations to absurd levels of outright lying. For instance, Apple recently disallowed a game about surviving on the Gaza Strip in its store, claiming it wasn't a game at all, but a news publication, even though the briefest review of the app reveals that it's obviously a game.

A game about the Palestine/Israel conflict, Liyla and The Shadows of War, has proved too political for Apple. The technology giant ordered the developer, Rasheed Abueideh, to remove Liyla from the games section of its iTunes app store, claiming it isn't a game and should sit in the news section.

The real question is, is Liyla and The Shadows of War a game? I played it last night, as Liyla is available from Google Play. It's a short platformer with a powerful message and stunning graphics.

The writer goes on from there to describe the plot, the inclusion of reactions to real life events, the graphical elements of the game, and the, well, gameplay. Because it's a game. You have to play to get either a win or lose scenario, there are choices to be made, puzzles to be solved, and stages to complete. It's a platformer, like Mario Bros..

So, why the ban and the lies to support it? Well, one can understand that the Middle East conflict and the ongoing crisis between the Palestinians and the Israelis is among the most touchy of subjects. For a company that wants to keep its brand and its App Store squeaky clean, at least in its own mind, one can imagine that this kind of thing is something Apple wouldn't want to touch. But, misguided as this already is, it becomes all the more so when it can't even bother to stay consistent on the matter. The App Store has available for purchase, for instance, Israeli Heroes, which appears to be an Angry Birds clone in which you lob missiles at bombs that reside under a crescent moon and oh my god, I think I'm about to have an embolism, because come on.

As always, in the midst of this nonsense, the game is available for Android devices, because that garden has no wall around it.

For once, the phrase 'relax, it's just a game' seems apt. Apple take note. Liyla and The Shadows of War is available for Android on Google Play – it's free, it's short and it's definitely a game worth playing.

We've said it before, but we'll say it again: it'd be best if Apple would get out of the art critique business. They're not very good at it.

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Posted on Techdirt - 25 May 2016 @ 11:23pm

Urban Outfitters With A Surprising First Win In Navajo Trademark Dispute: Navajo Isn't Famous

from the hmmm dept

Earlier this year, we wrote about an ongoing trademark dispute between the Navajo Nation and Urban Outfitters. The clothier had released a line of clothing and accessories, most notably women's underwear, with traditional Native American prints and had advertised them as a "Navajo" line. The Nation, which has registered trademarks on the term "Navajo", had sued for profits and/or damages under trademark law and the Indian Arts and Crafts Act, which prohibits companies from passing off goods as being made by Native Americans when they were not. In that post, I had focused on whether or not the term "Navajo" was deserving of trademark protection at all, or whether it ought to be looked at in the same way we consider words like "American", "Canadian" or "Mexican", as generic terms to denote a group of people.

Interestingly, the first ruling has come down in the case. It's in favor of Urban Outfitters, although admittedly not in the form that I would have expected. The court has granted partial summary judgment in favor of the company on the claims of blurring and tarnishment by use of the trademark, stating that the term "Navajo" is not famous by the dilution standards.

"While plaintiffs' evidence may be relevant to their infringement claim, it is not legally sufficient to establish a 'famous' mark and, hence, to defeat defendants' motions for partial summary judgment on the claims for dilution by blurring and garnishment," said US District Judge Bruce Black in New Mexico, according to The Fashion Law. "'Famous' requires more than just widespread distribution and significant advertising expenditures," he said, though he acknowledged that "very few courts have found a mark legally 'famous.'"

Which is true. The standards set within the Federal Trademark Dilution Act reserve relief for dilution and tarnishment for what it considers famous marks. The idea between this and the generic nature of a trademark are similar: if nobody is associating the use of the mark with the trademark holder in the first place, then there is no dilution or tarnishment being done. For either to occur, consumers need to make that connection to begin with.

I'll say, separately, I'm a bit surprised by this. Off the cuff, if someone had asked me if I considered the term "Navajo" to be of a level of fame to be widely known by the average person, I would have said yes. I would have added a caveat in that its widespread usage and understanding is an exact example of why I would consider it to be generic and not a source-identifier in the first place, however.

This doesn't end the lawsuit, of course, and there is still potential trademark infringement to be considered, just not the claims of dilution and tarnishment.

A search for the word "Navajo" on Urban Outfitters' site no longer turns up any results, but the Navajo Nation claims that the retailer has sold more than $500 million worth of Navajo-branded goods. The case is not yet over, though, so there's still time for some of those earnings to change hands: six counts are still pending against Urban Outfitters, including trademark infringement, unfair competition, and false advertising.

Yet it seems clear to me that the same reasoning that brought about the rulings on the dilution and tarnishment claims are easily translated to the remaining claims. If the trademark is brewing confusion, due either to a lack of notoriety or its generic nature, then the rest of the claims may fall as well.

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Posted on Techdirt - 25 May 2016 @ 2:07pm

Lawmakers From The Great Theocracy Of Utah Looking To Block Porn On Cell Phones

from the pron dept

When we've talked in the past about government attempting to outright block pornography sites, those efforts have typically been aimed at sites hosting child pornography. Blocking child porn is a goal that's impossible to rebel against, though the methods for achieving it are another matter entirely. Too often, these attempts task ISPs and mobile operators with the job of keeping this material out of the public eye, which is equal parts burdensome, difficult to do, and rife with collateral damage. Other nations, on the other hand, have gone to some lengths to outright block pornography in general, such as in Pakistan for religious reasons, or in the UK for save-the-children reasons. If the attempts to block child porn resulted in some collateral damage, the attempts to outright censor porn from the internet resulted in a deluge of such collateral damage. For this reason, and because we have that pesky First Amendment in America, these kinds of efforts attempted by the states have run into the problem of being unconstitutional in the past.

But, as they say, if at first you don't succeed, just try it in an even more conservatively prudish state again. Which brings us to Utah, where state Senator Todd Weiler is leading the effort to purge his state of any access to porn on mobile devices.

Utah Senator Todd Weiler has proposed a bill to rid the state of porn by adding Internet filters and anti-porn software on all cell phones and requiring citizens to opt-in before viewing porn online. It's to save the children, he says. Weiler successfully pushed an anti-porn resolution through the state Senate earlier this year, declaring porn a "public health crisis." He now hopes to take his movement a step further by making it harder for Utah citizens to have access to digital porn.

"A cell phone is basically a vending machine for pornography," Weiler told TechCrunch, using the example of cigarettes sold in vending machines and easily accessed by children decades ago.

This is where we'd usually talk about how this sort of thing is almost certainly unconstitutional, not to mention how easily circumvented the attempt would be. And both of those remain true for this case. But I would like to instead focus on the lazy analogies Weiler chooses to make and let them serve as an example of how easily twisted people's opinions can become if you simply add "saving the children" to the goals of a particular piece of legislation.

Let's start with the quote above, although I promise you there is more from Senator Weiler that we'll discuss. He claims that a cell phone is basically a porno vending machine, like a cigarette vending machine. The only problem with his analogy is how wildly untrue it is. A cigarette vending machine has no other purpose than, you know, vending smokes. A cell phone, on the other hand, has a few other purposes. Like playing video games, for instance. Or serving as a music device. Or making god damned phone calls. A claim that a phone is simply a vending machine for porn shows either a tragic misunderstanding of basic technology or, more likely, is simply a veiled hate-bomb at the internet itself. Regardless, it is not upon government to decide how our property is used lawfully. And it isn't on government to parent children. We have people for that. They're called parents.

But Weiler wasn't done.

The senator says England was successful in blocking porn on the Internet. Prime Minister David Cameron pushed legislation through in 2013 requiring U.K. Internet service providers to give citizen's the option to filter out porn.

The good Senator must have a strange definition for success, because the UK law is easily circumvented, has managed to censor all kinds of educational and informational non-pornography sites and material, and was created by a lovely chap who was later arrested on charges of child pornography himself. If one wishes to draw upon the success of something in order to push his own interests, that something probably shouldn't be a complete dumpster fire.

Local Utah ISPs are already calling the plan unrealistic and comparing it to censorious governments that I am certain Senator Weiler would recoil from. Not that this matters, I guess, since Senator Weiler fantastically admits that he has no idea how this will all work under his law.

Weiler says he doesn't know how it would work but just wants to put the idea out there and that his main concern is kids looking at porn.

"The average age of first exposure to hard-core pornography for boys is eleven years old," he said. "I'm not talking about seeing a naked woman. I'm talking about three men gang-raping a woman and pulling her hair and spitting on her face. I don't think that's the type of sex ed we want our kids to have."

Look, I usually like to back up my rebuttals to these types of things with facts and figures, but I just don't have them in this case. That isn't going to stop me from declaring that the average first exposure to pornography is an eleven year old boy seeing exactly three men gang-raping a woman is a line of bullshit so deep that the Utah Senate certainly must provision knee-high boots to its membership for such a thing to even be suggested. And this should tell you everything you need to know about Senator Weiler's plans: he doesn't know how successful it's been elsewhere, he doesn't know how it works, and he's willing to sell it to the public on the basis of a scary lie.

Oh, and it's unconstitutional, so screw your law altogether.

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Posted on Techdirt - 23 May 2016 @ 11:23pm

Take-Two Says Tattoo Artist Can't Get Statutory Damages Because He Only Registered Copyright In 2015

from the hmmm dept

Back when I first wrote about the copyright lawsuit between a tattoo artist and Take-Two Software, makers of the highly successful NBA2K basketball series, over the faithful depiction of LeBron James' image including his ink, I had been hopeful that perhaps this case could be a step towards resolving whether fair use applies when presenting images of people with tattoos in creative works. And that might still happen, but the defense Take-Two has decided to start things off with won't do the trick. Rather than asserting the work's status as fair use, the video game maker has led with a challenge to whether the tattoo artist can claim statutory damages based on when he had registered the copyright for the tattoos in question. It's a play on a technicality, one which seems to strangely play on what counts as an independent work.

Solid Oak Sketches had sued for damages nearing $1.2 million, claiming eight works had been infringed upon in the game NBA 2K16, including tattoo designs for LeBron James and two other players. According to Take-Two's most recent filing with the court, Solid Oak Sketches registered the copyright for those tattoos in 2015. The game company's argument is that it has been depicting those players and their tattoos since 2013, therefore there is precedent that statutory damages are not in play.

These claims for damages, however, are precluded by 17 U.S.C. §412. As is clear form the face of the Amended Complaint and its attachments, Take-Two has depicted Mr. James, Mr. Martin, and Mr. Bledsoe -- and their tattoos -- in its NBA videogames since at least 2013. This is years prior to the registration of the tattoos with the U.S. Copyright Office in June and July 2015... Here, where the same work has allegedly been infringed by the same defendant in the same manner since 2013 -- long before registration -- binding Second Circuit precedent dictates that statutory damages and attorneys' fees are unavailable.

In other words, because the complaint is over infringement that is essentially the same as has been occurring two years prior to the registration, precedent indicates that statutory damages and attorneys' fees should not apply. It's an interesting argument, though I wonder if it isn't without its pitfalls. Does Take-Two mean to suggest that in some way each years' NBA 2K game is not a separate work and publication. I am sure that is not what they are trying to argue, but arguing that the depiction of individual players within the game are essentially the same depiction for the purposes of combating this action leads us down that path.

Regardless, it does certainly seem to demonstrate that whatever harm Solid Oak Sketches wants to claim in their suit seems silly. Were it so injurious, it brings the question as to why it didn't act to protect itself in all the years previous in which similar alleged infringement is supposed to have occurred. Did it suddenly only become a problem in 2016?

The filing also makes it clear that Take-Two plans to also attack the underlying nature of the infringement claim in the future, which likely means it will assert a fair use argument. I hope it does. That would be the more important precedent to set here.

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Posted on Techdirt - 20 May 2016 @ 6:16pm

Law Firm Subpoenas Glassdoor For Negative Anonymous Reviews, Supercharges Streisand Effect With Its Response

from the whoo-boy dept

Many of you likely know about Glassdoor.com, which is a website used by both employers and propsective employees for recruiting, job applications and reviews of companies by former employees as to what it's like to work at a given company. As with any source of crowdsourced reviews, it is not without its pitfalls and controversy, but most of that has to do with different methods by which companies and former employees try to promote or slam a partricularly workplace with anonymous reviews. Anyone who has done job placement research, however, knows how valuable the site is.

Yet the use of anonymous reviews, as is typical of other sites, breeds discontent amongst some. Typically you will hear complaints from companies being reviewed negatively about these anonymous reviews being unfair, untrue, or ginned up by a limited number of ex-employees. That's usually the end of it. Occasionally, however, you get a company that wants to sue over reviews like this. California law firm Layfield & Barrett is apparently one such firm.

California trial attorney Philip Layfield, joined by his firm, has filed a defamation claim against 25 John Does over anonymous comments they left online about Layfield, his current firm of Layfield & Barrett, and his former firm of Layfield & Wallace. Our network of tipsters is mighty, and we’ve gotten our hands on a third-party subpoena served upon Glassdoor.com, a jobs and recruiting website, that allows users to post anonymous reviews of places they are current or former employees of, in order to provide an assessment of the working environment for job seekers. The subpoena seeks the identifying information of several users who have taken to this anonymous online forum to complain about their allegedly miserable work.
You can see the full subpoena below, but it does indeed seem that some of the reviews left for the firm were quite nasty. Titles for some of the posts include "Deceptive, Unethical, Poorly Managed, No Sense Of Direction," "Working Here is Psychological Torture," and my personal favorite "For the love of God, do NOT work here." One can understand why an employer would be unhappy about the existance of these reviews.

Suing over them, however, is likely to be as feeble as it is misguided. This is typically the part of the post where we talk first about the difficulty of suing successfully over these types of opinion-based reviews, move on to then talk about the importance of sites like Glassdoor.com honoring its users' anonymity, before finally coming around to explain that the Streisand Effect will now take hold of this whole thing, with the lawsuit serving mostly to catapult the negative opinions the firm disliked into the forefront of more people's minds than otherwise would have been. And that would usually be the end of the post.

That is not the end of this post, in part because Glassdoor has promised to fight the attempt to out its anonymous contributors, but even more so because Philip Layfield agreed to comment on the story for Above The Law, and Oh. My. God.
With respect to the lawsuit filed, here is the reality. Our law firm has approximately 150 employees and 35 attorneys. We demand the best of the best. Many people lie about their skills, their experience and their desire to be the best when the interview. We pay top dollar for candidates and many of our attorneys earn in excess of $1 million per year. When people are lazy or incompetent, they either quit because the writing is on the wall or they are terminated. Unfortunately, most of those people are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults, but they choose to spew false information on blogs such as Glassdoor. The majority of these posts contain blatantly false information. We are going to obtain the identities of these cowards and bring them to justice.These people are going to have to answer for their conduct and we will shine a light on this very cowardly practice that has become an epidemic. People need to realize that just because you are sitting anonymously behind a keyboard, you can’t break the law. Ultimately, future employers will have to decide whether they want to employ people who post false and hateful information about former employers. The same way that Glassdoor operates as a hate forum for disgruntled employees, employers have a right to know information about job applicants.

Unfortunately, most employers are too busy to spend time posting negative information about former employees on job sites, although that would probably do a lot of good for society. For example, I would love to post information about employees who graduated law school, but can’t put two sentences together, or those that are sick at least one day every week.

We will not give any further comments until the case is over.
Imagine yourself for a moment as someone who was willing to give Layfield and his firm the benefit of the doubt thus far. Are you any longer? Probably not. This comment does nothing to verify the accuracy of the complaints at Glassdoor, but it does solidify them in the mind to some degree, does it not? In addition to the demeaning nature with which Layfield addresses his former employees, the aggrandizing tone with which he describes his own firm, and his silly labeling of Glassdoor as a hate forum, he does us all a service by outlining his desire to have employers act every bit as vindictively towards former employees as he complains about in reverse. That kind of delicious hypocrisy isn't in rare supply, of course, but that doesn't make it any less scrumptious to behold.

And, to the previous point, whatever Streisand-y Effect might have resulted from the legal action the firm had already taken will now be supercharged by this boorish comment at a well-read legal industry blog. And here at Techdirt. Any likely many other places as well. If the goal was to make the firm a more attractive place to work, it's difficult to think of a better strategy than this to achieve the opposite.

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Posted on Techdirt - 20 May 2016 @ 11:42am

Dallas Buyers Club Demands Accused Pirate Take Polygraph, Asks For Judgment When He Agrees Anyway

from the graphic-detail dept

Anyone who has spent time with us here at Techdirt will be familiar with Voltage Pictures, the movie studio that perhaps is more famous now for being a copyright settlement troll than it is for having produced the movie Dallas Buyers Club. The studio has quite the reputation for sending settlement letters to those it accuses of having pirated the movie, typically with offers to settle for amounts in the thousands, and armed with the evidence of an IP address and nothing else. The frightened masses too often fork over the demanded settlement, not realizing that having an IP address is not evidence enough to prove guilt. It's a bullying business model that drips of sleaze.

But, like with many others that use sleazy business models, the sleaze doesn't end there. Lying and making false promises appears to be part of the model as well. Take the case of Michael Amhari, a California man on the receiving end of one of Voltage's settlement offers. The studio made several promises to try to get Amhari to settle, none of which it appears to have been willing to keep. For instance, Voltage wanted Amhari to take a polygraph to back up his claim that he wasn't the one who downloaded the film.

“Plaintiff demanded that defendant take a polygraph examination in exchange for a dismissal of the case. Plaintiff’s counsel disingenuously stated that he would bear all the costs for such a polygraph test,” Amhari’s counsel Clay Renick writes.

“When plaintiff’s counsel then agreed to take such a test with the proviso that defense costs and attorney fees be covered, plaintiff then refused to pay costs and revoked his offer to conduct a polygraph.”

Instead of coming to terms, Dallas Buyers Club asked the court to order a default judgment in their favor, which Amhari’s counsel asked the court to set aside.

In addition to playing these games with a polygraph test request, Renick is also asking the court to set aside the judgement due to all the other promises Voltage made to Amhari, with promises to dismiss its claim, that it didn't keep.

For example, they offered to dismiss the case if he would state under penalty of perjury that he was not involved, while pointing out another possible suspect. However, after Amhari submitted his declaration they moved for a default anyway.

“After receiving exculpatory evidence and the sworn declaration of defendant, Mr. Davis then refused to file a dismissal and proceeded to demand that defendant appear in the action or he would file a default. This behavior is galling and it should not be permitted by the court,” the defendant’s counsel adds.

Galling and quite exemplary of just how interested in any kind of justice Voltage Pictures is in this instance. Which is to say it isn't at all, because it appears to keep requesting information and evidence supporting Amhari's innocence and then rescinding its promises once its requests are met. That isn't someone looking for a just result. It's instead the actions of an incredibly irritating bully who is only interested in the extraction of money from someone it deems to be be bully-able. That the promises were backed by a legal staff that then has gone back to the court to try to get judgments against the defendant is breathtakingly cavalier.

Given that Amhari has agreed to pretty much every demand that Voltage Pictures has made, and has received none of the promised results, it would be nice for the court to slap the troll around a bit and at least revoke the previous default judgement.

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Posted on Techdirt - 20 May 2016 @ 3:28am

Photojournalist Being Sued For Publishing Image Of Aftermath Of Paris Attacks

from the a-thousand-words dept

Typically, when we've talked about photojournalists in the past, it's been about how they will occasionally make demands for payment for the pictures or videos they've taken with little to no regard for the way fair use works. For the times we've instead focused on stories involving any kind of trouble for photojournalists, the stories are usually about how law enforcement harrasses anyone who tries to document it doing its job. That makes the story of Maya Vidon-White, a photographer in Paris, a new one for me. Maya is currently the subject of criminal charges in France. Her crime? Documenting the aftermath of the now-infamous Paris terror attacks.

Vidon-White was in Paris at the time of the attacks and managed to snap photographs of the immediate aftermath just outside of the Bataclan concert hall, where gunmen murdered 89 people and wounded hundreds more. One photograph she took and later sold to a news outlet for publication showed an injured man, Cedric Gomet, on the ground receiving medical attention. Under an obscure French law, this is apparently a crime.

About two months after she took the photo, Vidon-White was told that she was being prosecuted under the so-called Guigou law, which prohibits the publication of photos showing the victims of terrorist attacks in a way that violates their "human dignity." The lawyer for Gomet's family, Jean Sannier, says the photographer and VSD violated the law by publishing the Bataclan photo on a double-page spread, and by not blurring out Cedric's face. The family has filed charges against both Vidon-White and VSD, and are seeking damages totaling €34 000, in addition to legal fees; the photographer could face a fine of up to €15,000.

"The fact that VSD thought it was right to publish this photo on November 17th, saying that Cedric was still alive, was extremely painful for the family and those close to him," Sannier said in a phone interview. "Even if the family knew he was at the Bataclan the night of the 13th, his friends were not necessarily aware, and they were all happy to learn [from the photo] that he was alive."

Part of the issue here is that French weekly magazine VSD mistakenly stated in its story, of which the picture was a part, that Gomet was still alive. In actuality, he had died after the photo was taken from his wounds. There is nothing to suggest that this mistake was anything other than an error, yet the family and its lawyer keep bringing up the point. It's hard to imagine that an honest mistake would suddenly open up a news organization to criminal charges and civil damages, nevermind that Vidon-White had nothing to do with the facts relayed within VSD.

As for this application of Guigou law itself, the attempt is every bit as ridiculous as the law itself. The legislation invoked here appears to be named after Elisabeth Guigou, one-time Minister of Social Affairs and Minister of Justice in France. In 2000, she had sponsored the law which was aimed at keeping news publications from publishing photographs of those accused of crimes if they were wearing handcuffs or in scenes where it might somehow indicate a presumption of guilt. That in itself is a silly bit of control exerted by government over what might otherwise be a free press...but it's difficult to see how its aims would apply to the photograph taken by Vidon-White.

Vidon-White's lawyer appears equally confused.

The lawyer representing Vidon-White, Vincent Tolédano, says the case should be thrown out because the law only applies to victims who are still alive, and therefore does not cover the families of the deceased. The Guigou law was passed in 2000, after survivors of a 1995 metro bombing filed a lawsuit against a magazine that had published images of them. In an email, Tolédano pointed to a document circulated by the Judicial Ministry, which says that images violating the law must contain a "degrading" element, and that an image of a victim, in itself, isn't "sufficient."

"The image produced by Maya Vidon-White... does not contain the 'degrading' dimension required by law," Tolédano said in an email. "We must therefore not confuse, in the horror of an event, the pain of the victims, who command the utmost respect, and the work of journalists."

After all, there's no implication that the victim of the terrorist attack shown is guilty of anything at all. He's a victim. On top of the questionable application of the law, someone is going to have to explain to me exactly how we're supposed to operate in an age where the picture, or video, is everything in news stories, but we're going to attempt to legislate limits of those depictions that can be shown to the public. If a photojournalist isn't allowed to faithfully portray the aftermath of one of the most newsworthy and important events in recent French history, one with global implications, then don't pretend to have a press anymore. There's no point.

The case currently sits before a French judge who will decide whether the case can proceed. It should be tossed immediately.

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Posted on Techdirt - 18 May 2016 @ 11:26pm

Brewery Changes Name For Second Time In Two Years Because Trademark

from the 3rd-time's-a-charm? dept

It's a mantra I've been repeating for some time now, but the alcohol and brewing industry has a trademark problem on its hands. We've seen instance after instance of the explosion in the craft brewing industry being hampered and harassed over trademark concerns, both from within the industry and from the outside. Most of these disputes lay bare the fact that trademark law has moved well beyond its initial function of preventing consumer confusion into a new era of corporate bullying and protectionism. But at least in most of these instances, the victim of all this is a victim once. Larry Cary, on the other hand, must be starting to feel like a punching bag, having had to now twice change the name of his alcohol-making business over trademark concerns.

Cary opened North Coast Distilling on Duane Street in 2014. In October, he was sued by California-based North Coast Brewing, and spent about $10,000 changing his name to Pilot House Spirits. Then Cary was sued in January by House Spirits Distilling, which claimed his new name violates "established valuable trademark rights and goodwill throughout the United States." The distillery, known for Aviation American Gin, has registered "House Spirits" and "House Spirits Distillery" with the U.S. Patent and Trademark Office.

His business will become Pilot House Distilling as part of a settlement with House Spirits Distilling.
To be fair, in the current climate, both of these trademark disputes ring as fairly valid from the complainant's perspective. The names in both instances were similar enough that I can understand the concern. That the solution the second go around was a name nearly indistinguishable from the name that had so offended House Spirits Distilling at once raises the question as to just how injurious the original was in the first place, but can also be seen as House Spirits Distilling behaving in an accommodating way. In other words, I can't really say there are any bad guys in this story.

The problem instead is one of bloat. For the alcohol industry, there is at once an era of increased trademark protectionism, an era in which the bar for originality and uniqueness to get the USPTO to approve a trademark has clattered to the floor, and an era of explosion in participation in the industry. That's a recipe for strife and confusion over who is allowed to enter the market using what language and under what circumstances. Some might fairly point out that these trademark protections have contributed to the explosive market to begin with. I would argue vehemently with them, but even for those on that side of the argument there must certainly be an acknowledgement that we're quickly approaching the level of diminishing returns. If the industry wants to continue to grow, it should be paying attention to the hurdles its placing in front of startup participants.
Cary said he'll have to spend another $10,000 to $15,000 changing the name on all his products and properties to Pilot House Distillery, adding that every time he names his business or products, he checks trademarks.

"What I've learned is even if you do everything right and you trademark it… if someone has bigger pockets than you, they can do whatever they want," he said.
What happens when we're faced with more stories of business folk playing brand-name musical chairs, all because there is too little language left available?

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Posted on Techdirt - 18 May 2016 @ 3:26am

Subtle: Iraq Flips The Internet Switch For 3 Hours To Combat Cheating Students And Corrupted Teachers

from the well-okay-then dept

We've talked about cheating in academia in the past, usually revolving around whether or not what used to be called cheating might be better thought of as collaboration. Beyond that, we've also talked about some of the strategies used to combat the modernity of "cheating", which has included the monitoring of students online activities to make sure they weren't engaged in cheating behavior.

Well, the nation of Iraq doesn't have time for all of this monitoring and sleuthing. When its students have their standardized tests, they simply shut the damned internet off completely.

For a few hours each morning, the Iraqi government keeps cutting off internet access—to keep students from cheating on their end-of-year exams. As reported by DYN research, which tracks internet blackouts around the world, the country’s access went almost entirely dead between 5 a.m. and 8 a.m. in the morning on Saturday, Sunday and again on Monday.
And this isn't the first time the Iraqi government has gone about things in this way. Last year, they pulled the same lever to shut down internet access to the country, with the same explanation that it was combatting a scourge of question and answer sharing occuring online. What's interesting about this is that the real problem appears to be the teachers, not the students. Teachers in Iraq are apparently regularly bribed by students to share the questions and answers to tests and that those leaks are then spread across the internet for other Iraqi students to see.
“What happens usually is that some teachers would be giving the exams questions to students who pay money, then [those] students would sell online questions all over country,” one Iraqi, who requested his name not be used in a story, told Vocativ. “Between 5 a.m. to 8 a.m. [is when teachers finalize questions] so this is the time when teachers [who have been paid off would] give questions to students by Facebook or Viber or Whatsapp and so on.”
Now, perhaps this move is effective in its aims. I don't know, since students looking to cheat haven't exactly always required the internet to do so. Still, even if it were, there must be another more subtle yet effective way to combat this cheating scourge. Perhaps one that doesn't interrupt internet access for, oh I don't know, everyone else in the entire country. Because the effects of this blackout aren't exactly limited to students.
Human rights groups were outraged at the outage. “We see this, especially in such a destabilized country as Iraq, as really terrible. It’s a lot of people under a media and communications blackout,” Deji Olukotun, Senior Global Advocacy Manager at the internet freedom nonprofit, told Vocativ.
Come on guys, figure this out.

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Posted on Techdirt - 17 May 2016 @ 2:07pm

Dear Politicians: At Least Close Those Porn Tabs Before Sending Out Your Campaign Screenshots

from the pron dept

We all know the internet is for porn, right? But the implication in that age-old internet commandment is that it's for porn and nothing else. But that's not true! The internet is also for cats, for business-ing, for Techdirt, and for political messages. But what you really shouldn't do is mix any of those formers with the latter, which it appears is what congressional candidate Mike Webb did on his Facebook page.

What you might miss if you're not really paying attention is the open tabs Webb included in his screenshot: "Ivone sexy amateur" and "Layla Rivera tight booty."
Some might point out that those tabs could be anything, which would be both silly and easily refuted. Both are porn. And, hey, maybe they are good porn. After all, it's not like the revelation that an aspiring politician enjoys nudity should be shocking to us. Still, this is usually when said politician would go into run-and-hide mode, deleting posts and claiming hacks and whatnot. To his credit, Webb is not doing any of this. He actually re-posted the image in an updated post. However, he explains away the open porn tabs in terms that essentially amount to him being the Sherlock of porn-related malware.
The explanation is 2,000 words long. It does not make a huge amount of sense, but apparently blames the pornographic images on an experiment Webb was performing to see whether or not someone was using malware embedded on porn sites to infect electoral candidates with malware that would prevent them from filing their candidacy before the deadline.

Maybe. It’s honestly hard to parse. Webb writes, in part: “Curious by nature, I wanted to test the suggestion that somehow, lurking out in the pornographic world there is some evil operator waiting for the one in a gazillion chance that a candidate for federal office would go to that particular website and thereby be infected with a virus that would cause his or her FEC [federal election commission] data file to crash the FECfile application each time that it was loaded on the day of the filing deadline, as well as impact other critical campaign systems.
Sure, okay. You weren't jacking it, you were testing out a theory of malware delivered specifically to congressional candidates through weaponized porn videos. I'll give Webb credit: my head is spinning after trying to put the logic together that would make any of his explanation possible.

It's probably a wasted effort. Mr. Webb, just mind your browser tabs next time, mmkay?

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Posted on Techdirt - 16 May 2016 @ 11:24pm

Earnhardt Family Fighting Over Whether One Earnhardt Son Can Use His Own Last Name

from the and-they're-off dept

You may not be aware of this, but apparently Teresa Earnhardt, widow of Dale Earnhardt Sr., the NASCAR driver who died mid-race in 2001, is a staunch protector of her deceased husband's name. I was one of those not aware of this, primarily because NASCAR is every bit as foreign to me as curling (hi, Canadians!). Her latest attempt to block the use of the Earnardt name is particularly interesting, since those she is opposing are her dead husband's son and his son's wife.

That couple? Dale Earnhardt's son Kerry Earnhardt and Kerry's wife, Rene. Kerry and Rene helped design and promote the "Earnhardt Collection" of homes built by Schumacher Homes. They also plan to add furniture to the Earnhardt Collection brand.

Teresa Earnhardt, Kerry's stepmother and Dale's widow, doesn't want the couple to use the name Earnhardt Collection and filed an appeal last week in federal court over a U.S. Patent and Trademark Office ruling that denied Teresa's challenge to the "Earnhardt Collection" trademark applied for by Kerry Earnhardt Inc.
The details here display what appears to be a very untidy family relationship issue. Teresa is Kerry's stepmother, not his mother, and Kerry had taken his mother's married name, upon her re-marrying, several years after the divorce from Dale Sr. Teresa is actually Dale Sr.'s third wife, meaning there was another one in the middle of this divide. None of that is meant to cast any shade on Teresa, to be clear, but the fact of the matter is that Kerry was born an Earnhardt and even reverted to his born last name after beginning a relationship with Dale Sr. in his teenage years. As Game-of-Thrones-ish as this all sounds, the fact is that Kerry, and by extension his wife, are Earnhardts at least as much as Teresa is.

It's also a strain to understand how much confusion is going to be caused by Kerry using his last name for a home and furniture business. Teresa's filing attempts to assert that there will be plenty, but the USPTO didn't buy it.
Teresa Earnhardt didn't testify in the case but states in her appeal that the name Earnhardt Collection is likely to deceive or cause confusion among people that the homes and products are endorsed by Dale Earnhardt or by her.
I wish there was a more delicate way to state this, but nobody is going to mistake Kerry's use of his own last name as meaning that Dale Earnhardt Sr. endorsed the products... because he's dead. Were he to endorse anything at all, the world would be having a very different conversation than one about a trademark dispute, likely having to do with building an entire religion around the now-resurrected Dale Sr. That's what tends to happen, after all. As for anyone thinking that Teresa was doing the endorsing? Look, I already said I'm no racing fan, but how many racing fans could even pick Teresa Earnhardt out of a police lineup if they had to? If you listed the most famous Earnhardts, where would she rank? Third at absolute best? Why would anyone make that connection?

Based on comments from Kerry, this all actually sounds like a messy family engaging in petty squabbling.
Kerry said he has no relationship with Teresa. He was fired from Dale Earnhardt Inc. in 2011 at around the time he began working with Schumacher Homes, he said in testimony.

"Just me and my wife trying to build a brand for our family and everything, and then for her to come and oppose it -- I don't think if you had a relationship that any family member would do that," Kerry said in his testimony.
I would expect Teresa's appeal to fail. There's no customer confusion here.

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Posted on Techdirt - 13 May 2016 @ 3:38pm

Local Fox Affiliate's Reaction To Brutal Police Beating Is A Dereliction Of Its Duty

from the the-fourth-estate dept

There tends to be a great deal of talk these days about how the media influences public discourse. Most of these conversations tend towards the inane, with the dichotomy of our political affiliations directly deciding how we see the media's influence. One political side will complain that the media leans one way, while the other complains likewise. Everyone is working from a different set of "facts," causing the whole conversation to devolve into a sporting event, with each side rooting for its own team and proclaiming an underdog type of branding for their team against the horde of media others.

The reality is much more nefarious and stark. The larger media, once at least mildly interested in paying lip-service to being the "fourth estate" and holding government and public institutions accountable to the general public is today anything but. Instead, news media today is far more interested in sensationalism without substance and a plodding prostration before government over being an information source for the public. You can see this best in the media's mindframe when reporting on police activity. A wonderfully brutal recent example of this is one local Fox outlet's reporting on a police chase that should have ended when the suspect willingly stopped his vehicle and surrendered by lying on the ground. Indeed, that appears to be how the cameraman recording the event would have preferred the reporting on the story to have ended.

What you see is the suspect surrendering, exiting the vehicle, lying upon the ground as instructed, and then being pummeled for a brief moment before the camera quickly zooms out and renders the action indiscernible. Why the camera operator did so remains unanswered, but we know from other footage captured by an NBC affliate that the police spent the next half-a-minute or so beating the shit out of a man who was lying surrendered on the pavement. Were we to need to rely on the Fox footage to determine what had happened, we wouldn't have this full picture of the beating in our minds. Instead, we'd have a moment or two of the violence, which could quite possibly be excused and waived off by what would be a typical dismissal by the authorities.

Indeed, in that same local Fox affiliate's own reporting on the controversey, the public is informed:
"[Mass. State Police] will also review the apprehension of the suspect, to determine whether the level of force deployed during the arrest was appropriate," FOX25 has been told.
And quoting the District Attorney's office:
"I think anyone who looks at the video is disturbed by it, but we don't jump to conclusions," Nashua Police said. "We need to find out what happened."
The Fox affiliate's linked story, castrated by its own camera operator's perhaps subconcious choice to protect the authorities from damning footage, offers no further comment on the footage, the controversy, or the beating the man took at the hands of police. The news anchors mention that the public is calling the station about the beating the man took and say they are asking police for an explanation.

But that camera pulling back, small detail as it may seem, certainly feels emblematic of a very real problem. For a news organization covering a story about a police chase, there must be no greater need for camera footage than the culmination of that chase. It's the climax of the story. Yet, the moment the controversial actions by the police begin, the camera pans far back. I wouldn't mean to suggest that this reaction is one purposefully trying to keep the public uninformed, but it certainly is the reaction of someone not trained specifically to do the job of holding government and the authorities accountable.

That's the shift that's happened in media these past few decades. That's the bias about which you should be concerned. If the mass media no longer serves the public, it serves no purpose at all.

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Posted on Techdirt - 13 May 2016 @ 10:36am

FBI Response To FOIA Request About Whether It Is Hacking Your Amazon Echo: ¯\_(ツ)_/¯

from the so,-yes-then? dept

We've talked in the past about how claims of dangerous silence from certain law enforcement and intelligence groups within the American government are so much the crying of "wolf!" As some will decry the use of security tools like encryption, or other privacy tools, the fact is that the so-called "internet of things" industry has created what is essentially an invited-in army of confidential informants. Domestic surveillance, once a time-consuming, laborious, and difficult task for those doing the spying has since become laughably easy by relative standards. One can imagine J. Edgar Hoover having to change his trousers if he learned exactly to what degree Americans today have accepted hackable or easily-compromised cameras and microphones into our homes, so excited would he be.

In this era, then, it would seem the public buying these IoT products would have an interest in learning if their government is using those products against them in this way. In large part, it seems that the government ain't telling. Take the Amazon Echo, for instance, a device with a microphone that is voice-activated to play your favorite music, tell you the weather, read you the latest news, *cough*-let the government spy on you-*cough*, tells you the traffic, and reads you your audiobook-- wait, what was that government spying thing? Is that for real?

Gizmodo recently tried to find out via an FOIA request. The government's response was a shrug of the shoulders and the wink of an eye.

Back in March, I filed a Freedom of Information request with the FBI asking if the agency had ever wiretapped an Amazon Echo. This week I got a response: “We can neither confirm nor deny...”

In many ways the Echo is a law enforcement dream. Imagine if you could go back in time and tell police that one day people would willingly put microphones in their own homes that, with a little hacking, could be heard from anywhere in the world 24/7. First, you’d need to explain what hacking was, but then they’d be like, “Nah bruh, yer pullin’ my leg.”
The full FOIA response is embedded below. As Gizmodo notes, there is neither a confirmation or denial that records of surveillance by Echo exist, and the letter even goes on to insist that this response shouldn't be taken to mean that there are in fact such records. But, particularly in a post-Snowden world in which we live, what else can you expect the public to think? With all that's gone on, both the innocent and nefarious alike would be crazy not to simply operate on the assumption that the alphabet agencies were hacking all the internet of things it could before this FOIA response. The government's non-answer in this case will serve as confirmation for some and a return to this SOP for most others.

And screaming in the vaccum of certainty here is the overriding sense that any oversight of these surveillance practices that might exist is sorely lacking in teeth. It's difficult not to picture Americans shuffling within their own homes, casting worried looks at the devices around them, wondering for all the world when each might be weaponized as a telescreen. If the internet of things is going to become a new great industry, this is certainly going to be one of the hurdles it must overcome.

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Posted on Techdirt - 11 May 2016 @ 3:43pm

Facebook Wins Trademark Case In China Over Chinese Beverage Company

from the book-it dept

You should be aware by now that Facebook has taken a rather extreme stance when it comes to protecting its trademark. This stance has essentially evolved to consist of this: it will dispute pretty much anything else on the internet that has the word "book" in it. Examples include Designbook, Lamebook, and Teachbook. And, because trademark bullying isn't something that should be done half-way, the company also disputed the name of Faceporn, because why the hell not?

This has continued to this day, which is not news worthy. But what is news worthy is when Facebook gets one of these wins in a trademark dispute in China, where trademark disputes haven't typically gone the way American companies would wish.

A Chinese company has been told it can no longer use the words face book in its branding, in a rare favorable court ruling for a U.S. company that comes after extensive efforts by Facebook to court Chinese officials. The Wall Street Journal reports that the Beijing Higher People's Court announced it had revoked approval for Zhujiang Beverage — which makes flavored milk drinks and porridge — to use the name.
Adding to the interesting nature in this ruling is Zhujiang's assertion that the Chinese translation of "face book", which is "lian shu", is something of a cultural term in China, referring to masks that are traditionally worn in Chinese operas. These appear to be some examples of this, though there is a confusing number of terms that all seem to refer to variations of these operatic masks and garbs. What seems to be taking everyone by surprise in this case is that the Chinese court sided with Facebook over a Chinese company, despite what looks to be a fairly severe deviation in the industries in which either side is engaged. Facebook is famous worldwide, enough so that perhaps one could argue that use of the term in other industries would still draw confusion and attention back to the social media site.

Except that Facebook is still banned on the Chinese mainland by the ruling party.
The social network remains blocked to Internet users in the Chinese Communist Party–ruled nation, but founder and CEO Mark Zuckerberg has made efforts to ingratiate himself with Chinese officials, including by recently braving the notorious Beijing smog to take a run in front of the gates of the Forbidden City.
Meaning that perhaps the ban on the site is going to be lifted soon. If not, you would expect the Chinese government to reverse the court's ruling, protecting a Chinese company doing business on the mainland over an American company and its banned product. Still, it's hard to see if there is any real confusion to consider here under the present circumstances, but that might not matter in China the way it matters in America.

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Posted on Techdirt - 11 May 2016 @ 8:30am

HBO Abuses The DMCA Process In The Name Of Game Of Thrones Spoilers

from the winter-is-[redacted] dept

We've talked in the past about how HBO has jealously protected its Game of Thrones property. The show, wildly popular to the point of being proclaimed as the most pirated show over certain time spans, has enjoyed success due in part to that piracy, according to the show's director, who made sure to add how much he hated that piracy that helps his show. Add to that HBO's insisting that certain fan gatherings and events centered around the show be shut down and we have a picture of a company and property very much at odds with anyone looking to share it in a way outside of their control.

As a parallel, the topic of spoilers often centers on this show. I happen to hate this topic with the fire of a thousand suns, but there is no doubt that some folks out there see unbidden spoilers as the great scourge of our generation. And perhaps that made some people pause when it came out that HBO had issued a DMCA takedown on a YouTube video that discussed such spoilers.

Besides from actual copies of episodes, HBO also appears to have an eye on those who talk about what may happen during the rest of the season. The Internet is littered with spoilers which HBO doesn't like, including those posted in Spanish by YouTube user Frikidoctor. Unlike many others, Frikidoctor is remarkably accurate with his predictions, and claims to have a source close to the fire who feeds him information. HBO doesn't like this and has pulled several of his videos, arguing that they are infringing their copyrights. This also happened to the video featuring several episode three spoilers which was uploaded a few days ago.

"I uploaded the video and two hours later HBO decided to take it down on YouTube [claiming] copyright infringement," Frikidoctor says, responding to the surprise takedown.
Again, perhaps there are some who have the instinct to cheer this on over a dislike for spoilers. Sadly for them, the law is not even remotely on HBO's side here. The claim of copyright on this specific video, in which episode three predictions are discussed, is as bullshit as it gets. While many of these kinds of videos will use actual episode footage to provide evidence of specific predictions or spoilers, Frikidoctor used zero footagein this video. In fact, the only content on the video altogether was the author appearing in it and discussing the upcoming episode. That's it.
Frikidoctor admits that he used snippets of trailers and other promotional material in earlier videos that were removed, but says that the video with the episode three "predictions" didn't include any HBO audio or video.

"In the last two videos they took down I had some frames from teasers and trailers they decided to share with everyone for promotional purposes. This time the video did not have a single frame or sound that belongs to HBO," he says.

Instead, the video was just him dressed up in a Mexican wrestler costume, discussing what would happen in the upcoming episode.

"So, they think that me dressed as a Mexican wrestler talking about predictions for episode three of Game of Thrones is their property. That it’s copyrighted material that belongs to them," Frikidoctor notes. "Isn't that misuse of the DMCA?" he adds.
Very much so, yes. As annoyed at spoilers as HBO might be -- though why they would be is beyond me -- there is nothing about someone dressed in Mexican wrestling garb discussing predictions for an upcoming episode of a show that could be remotely seen as copyright infringement. The claim behind the takedown is so far from reality that it might as well serve as a chief example of the way the DMCA takedown system is abused.

Fortunately, Frikidoctor has appealed the takedown with YouTube, and has even gone as far as to consult a lawyer as to what his next steps will be. Here's hoping he finds a way to punch back at the bully.

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Posted on Techdirt - 9 May 2016 @ 11:23pm

The Saratoga Conundrum: Is It Water, Or Is It Juice

from the i'm-so-confused dept

So many of the trademark disputes we talk about here involve stories centered around the questions of customer confusion and like-market competition. These are two tests central to the question of whether trademark infringement has actually occurred: are the two entities competing with one another for the same customers and are those customers, or could those customers be, confused by the alleged trademark violation. Quite often, the markets and products in question aren't of the basic-needs variety, perhaps creating some wiggle room in the minds of some as to whether there is a like-market issue to consider.

But to create a truly absurd trademark accusation, the accusing side should really be a producer of one of the basic necessities of life, while the accused does not. Take, say, water. In Saratoga, for example, a large bottled water company is going after a chain of juice bars because both include the word "Saratoga" in their respective trademarks.

Saratoga Spring Water Company, which makes the famous blue bottled water, has legally challenged another company’s use of the word “Saratoga.” That business, which received a cease and desist letter followed by a petition to cancel its trademarked name, is the downtown-based Saratoga Juice Bar, a cold pressed juice and wellness brand owned and founded by local entrepreneurial couple Christel and Colin MacLean in 2013.

The cease and desist letter, sent to the MacLeans in March by Laura Smalley of Harris Beach Attorneys at Law, was the first form of communication from Saratoga Spring Water Company on the subject. It stated, “Your use of the SARATOGA trademark in this manner, on goods substantially similar to those sold by Saratoga Spring Water, is likely to induce customers to believe that there is an association between your products and those of Saratoga Spring Water. Your use of the SARATOGA trademark is therefore an infringement of our client’s trademark rights.”
In my head, I'm picturing a nondescript courtroom table, upon which are a bottle of water and a glass of juice, with legal counsel from Saratoga Spring Water throwing his hands in the air and shouting, "Who can tell which is which!" Or, put another way, how badly do you have to be at bottling spring water before your customers can't tell the difference between it and juice? There is no customer confusion here to worry about. The branding of each company's products aren't remotely similar. And, unless you simply lump every drinkable liquid everywhere into the same "marketplace", there isn't anything remotely like competition to consider, either. Nobody goes out to get a bottle of water and comes home wondering how they got an acai berry juice instead.

Adding to what will be a legal mountain for Saratoga Spring Water to climb, if it chooses to do so, is the fact that the MacLeans were proactive when it came to trademark issues and their brand.
Aware that the word “Saratoga” has been used to market many brands, the MacLeans engaged the services of trademark attorneys, Arlen Olsen, of Schmeiser, Olsen & Watts to ensure that they secured the trademark rights to market their unique brand when creating it. Their approach was successful and the U.S. Patent and Trademark Office granted the registration of their trademark on November 11, 2014. This allowed the company to confidently proceed and develop their wholesale line of cold pressed juices for distribution, the release said.
This noting that "Saratoga" appears on branding for all manner of products and services is important, as it renders Saratoga Spring Water's claim to one that rests almost entirely on the notion that water and juice are similar enough in the marketplace so as to cause real customer confusion. Again, I'm picturing the two products side by side on a table and wondering who in the hell would buy that?

I would expect there will be no court case in this instance, however, for all the reasons mentioned above. What is nice to note is that the smaller Saratoga Juice Bar is promising not to back down.

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Posted on Techdirt - 6 May 2016 @ 3:34pm

Advice To Immediately Trademark Kickstarter Projects Rests On Crowdfunding Not Being Commerce

from the hmmm dept

Because we talk a great deal about trademark law here at Techdirt, it occasionally leads us writers down interesting reading paths. One such path I recently traveled led me to a Gamasutra community post written by attorney Stephen McArthur, a lawyer who has built something of a specialty in video game industry law. The theme of the post is that anyone crowdfunding the production of a video game, via Kickstarter for example, should be registering the trademarks for their game during or before the crowdfunding process, rather than waiting until the production is funded successfully. Putting aside the heavy importance McArthur places on trademark registration, his argument is more of a PSA on the procedural timelines and what he considers to be a misunderstanding about both when common law trademark kicks in and when certain aspects of the trademark-ability of a product or service are initiated. For example:

Many of our clients fund and market their games using crowdfunding platforms like Kickstarter or Fig. They almost always have the same misconception: once they successfully fund a game on Kickstarter, then they would have superior rights to someone who comes along later and begins using the game title. This is based on the otherwise correct understanding that trademark law gives protection over a product name (here, a game title) to anyone who either (1) uses the name in commerce, or (2) files an application to register it as a trademark, even on an intent-to-use basis up to three years before any actual use.

Unfortunately, putting a game title on Kickstarter and successfully funding the project does not count as using the game title in commerce and thus gives you zero rights to the name. The law for what counts as “use in commerce” was not written with crowdfunding in mind, and this is simply another example of law not being caught up with technology.
Under his premise, McArthur's suggestions seem sound. But is the premise correct that crowdfunding campaigns do not count as commerce? This certainly doesn't seem to be settled law in the way one might infer from the post. 15 U.S. Code § 1127 defines "user in commerce" thusly:
The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this chapter, a mark shall be deemed to be in use in commerce—

(1) on goods when—

(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and

(B) the goods are sold or transported in commerce, and

(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.
The problem with the above statute is, as McArthur rightly notes, it was constructed without such a thing as internet crowdfunding in mind. That said, the intention of the law seems fairly easy to translate. The idea is that someone looking to put forth a product or service should be protected by trademark law once the business of the enterprise has begun and is public. Raising money from individual investors for a video game that hasn't been publicly announced wouldn't qualify, but what if you're raising money directly from the end customers, or a subsection of the end customers, as part of the business model? If the crowdsource campaign contributors are indeed the end customers of a product or service, how is their payment via Kickstarter not a commercial exchange?

It certainly seems like it should be, doesn't it? After all, simply reversing the order of production and payment doesn't change the nature of the commerce in which both sides are engaged. And if that's indeed the case, then common law trademark rights ought to apply to Kickstarter projects once the fundraising has begun, rather than being delayed until the product or service, video games in this case, are being sold elsewhere or once they have been shipped/delivered.

As I noted, there is little certainty about this either way, as best as my research has turned up, meaning it will likely take court cases and rulings before anyone actually knows if crowdfunding counts as a use in commerce. Additionally, while we've been in the past loathe to see too much codifying of specifics done in trademark law, perhaps this is an exception. After all, if crowdfunding is going to be a normal way of doing business, as it seems increasingly to be, perhaps it's time the law caught up to the technology.

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Posted on Techdirt - 5 May 2016 @ 11:38pm

Game Developer Forced To Change Game's Name Because 'Wasteland' Is A Trademark, Apparently

from the wasted dept

Several years ago, we wrote about InXile, a game studio that rode Kickstarter success to producing Wasteland 2. The theme of the post was about how open and awesome InXile had been to its backers and other Kickstarter projects, bringing a gracious attitude to the former and promising to use some of the game's proceeds to pay it forward to the latter. These actions built a nice reputation for InXile, somewhat unique in gaming circles, by engaging with fans and customers alike, while also acknowledging the rest of the industry. In short, InXile was human and awesome.

Yet, since then, InXile has occasionally acted aggressively in enforcing the trademark it has on the term "Wasteland" for the gaming industry. First, in 2013, it forced a smalll gaming studio to change the name of a game it had originally called Wasteland Kings to Nuclear Throne after InXile contacted them. And, now, InXile has gone a step further and fired off a cease and desist letter to a single developer attempting to produce his own shooter game, which he had entitled Alien Wasteland.

Otherwise, an important thing you may have noticed is that the title of the game has changed from The Alien Wasteland to Action Alien. The reason behind this is simple ; a developer from inXile Entertainment, the company which released the RPG Wasteland 2 has contacted me claiming that titling my game "The Alien Wasteland" was an an infringement to their trademark "Wasteland".

Because both games have almost nothing in common and no case of confusion was ever reported for almost two years since my game was first announced, I have been calmly explaining through long emails why we should have no worries about this. But I finally ended up receiving a cease and desist letter from their lawyer asking to either stop using "wasteland" or to prepare facing legal actions against me. Since I don't have the time nor the strength to deal with legal actions from this developer and its lawyers, or even taking the risk of having my game to be took down from Steam, I decided to change the title to solve this issue.
The new name for the title will be Action Alien. Which...meh. And that sucks, because the two games don't share any similarities. And, while we shouldn't simply excuse InXile's actions as a matter of the necessities of trademark law -- more on that in a moment -- the majority of the blame, as usual, should rest with the USPTO's approval of a trademark that simply doesn't do the job of being a source-identifier.

Go into all the technicalities if you like, but nobody in gaming circles sees the word "wasteland", particularly when combined with other title words, and immediately identifies it with any particular studio. Hell, I'd wage money that if you actually took a survey and told gamers to respond with the first gaming-related thing they could think of when they heard the word "wasteland", the majority of respondants would say "Fallout". And with good reason: Fallout was a spiritual successor to the original Wasteland game. Giving this kind of control over a word like this to be wielded throughout a gaming industry bursting with post-apocalyptic settings tells us a great deal about how well the USPTO understands the gaming industry, which is to say it doesn't it all. If we're still going to go about pretending that trademark law has something to do with protecting customers, then the approval process for specific industries needs to be tightened up.

But the USPTO shouldn't be the only ones in the crosshairs, here. Too many gaming sites are entirely too willing to swallow pleas by trademark bullies about the requirements of trademark law, such as Kotaku.
“We always look for amicable win-win solutions in these cases,” said Beekers of inXile, “where we seek to protect our mark as any prudent business would do, while also helping the other party promote their game and provide a bigger reach than he otherwise would get, so that both parties benefit. In fact, that offer still stands now.”

It’s hard to tell if the inXile folks are being more aggressive than necessary or simply reacting to the absurd lengths US law demands of companies, if they want to keep control over their trademarks.
It's not as hard as Kotaku makes it sound. After all, if we're going to approach this not only from a legal standpoint, but also a moral judgement standpoint, then InXile as all kinds of options when it comes to how it polices its trademarks. It could, for instance, not send threat letters to other studios making games with titles that don't cause any customer confusion. It could at least attempt to work out some kind of cheap trademark licensing arrangement so that it wouldn't have to stand in the way of a simple gamemaker trying to get his product to the market. Or, hey, here's a thought: it could return to being the human and awesome company it pantomimed for its Kickstarter campaign and choose to not trademark an overly broad, fairly common term so often used in the gaming market. Were it to be the believer in the gaming industry it once claimed, that would seem to be the logical choice.

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Posted on Techdirt - 5 May 2016 @ 6:30am

Forbes Is Confused: You Can View Content Using An Adblocker By Promising Not To Use An Adblocker

from the er? dept

Forbes, an organization with a website presumably built on the value of its content, also has made the unfortunate decision recently to try to block off access to anyone using adblocker software, apparently so that it could successfully allow malicious "ads" to infect its readers' machines. This set of circumstances would seem to be one that would have Forbes re-thinking its adblocker policy, assuming it wishes to retain the trust of its readership. And it turns out that Forbes is doing so. And then not! Or maybe? Allow me to explain.

Rob Leathern recently noticed that going to Forbes.com and refreshing the screen after being told that he should disable his adblocker suddenly offered up a new option: becoming a member. That membership would allow the viewing of the content for free. And, hey, all it wanted in return was the ability to manage his social media contacts for him.

Forbes, a site that in the past has allowed malicious ads to be presented to its readers, would now like access and control of those readers' social media contacts, which sounds like a terrible idea. But even more strange was when Leathern bothered to look into the terms of services that such a membership with Forbes entailed.

If you aren't laughing by now, you should be. Because the ToS for a membership which would allow readers to access the site's content while using an adblocker contain language asserting that you cannot use an adblocker. Whatever else you may think of Forbes in general, having multiple personalities running policy for the site seems like a bad strategy. Leathern's conclusion summarizes it nicely:
So I’ve basically agreed now to not block their ads, after signing up for the express purpose of being able to see their content while blocking their ads.
Forbes: a confused schizophrenic that would like to serve you some malware, please. I can just hear the dollars rolling into the coffers now...

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Posted on Techdirt - 4 May 2016 @ 11:36pm

Vice Media Sends Cease And Desist To ViceVersa Over Trademark Infringement

from the vexing-vices dept

We're going to have to keep hammering this home until more people get it: trademark law is about preventing confusion in the marketplace. The reason why that needs to be understood is that just about every time you read a story about one entity going after another over a trademark issue, the refrain of "we must protect our trademarks or we lose them" is trotted out like some kind of bower card that trumps the rest of the discussion. That excuse is just that: an excuse. And it certainly doesn't lift from those that use it the burden of being called trademark bullies.

Here to show us all an example of this kind of bullying is Vice Media, which decided to fire off a cease and desist letter to ViceVersa, a barely-making-it punk band.

Vice Media, a company valued at $2.5 billion whose CEO once spent $300,000 on dinner, wants ViceVersa, an unsigned Los Angeles indie band whose members are struggling to pay rent, to change its name — or else.

In a cease-and-desist letter sent to the band, a copy of which was obtained by The Huffington Post, the media behemoth says the three-piece rock outfit’s name and logo both sound and look too similar to Vice’s own name and logo. The band, the letter argues, is “infringing on the exclusive rights held by Vice Media in the VICE® Mark” and is “likely to confuse consumers as to the source of services offered under [ViceVersa’s] mark, and wrongly implies that Vice Media sponsors, endorses or is otherwise affiliated with [ViceVersa].”
There's enough gall here on the part of Vice Media to make this funny in a sad kind of way. Now, to be fair, Vice Media does indeed operate Vice Music, a label which has released records with some very big names in the music industry. It also owns a ton of other media outlets, such as magazines, book publishers, films and digital television. And it claims to own the rights to the word "vice" in basically any permutation or word combination for all of those markets. That isn't actually true, of course, but that doesn't keep a behemoth from trying to stomp on a little punk band.

I'll note that the threat letter arrived just after the USPTO approved the band's request to trademark its name, ViceVersa. Not that we should take the USPTO's opinion on whether a mark is valid as gospel, certainly, but I daresay that Vice Media isn't exactly an unknown around the USPTO offices, yet it approved ViceVersa's trademark. Which is when the threat letter arrived, seriously suggesting that ViceVersa was infringing on its trademark for "commercial profit and gain, to the great detriment of Vice Media."

Below you can see a video released by the band that is about to bring one of the media giants of this world to its knees.

Those do indeed look like dangerous folk, I guess. Now, Vice Media hasn't yet trotted out the aforementioned excuse that it must protect its trademark or else lose it, but it will if asked. That's what these companies do. And it's common.

Harry Finkel, ViceVersa’s attorney, says these kind of cease-and-desist letters are common. “You have a big company that is overzealous in protecting its mark,” he said.

Finkel says he wrote a letter back to Vice offering to change some of the language in Morales’ trademark application, so that it was clear that the band “would not be doing anything with TV shows or magazine publishing or publishing in general” that could be seen as encroaching on Vice’s territory. He says he never heard back from the company. Instead, Vice in March filed a letter of opposition to the Trademark Trial and Appeal Board, asking that ViceVersa’s trademark application be denied.
Nope, they're not talking to you, sir. Parley is part of the pirate's code, after all. Honorable folks like Vice Media would never engage in conversation in order to stop bullying a punk band in California. Vice Media has a history of doing this kind of thing, of course, but hopefully the USPTO smacks this opposition down tout de suite.

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