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About Dark Helmet Techdirt Insider

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




Posted on Techdirt - 20 October 2020 @ 7:39pm

Nintendo Nukes 'Zelda' Fan Game, As Per Usual

from the death-of-the-wild dept

I've tried with Nintendo. For some years now, I have both complained about how strict and hamfisted the company is when it comes to allowing fans to express their fandom in the form of fan-created games and content, as well as offered the company advice as to how it could be just a little more cool about all of this. The frustration really starts to boil over when you realize just how much cool content the world could have if Nintendo could figure out some way not to be as protectionist as possible and instead seek out ways to work with fans to allow for this sort of thing. To be clear, as I have said in the past, Nintendo certainly can act this way when it comes to how it treats its fans, but it doesn't have to act this way.

But, when you jump at every fan-made work like a toddler on meth jumps at their own shadow, I suppose you just can't help yourself. The most recent evidence that Nintendo isn't changing course comes in the form of a fan-created Zelda game put up on GitHub that Nintendo swiftly got taken down.

Well-known modder Kaze Emanuar, who has been releasing a number of unofficial Nintendo-based projects over the last few years, launched a title called 'The Missing Link' earlier this year. The game made use of the very same engine from The Legend of Zelda: Ocarina of Time, and aimed to bridge the gap between Ocarina, and later N64 title, Zelda: Majora's Mask.

The game was available from GitHub, but following the copyright claim, has since been removed.

To be charitable to Nintendo, there is no lawsuit thus far involved in this story. Given that the company has never been litigiously shy, perhaps that's progress of a kind. And, again, Nintendo is well within its rights to take this action. The takedown request itself at least nods at any question as to whether this game would constitute fair use.

"The copyrighted works are the video games in Nintendo’s The Legend of Zelda video game franchise, including without limitation the audio-visual works, story lines, characters, and imagery in The Legend of Zelda: Ocarina of Time (U.S. Copyright Reg. No. PA0000901848), The Legend of Zelda: Majora’s Mask (U.S. Copyright Reg. No. PA0001940271), and others.

Nintendo has reviewed the reported material and does not believe it qualifies as a fair use of Nintendo’s copyright-protected work."

All true, except that isn't where this story has to end. There are plenty of ways that Nintendo could sanctify these sorts of fan-made games and content that don't involve taking them down. It could work out some arrangement with the fans who make these fan-games to make them official, thereby alleviating any concern for copyright protection. On the copyright side specifically, the company could simply ignore these fan-games, like plenty of other game studios do. Hell, if it's some monetary corporate itch that requires scratching, Nintendo could even build a fan-creator program that allowed it to make some money and have curation abilities over these expressions of adoration turned into gaming content.

But, no. Instead, out comes to the copyright takedown request, down goes the game, and the world is an objectively slightly worse place for it.

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Posted on Techdirt - 15 October 2020 @ 8:00pm

Take-Two Opposes Trademark For An Entertainment Company Running An Axe-Throwing Facility

from the bullseye dept

When it comes to my writing about trademark and intellectual property issues, there is perhaps no more flummoxing company than Take-Two Interactive. Why? Well, because the company is simultaneously the victim of a ton of stupid disputes, and also a purveyor of stupid disputes. On the one hand, we've defended Take-Two when it has been the victim of spurious claims brought against it by The Pinkerton Agency, Lindsay Lohan, and a handful of tattoo artists over athlete depictions in video games. On the other hand, we've slapped back at Take-Two when it has taken down modding tools for its games that have been around for years and years, or when the company decides to file lawsuits over fan-projects. The point is that when it comes to the pain brought by overly protectionist IP activities, Take-Two is a company that should know better, but acts as though it doesn't.

This can often times go to ridiculous lengths, such as when Take-Two opposes the trademark for Rockstar Axe Throwing, LLC, because "Rockstar."

Applicant Rockstar Axe Throwing filed its application in Class 41 for “Entertainment in the nature of axe throwing competitions; Instruction in the nature of hatchet and axe throwing lessons; Providing sports facilities for hatchet and axe throwing. Take-Two Interactive is “a leading worldwide developer, marketer, and publisher of interactive entertainment, including software, video games, computer games, mobile games,” and other goods and services. Rockstar Games is a subsidiary of Take-Two.

That paragraph is really all you need to know. These companies aren't in the same industries, aren't competing for customers, and the existence of the defendant is wholly unlikely to result in any customer confusion. Axe throwing: need we say more?

But, just to cover all of the bases, Take-Two also complains in its opposition about the Rockstar Axe Throwing, LLC logo.

Take-Two has marks that comprise or contain “the term ROCKSTAR and/ or prominently featuring the letter ‘R’ combined with a star design, used alone or with other words or designs...

The logos for the two companies aren't similar. Like, at all.

Argue those logos are similar if you want, but you're wrong, you know you're wrong, and you're probably in need of psychiatric care. On top of their being dissimilar, there is that whole "Axe Throwing" text right in the logo. If that isn't enough to ward off anyone who might wander into an axe-throwing facility thinking it was associated with Grand Theft Auto, I can't imagine what would be.

This, again, is where it gets really frustrating. There is zero reason for Take-Two to have undertaken this opposition. Zero. And yet it did, despite being on the receiving end itself of other ridiculous attempts at IP maximilism. Why?

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Posted on Tech & COVID - 13 October 2020 @ 7:38pm

Esports March On: Nike Jumps In With Glitzy Ad While Forbes Ponders If Esports Will Be Our New Pastime

from the game-on dept

Esports continues to march down the path toward greater adoption. As we've detailed over many posts, esports had already become a cultural thing heading into 2020. But if anyone expected a regression back to IRL sports, the COVID-19 pandemic essentially cemented the cultural adoption of competitive video gaming. With even greater adoption by IRL professional sports leagues, and with many widely used social media platforms getting in the game and accelerating all of this, esports have continued to hit impressive milemarkers that showcase just how big this is all becoming.

It's not slowing down. Signs of that acceleration can be seen first in a glitzy advertisement Nike has put out as it too jumps further into esports gaming.

The shoemaker has released its first-ever esports ad, coming out of Nike Greater China, showcasing how these esports athletes get their minds and bodies prepared for the challenge.

The ad shows gaming superstar Uzi – who was recently the first esports athlete to be signed by Nike – completely a rigorous (and highly entertaining) training camp. According to Nike, the ad is a reminder for these gamers to remain active and healthy in order to stay on top of the challenges of gaming – which can see top players putting in 16-hour days six days a week.

Nike jumping into this is no small thing. And, while this is an ad for the Chinese marketplace, it would be quite surprising given esports' trajectory if we didn't see this sort of thing in the West before long.

Along those lines, Forbes has also come out with an article asking if esports will soon be America's chief pastime.

Compared to America’s most popular pro sports, football, basketball and baseball, Esports is small, but it now ranks with popular sports entertainment like wrestling. In 2019, according to esportsobserver.com, over $211M was awarded from over 4,000 Esports tournaments, an increase of 29% from 2018’s $163M prize pool.


Gaming is universal. The rules of the games are simple. It is simply the essence of competition. When produced for television, broadcasters can support the action with commentary, stating objectives for the game on-screen. Like golf, knowledge of the games might not be necessary at all as a games player base might be large enough to sustain eSports broadcasts, making non-player spectators a bonus, learning rules as they watch. Segments can support rules and strategies and highlights.

Will esports reach the vaunted levels for America's attention that baseball, basketball, and football have achieved? It's certainly on that trajectory. And the fact that publications like Forbes are even asking this question of a sport that has existed widely for less than two decades is telling. What esports really has to avoid is becoming the new World Series of Poker, where the fad fizzled out after a few years and is now relegated to niche status, albeit still popular.

But as the post points out, gaming is becoming universal. It's already overtaken other forms of entertainment as the dominant force among young people. Why that wouldn't translate into even further spectatorship of esports tournaments, now propelled by major brands and funding, is a question I cannot answer.

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Posted on Techdirt - 9 October 2020 @ 12:10pm

Internet Of Broken Things Jumps The Shark With IoT Chastity Penis Lock That Can Be Hacked

from the the-lock-not-the-penis dept

Say it with me now: not every last thing needs to be connected to the internet. If we've learned anything through the myriad of posts we have done on the internet of broken things, it's that far too many devices that need not be internet-connected are instead wide open to security flaws and connectivity-related flaws and outages. Pet feeders, so-called smart locks, healthcare devices: all examples of things that have been broken or broken into thanks to their being connected to the internet in wildly insecure manners.

But what if I told you that a lack of basic security could result in a device you bought potentially forcing you to have someone come at your penis with an angle grinder? Well, if you bought a Cell Mate chastity lock, you should damn well be concerned.

U.K.-based security firm Pen Test Partners  said the flaw in the Qiui Cellmate internet-connected chastity lock, billed as the “world’s first app controlled chastity device,” could have allowed anyone to remotely and permanently lock in the user’s penis.

The Cellmate chastity lock works by allowing a trusted partner to remotely lock and unlock the chamber over Bluetooth using a mobile app. That app communicates with the lock using an API. But that API was left open and without a password, allowing anyone to take complete control of any user’s device. Because the chamber was designed to lock with a metal ring underneath the user’s penis, the researchers said it may require the intervention of a heavy-duty bolt cutter or an angle grinder to free the user.

A researcher at -- checks notes and chuckles -- Pen Test Partners went on to say that someone exploiting the password-less API could lock "everyone in or out" at will. With no way to override the chastity lock either, you could suddenly cause a lot of people to be locked out of their own genitalia. A more perfect example of how 2020 has 2020'd the world there could not be.

It gest worse. This vulnerability has been known about since at least June. Qiui, a Chinese company, pushed out a new API for new users, but didn't remove the API for existing users. Why? Well, because doing so would cause all existing devices to lock.

Qiui chief executive Jake Guo told TechCrunch that a fix would arrive in August, but that deadline came and went. “We are a basement team,” he said. In a follow-up email explaining the risks to users, Guo said: “When we fix it, it creates more problems.”

As someone who owns a penis, I can assure you this is not what one wants to hear when it comes to a large metal lock that determines when I can access it. Nor do I like the idea of bolt-cutters. Or angle grinders. Or tube-smashers. Fine, I made that last one up.

As of this writing, this is all still a problem. Whether any malicious actor has used it to mess with people's dangly bits has not been confirmed officially.

It’s not known if anyone maliciously exploited the vulnerable API. Several user reviews of the app complained that the app had bugs that would cause the device to stay locked.

So, a PSA: if you're going to lock your genitalia up in a small metal vault, make sure it isn't connected to the internet.

40 Comments | Leave a Comment..

Posted on Free Speech - 8 October 2020 @ 8:29pm

China Micro-Censors The VP Debate In The Most Hamfisted Way

from the no-signal dept

It's common knowledge now that the Chinese government heavily censors the access its population has to the internet and information writ large. It's been a decade since China first proffered that its Great Firewall of China was not actually censorship, but was merely a method for "safeguarding" its citizens. Safeguarding them, it seems, primarily from any international criticism of the Chinese regime itself, which sure seems like it's more about safeguarding the government, rather than the citizens. In the subsequent decade, whatever skin China had to weather criticism further sloughed away such that the government is now not only actively pressuring groups and companies within Chinese borders, but actively attempting to affect its censorship outside those borders as well.

Whatever else we might want to say about Chinese censorship, it most certainly is not subtle. This was on full display when the government essentially pulled the plug on streams for the American Vice Presidential debate precisely during a segment discussing China's actions on COVID-19.

China’s censors cut off Vice President Mike Pence mid-sentence during the debate with Sen. Kamala Harris when he called out the Chinese Communist Party for its mishandling of the coronavirus pandemic.

As Pence Wednesday night began to criticize Beijing’s response, saying “China is to blame,” CNN’s feed in China suddenly cut out and the words “no signal – please stand by” appeared over a test pattern.

Again, not subtle. And that's actually kind of important, because if you put yourself in the shoes of a Chinese citizen, it's difficult to imagine that you wouldn't know precisely what is going on here. The real question is whether the transparent censorship in cases such as this is a feature or a bug. If a bug, it doesn't serve Chinese government purposes. It will be clear that the censorship is to mask criticism of the ruling party. If a feature, well, the idea is that China doesn't mind the transparent nature of this exertion of control. It's a muscle flex, in that case.

The question is how long can this authoritarian approach expand before the rubber-band reaches its limits and snaps back on the regime. In an increasingly connected and global world, and with China very much wanting play a lead role on that stage, it's own thin-skin may be a high barrier.

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Posted on Techdirt - 7 October 2020 @ 7:46pm

16K COVID-19 Cases Go Missing In UK Due To Government's Use Of Excel CSVs For Tracking

from the excel? dept

Yes, yes, you're sick of hearing about COVID-19. Me too. But the dominant force of 2020 continues to provide news, often times with a technology focus. This mismanaged pandemic has already given us an explosion of esports, students gaming remote learning systems, and enough dystopia to make George Orwell vomit in his grave.

But to really get your anger bubbles gurgling, you need turn only to the myriad of ways far too many governments have taken a moment that requires real leadership and forethought, and pissed it all down their legs. America appears to be trying to lead the charge in this, with our shining city on the hill mostly being illuminated by headlights of cars carrying sick passengers looking to get tested for this disease. Still, we're not alone when it comes to sheer asshatery. The UK recently managed to lose thousands of COVID-19 cases... because it was tracking them in Excel CSVs.

The issue was caused by the way the agency brought together logs produced by commercial firms paid to analyse swab tests of the public, to discover who has the virus. They filed their results in the form of text-based lists - known as CSV files - without issue.

PHE had set up an automatic process to pull this data together into Excel templates so that it could then be uploaded to a central system and made available to the NHS Test and Trace team, as well as other government computer dashboards.

Public Health England (PHE) decided to put all of this information into a file using the XLS format. XLS was first introduced in 1987 and was replaced by the XLSX format over a decade ago. Putting aside the use of Excel to monitor positive COVID-19 cases in a major industrialized nation for just a moment, just the use of an antiquated format managed to lose PHE over sixteen thousand positive cases.

How? Well, XLS has restrictions as to how many rows of data it can record.

As a consequence, each template could handle only about 65,000 rows of data rather than the one million-plus rows that Excel is actually capable of. And since each test result created several rows of data, in practice it meant that each template was limited to about 1,400 cases.

When that total was reached, further cases were simply left off.

Which means the people that had COVID-19 weren't tracked for contact tracing. The government and its people didn't have a complete picture as to either the total case count for the disease, nor its positivity rate. In other words, the agency in charge of national health failed to keep the nation informed as to its risk exposure because it didn't know how to properly use a common office application that it repurposed to record COVID-19 data.

Labour's shadow health secretary Jonathan Ashworth said lives had still been put at risk because the contact-tracing process had been delayed.

"Thousands of people [were] blissfully unaware they've been exposed to Covid, potentially spreading this deadly virus at a time when hospital admissions are increasing," he told the House of Commons. "This isn't just a shambles. It's so much worse."

The UK's Health Secretary told the House of Commons that PHE had decided to replace the use of Excel, or what he called a "legacy system", two months ago. But apparently PHE hadn't gotten around to it yet.

And still hasn't, actually. In fact, PHE's plan to temporarily fix all of this is... more Excel!

To handle the problem, PHE is now breaking down the test result data into smaller batches to create a larger number of Excel templates. That should ensure none hit their cap.

But insiders acknowledge that the current clunky system needs to be replaced by something more advanced that excludes Excel, as soon as possible.

When you hear complaints that governments are not taking this pandemic seriously, this is what they mean.

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Posted on Techdirt - 6 October 2020 @ 10:44am

Nikola's Plan To Combat Its No Good, Very Bad Month Appears To Be Using Copyright To Silence Critics

from the keep-digging dept

PR crisis management is not an easy gig. When a company suffers through a tumultuous period, it is all too easy for a company to try to combat the bad press through all kinds of means that are, in the end, a detriment to the effort. Instead, good PR crisis management follows three chief axioms: don't lie, don't try to downplay the severity of the crisis, don't be afraid to say you screwed up.

Nikola Motor Company is doing a shit job of following this advice. As we detailed recently over the course of a couple of posts, the company is very much in the middle of a PR crises. It began when a hedge fund revealed that Nikoa founder Trevor Milton allegedly flat-out lied to the world about having a working Nikola 1 model in 2016, with the obfuscation going so far as to put out a video of the truck driving down a highway, when the reality was that the truck was rolling down a hill not under its own power. After that public report, Nikola missed the first deadline to have a major partnership deal with General Motors. The stock tanked, massively. Milton suddenly found himself facing two charges of sexual assault, one of them from his own cousin.

If ever there was a time when a company needed to follow good crisis PR protocols, this was it. Instead, the company is apparently quite busy trying to use the DMCA process to silence critics on YouTube.

As noted in a Financial Times report, a number of financial commentator channels on YouTube have reported that they received takedown notices from the hydrogen truck maker, resulting in several videos being removed from the video-sharing platform. In a statement to the publication, Sam Alexander, a Nikola critic and YouTube host, stated that he received notifications on Wednesday that at least four of his videos were reported for copyright infringement. All four of the videos featured sections of the “Nikola One in Motion” ad.

The same was true for fellow content creator Tom Nash, whose finance-themed channel has 41,000 subscribers. According to Nash, he was required to take down three critical Nikola videos including one that featured sections of the rolling Nikola One prototype. Nikola reportedly took issue with Nash’s use of videos that featured its prototype jet ski and hydrogen station as well. “It’s what you would call a death sentence for a creator. This is my livelihood. I have three kids. I quit my job to do this,” Nash told the FT.

Honestly, it's more that this is what you would call a death sentence for the company trying to abuse copyright law to silence critics who's critiques clearly fall under fair Uue. Put another way: if the company had a fallback position other than trying to censor its critics, it would have played to that position. Instead, Nikola is very much opening itself to both liability for bullshit DMCA claims and, more importantly, to even further public criticism as a result of the company trying to bury the public's head in the sand.

Now we're in pure Streisand territory. As a result of the company trying to bury criticism, that criticism is getting even more play and attention than it already had. If this strategy was thought to be a good idea by those in charge of Nikola, then maybe it truly would be best if the company just bad-acted itself into oblivion.

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Posted on Techdirt - 5 October 2020 @ 7:58pm

Take-Two Going To Trial Over Yet Another Tattoo Artist Claiming Copyright On Athlete Bodies

from the again? dept

Back in 2016, we began a series of posts about a tattoo artist suing Take-Two Software over the faithful depiction of tattoos on several NBA players' bodies. The whole thing was fairly insane, with Solid Oak Sketches appearing to claim that because players had its tattoos on their bodies, those players no longer had the full control and ability to profit off of their own likenesses in video games. While the court in that case allowed that case to go to trial, the court also ruled in favor of Take-Two in summary judgement, ruling that fair use of course protected such depictions as a matter of art and speech with minimal copying as part of the game. What made the lawsuit particularly cringe-worthy was the implications of its argument. As I said at the time:

Put another way, it could be said that by branding the player with Solid Oak's designs, the company seems to think it can control the players' ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

That case should have sent a clear message to tattoo artists nationwide that such depictions didn't constitute copyright infringement. Instead, Take-Two again finds itself in a different court hearing what is essentially exactly the same case, but this time substituting a WWE wrestler for NBA players. Catherine Alexander was Randy Orton's tattoo artist and came to learn that Orton's appearance in a WWE video game included depictions of those tattoos. In addition, the WWE is selling arm sleeves depicting Orton's tattoos. This time, the court failed to get the suit against Take-Two tossed in the summary judgement phase.

On Saturday, an Illinois federal judge handed her partial summary judgment by determining that WWE and Take-Two Interactive Software, the publisher of the WWE 2K series of video games, had indeed copied her work. Now the question for a jury is whether that rises to copyright infringement. The judge denies the defendants' own motion for summary judgment by deciding that certain questions are triable ones. Those include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos she inked for him.

Take-Two may have a problem here. In the NBA2K case, the court relied on the game's use of players' tattoos being de minimis, thereby not causing harm to the copyright holding tattoo artist. In the Seventh Circuit, where this case is being conducted, de minimis use isn't a factor by precedent.

U.S. District Court Judge Staci Yandle's decision setting up the first copyright trial ever to focus on the unauthorized reproduction of tattoos will likely surprise those who figured the issue to be largely resolved.

"Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question," writes Yandle, adding that she doubts the defense is viable generally and in this particular situation. "The defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here."

Which is odd, because that isn't how the de minimis exemption is applied in the NBA2K case. It isn't how much of the copyrighted work you use, it's how much that use factors into the overall protected work in which it appears. In the NBA2K case, for instance, the court noted that while the entire tattoos of players were reproduced, those images barely factored into the overall work and weren't generally the focus of the player.

But we're left with the same question: can a tattoo artist, even at an athlete's request, essentially brand the player such that they can no longer profit off of their own likeness? The judge in this case seems to think that question is a matter for a jury to decide.

On the first factor of fair use, for example, the judge's opinion states, "Alexander contends she created the tattoos for the purpose of displaying them on Orton’s body and that Defendants used the tattoos for the same purpose; to display them on Orton’s body in the video games. Alexander also disputes Defendants’ characterization of the size of the tattoos and maintains they are prominently displayed and clearly visible in the video games. These are material factual disputes."

But that's crazy. It isn't how likeness rights work. And it isn't how fair use allows for the faithful representation of reality in works of art, video games included. Hopefully Take-Two's lawyers can drive this home with a jury.

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Posted on Techdirt - 2 October 2020 @ 7:39pm

Hugo Boss Opposes Artist's 'Be Boss, Be Kind' Trademark For Merch

from the boss-baby dept

The last time we discussed Hugo Boss, the famed upscale clothier based out of Germany, it was when the company sent a C&D notice to Boss Brewing, which makes beer. While there can be no doubt that Boss Brewing would have won any dispute on the merits, given that the two entities are simply not playing in the same marketplace and there was zero chance of any kind of public confusion in commerce, Hugo Boss got its pint of blood by getting the brewery to change the name of two of its beers in a barely perceptible way.

In other words, there was no real or potential harm done to Hugo Boss over the target of its dispute, but these sort of trademark actions are more reflex than logic.

And here we go again, with Hugo Boss sending another notice to an artist who decided to trademark a phrase he uses to conclude his art lessons with for use on merch.

Father-of-one John Charles was hit with a threatening legal letter from lawyers representing the luxury fashion brand after he applied to trademark his 'Be Boss, Be Kind' clothing and hat designs.

The slogan, containing the word 'Boss', which in Scouse slang means 'very good' or 'great', was used by Mr Charles' at the end of his online art lessons - which he launched during lockdown.

"Be Boss, Be Kind" is not "Hugo Boss". In fact, given the part of the UK where Charles is from, "boss" is very much a common slang term for "awesome" or "the best". That his following, those that enjoy his art lessons, would somehow suddenly think he had anything to do with Hugo Boss is absurd on levels rarely seen.

As for the contents of the letter, they weren't overly aggressive. It states that Hugo Boss plans to oppose Charles' trademark application, but would drop the matter entirely if he agreed to drop his application. The company has also stated publicly that they're looking for an amicable resolution to all of this.

Except that no resolution is needed. There's no confusion to worry about here. No trademark infringement. Charles is an art teacher who teaches children remotely during the COVID-19 pandemic. As plenty of people have shown through public comments, this is nothing.

Hundreds of people have since spoken out in support of John.Many have since said that it's 'easy to see' that Be Boss Be Kind has no connection to the German fashion giant. Other residents also agreed with John that the word 'boss' is a Liverpool saying.

On Facebook, Anne Porter commented: 'Boss' is a word 9/10 Scousers use with no connection to Hugo.'

PoliteScouser added: 'Boss is a Liverpool slang word for the best. He has as much right to use the word from his local dialect as any other person place or thing.'

Despite this, Hugo Boss' letter claims that its brand's "goodwill" will be threatened if Charles gets his trademark. In my view, it sure seems like its the opposition that is hurting any goodwill the brand might have.

26 Comments | Leave a Comment..

Posted on Techdirt - 1 October 2020 @ 7:56pm

Nikola Is Having A Bad Month: GM Contract Now Potentially In Jeopardy

from the it-pours dept

Nikola Motor Company, to put it mildly, is having itself a bad month. First came the bombshell reports from a hedge fund that founder Trevor Milton lied in 2016 when he told the world that the company had a fully functional Nikola 1 electric semi truck. Worse than that, it was revealed that a promotional video in 2018 showing the truck rolling down a lonely highway, was actually showing a Nikola 1 rolling down a hill, since the truck couldn't actually move under its own power. Milton resigned after those reports, but the hits kept coming. Two women have come forward claiming that Milton inappropriately groped them when each was fifteen, with one of those women being his cousin. For the record, Milton has denied both allegations.

But the fallout appears to be continuing. September 30th was supposed to be the date by which Nikola's notable contract with General Motors was to have closed. That deal appears to be in limbo, however, with regulatory filings indicating that both sides now have until December to sign the deal or terminate it.

A GM spokesman confirmed the delay in an email to Ars. "Our transaction with Nikola has not closed. We are continuing our discussions with Nikola and will provide further updates when appropriate."

Also this morning, Nikola published a revised overview of the company's business strategy. It discussed Nikola's plans to manufacture semitrucks in Europe and the United States, build a network of hydrogen fuel stations, and even plans for an electric all-terrain vehicle. But conspicuously missing from the document was any mention of the Badger pickup truck—the one that GM was supposed to manufacture for Nikola under the now-delayed partnership.

Nikola also announced today that it was indefinitely postponing Nikola World, the December event where Nikola was planning to debut the Badger. Nikola blamed the COVID-19 pandemic and related social distancing rules for the delay.

So a lot of bad, without a lot of clarity as to the reasons for any of this. In the absence of clear communication, speculation is the sport of the day. Some are suggesting that GM doesn't want to be associated with the company right now, with all of the bad PR currently in play. Others are noting that the deal between Nikola and GM is very much one-sided in favor of GM, but the recent issues have lowered the value of the deal. The chief example of this is that GM was to be paid by Nikola in stock worth $2 billion at the time the deal was written. In the last month, Nikola's stock price has dropped such that the value of that stock is now less than $1 billion. So, part of this might be GM now trying to negotiate for better terms that reflect the original deal.

Either way, while the risks in the deal for GM are small, the reputational risks are very, very real.

So the financial risk for GM was quite small. GM wasn't putting any money into Nikola. GM was supposed to do engineering work on the Badger in exchange for those Nikola shares, but if Nikola failed GM would likely be able to repurpose some of that work for use in a future GM-branded electric pickup truck.

But the deal also creates some reputational risk for GM. If, hypothetically, more evidence of fraud or other misconduct came to light that led to Nikola's failure, GM could be tainted by association even if its financial exposure was small. GM's name wouldn't be on the Badger pickup truck, but customers would know GM manufactured the truck, and some of them might blame GM if the Badger didn't work well.

Which brings us back to our original post on Nikola, the theme of which is that you cannot risk your reputation like this. Chances are, you're going to get found out and, when you do, the consequences will vastly outweigh any benefit you get from your fuckery.

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Posted on Techdirt - 30 September 2020 @ 7:55pm

Burger King Fights Proxy War Against McDonald's Over Hungry Jack Trademark Dispute

from the shots-fired dept

As one of the largest private employers in the world, it probably shouldn't come as too big a surprise that McDonald's is fairly protective of its trademarks. The company, large legal coffers though it has, is not undefeatable, however. It was only a year or so ago, for instance, that McDonald's famously lost its "Big Mac" trademark in Europe when another chain, Supermacs, got it cancelled as it expanded into more European markets.

Well, now Mcdonald's is facing another trademark issue in Australia. Down Under, there is a fast food chain called Hungry Jack's, which is actually a part of Burger King. Burger King, of course, is McDonald's chief global rival. There is something of a proxy war currently being waged over Hungry Jack's "Big Jack" sandwich, with McDonald's crying trademark infringement over its "Big Mac" trademark.

McDonald's Asia-Pacific filed Federal Court proceedings on August 28 against Hungry Jack's over its rival's new burger trademark, which it claims is "substantially identical with or deceptively similar" to its own Big Mac trademark.

Hungry Jack's has been the owner of the registered trademark "Big Jack" since November last year but McDonald's says the trademark "is liable to be cancelled, and should in the exercise of the court's discretion be cancelled" on a number of grounds, including that it is "likely to deceive or cause confusion" among consumers.

So let's stipulate immediately that the rival for McDonald's absolutely constructed a sandwich burger that has a lot of similarities to a Big Mac. The construction of the food is similar and the names both have the word "Big" in them, and then culminate in designators for the companies selling them, but those names rhyme. Big Mac. Big Jack. You get it.

So, with all of that stipulated, is this trademark infringement? Well, as always, that comes down to the question of whether there will be public confusion as to the source of the products. And Hungry Jack's is apparently prepared to argue that there won't be.

In a defence filed in the Federal Court on Friday, lawyers for Hungry Jack's said consumers were "well aware" of the "competitive rivalry between Hungry Jack’s and [McDonald's]" and it had not infringed the latter's trademarks. Consumers would not be deceived into thinking the Big Jack was a McDonald's product, they said.

Hungry Jack's said it was entitled to use the Big Jack trademark, which played on the company's name and the name of "its founder and current owner, Jack Cowin". The word Jack was "closely associated by consumers with Hungry Jack's' goods and services", the company's lawyers said.

Add to the above that much of the complaints McDonald's lodges aren't relevant in a trademark dispute. The recipe for the sandwich doesn't really matter, unless McDonald's has trademarked this construction. If it has done so, it certainly hasn't said as much. The word "Big" in the name of each product basically doesn't matter, since it is both descriptive and in common use in trademarks all over the place. Instead, this is going to come down to whether "Jack" is too similar to "Mac", sufficiently so to lead to public confusion.

Which is where Hungry Jack's point is made. The rivalry between these two is as famous in Australia as Burger King versus McDonald's is in America. Given that notoriety, and the simple fact that the dispute is over two words that very specifically designate the origin of the product, it's hard to imagine the public being confused by any of this.

In other words, it would seem that McDonald's would need to bring instances of actual confusion to court to make this lawsuit successful.

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Posted on Techdirt - 29 September 2020 @ 7:36pm

Bill Murray Responds To Doobie Bros. Copyright Letter With Snark, No Offer To Pay For Use Of Song

from the listen-to-the-musicians dept

It's true that you don't often find us here siding with copyright holders in debates over copyright. It's not that there isn't a place for that sort of thing, of course. It's just kinda not our beat. Also, it's a bit of a dog-bites-man kind of thing. As folks who tend to think that ever-expanding copyright laws and a protectionist culture that has lost its way are bad for business, we typically focus more on artists who are doing exciting things in new business models, artists who are overstepping the purpose of copyright law and/or hurting their own causes through protectionism, and artists who choose to go the human and awesome route rather than pulling out the litigious nuclear bombs.

In fact, we tried to do just that when we discussed the Doobie Brothers sending famed comedian Bill Murray a rather funny and human-sounding letter about his use of their music in ads for his golf apparel company. The letter was constructed to make it clear that Murray should have paid for the use of the music, but also was chock full of one-liner zingers, self-deprecation, and a general treatment of copyright law as not the world's most serious thing. It was a good copyright letter, which is rare.

Well, Murray's legal team has responded. And it seems that they are going all in on the humor part of this exchange, while claiming that Murray's use of the music is fine because the band hasn't been harmed.

If you can't read the whole thing, the response letter is full of puns based on the Doobie Brother's song catalogue. It includes an offer to send some free Murray golf swag to the band. It throws in a reference to the fact that the band's legal team was involved in defending Robin Thicke in the "Blurred Lines" case. And it argues, based in part on that association, that the Doobie Brothers haven't been harmed and so no payment will be forthcoming.

I am sure that Howard King of your firm, who argued that the song "Blurred Lines" did not infringe on Marvin Gaye's composition "Got To Give It Up", would agree that your client was not harmed under these circumstances.

This, frankly, is a bad legal position to take. The two circumstances are nothing alike. Murray is using music from the band in an advertisement. The "Blurred Lines" case was all about minute details of how much of a song's "feel" could be copyrighted -- not the music itself, in terms of the copyrightable expression of a song, but, rather, its style.

What Murray could have done would be to respect the band's congeniality in order to work out an arrangement with minimal impact on his company. The Doobie Brothers' initial letter, with all of its lack of serious threat, seemed to indicate the band would be open to that sort of thing. But to simply use the song in an advertisement and claim no harm, therefore no copyright infringement, seems like a stretch.

In other words, I would advise Murray's legal team try to get back in touch with the band and come up with a real offer to work this out.

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Posted on Techdirt - 28 September 2020 @ 8:23pm

BrewDog's 'Elvis Juice' Now An Approved Trademark In The UK, But Not the EU

from the ain't-nothin'-but-a-brewdog dept

You will hopefully recall that a few years back we discussed a trademark dispute between BrewDog, a UK-based brewery, and the Elvis Presley estate. At issue was BrewDog's grapefruit IPA dubbed "Elvis Juice" and the trademark application BrewDog had filed for it. Somehow, on first review, the UK IPO managed to side with the Presley estate, despite the fact that Elvis is a common first name, that the trade dress for the brew had nothing to do with Elvis Presley, and that this was all occurring in a country where Elvis Presley might not even be the most famous singing Elvis on the market. Fortunately, BrewDog appealed and won, so Elvis Juice is a registered trademark in the UK.

But not the European Union. Side note: did you guys know that the UK stupidly got out of the EU? Crazy! Anywho, BrewDog also had an application to trademark Elvis Juice in the EU. The Elvis Presley estate also opposed that trademark. And, this time, the Presley estate won.

The craft brewing company, based in Ellon, had won the right to register the brand as a trademark in the UK in 2018. However, they have been denied exclusive rights to the name in Europe – potentially threatening sales on the continent.

Unlike its UK counterpart, the EU bought the Presley estate's line that throughout Europe people buying an IPA called Elvis Juice would somehow think it was associated with a crooner from the American 50s as opposed to, say, Elvis Costello. Or the two Elvises that legally changed their name to Elvis that also own BrewDog. How that makes any sense, or how anyone is making this connection in, for instance, Spain is beyond me.

In the case documents, the EU Intellectual Property Office ruled: “It is clear that the applicant’s submission based on the peaceful coexistence of the marks cannot succeed. No evidence actually demonstrating such peaceful existence on the pertinent market has been shown. In short…there exists a likelihood of confusion… A likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.”

I mean, if this were two years ago, when the UK IPO decision came down, the UK would have been part of that pertinent market. And that should have been all that was needed to side with BrewDog. This, somehow, went the other way.

And, as a result, it's an open question as to whether BrewDog will keep its Elvis Juice branding as a whole, given the EU decision. Meanwhile, the EU IPO also ordered the brewery to pay the Presley estate costs.

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Posted on Techdirt - 25 September 2020 @ 12:05pm

How To Be Funny And Not A Jerk In A Cease And Desist Notice, From The Doobie Brothers

from the zero-bucks-given dept

I've written about famed classic rock band The Doobie Brothers before. As a person who is very much a fan of the band's music, I was rather disappointed when they decided to go after a cover band, The Doobie Decimal System, over trademark infringement. Their argument was that the names would confuse the public as it is too similar to their own band's name and if you aren't already laughing out loud by now you most certainly should be. The legal team for the band went with some fairly standard messaging as well, rather than taking a softer approach.

Unlike, say, how The Doobie Brothers have decided to handle a copyright C&D with comedian Bill Murray.

Let's assume for the moment that the claims in the letter as to Murray's unauthorized use of the band's music are accurate. I have yet to see any response at all from Murray's side, never mind one that refutes the claim that he used The Doobie Brothers' music without a license. Because what should really standout in this C&D is how congenial and funny it comes across, rather than dropping legal nukes at every turn like so many other C&Ds.

In case you cannot read it, it includes lines such as:

The Doobie Brothers perform and recorded the song 'Listen To The Music', which Tom Johnston of the Doobie Brothers wrote. It's a fine song. I know you agree because you keep using it in ads for your Zero Hucks Given golf shirts. However, given that you haven't paid to use it, maybe you should change the company name to 'Zero Bucks Given'.

Not bad. But it gets better.

It seems like the only person who uses our clients' music without permission more than you do is Donald Trump.

Ooooh, topical comedy! It's like a Lewis Black bit! What else?

This is the part where I'm supposed to cite the United States Copyright Act, excoriate you for not complying with some subparagraph that I'm too lazy to look up and threaten you with eternal damnation for doing so. But you already earned that with those Garfield movies...

We'd almost be OK with it if the shirts weren't so damn ugly.

Self-deprecation coupled with witty barbs on a famed comedian for what were some truly awful career choices? Five stars all around!

In addition to being a funny example of a topic we cover here all the time, the real lesson in this is that just because there are legal rights at play doesn't mean you can't have some fun. Witty C&Ds like this, with a little basic human decency thrown in rather than explosive legal threats, are far too rare. Handling matters in this way are publicly endearing and, I imagine, likely to get a more positive response from the target of the letter than nuclear threats. Nicely done!

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Posted on Techdirt - 24 September 2020 @ 7:58pm

Woof: Jack Daniels Takes Fight Over Doggy Chew Toy To The Supreme Court

from the squeak-squeak dept

Back in April, we wrote about a trademark dispute between Jack Daniels and VIP Products LLC. At issue was a doggy chew toy made as clear parody of the Jack Daniels bottle, with the branding changed to "Bad Spaniels", along with other parody references. While Jack Daniels had initially won in court when VIP sought declaratory judgement that its use was non-infringing, upon appeal to the U.S. Court of Appeals for the 9th District, that decision was reversed. Key to that ruling was the court's assessment that, due to the parody nature of the product, it was an "expressive work", and the lower court ought to therefore have applied the Rogers test, and vacated an injunction the lower court had applied.

Accordingly, the court held that, as a threshold matter, the Rogers test needed to be applied. Under that test, a trademark infringement plaintiff must show that the defendant’s use of the mark either (1) is “not artistically relevant to the underlying work” or (2) “explicitly misleads consumers as to the source or content of the work.”  Id. at 9 (quoting Gordon, 909 F.3d at 265). The Ninth Circuit vacated the district court’s finding of infringement and remanded for a determination, in the first instance, of whether Jack Daniel’s can satisfy either element of the Rogers test.

But instead of proceeding along those lines, it seems that Jack Daniels instead wants to have a fight at the U.S. Supreme Court over whether a parody dog chew toy truly is expressive. The appeal takes particular umbrage at the lower court's sense of humor.

Because the court of appeals thought [VIP Products’] notorious copying was funny, it held that the company has a First Amendment interest in confusing consumers into believing that Jack Daniel’s sponsors a dog toy spotlighting poop.

The more serious aspects of the filing focus on just where and how Fair Use can be applied in trademark law.

The Lanham Act provides that certain categories of use “shall not be actionable” as dilution. One excluded category is “[a]ny fair use . . . other than as a designation of source for the person’s own goods or services.” 15 U.S.C. § 1125(c)(3)(A) (emphasis added). The Act identifies parody as a permitted fair use, but it excludes the parodist from liability only so long as the parodist does not use a trademark as its own designation of source. Id. § 1125(c)(3)(A)(ii). The Ninth Circuit did not apply that exclusion here, presumably because it had no basis to reverse the district court’s conclusion that VIP Products used Jack Daniel’s trademarks as a designation of source.

Which is one hell of a presumption. What the court actually did, instead, is recognize the product as parody, deem it expressive because of that, and then indicated that the use of any trade dress or marks therefore didn't act as a source identifier. In other words, the lower court indicated that this ought to be a fight over customer confusion rather than how closely the parody's branding compared with the subject of that parody.

Which is exactly the correct arena for this to be fought in. Because of the clear parody nature of the product, the proper question is will the public be confused into thinking it was buying a product that has any actual association with Jack Daniels. That Jack Daniels doesn't want to have this fight on those grounds should tell you everything you need know.

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Posted on Techdirt - 23 September 2020 @ 8:06pm

Company Owning 'Evel Knievel' Rights Sues Disney Over 'Toy Story 4' Amalgam Parody Character

from the caboom dept

Evel Knievel, it seems, is as litigious in death as he was in life. The famed motorcycle stuntman found his way into our pages previously, having mistaken common modern parlance for defamation and for once suing AOL of all companies because its search engine could be used to get to a Kanye West video. And, while Knievel passed away in 2007, the lawsuits keep coming.

A company called K&K Promotions has sued Disney over the depiction of a character in Toy Story 4.

If the "Toy Story 4" character Duke Caboom reminded you of Evel Knievel, you're not alone -- the folks in charge of his image and likeness thought so too ... and now they're suing.

A company called K&K Promotions just filed suit against Disney, Pixar and whole a bunch of their subsidiaries ... claiming the stuntman driver toy that Keanu Reeves voiced in the latest 'Toy Story' flick is a clear and obvious rip-off of the legendary American motorcycle daredevil.

The suit itself (embedded below) goes into Evel's life story, details the rights K&K has to his trademarks and likeness, reminds the court that an Evel Knievel motorcycle toy was created decades ago, and culminates in asserting that Disney's character has infringed on those trademark and likeness rights. There is also the assertion that Disney asked the film's cast members not to compare characters to the trademarks of others' when doing media hits.

Below is some footage of Duke Caboom from the film.

Now, let's get the easy stuff out of the way. Does Duke Caboom conjure to the mind the memory of Evel Knievel? Yes, it most certainly does! Have folks from Disney actually said that Knievel was part of the inspiration behind the character? As the lawsuit itself points out: uh huh! Producers Mark Nielsen and Jonas Rivera have indicated that the stuntmen from the 70s were absolutely the inspiring force behind Caboom, with the latter going so far as to state that the character was built as "a stuntman evocative of Evel Knievel's era."

So does that make this character infringing on K&K's trademark and likeness rights?

Well, no, probably not. After all, there are marked differences between the characters, such as the country of their origin, the exact makeup of their outfits, what their personages look like in appearance, and so on. It's also worth highlighting the "era" in the Rivera quote, because Evel Knievel was merely the most famous of a series of motorcycle stuntmen in the 70s and 80s. And those stuntmen often had similar routines, motorcycles, and outfits. Dale Buggins is an example of this.

In fact, this all brings to mind Lindsay Lohan's attempt to sue over a Grand Theft Auto character, in that the character was actually an amalgam of tropes for famous Hollywood celebrities. She lost her case for that reason. Here, too, we have a character that is not specifically an Evel Knievel character, but rather an amalgam of motorcycle stuntmen tropes of which Knievel is the most famous. The assertion that Disney asked cast members to avoid getting the company in trouble by invoking the specific names of inspirational forces isn't all that surprising either. Why would the company want to get sued over a cast member's otherwise innocent comment, after all?

This could be a money grab, I suppose. But if it is, you really have to wonder if it's the smartest play. Disney's character, after all, probably caused a great many people to remember the era of motorcycle stuntmen for the first time in a long time, with Knievel coming along for the ride. Why not simply try to capitalize off of that?

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Posted on Techdirt - 22 September 2020 @ 7:46pm

How To Nuke Your Reputation: The Nikola Edition

from the going-downhill dept

This isn't so much in vogue as it was in the past, but it still remains true that one's reputation is a scarce resource that can be frittered away easily. And, on these pages at least, it is often equal parts perplexing and funny to watch some folks in the tech space torpedo their own reputations for various reasons. The more shrewd don't always seem to care about this sort of thing, which is how you get the MPAA pirating clips from Google to make its videos, or a law school taking a critic to court only to have the court declare said critic's critique was totally true. Good times.

Which brings us to Trevor Milton, the founder of Nikola Motor Company. Nikola is playing in the electric truck vehicle space. In 2016, Milton announced in an official video that the Nikola One Semi was "fully functional." In fact, one of Milton's chief public concerns at the time was ensuring that nobody could come by and drive away with one of the trucks. The companion video for the Nikola One was posted to YouTube in January of 2018. This video shows the Nikola One chugging down a lonely one-lane road.

Despite all of the fanfare, it's worth noting that the Nikola One never made it into production. Why? Well...

Hindenburg Research published a bombshell report claiming that the Nikola One wasn't close to being fully functional in December 2016. Indeed, Hindenburg published a 2017 text message exchange in which a Nikola employee stated that the company didn't resume work on the truck in the months after the show.

Even more incredible, Hindenburg reported that the truck in the "Nikola One in motion" video wasn't moving under its own power. Rather, Nikola had towed the truck to the top of a shallow hill and let it roll down. The company allegedly tilted the camera to make it look like the truck was traveling under its own power on a level roadway.

Now, on the one hand, that's objectively funny. It's sort of an Adam West's Batman approach to product demonstration. But, on the other hand, now that Milton has admitted the charges above, he's likely in a whole world of trouble. The company has tried to weasel out of this in fairly absurd fashion.

"Nikola never stated its truck was driving under its own propulsion in the video," Nikola wrote. "Nikola described this third-party video on the Company’s social media as 'In Motion.' It was never described as 'under its own propulsion' or 'powertrain driven.' Nikola investors who invested during this period, in which the Company was privately held, knew the technical capability of the Nikola One at the time of their investment."

Not everyone seems to think that's true. The SEC and DOJ are reported to have opened investigations into the company's behavior after these revelations. And, as to the point of Milton's reputation personally, he's out at Nikola.

Milton's resignation came just 10 days after a bombshell research report revealed that Milton wasn't telling the truth in 2016 when he unveiled the company's first product, the Nikola One, and claimed that it "fully functions."  Over the weekend, Milton offered (voluntarily, he says) to resign as executive chairman, and Nikola's board accepted his offer. Milton will also relinquish his seat on Nikola's board.

Now, a few items of note. First, Nikola does now have a functioning prototype, the Nikola Two. It's also partnering with several automobile companies and has contracts in place with them.

But for Milton, he loses his position at the company he founded, millions in stock and consulting fees, and has gained infamy as someone who is willing to, at best, mislead the public about his companies' products. Your reputation is a scarce good. Frittering it away by turning the camera on an angle probably isn't the best move.

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

Ubisoft Bows To Monster Energy To Rename An Upcoming Game Horribly

from the scared-of-the-monster dept

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

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

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

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

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

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

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

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

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


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

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

from the twitch-ain't-tv dept

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

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

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

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

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

Which is exactly what it did.

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

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

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

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

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

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

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

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

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

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

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

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

from the white-flag dept

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

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

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

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

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

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

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

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

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