Posted on Techdirt - 31 July 2015 @ 6:21pm
Roughly a year ago, we brought you the very dumb story of the San Diego Comic-Con suing Don Farr Productions, organizers of the Salt Lake City Comic Con, for trademark infringement. If ever there were a classic case of a trademark that had moved into a generic status, "comic-con" and similar iterations would have to be it. There are comic cons everywhere. In the midst of all this, or perhaps because of it, the Salt Lake City Comic Con applied for its own trademark over its name, which, again, ought to have been denied as being too generic in my opinion. The USPTO, in its infinite wisdom, disagreed, granting them the mark as the trademark suit is still going on. You already know what happened next, don't you?
Yup, every other comics convention that uses comic con, the term so generic that everyone effing uses it, is now lining up at the USPTO's door to get their own trademarks.
This week sees the kick-off of this year’s Boston Comic Con. Which seems a good a time as any to register the trademark for the name for “Organizing and conducting conventions, exhibitions, and gatherings for entertainment purposes and in the fields of artwork, animation, comic books, fantasy, gaming, popular culture, science fiction, and television and film” and for “Comic books, commemorative comic books, posters, commemorative posters” and “T-shirts, commemorative T-shirts.”
They are not alone. Rhode Island Comic Con and Kansas Comic Con have also launched trademark bids in the past month. ‘Tis the season… they may be inspired by the attempts and claims of Salt Lake Comic Con. Denver Comic Con also has a trademark registration.
And unless this is stopped tout de suite, there's absolutely no reason to expect that all the other comic cons in all the other cities will be filing their applications soon. Why wouldn't they? The USPTO, in conjunction with a lawsuit over a term that hasn't yet been ruled generic, but should be, have thrown open the door for everyone to get their piece of the generic pie. And the end result of all of this? Tons of billable hours, of course.
They can expect a challenge from Comic-Con International, the organisers of San Diego Comic-Con and WonderCon, who own the trademarks on San Diego Comic-Con, Anaheim Comic-Con, San Francisco Comic-Con and Los Angeles Comic-Con.
Why pay a legal team to spend a ton of time and money fighting for a mark that doesn't threaten you, that has become generic, and that has been employed the entire time your own mega-popular convention has become insanely successful. Why are we doing any of this
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Posted on Techdirt - 31 July 2015 @ 1:26pm
With all the revelations that have come out about the NSA and our foreign and domestic spy programs, it can, at times, become difficult to parse out exactly what we're supposed to be getting pissed off about and what is the exact kind of spy-work we ought to expect the alphabet agencies to conduct. Some of the groups that are involved in getting these revelations out there don't make it much easier, of course. Take as an example the latest Wikileaks info-dump, which chiefly concerns the NSA's spy program against our ally Japan. From the press release accompanying the documents:
Today, Friday 31 July 2015, 9am CEST, WikiLeaks publishes "Target Tokyo", 35 Top Secret NSA targets in Japan including the Japanese cabinet and Japanese companies such as Mitsubishi, together with intercepts relating to US-Japan relations, trade negotiations and sensitive climate change strategy. The list indicates that NSA spying on Japanese conglomerates, government officials, ministries and senior advisers extends back at least as far as the first administration of Prime Minister Shinzo Abe, which lasted from September 2006 until September 2007. The telephone interception target list includes the switchboard for the Japanese Cabinet Office; the executive secretary to the Chief Cabinet Secretary Yoshihide Suga; a line described as "Government VIP Line"; numerous officials within the Japanese Central Bank, including Governor Haruhiko Kuroda; the home phone number of at least one Central Bank official; numerous numbers within the Japanese Finance Ministry; the Japanese Minister for Economy, Trade and Industry Yoichi Miyazawa; the Natural Gas Division of Mitsubishi; and the Petroleum Division of Mitsui.
Now, what Wikileaks is doing is mashing together the NSA spying on the Japanese government, our ally, with Japanese industry. That's silly, in my estimation. In fact, much of the hand-wringing that goes on about our spy networks spying on allies seems naive in the extreme, as if to suggest that our closest allies aren't conducting similar spy programs on our government. You can insist, if you like, that America should not be spying on her allies, but then I get to insist that you grow up, because that's exactly the kind of work you want the NSA doing.
But on the economic side, things get a little murkier. The NSA has insisted for years
that the agency does not engage in economic espionage, actions which would put it out of the norm for how we treat our allies. It's also been clear for some time that the NSA is full of crap
in this regard. This latest Wikileaks dump fleshes out just how much economic espionage we do against our allies, even very close allies like Japan.
The documents demonstrate intimate knowledge of internal Japanese deliberations on such issues as: agricultural imports and trade disputes; negotiating positions in the Doha Round of the World Trade Organization; Japanese technical development plans, climate change policy, nuclear and energy policy and carbon emissions schemes; correspondence with international bodies such as the International Energy Agency (IEA); strategy planning and draft talking points memoranda concerning the management of diplomatic relations with the United States and the European Union; and the content of a confidential Prime Ministerial briefing that took place at Shinzo Abe's official residence.
It's just more egg on the face of government and security officials who have claimed to have kept their hands clean of economic espionage. There's sure to be more of interest in the documents as they get parsed out, but if nothing else we can be reminded that the NSA is a spy agency and that its officials have been caught lying over and over again.
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Posted on Techdirt - 31 July 2015 @ 11:19am
We've talked a lot about the UK's ambitious plan to marry Orwellian thought crime designations with Minority Report style crime-prediction when it comes to stopping all the terrorism that's barely occurred in the country. The basic idea is that the government will create a boogeyman-list of suspected future-terrorists, people who are not strapping bombs to themselves and blowing up marketplaces filled with children -- but might! -- while tasking the educational system with weeding out tiny, little terrorist children using software so laughably flawed that it ought to belong on HBO's Silicon Valley. In other words: hey, great plan!
Well, counted amongst the fruit of all that idiotic labor is the result we all probably saw coming: a goddamn three-year-old has found his/her way onto the watchlist.
The three-year-old in the programme is from the borough of Tower Hamlets, and was a member of a family group that had been showing suspect behaviour. Many of the government's counter-extremism measures typically relate to older children and adults - buy very young children can be referred if authorities are concerned about the effect of their families on them.
The idea being that the UK government's "concern" is centered around extremist parents will produce extremist children as a matter of course and the best way to combat these must-eventually-be extremist toddlers is by putting them on a watchlist run by the same people who did all the stupidity I mentioned in the first paragraph. Sigh.
As it turns out, the number of people getting caught up
in this prevent strategy system is pretty astounding.
They show that a total of 1,069 Londoners have been referred to the government’s “Channel” counter-extremism programme since the start of 2012. That means that the capital accounts for about a quarter of the 4,000 referrals to the programme nationwide since then. The Standard, which obtained the figures from the London Assembly, can also reveal that: Since September last year, 400 Channel referrals were made for teenagers and children under 18.
This is exactly what you'd expect when the government tasks a great many people who have no formalized training in identifying bad guys with identifying bad guys. It's also exactly what you should expect when the government plan for building up a watch list of future-terrorists, including hundreds of innocent children as young as three years old, comes with a complete lack of common sense and is instead the product of fear mixed with nationalism. And this doesn't even touch on the potential or real-life cases of abuse of the system, which are as inevitable as the sunrise.
Look, security is important, and terrorism is an actual thing, but going off the deep end to the point where you've got government eyes on toddlers isn't a solution to any problem.
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Posted on Techdirt - 30 July 2015 @ 5:21am
This history of copyright in the United States is long and filled with changes, mostly in the direction of greater and longer protection. There are a few instances that go the opposite way, however, and one of them is the way that unpublished works are protected by copyright restrictions. In the early days of America, a work that an author had not chosen to publicly publish was actually afforded perpetual copyright under common law rights up until the author either published the work or registered it for statutory copyright protection. In fact, the earliest copyright case to go before the Supreme Court in part dealt with unpublished works. Later, in the early 1900s, the Ninth Circuit Court ruled on a case that decided that unpublished works are only afforded the same copyright term and length as registered or published works. It was a good result, in my view, as I believe the entire point of copyright is to grant control in order to spur creation and publication for public consumption. Granting copyrights to unpublished works breaks the give/take nature of copyright law. The 1976 Copyright Act finally made it official that unpublished works do not get perpetual copyright (though, it expanded copyright in almost every other way possible).
In Australia, the law never made the transition regarding unpublished works, and now a group of librarians is pulling an online stunt in order to get the public interested in making that change.
Librarians across Australia are cooking up a campaign to change the country's copyright laws. However, those involved want people to bake biscuits and cakes rather than picket Parliament.
Social media users are being encouraged to cook a vintage recipe and share a photo of the result. The aim is to encourage the Attorney-General to look at changing the law so that unpublished works are treated the same way as published ones. Executive director of the Australian Library and Information Association (ALIA) Sue McKerracher said the nation had "some rather strange copyright laws".
Strange may be a bit unfair. Antiquated is probably more accurate. In Australia, unpublished works are offered perpetual copyright, so long as they remain unpublished. Published works get the life-plus-70-years deal that we're familiar with. The librarians goal in this is to be able to offer more educational and historical materials to students.
"All we'd like to do is just change it so that unpublished works come under the same terms as published works," Ms McKerracher told 774 ABC Melbourne's Red Symons. "That way, all of the wonderful materials in libraries, galleries, historical societies and museums could be released to students, researchers and historians."
Ms McKerracher said changing the law would allow historians access to soldiers' diaries from World War I, for example.
Also included under current protections would be historical recipes, hence the cooking awareness campaign. The librarians group went so far as to dig up some recipes from historical figures' diaries and private writings, such as Captain James Cook, and encouraged the public to cook them up and post pictures on social media under the hashtag #CookingForCopyright. It's a cute idea, one which will hopefully encourage Australia to bring its copyright law into line with modernity. If you'd like to join in, there are details over here
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Posted on Techdirt - 29 July 2015 @ 2:03pm
While it seems that too many people and organizations think that the problem with the internet is too much anonymity, there are those who see the opposite as being the case. Google, for instance, at one point instituted a "real name" policy for its platforms, arguing that areas like the comments section on YouTube, which required a real name login, would be worlds better if only everyone had to put their real names on their comments. It was a dumb idea for several reasons, including the complete unworkability of the policy and the fact that, haha, nothing can clean up YouTube's comments section, you silly fools. For these reasons, Google eventually dropped the policy and restored anonymity on its platforms, and yet somehow the world kept turning.
Facebook too has adopted a real name policy and it's been every bit as effective at tamping down unruly behavior. Which is to say that it hasn't. At all. And, in the meantime, valid reasons for wanting to be anonymous online are thrown by the wayside. As it turns out, one German privacy watchdog group considered this an important enough issue to go on the muscle and declare that Facebook must allow anonymous accounts on its platform. Per Bloomberg:
Facebook Inc. was ordered by a German privacy watchdog to allow users to have accounts under pseudonyms on the social network. Facebook may not unilaterally change such accounts to the real names of users and may not block them, Johannes Caspar, Hamburg’s data regulator, said in an e-mailed statement. The company, whose European headquarters are in Ireland, can’t argue it’s only subject to that country’s law, he said.
“Anyone who stands on our pitch also has to play our game,” said Caspar. “The arbitrary change of the user name blatantly violates” privacy rights.
Let's be clear: anonymous speech is an ideal I think everyone should
embrace. That said, this move by the regulator is simply another step in an ongoing trend in which European companies appear to want to wield a heavy regulatory hammer on foreign, and especially American, companies. And that trend isn't a good one for a whole host of reasons. Nationalism when it comes to an internet that by definition ignores borders is going to create havoc in an online world that feeds off of open speech and communication. While privacy rights are a laudible goal, creating a patchwork of regulatory rules for companies whose business is the internet is certainly not. And European targeting of American companies in this respect is only going to create a regulatory proxy war that nobody will benefit from.
The most disappointing part of all of this is that this particular story never would have happened if Facebook, with its American roots, had simply stood up for basic American ideals, of which anonymous speech is counted. You simply can't even graze the history of America without encountering the immense importance of anonymous speech, from the publication of Common Sense
to the Supreme Court's recognition
of it being a basic American ideal. For Facebook to open the door to regulatory abuse by a foreign nation by not honoring this heritage is extremely disappointing. Facebook's reaction to this news is as maddening as it is nonsensical.
“The use of authentic names on Facebook protects people’s privacy and safety by ensuring people know who they’re sharing and connecting with,” the company said in an e-mailed statement.
Ensuring people's privacy by taking away part of that privacy is an interesting theory in that it's self-contradictory on its face. Like I said, there are no good guys in this story, mostly because Facebook has ensured it won't play that role.
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Posted on Techdirt - 28 July 2015 @ 11:04pm
You just can't have a little clever fun anymore. With all the hoops cover bands have to jump through just to ply their craft, I had never really considered that one cover band might get into a trademark scuffle over the band's name. Yet, that's exactly what has happened to the Doobie Decimal System, a cover band now being sued by The Doobie Brothers, who claim that the band's name is confusingly similar to their own.
The Doobie Brothers trademarked their band name — as well as the use of “Doobies” for musical performances — in 1982, and their suit argues that the Doobie Decimal System’s moniker is “highly phonetically and visually similar” to their own, a similarity further compounded by the larger font used for the word “Doobie” in the Decimal System’s website and concert posters.
Ah, yes, an enormously popular classic rock band with the kind of name recognition most bands only dream about is going to be confused with the Doobie Decimal System, a cover band whose name is a play on an organizational system for libraries. Congratulations, trademark pushers, this is where you've brought us. I contend that no amount of doobies could actually result in this doobie-confusion, but some of the supporters of this lawsuit are really stretching themselves to argue that there would indeed be such confusion.
Although the story is being spun in some quarters as though the Doobie Brothers are claiming to own the word “doobie,” they’re really just defending the trademark they own — and as Billboard‘s report points out, since the Doobie Decimal System performs hits from the same decade that produced most of the Doobie Brothers’ bestselling albums, they’re not entirely out of line in viewing one another as indirect competitors.
Yeah, actually, they kind of are out of line of direct competition. Nobody is confused here and the cover band is competing with The Doobie Brothers about as much as a little league game competes with Major League Baseball. Sure, they're both baseball, but nobody is trying to figure out how to spend their baseball dollar and deciding between the two. In the meantime, even if The Doobie Brothers felt some kind of fearful obligation to protect their trademark, they could certainly be going about it more amicably than this suit.
They’re seeking “an accounting, an injunction and punitive damages for trademark infringement, false designation of origin and unfair competition.”
Our only hope here is that the folks that own the IP on the Dewey Decimal system (yes, seriously, someone owns
it) can be brought into the mix, causing the sitting judge's head to explode in frustration so everyone can just go home.
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Posted on Techdirt - 28 July 2015 @ 3:27am
Alright, people, strap in and keep the laughter to a minimum because we're going to talk dildos here. Specifically, remotely operated dildos, and other sex apparatuses, including those operated by Bluetooth connections or over the internet. It seems that in 1998, a Texan by the name of Warren Sandvick applied for a patent that casts an awfully wide net over remotely controlled sexual stimulation, specifically any of the sort that involves a user interface in a location different from the person being stimulated. You can find the patent at the link, but here's the abstract:
An interactive virtual sexual stimulation system has one or more user interfaces. Each user interface generally comprises a computer having an input device, video camera, and transmitter. The transmitter is used to interface the computer with one or more sexual stimulation devices, which are also located at the user interface. In accordance with the preferred embodiment, a person at a first user interface controls the stimulation device(s) located at a second user interface. The first and second user interfaces may be connected, for instance, through a web site on the Internet. In another embodiment, a person at a user interface may interact with a prerecorded video feed. The invention is implemented by software that is stored at the computer of the user interface, or at a web site accessed through the Internet.
Great, except that nothing in the above is an actual invention; it's essentially an acknowledgement that a dildo could be controlled remotely and an attempt to lay claim to that function exclusively. The description of the art outlaid in the patent rests solely on the claim that sexual stimulation devices have always been either self-stimulation devices or that any remotely operated stimulation devices still required close proximity. But it all rests on what you consider a stimulation device. Take this language from the patent, for instance.
These stimulation aids, however, require that the operator directly engage the stimulation aid. Only several stimulation aids are known that allow the stimulation aid to be operated by a remote controller-type device, such as shown in U.S. Pat. No. 4,834,115 to Stewart entitled “Penile Constrictor Ring,” U.S. Pat. No. 4,412,535 to Teren entitled “Remotely Controlled Massaging Apparatus,” U.S. Pat. Nos. 3,978,851 and 3,874,373, each to Sobel and entitled “Massaging Apparatus,” and U.S. Pat. No. 5,454,840 to Krakovsky et al. entitled “Potency Package.” Nonetheless, these prior art devices all have the disadvantage that the operator must be in close proximity to the recipient.
Great, except the smart phone, and even cell phones prior, could be considered prior art to this patent as well. After all, a person might suggest to another person that they put their phone on vibrate and shove it down their shorts while at work while the first person text-messages them all day, setting the phone off and creating stimulation. It's the same thing. The fact that a phone's primary function isn't sexual arousal doesn't really matter. And I'm not the only one who thinks so.
And yet, in 2002 the USPTO granted the patent to Sandvick, who in turn sold it to a company called TZU, who is now filing lawsuits against six companies that have or will soon be offering remotely-operated sexual stimulation products. Those companies have such varied products as bluetooth controlled vibrators, programmable and remotely controlled dildos, and even, from one company, software apparently for remote hand-holding (complaints included in the link above). All this over a delightfully broad patent granted to someone for his non-invention and now employed by a third party simply to extract money out of businesses actually making products. And not just any businesses, either. The types of businesses seem to suggest that TZU knows exactly what kind of shaky ground it's on.
More than anything, the TZU phenomenon seems to be one more data point suggesting that as it becomes harder to win high-stakes patent suits, the best business model for trolls may be to seek small payouts from companies that are ill-equipped to afford a legal defense. Basic Google-level research suggests that five of these six defendants can't possibly have significant sales at this point.
Anyone actually want to argue that the founding fathers' intention in patent law would be to make sure that companies couldn't create devices for your significant other to buzz your naughty bits?
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Posted on Techdirt - 27 July 2015 @ 11:23pm
Portland, the city, is back in the news again regarding Portland, the sign, and the city's insistence that it has a trademark over the landmark. We last checked in on this when Pabst, the brewery, had used an adaptation of the famous Portland sign to promote a concert in the city. The city then worked out an arrangement with Pabst so that it could keep using its sign imagery and keep the case out of the court. This was fully in the city's interests, because it's unclear on why a municipality should be granted a trademark on a local landmark's image when it isn't actually using that image in commerce.
It seems Jeff Kunkle, owner of the Vintage Roadside shop, which sells merchandise on Etsy, thinks similarly. When Portland found that Kunkle was selling merchandise with images of the sign, the city contacted him to arrange a licensing deal. Kunkle told them to go dangle, instead suing the city to have its trademark over the sign declared invalid.
Vintage Roadside, a Portland company that sells photos of the old "Made in Oregon" sign on Etsy, is suing the city of Portland, which recently sought a licensing payment from the company for use of the image. The suit, filed in Multnomah County Circuit Court on Thursday, asks the court to declare the city's trademark of the sign, which changed to "Portland Oregon" in 2010, invalid and unenforceable.
Oops. So, if you're Portland and you've been extracting money from individuals and businesses by way of a trademark that would likely be declared invalid should a judge look it over, what do you do? Well, you utilize the rules of the court to weasel your way out of the whole thing
while not admitting that your sign trademark is bullshit, of course!
City of Portland officials are employing a creative legal maneuver to get rid of a lawsuit concerning its trademark of the "Portland Oregon" sign. Last week, the city told Kunkle's attorney, Robert Swider, that it was filing a covenant not to sue, which basically means that the city still believes the city owns the rights to the sign but won't try to enforce them against Kunkle—now or ever... By eliminating that point of contention, the city takes away Kunkle's standing to bring the lawsuit.
Which keeps the question over whether or not the city's trademark is even valid to begin with. The good news is that this specific story will hopefully get enough play in the Portland area to serve as a beacon to anyone the city might later approach for one of its "licensing deals." It should be clear at this point that the proper response to the city is to sue them outright.
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Posted on Techdirt - 27 July 2015 @ 5:50am
Less than a year ago, Comcast was sued over its WiFi hotspot program, which essentially turned residential customers into hotspots for other Comcast customers or hotspot subscribers. Comcast used this to make a great deal of money off of its own residential customers. The problem was that Comcast didn't see the need to have customers opt-in to this program and was perfectly happy using customers' electricity and, in some cases, bandwidth to power the service. That and the fact that the opt-out settings on the router controls were given to bouts of amnesia made the company look pretty crappy, but, hey, you know, Comcast.
Well, now it appears that Cablevision will find itself fighting in court over the exact same thing. Paul Jensen, a Cablevision customer, has sued the company on grounds that it violated the CFAA, gained unjust enrichment, and trespassed.
Consequently, unsuspecting customers who used Cablevision as their internet service provider now had "outsiders" piggybacking off their home Wi-Fi networks once individuals were within the range of the signal emanating from their home. Jensen contends that Cablevision never asked for his consent to use his home network to create a Wi-Fi hotspot. Jensen also points out that Cablevision's customer contract never mentions the existence of the secondary network they are providing to the public when they leased a router to him.
Not only did Cablevision act without his authorization, Jenson further asserts the company's actions have compromised his internet speed, put him at greater security risk and increased his electricity costs.
Why any company thought it could get away with something like this without legal blowback is completely beyond me, but why Cablevision thought it could skate after
Comcast already faced legal action is a complete mystery.
Like many other ISPs, Cablevision makes good money in renting routers and modems to customers. (Update: as our always helpful and informative comment section has pointed out, Cablevision supplies their smart router for the hotspot service free to ISP customers, though that doesn't change the rest of the post).
This sort of news should serve to do nothing other than compel anyone who wishes to remain a Cablevision customer to buy their own router and modem. All because Cablevision couldn't be bothered to properly inform customers of the plan and give them an option to opt-out?
Oh, and as for that opt-out ability:
This increased traffic also heightens the residential customer's security risk since strangers are connecting to the internet through the same wireless router, Jensen says. He says when he called Cablevision to request that they remedy the situation, he was told that the wireless router he paid Cablevision to use could not have the Optimum Wi-Fi Hotspot feature turned off.
"Cablevision configures the routers it leases to consumers so that the Optimum Wi-Fi Hotspot cannot be disabled. Thus, consumers wishing to opt out of broadcasting a secondary Wi-Fi network from their homes are left with no recourse other than to buy an entirely new wireless router, costing anywhere from $50 to $200." the complaint says.
equipment that can't opt-out of a service that only enriches the seller, not the customer? That sounds more like a pyramid scheme than an ISP to me.
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Posted on Techdirt - 27 July 2015 @ 3:51am
Video games are starting to get realistic. Like, crazy realistic. Between what graphics look like on the latest hardware to the unbelievable committment to authenticity many of the latest games have, it's starting to get hard to tell game footage apart from video footage. So hard, in fact, that it appears the pro-Russian groups had an "oopsie!" moment while trying to accuse America of arming Ukrainian rebels with Stinger missiles.
A video from Ukrainian pro-Russian separatists...shows the rebels storming an underground compound and dusting off a wooden case with a "US army" inscription, where a the MANPADS Stinger 92 surface-to-air missile is stored.
Here's a screenshot from the video, showing the Stinger missile in question.
Notice anything strange? Unless you're familiar with American military equipment, you might have missed the lettering at the bottom of the device that reads "TRACKING RAINER." You probably also aren't aware that the actual American Stinger missiles have that same lettering, except that it's supposed to read "TRACKING TRAINER" instead.
Between that and several other translation errors in the video, the general consensus is that the whole thing was cooked up by pro-Russians trying to make it look like America is sending weapons to the Ukraine (which we still might be) by creating mockups of the weapons and passing them off as the real thing. The next obvious question is what caused the pro-Russian groups to make the translation mistake on the Stinger missile in their video and what they used as a basis to model their mockup after? The answer is, of course, video games.
The most significant mistake is found in the inscription on the Stinger weapon itself, which reads "tracking rainer" instead of "tracking trainer". Video games blogger Anton Logvinov noted on his website that the same typo occurs in the EA first-person shooter game Battlefield 3, leading him to believe that the Stinger 'discovered' in Lugansk is likely fake.
Russian propaganda: so good it very nearly fooled a video game blogger! We will, as always, welcome our friends from the Putin internet propaganda
brigade in our comments section.
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Posted on Techdirt - 23 July 2015 @ 3:09pm
While I tend to like the use of trademark laws more than other forms of IP, it's long overdue that we all start admitting the realm of trademark has a problem. In a variety of industries, the use of trademarks is either not serving its original purpose or is doing vastly more harm than good. Craft beer is one of those industries, for instance. It's starting to seem like trademark use in certain advocacy realms is getting that way as well.
Take the LGBT community, for instance. As the country and the West becomes a more welcoming and tolerant society, I suppose it was somewhat inevitable that we'd start to see trademark related stories about what is essentially a potential customer demographic. That said, it's been frustrating for some of us to see trademark fights spring up between groups that both advocate for LGBT rights. There was the early example of a fight between bloggers over the term "gaymer", for gay gamers. There was also a fight between two companies that specialize in party-planning for LGBT events over the trademarked term "Gay Days." And now it appears that Pride Toronto, a non-profit that hosts Pride Week events, is attempting to register the names of two marches with the Canadian government.
Pride Toronto, the not-for-profit organization that hosts the popular Pride Week festivities each year, filed trademark applications for “Dyke March” and “Trans* Pride” on July 8, according to the Canadian Intellectual Property Office website. In a statement posted online, Pride Toronto depicted the filings as a defensive measure, saying it was “forced” to apply because a “single individual threatened to personally trademark both of these grassroots events.”
And this is where the problem with trademark comes in. If we take Pride Toronto at its word, and indeed the post includes communications from Pride Toronto insisting it will not hold the terms hostage for other marches to use, then the need for a defensive trademark application is a symptom of a broken system. Pride Toronto isn't fearful of any kind of customer confusion. In fact, broad usage of the terms for other Pride events across the world would likely be a boon for Pride Toronto's goals. No, they're afraid of someone else locking up the term and preventing them
from using it.
And that means that, at least in this specific case, the system has broken. The idea behind trademark is essentially in the nature of consumer protection in the form of brand identification. Nothing about the actions taken by Pride Toronto has anything to do with consumers; it's all fear of language locks. Now, there are several ways to fix this. Common law with respect to trademarks would serve to protect Pride Toronto should someone come along and try to keep them from using the terms by registering them with the government, by allowing for prior use to serve as a defense. That said, it's still a defense, meaning that Pride Toronto would still have to fight for its use in court.. Having government trademark offices that actually bothered to spend some brain cells examining the terms in applications and refusing marks for generic terms, terms of advocacy, terms of broad usage, would be helpful as well.
As for Pride Toronto, many other LGBT groups expressed outrage at the trademark applications, resulting in some being assured the applications would be withdrawn.
The terms “Dyke March” and “Trans Pride” are employed by activists across the country, some of whom were upset to learn of Pride Toronto’s gambit. In British Columbia, organizers of the Vancouver Dyke March issued a press release Saturday saying they were “stunned” to learn the Toronto group had registered to own their name, slamming the move as “appropriative.” But on Monday, VDM president Catherine Mateosaid Pride Toronto has since “reached out” and guaranteed that it will drop the applications. “If they follow through, as we believe they will, we're satisfied,” she said.
Look, language is important, and perhaps some of the most important language we have is that expended in the service of civil rights. Whatever position you might have on LGBT rights, it simply doesn't make sense for members of their
community to lock up advocacy language. And the fear that leads some to try, the fear of the language being locked up by a party without their interests in mind, means at the very least that some tweaking is needed in the law.
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Posted on Techdirt - 23 July 2015 @ 11:47am
We recently wrote about a German film distributor that went on a DMCA takedown blitz and managed to send notices for sites that had nothing to do with infringing files (such as IMDB and, er, Techdirt). In a somewhat related story, we learn that representatives of Universal Pictures have likewise gone DMCA happy over infringing versions of movies like Furious 7 and Jurassic World -- even to the point of issuing takedowns not only for the film's IMDB page (for Furious 7), but for "127.0.0.1" for Jurassic World.
And while we’re on the topic of self censorship, it’s worth noting that Universal Pictures also asked Google, in a separate notice, to remove http://127.0.0.1 from the search results. The mistakes were made by the French branch of the movie studio, which only recently began sending takedown notices to Google. The company has reported less than 200 URLs thus far including the mistakes above.
You can see the notice here
127.0.0.1 is, of course, the IP address a machine uses to refer to itself. It's also known as "localhost." In other words, it basically means "home."
...Should we delist this house from the address books?
This is obviously a case of these companies setting up some kind of automated system, working off of an obviously flawed algorithm, that is causing these errors, rather than having real people going through to see if the targets for these takedown notices are actually infringing. Why do we allow this kind of collateral damage in the DMCA system?
Even more ridiculous? The organization representing Universal who sent this notice is TMG, or Trident Media Guard
, which is the company that is officially working with the French government on its Hadopi copyright enforcement program. You'd think that a company so closely involved in such issues, working with a major movie studio, might try
to be a little more careful about these things. But, of course, when have copyright defenders ever cared about collateral damage like this?
And here's the really crazy part: it's not like this is even particularly rare. Chilling Effects has long lists
of DMCA complaints that point to 127.0.0.1
. We're talking about a whole lot of armed militias running around utilizing a targeting system that wouldn't be trusted in a snowball fight, never mind in the realm of something as important as speech and communication via the internet. Here are just some of the most recent (many filed by NBC Universal):
If we have to live with the DMCA, filers ought at least be forced to take responsibility for their own notices. Pointing back to their own flawed algorithms shouldn't be an excuse -- especially when the requests are so obviously wrong
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Posted on Techdirt - 23 July 2015 @ 4:09am
We've argued for quite a long time that treating "pirates" like criminals instead of potential customers is a massive mistake for a whole host of reasons. There's the futility of the legal game, for instance, as well as the possible public relations nightmare that going after the public, even the infringing public, can create. But the best reason to not treat infringers like criminals is because they're often the best actual customers of content out there as well. In study after study, it's shown that a person who engages in some infringement spends more total money on movies, music, and video games than someone who gets everything legit. Pirates, scurvy-laden bastards as they may be, happen to be the creative industries' best customers.
And it turns out it's no different in Australia, where a recent government study bore out the same conclusion: infringers spend more money on content than content-saints.
Consumers who flirt with the morally ambiguous line of content consumption spend more money, according to a survey released by the Australian Department of Communications. Over a three-month period among respondents aged 12 and over, the survey found that those who consumed a mixture of copyright-infringing and non-infringing content spent on average AU$200 on music, AU$118 on video games, AU$92 on movies, and AU$33 on TV content. Consumers who only consumed non-infringing content spent only AU$126 on music, AU$110 on video games, AU$67 on movies, and AU$22 on TV; whereas pure copyright-infringing content consumers spent a mere AU$88 on music, AU$24 on video games, AU$53 on movies, and AU$8 on TV content.
In every market, the sometimes-infringer spends more. In the case of music and movies, the delta between the occasional infringer and the all-legal consumer is huge, much larger than the delta between the all-legal and all-infringement consumers. Video games and television don't show the same delta, but even in those arenas the occasional infringers spent more than the saint. Why? How?
Well, because the occasional infringer infringes because they're a fan, a fan perfectly happy to spend money on scarce goods where spending that money makes complete sense.
However, the survey also found that the majority of spending on music and movies was not on the content items themselves.
"For both music and movies, the majority of the average spend was not from purchases of either digital or physical copies. In the case of music, this primarily consisted of concerts and gigs, and in the case of movies, this primarily consisted of going to the cinema," it said.
And since the advents of the VHS and cassette tapes, that's always been the case
. Theaters are about experience and live music for great acts will always be in demand, even if bootleg tapes and pirated DVDs are in hefty supply, which they are. For the content itself, the survey respondents essentially indicated that the juice wasn't worth the squeeze.
A majority of survey respondents said that they would pay for a music subscription service that charged AU$5 per month, and AU$10 per month for a movie subscription service. Only 5 percent of respondents said that nothing would make them stop consuming copyright-infringing content.
In other words, the "everyone just wants everything for free" line the entertainment industries have been pimping for decades is bunk. Instead, the overwhelming majority of customers and potential customers want content on-demand at prices that make sense, in which case they're perfectly willing to fork over the money. And even when they feel the price doesn't make sense, they're still
willing to fork over money for things they do value as fans -- even though they may have become
fans through pirated content. Either way, the industries win. It's just a matter of how much they want to win. Hint: crying over infringers who spend the most money isn't the optimal response.
Frustratingly, this government study was released roughly a month after Australia passed
its version of SOPA, largely at the behest of industry lobbyists armed to the teeth with industry numbers showing industry losses at the hands of these same dastardly pirates who are spending so much money on their products. It sure would have been nice if the government had managed to have access to their own data
before passing such draconian legislation, rather than relying on the historically unreliable data from the entertainment industry.
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Posted on Techdirt - 17 July 2015 @ 3:29pm
When you assume a takedown-first posture regarding intellectual property and DMCA notices, that posture brings with it certain situations which make everyone look foolish. You get 80's music stars yanking six-second vine clips offline, for instance. Or you get radio blowhards using copyright to censor criticism online. And, of course, you get self-proclaimed representatives of aliens from the future issuing takedowns over images that said alien will be creating in said future. In each of those cases, the content was immediately taken down by the service provider, because thems the rules these days. And it sucks.
Just like it sucks when the mayor of Toronto can't make a funny little parody video mocking himself because it includes a Kanye West song.
Less than 24 hours after a ballcap-wearing John Tory bobbed his head to a Kanye West song through Toronto’s subway system, the joke video appears to have been taken down. The mayor poked fun at himself in the one-minute gag clip posted Thursday, after he mistook West, who is American, for a Canadian artist earlier this week.
“This Tweet from @JohnTory has been withheld in response to a report from the copyright holder.”
Yup, because the Mayor wanted to have a little fun with his thought that ol' Yeezy was Canadian, his video gets hit with a takedown. Perhaps it was caught by some kind of automated system designed to weed out content covered by copyright... but that would make this even worse
. The video, as Tory's people are acknowledging, was supposed to be a form of parody, one which would be protected as fair use. But in the takedown first culture, that doesn't really matter. The content still comes down. If it comes down by an automated system, then there's literally no possibility any thought towards fair use would be had.
And that sucks. With more ways than ever to share content with each other, these kinds of harmless things are supposed to be fun. But the fun gets killed off by a copyright system designed to restrict first and maybe ask questions later.
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Posted on Techdirt - 17 July 2015 @ 11:27am
Techdirt's very own Karl Bode had just written about Time Warner being forced to pay over $200k for robocalling a woman 153 times about an overdue balance that actually was owed by a completely different person. What with all the complaints that ISPs these days aren't forced to actually compete with one another, Comcast, in its infinite wisdom, decided to prove to the public that it will in fact directly compete with Time Warner on the battlefield of robocalling people about stuff when they shouldn't. Comcast's entry into the competition concerns the company robocalling Kia Elder about an overdue balance...that she'd already paid four years ago.
According to the lawsuit, Comcast customer Kia Elder was robocalled repeatedly by Comcast for an overdue balance of $527 she said she paid way back in 2011. Yet Comcast repeatedly called Elder "once or twice a day" between September 2014 and "at least through" June 18, and was incapable of updating its systems to show the bill had been paid despite repeated complaints. Elder and her attorney are now seeking $500 to $1,500 for each alleged Comcast violation of the Telephone Consumer Protection Act. "Defendant acknowledged plaintiff’s instructions to stop calling her phone but did not stop," states the complaint.
Yes, Comcast apparently called Kia regarding a bill that had already been paid more often than a high school kid calls his ex to try to win her back. Kia reportedly complained about the calls, but they still kept coming. She tried to get Comcast to update its records to reflect the paid bill, but the calls kept coming. And now, thanks to the Telephone Consumer Protection Act, which essentially requires companies not plug up the public's cell phones with robotic corpo-vomit, she's seeking anywhere between $200k and half-a-mil-do as punishment.
Now, I'm not sure why legislation is required to inform companies that calling someone's cell phone twice a day is inappropriate, but it sure seems like Comcast hasn't given up on its dedicated aims to treating the public like shit now that the merger-dream is over.
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Posted on Techdirt - 16 July 2015 @ 6:57am
If you drop the search term "educational campaign" into the Techdirt search field, it's crazy how many story links pop up. When it comes to educating the public, particularly the youth, about how super-important copyright is and how goddamned terrible pirating is, the effort appears to have been going on for forty years or so. Given how every indication from our pro-copyright friends and the entertainment industries have been of the "sky is falling" variety, I would have thought that there would be some acknowledgment that the whole educational campaign thing didn't work. Or maybe that the lesson plan sucked. Some kind of recognition of failure.
If that's the case, you sure wouldn't know it hearing how pants-crappingly excited everyone over in the UK is for yet another round of educational nonsense coming from the entertainment industry.
The education programme will target 16-24 year-olds, their parents, those responsible for household internet connections, as well as others who influence young people’s attitudes to accessing content. To capture the attention of these audiences, public relations firm Weber Shandwick will lead an integrated consumer, corporate and social PR campaign, with activities scheduled to start later this summer. Creative Content UK is working with Atomic London on advertising creative. Media planning and buying will be directed by ZenithOptimedia.
The campaign is part of the Creative Content UK initiative, a ground-breaking partnership between content creators and Internet Service Providers (ISPs), together with an education campaign part-funded by the government, aimed at helping reduce online copyright infringement.
In other words, the public is footing part of the bill for letting the entertainment industries and ISPs tell them how great their products are and how horrible the bill-footing public is because piracy exists. And it will come from such organic methods like hiring PR and advertising firms. How could this possibly fail
Well, probably the same way that the RIAA's
educational campaign failed. And the one that was done in Sweden
failed. And the USPTO's
educational campaigns, too. They fail because they're almost universally inaccurate and misleading propaganda hits that fail to connect with children far too savvy to fall for scare-tactics. Meanwhile, innovation stalls because the entertainment industry is busy reaping failure with the K-12 crowd.
But, still, that excitement.
Janis Thomas, Education Project Manager, Creative Content UK, said: “We are delighted to have three highly-experienced agencies on board to help us create disruptive and engaging multi-media campaigns that will connect with the aspirations of young people. This behaviour change initiative is vital to the success of the sector and will ensure that we can continue innovating and taking risks on new artists and ideas. We aim to inspire individuals to make a personal commitment to the future of the UK creative industries and to the creation of music, film, games and other entertainment, which they love so much.”
You just have to beat the buzzwords off with a stick, don't you? Kids aren't going to fall for this crap any more than they fell for the over-the-top anti-marijuana videos they showed my parents. But, hey, keep beating that dead horse if you want. Just keep it down; some of us are innovating over here.
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Posted on Techdirt - 16 July 2015 @ 2:58am
Well, that didn't take long. It was only a month or so ago that we brought to you the delightful news that software for monitoring the UK youth in classrooms was being recommended to comply with the UK's insane policy that conscripts teachers to watch out for scary future-Muslim-terrorists. The idea was that the software, from American company Impero Software, would report back to teachers should the children under their watchful gaze search around for terms deemed to be terrorist related. The teachers were then supposed to involve school admins, law enforcement, or parents as deemed necessary. Because, see, possible-might-be-future-terrorists sprouting up from our own children is a very scary, albeit not-yet-existing threat to something something.
Unfortunately, Impero's monitoring agents themselves come with an actual threat, thanks to the laughably cliche security fails within the software's design.
Impero has a lot of power over its clients’ data, whether stored on PCs, servers or children’s personal technology. If compromised, it could expose reams of information on pupils, teachers and the school as a whole. And that’s certainly possible in light of the findings of researcher ‘raylee’, real name Zammis Clark, who discovered the Impero platform was using a default password of “password” to connect clients to its servers. “Basically, if you use Impero, please don’t,” the researcher wrote in a Github post describing the flaw and releasing attack code to prove the problem existed.
The researcher told FORBES that if an attacker can gain access to the Impero server, all connected machines “are completely open to compromise”, due to the apparent lack of decent authentication. “Given that schools have been affected with malware like CryptoLocker in the past, exploit kits or spearphishing could be a way for an attacker to get into a school network. Also, there’s the threat of someone inside such a school (a student perhaps) exploiting the vulnerability,” he added.
Impero set the software up so that the password between the students' devices and the server was "password." They made the password "password."
Okay, here's a new rule for the world: if you're a company whose single reason for existing has anything to do with both technology and security, and you create your system in such a way that it ships to your customers and is allowed to work with a default password of "password", then you don't get to exist any longer. This is the kind of stuff people who work in IT consulting like me see all the time... at companies that don't have any actual IT staff onsite
. But this came from the software designer itself. And the most hilarious thing? Well, part of Impero's response to the publishing of the exploit was to release a fix after its disclosure... which failed to actually fix the exploit.
The other part of Impero's response was to go all legal on the security researcher for publishing the exploit in the first place, because of course it was.
In a letter to Clark dated 13 July, delivered by legal firm Gately, he is accused of breaking the terms and conditions laid out by the firm, including a stipulation that the software not be tampered with; modification is only allowed to achieve “interoperability”, meaning hackers looking for security issues are not welcome. He is also accused of copyright infringement and has been asked to remove all links from Github, Twitter and other channels that point to the public vulnerability disclosure.
In an emailed statement to FORBES, Impero director of marketing Nikki Annison claimed the offending party had “maliciously and illegally hacked our product, subsequently making this hack public rather than bringing it to our attention privately and in confidence. No customers have been affected by this and no data has been leaked or compromised.”
Excuse me, but no customers have been affected by this exploit... yet
. And now they probably won't be, assuming your team can get a proper fix in place. And the youth of the UK will have the security researcher to thank for it, since that appears to be what lit a fire under your collective asses to get this thing fixed. The marketing director also had this to say.
This hack could only be exploited if basic network security does not exist and if the attacker is physically present with local network access. We have been in communication with all our customers throughout.
Interesting response. I'm sure antivirus makers, under the notion above, could simply release software that didn't actually do anything and then claim that if customers have a perimeter firewall up and use basic browsing common sense, their non-working software would work just fine to prevent malware. If Impero isn't going to bother to use basic best practices when it comes to security passwords, it probably shouldn't be issuing lectures to its customers about basic security best practices.
Or we could just side-step this whole problem by not using Impero's sotware.
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Posted on Techdirt - 15 July 2015 @ 3:01am
Politics can be tricky territory for companies and brands to wade through. While some corporations have made notorious claims on political matters, and occasionally even get behind candidates, the vast majority of companies know that they're better off endorsing nobody and nothing. As Michael Jordan once famously put it when he'd been urged by a Democratic campaign to be more politically active: "Republicans buy sneakers, too."
That's what makes the reaction of America's Best, the eyeglass and contact-lens company, to Scott Walker using a logo for his campaign that is nearly identical to the company's so special. They didn't lose their minds. They didn't go trademark ballistic. They just had some fun with it.
Both Walker's campaign and America's Best Contacts and Eyeglasses feature a cartoonish, four-part American flag logo as the "E" in their names. The same flag icon is also their stand-alone logos when the text is removed.
In a brief phone call on Monday, America's Best CEO Reade Fahs told Business Insider that his company wasn't taking sides in the presidential race. But he said he appreciates the Walker campaign approving of the design.
"We don't endorse presidential candidates, but we sure love it when they endorse us," he quipped.
Here are the logos, Walker's first and America's Best second.
So, yeah, they're the same. And it could have been very easy for the company at that point to completely flip out in anger, or to rush to assure everyone that it hadn't endorsed any political candidate for any political office. Instead, the CEO's calm and measured response was endearing. Not to mention the company's response on social media.
And they go on and on like that on Twitter, making sure everyone knows the company isn't endorsing anyone, but likewise insisting the company isn't going to go legal on Walker's logo. In the meantime, rather than coming off like some kind of petty and frightened corporation by flipping out, America's Best engenders a fun, laid back, hip sensibility. You know, good public relations, which has us talking about how cool a move it is rather than having some legal filing buried in the news that nobody cares about. Well done all around.
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Posted on Techdirt - 14 July 2015 @ 11:48am
Let's say you were in the market for some luxury item. Hell, let's say you wanted a nice watch. Being a watch kind-of-guy, you've done enough research to know you would like an MTM Special Ops branded watch, so you walk into a jewelry store and tell them what you want. When you ask the store clerk for an MTM watch, he or she instead points you towards lots of other watches for sale. As you look around the store, you notice none of the display cases actually contain any MTM brand watches. Have you suddenly become confused as to whether the alternative watches are in fact MTM watches?
The 9th Circuit Court thinks you might have, given its ruling in a trademark case between MTM and Amazon. The case is essentially over the scenario described above, except on Amazon's online marketplace. Users that put "MTM Special Ops" into Amazon's search field were provided with a list of competing watches in the results, because Amazon doesn't carry MTM watches. Those search results were clearly labeled with the competitor brand's names. One district court had already ruled in favor of Amazon, as MTM argued that those search results constituted trademark infringement. The 9th Circuit Court of Appeals reversed that ruling and sent the case to a jury. And this whole thing is prefaced on what's called initial interest confusion, as detailed in the link above by Eric Goldman.
The majority opinion focuses on a much-criticized trademark doctrine called initial interest confusion. The Ninth Circuit has had a dozen or so cases addressing initial interest confusion, and its handling of the doctrine has vacillated wildly. In 1999, the Ninth Circuit adopted an exceptionally (and, in my opinion, unreasonably) overbroad definition of the concept. This led to a series of tortured and inconsistent rulings until 2011, when the Ninth Circuit adopted a more constrained definition that virtually killed the doctrine.
In this case, the Ninth Circuit bypasses its 2011 definition and instead defines initial interest confusion from a 2004 ruling:
"Initial interest confusion occurs not where a customer is confused about the source of a product at the time of purchase, but earlier in the shopping process, if “customer confusion . . . creates initial interest in a competitor’s product.”"
As Goldman notes, there was a very good reason the court essentially killed off this whole doctrine in 2011. Based on that definition used above, all kinds of accepted retail practices would suddenly be found to be infringing, including the way product placement of house and alternative brands occurs in brick and mortar stores. The theory behind initial interest confusion is essentially that if a consumer was looking for brand x and only found brand y through retailing practices like product placement and/or search results, there can still be trademark infringement
even if brand y is clearly labeled and the customer is clear on what they're buying prior to making the purchase. In the area of search results for online retailers, it's a really
dumb doctrine, because it essentially penalizes search results for being too useful to everyone who isn't seeking one brand/product only to the exclusion of every other product on the planet. The dissenting judge in the case outlines nicely how silly the majority's ruling is.
Because Amazon’s search results page clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products….The search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page. The search results page is unambiguous.
The difference between other online retailers and Amazon is that other retailers denote at the top of search results that they do not carry the MTM brand, where Amazon simply lists all the other brand watches it carries. In other words, Amazon assumes that the public is intelligent enough to read the brands on the search results and conclude that Amazon doesn't carry MTM watches. So, while the case is now headed to a jury, the fix for Amazon is technically easy, but silly to have to implement. More troubling, as Goldman notes, is both the fact that the court appears to view online retailers as having more culpability under the initial interest doctrine and the larger danger of initial interest being brought back to life by this ruling.
Initial interest confusion revitalized. I don’t believe any trademark owner has won on initial interest confusion grounds since 2011, and many trademark experts considered the doctrine dead. This opinion potentially resurrects the doctrine like a zombie. That’s an unfortunate development. The initial interest confusion doctrine is solely based on judicial intuition; no empirical research validates its existence. It’s also an overly plastic doctrine; its boundaries and definition often change from case to case. This makes it’s impossible for a defendant to rebut and hard for litigants to predict outcomes. Having a revitalized doctrine will increase defendants’ litigation costs with no commensurate social benefit.
In other words, this ruling would seem to force online retailers to treat the consuming public as though they were far more stupid than they actually are, which is a strange outcome for a court case. Punishing useful retailer search engines for being too useful and not treating the public like morons is hopefully a practice that won't make it through the jury process.
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Posted on Techdirt - 13 July 2015 @ 11:53pm
Zorro, the masked vigilante who wields justice in the form of a sword, was first brought to the world in 1919 by Johnston McCulley. As such, some portion of the Zorro existence is now in the public domain in many jurisdictions. That hasn't stopped Zorro Productions Inc. from claiming all kinds of intellectual property rights on all things Zorro, of course. A few years back, there was a lawsuit between Zorro Production and Mars over a depiction of the hero in a commercial for M&Ms. That was a trademark claim, the rights for which Zorro Productions claims for itself, and one of the interesting questions in the case was whether such a trademark claim could be made upon a character that had entered into the public domain. Put another way: can the expiration of copyright law on a fictional character be circumvented through a trademark claim. One of the keys to answering that question, as is discussed in the above post, is whether a specific use of the character would confuse the public as to the source of the original creation, or if it might be misconstrued as any kind of endorsement. Mickey Mouse, for instance, equals Disney. Does Zorro equal Zorro Productions? Of course not.
And now the European Union has recognized that fact, actually going so far as to invalidating the Zorro trademark entirely for that very reason.
Late last month, the cancellation division of the office that manages community trademarks within the European Union issued a ruling declaring that a "Zorro" trademark was invalid in the categories of printed matter and entertainment. According to a just-released English version of the ruling, when the average consumer sees "Zorro," he or she will assume the story of the character is being told, but not recognize "Zorro" as an indicator of origin. As such, it's deemed to be merely descriptive and not sufficiently distinctive.
This was sparked after Zorro Productions had waged a legal war with Robert Cabell, who created a theatrical production entitled Z - The Musical of Zorro
. Cabell had responded to the attack by trying to get the EU to acknowledge that the character was in the public domain from a copyright perspective and that the trademarks held by Zorro Productions had been registered fraudulently. The EU concurred.
"If a title in question is famous enough to be truly well known to the relevant public where the mark can be perceived in the context of the goods/services as primarily signifying a famous story or book title, a mark may be perceived as non-distinctive," states the decision. "A finding of non-distinctiveness in this regard will be more likely where it can be shown that a large number of published version of the story have appeared and/or where there have been numerous television, theatre and film adaptations reaching a wide audience."
Zorro, which has resulted in 38 films, fits this description, says the Office for Harmonization, which adds that "although it is possible for titles of books or names of fictional characters to function as indicators of trade origin, it is dependent on the particular goods and services which they are applied for."
And so Zorro has been freed from the EU prison of intellectual property, at least in these respects. And, more importantly, this is a good thing
. I have no idea of the quality of Cabell's musical about the masked vigilante, but I damn well know that a character created a century ago, whose author is long-dead, ought not be denied in the use of the public in the aims of creating more art simply because a corporate interest wants to sell non-existent rights to Hollywood.
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