Posted on Techdirt - 30 March 2015 @ 9:01pm
While the trademark litigation landscape is littered with lame filings, lamentable rulings, and a litany of liberal interpretations of the law (alliteration!), it's worth noting when we also see sane rulings on trademark lawsuits. So allow me to bring you the news of a federal ruling that acknowledges the fringe and controversial understanding of Florida and New Jersey being very separate and not two entities likely to be confused.
It all started, as most great things, with pizza. Two Florida residents, originally from New Jersey, decided to open up some pizza restaurants. With tastes harkening back to their Northeast roots, Jersey Boardwalk Pizza in Florida decided to play off the logo of the Garden State Parkway logo, as you can see below.
As you can see, the pizza place's logo is a clear homage to that of the Garden State Parkway, the group that runs the New Jersey Turnpike. There's simply no disputing it. And, if you had only a minimal understanding of how trademark law works, you might not be surprised that the Turnpike filed a trademark suit against the pizza-slingers over the similarities.
The authority’s suit, filed last week, alleges service mark infringement, unfair competition and other claims against Jersey Boardwalk Pizza. The restaurant’s logo has the same green-and-yellow color scheme, including an outline of the state, as the Parkway sign. But on on the restaurant logo, “Garden State Parkway” has been replaced by "Jersey Boardwalk Pizza Co.” with the words “Subs. Cheesesteaks. Pasta" below that.
The suit claims the restaurant’s logo is so similar to the Parkway sign as to give the impression that the two are linked, the Journal said.
Regular readers here are probably already either laughing or shaking their heads. The New Jersey Turnpike is many things, and not all of them bad, but I'm having trouble thinking of a scenario in which someone thought it sold pizzas. Couple that with the fact that these pizza spots are located solely in Florida, which is demonstrably a different location and market than New Jersey, and the whole thing gets sillier.
Fortunately, the judge presiding over the federal case agrees, having recently dismissed the case completely
Judge William Martini dismissed the suit filed by the New Jersey Turnpike Authority against Jersey Boardwalk Pizza, saying the Florida business had "minimum contacts" with state residents aside from online sales of branded merchandise.
"Although Plaintiff may have felt the brunt of harm in New Jersey, it could not be said that New Jersey is the focal point of the offending activity," Martini wrote in his decision.
"The defendants are a Florida company that doesn't do any business in New Jersey," said Justin Klein, the attorney who represents Jersey Boardwalk Pizza. "We're happy with the outcome and hopefully we can put this behind us and focus on our business."
This would normally be the end of the matter, an end where one would hope the folks a the Turnpike Authority had learned their lesson, and perhaps a bit about how trademark law works. Not so, unfortunately, what with a spokesman for the Turnpike indicating that they would pursue the matter further and look for legal options outside of the Trademark Appeal Board.
Keep digging, I guess, but I'm still certain Florida and New Jersey ain't the same place.
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Posted on Techdirt - 27 March 2015 @ 6:18pm
Bear witness to the genesis of a new era, fellow sports fans. I've begged and pleaded in the past for the major professional sports leagues to take the harness off of the ability to stream games. Even as the trend of cord-cutting has progressed along nicely, I have always argued that the only dam keeping a flood of cord-cutters at bay has been professional sports broadcast deals. Those deals have almost universally been saddled with local blackout restrictions, making streaming games all but useless for the majority of fans. The past few years, however, have seen inched progress towards wider availabitily for streamed offerings. The NBA's most recent contract went out of its way to make sure streaming is expanded, for instance, not to mention the deal Dish and ESPN made to make the cable channel's broadcasts more accessible for streaming. But those were baby steps, too often leashed by a cable subscription requirement.
But, now, the NFL is finally dipping its toe in the streaming waters. Please understand that, even if this is just another inch gained for streaming, this is a huge deal.
On Monday, the NFL announced the Oct. 25 regular season game between Jacksonville and Buffalo will be put up for bid on national digital platforms. The game is being played in London, meaning the broadcast will begin at 9:30 a.m. ET and 6:30 PT. That's not exactly prime time for U.S. fans, or broadcast television, but it is 'prime time' in China, where the NFL is struggling to gain a toehold.
"It's a one game test. We will evaluate fan feedback," NFL spokesman Brian McCarthy said via an email exchange. "It's too early to tell about the future [of streaming games]. Will test this season with the one game and evaluate after."
Separately, the NFL said it's going to drop its so-called blackout rule, which prevents local broadcasts of games if they're not sold out 72 hours before kickoff. NFL media executive Brian Rolapp said the league is "testing alternative ways to distribute games," The NYT reports, and acknowledged the obvious: "The world is changing very quickly."
If this seems like a small step, you don't know how savvy the folks in the NFL's media department are. They absolutely know where the trends have us all heading regarding media consumption and I can promise you they are keenly aware of how many people are currently watching streaming NFL games on illegitimate sites. The most consumed sport in the United States doesn't turn on a dime, but the league also doesn't put up this kind of test balloon without having a fairly certain idea of how it's going to play with its customers. Assuming the quality, cost (free?), and accessibility of this test game is anything remotely comparable to, say, baseball's MLB.TV offering, expect this to end up as an insanely successful test-run. I'd actually say that this test game feels more like the NFL looking for an excuse to jump fully into a streaming offering than some kind of fact-finding mission. After all, you only drop the blackout rule in conjunction with expanding streaming if you expect the locals to run with the offering full-force. And they will, I assure you.
The NFL's DirectTV and network deals mean streaming won't explode immediately, but everyone can see what the NFL is doing to position itself for the future.
Given its agreement with DirecTV and television networks -- the NFL signed $27 billion worth of contracts in 2011 -- the league will be restricted on what it can offer online, at least in the near term. But the NFL is "a master of dicing and splicing content in order to extract the greatest value," [media analyst Walt] Piecyk says. "It's not like they're committing to put a bunch of games [online] but I think they want to get more comfortable so if Google or Apple or Amazon comes down the pike and says 'we want to buy a larger chunk of games' they can get comfortable on tech front."
And speaking of MLB.TV, reports are that professional baseball is due to get its own expanded streaming offering. The MLB.TV service has long been the standard in sports streaming, with no other league offering really even coming close. The problem, however, was that local games were blacked out, so the service was only useful for out-of-town fans or die-hard baseball fans that will watch any MLB game any time it's available (me, for example). If recent reports are to be believed, however, MLB is looking to take a small step to changing the blackout rules for streaming
Major League Baseball is expected to announce in the next few days a deal with a national distributor, like a wireless provider, to stream local games of every MLB team, a source close to the situation said Thursday.
To stream games of the New York teams, fans would have to be a customer of the distributor and pay for the YES Network or SNY, the regional sports networks (RSNs) that carry Yank and Met games, respectively. The price to stream has not yet been set.
This is an imperfect first step, of course, particularly as it carries with it the anchor of either a cable subscription, a specific wireless device provider, or both, but it's an important step in the right direction. It's something akin, actually, to the DirectTV deal the NFL has, except that it's more mobile and more widely available on a variety of devices. You should also expect any deal MLB signs for this streaming to be less locked in than the NFL/DirectTV deal, because, again, everyone knows where this is all heading. And, if the reports are true, even the television broadcasters are resigning themselves to reality.
Talks between MLB and Fox Sports, which owns 15 RSNs, including YES; Comcast, which owns six, including a minority stake in SNY; and DirecTV, which owns four, have been on-again, off-again for more than a year. The talks have accelerated in the last two weeks, and both sides are optimistic a deal will be reached before Opening Day, April 6. Under that agreement, fans would deal directly with their pay-TV provider.
Is it as perfect a solution as simply working out deals to unleash the local broadcasts on the MLB.TV stream that customers have been watching all the non-local teams on? No, absolutely not, but this first iteration's imperfection will only catalyze MLB to go the correct route in the future. Because the trends are clear: streaming is up and cable subscriptions are down. Even if the NFL and MLB don't get this right the first time, they will absolutely be forced to get it right in the near future.
Either way, one eventual reality is coming ever-closer to fruition: cable television, and perhaps television as a whole, may soon be over.
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Posted on Techdirt - 27 March 2015 @ 3:50pm
I can't honestly claim to know a whole lot about e-cigarettes. That's because when I was still smoking, I smoked the old fashioned kind of cigarettes. You know, the ones made from tobacco, that cured acne, and that made my breath smell as cool and fabulous as a pub toilet. Plus, everyone was doing it and my lungs weren't going to give themselves cancer, so you know. But, even knowing little about e-cigarettes, I know enough to know that they aren't ale houses located in Riverdale, New Jersey. This is a conclusion that the lawyers over at Lorillard, makers of "blu" e-cigarettes, think is likely to escape the larger population, as they have decided to file a trademark dispute against Blu Alehouse over its name and logo.
The lawsuit filed by Lorillard Technologies Inc. centers on a logo that NJ Ale House LLC is using at its Blu Alehouse in Riverdale, N.J., Law360 reported. According to the news website, the logo features "the word 'blu' surrounded by smoke or flames." The subsidiary of Greensboro-based Lorillard (NYSE: LO) claims that the logo is too much like the branding for blu eCigs.
Let's leave everything else aside for a moment and simply take a look at the two logos to see if they look substantially similar on their own. First is the logo of Blu Alehouse. Note that this logo normally appears alongside the full name of the establishment.
And now the logo for blu Cigarettes.
Neither logo is particularly complicated, but even failing to correct for the simplicity of the designs, the two logos are distinctly different. If both logos didn't incorporate the word "blu" in them, there would be absolutely nothing to argue about here. And, again, that's strictly taking the logos into account with no other context. Because once we use the likelihood of customer confusion and the markets of competition tests, I'm failing to see how this wasn't tossed immediately upon a judge's review. An ale house isn't competing with cigarettes in any way. Add to that that it would be quite difficult for even the most moronic and hurried citizens to mistake the two companies for each other, what with the ale house's logo typically appearing alongside other signage that identifies itself as an ale house.
Strangely, an actual judge reviewing the claim thought differently.
U.S. District Judge Kevin McNulty found that Lorillard — along with another subsidiary, LOEC Inc. — made "plausible claims for trademark infringement and unfair competition," and he ruled that the case could go on, Law360 reported.
How is the claim of unfair competition even possible? The two companies aren't competing with each other at all
. The only mention of competition in the court filing by Lorillard is over the fact that sometimes they advertise their cigarettes at drinking establishments.
LTI and LOEC allege that Blu Alehouse bar and restaurant is directed at a similar consumer base as LTI and LOEC's BLU products because BLU products are promoted at bars, restaurants, and lounges.
But that doesn't actually put the companies in competition with one another. That would be like Budweiser claiming that Big Buds Magazine, here to serve all of your marijuana information needs, infringed on Budweiser marks because they occasionally sell beer to high people. Why should that matter at all?
Hopefully as this case moves forward, a more sensible conclusion is reached.
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Posted on Techdirt - 27 March 2015 @ 1:30pm
Origin, Electronic Arts' online store and license-check-in system is a hilarious study in how to build a platform to serve legitimate customers and identify infringing copies of the game that both inhibits legitimate customers and misidentifies what is an infringing copy of a game. Add to this the fact that the Origin platform has in the past been found to be in and of itself a massive security exploit and one wonders how the service is still around today. But around it most certainly is, and still screwing with legitimate customers, too, as a group attempting to run benchmark tests on EA's Battlefield Hardline found out.
Guru 3D writer Hilbert Hagedoorn has discovered some pernicious DRM in Battlefield Hardline while attempting to do a "VGA graphics performance" test with the game for a feature article (thanks Blue's News). Apparently the DRM monitors hardware changes - something Hagedoorn was doing a lot of when testing different cards with the game - and when it hits a certain threshold it locks the user out of the game.
"Here's what EAs DRM is doing," Hagedoorn writes. "They don't just verify the number of PCs you work on slash use, nope .. they dare to monitor hardware changes now, which I am sure is a privacy breach on many levels. So once we insert new hardware (graphics cards) the hardware id # hash changes and if that happens a couple of times they are rendering your activation invalid."
For the record, EA has already responded to Game Politics with a wonderfully silly answer
: it ain't our DRM, it's the Origin DRM, yo!
"Origin authentication allows players to install a game on up to five different PCs every 24 hours," the EA spokesperson told us this morning. "Players looking to benchmark more than five hardware configurations in one 24 hour period can contact our Customer Support team who can help."
Hoo-boy, EA, that's quite a trip of a rebuttal, considering Origin is your
platform and the check-in system you're describing is in fact a form of DRM. So a statement that essentially boils down to, "It wasn't our game DRM, it was our platform DRM!" is absolutely useless. Is the Origin authentication that lets customers install on five different machines in a day fairly lenient as these things go? Sure, except for a couple of things. First, it clearly doesn't work all that well, since simply swapping out a GPU suddenly counts as a whole new machine. Second, why have this restriction at all
? If your platform can't be relied upon to properly determine legitimate copies of games, then ditch the platform. Don't back that failure up by annoying paying customers with restrictions designed to buttress your failed attempts.
But all of that may end up being besides the point, because Hagedoorn's early point is the key: why is EA sniffing around our hardware configurations? The company had damned well better be sure that there is something in the EULA that allows for them to sniff out hardware swaps, something quite common amongst PC gamers, nevermind benchmarkers. But even if the EULA allows for this... what the hell?
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Posted on Techdirt - 27 March 2015 @ 12:28pm
Windows: the still-dominant operating system is the 800 lbs. gorilla, so one fully expects to see tons of insult-darts shot at the thing to try and tranquilize it. And, in the age of technology fan-boy-ism, some techie folks are big on drawing lines in the sand and loudly proclaiming the superiority of one piece of software over another. But, still, when your German basketball team faces relegation into a lower class of league because a windows laptop crashed and then ran an update just before game time, you can kind of understand if they're pissed off about it.
The March 13 match between the Chemnitz Niners and the Paderborn Baskets was set to begin normally, when Paderborn (the host) connected its laptop to the scoreboard in the 90 minutes leading up to the game. In an interview with the German newspaper, Die Zeit (Google Translate), Patrick Seidel, the general manager of Paderborn Baskets said that at 6:00pm, an hour and a half before the scheduled start time, the laptop was connected "as usual."
"But as both teams warmed up, the computer crashed," he said. "When we booted it again at 7:20pm, it started automatically downloading updates. But we did not initiate anything."
After all the updates were installed, Paderborn was ready to start the game at 7:55pm.
Oops. Paderborn ended up winning the game, but Chemnitz filed a protest, arguing that the delay in starting the game constituted a violation and that Paderborn ought be penalized. The league agreed, taking a point in the standings away from Paderborn, which lowered its rankings such that it now faced relegation. Relegation, for you Americans who aren't Premier League Soccer fans, is a shift in which leagues a team plays in based on the year's performance. For Paderborn, this will mean not even being able to play at the championship level next year, instead being forced to play in the lower "ProB" league.
Seidel is pissed, of course.
"You can’t blame Chemnitz," Siedel added. "But as an athlete and a man, let me of course tell you something else. We beat Chemnitz twice in sportsmanlike, tight games. Therefore, this entire issue has nothing to do with sports."
Nope, just a Windows update costing you a potential championship next year. N00bs.
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Posted on Techdirt - 26 March 2015 @ 9:07pm
I'll miss the Cuban embargo. The easing of relations that it brings with it will likely mean the end of the 1950s-style spy games and crazy plots -- like the CIA plot designed to make a leader's beard fall out. Instead, we've finally decided that the United States is open for Cuban business. And you know what that means: trademark lawsuits!
The U.S. Supreme Court recently ruled in favor of a Cuban state-owned company and refused to intervene in a dispute over the “Cohiba” trademark. This is the most recent development in the long-standing rivalry between General Cigar Co Inc., an American (and Scandinavian) company, and Cubatabaco, a Cuban company.
How fun! We finally open up the borders for some business with Cuba and one of the Castro companies decides it's trademark time! Keep in mind, of course, that the state that owns Cubatabaco is a communist nation, but not so communist that they'll refuse to use our capitalist tools to make that money. This dispute actually goes back nearly two decades, with Cubatabaco originally filing a trademark claim in 1997, which was eventually tossed in 2005 by the Second Circuit court, finding that any transfer of property, including a trademark, to a Cuban company would violate the embargo.
But now that the embargo is gone, Cubatabaco has refiled, with a lower court ruling that the Cuban company could challenge General Cigar's mark with the USPTO even before the embargo was lifted -- a ruling the Supreme Court has refused to send back for review. So there appears to be nothing standing in the way of a trademark challenge.
All that said, it's difficult to see how valid a challenge is, actually, given several factors. First, the two companies as yet don't compete in the same markets, due to the legacy of the embargo. Second, the word "cohiba" might not deserve a trademark held by anyone, given that it is simply a foreign word that means "tobacco" in Taino, a language of the Caribbean. That would be like getting a trademark on your beer brand, Cerveza.
However this turns out, welcome officially to business in the States, Cuba! Now that the embargo doesn't keep property from transfering your way, it's all trademark, patents and copyright from here on out!
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Posted on Techdirt - 25 March 2015 @ 9:01pm
Have you thought about the Olympics lately? No? Then I guess you didn't drive past any of the tiny little schools in this itty bitty school district in the Poconos in Pennsylvania that serves a population of almost twenty-five thousand whole people, because, if you had, the International Olympic Committee is quite certain you would have been all, "Oh, look, that must be a school run by the Olympics for some reason." Otherwise, the IOC's pressuring the district to re-draw this district crest would make no sense.
You can probably spot the source of the problem immediately. It's those damned rings at the top-left, of course, and the IOC ain't happy that some stupid little learning institution could think that those rings could be incorporated in a logo. After all, the Olympics has nothing to do with learning, with a cooperative spirit, or with domestic institutions. Which is exactly what has me questioning why there is any trademark standing to begin with. After all, the two entities aren't competing in any kind of marketplace and the IOC, notoriously trademark-protect-y, has allowed the Wallenpaupack's district crest to exist since the 1970's.
Now, however, the IOC has convinced the school district that it must come up with a new crest. Quite unfortunately, the IOC even appears to have district officials convinced that the trademark claim is all super-legitimate.
“They obviously have a legitimate concern. It’s a trademarked item. We do have to come up with a plan of phasing it out,” said Superintendent Michael Silsby. Phasing out the rings because Silsby said an attorney for the U.S. Olympic Committee called last week, saying the school could no longer use the rings to represent athletics.
No, that isn't
a legitimate concern, even if narrowly applied to athletic teams, because there's no commerce or competition here. This was simply the IOC, through the domestic USOC, bullying a school because it felt like it. Or maybe the USOC lawyers found some downtime and decided to fill it up smacking around schools. Either way, nothing about this is born out of a legitimate concern.
The district is reportedly going to have students create the new crest, which is all well and good, but that doesn't remove the bile from my mouth over the USOC's actions. You folks must be so proud...
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Posted on Techdirt - 25 March 2015 @ 4:19am
If you were gaming on a PC just after the turn of millennium, you likely fondly remember the classic game No One Lives Forever. A genre turning first-person shooter that featured a strong, reasonably dressed female hero and a setting inspired by 1960's spy films was received incredibly well by both critics and fans. And, because retro PC gaming continues to have a strong following, any of you that know what we're talking about here are probably thinking you'd like to fire up a copy of No One Lives Forever on your updated machine and give it another go. Well, you can't. You should be able to, but you can't. And you have a complicated web of copyright and trademark rights-holders to thank for it.
Even if you're a fan of retro-gaming, you may not be familiar with the company Night Dive Studios. Night Dive is the group that buys up the rights to older games, optimizes them for new machines, and then re-releases them on Steam and other outlets like GOG.com. They've done this with big-name titles in the past and they really wanted to do the same with No One Lives Forever and its sequel. And, because this is a reputable business we're talking about, they decided to secure the rights for the game first. And that's where it all went to hell.
Night Dive's detective work began with tracking down and speaking with the game's original developer and publishers. That meant getting in touch with the three main players: Warner Bros., Activision, and 20th Century Fox.
NOLF and its sequel were developed by Monolith, who are now owned by Warner Bros., under whom they released the acclaimed action game Shadow of Mordor just last year. NOLF was made using a framework called the LithTech engine, which is also now owned by Warner Bros. However, the first game was published by Fox Interactive, and there's a question of whether 20th Century Fox or even Activision might have partial rights to the series, due to Activision's 2008 merger with Vivendi, a separate media company that had acquired Fox Interactive in 2003.
Here's where this gets really depressing. Because the game was released in an age before digital document filing was in widespread use, the rights contracts and paperwork we're talking about here are all literally
paperwork. And, after communicating with Activision, Fox, and Warner Bros., the response from all three was to essentially state, "We don't really know if we have any rights here, and we aren't going to look for the paperwork to make sure, but if you make the game and it turns out we do have those rights you'll be facing legal action from us." Keep in mind, this was the response from all three publishers who would take legal action concerning rights all three couldn't be bothered to determine if they even had. You can imagine how frustrating that must be when, like Night Dive's Larry Kuperman experienced, you just want to re-release a game and nobody can tell you who owns it. Take Kuperman's interaction with Activision, for instance, to get an idea of how absurd this all is.
"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."
In a sane world, intellectual property rights that a company can't be bothered to find out if they even have shouldn't be rights that can then be sued over. Either they're important or they aren't, and if they're important they should be maintained.
The upshot of this is that Night Dive discovered that, surprisingly, nobody owned the trademark for the game, so they filed a claim to it. Months later, Kuperman found out that Warner Bros. had filed an opposition to get an extension on the time they could use to determine if they had a trademark claim to the name. Again, they didn't know if they had the rights, but they wanted to find out just to see if they could enforce legal action with them. The trademarks and other intellectual property would be used solely for legal action, as it quickly became clear that none of the companies involved had any interest in actually helping Night Dive re-release the game, even if they could have made money off of the arrangement.
We wanted Warner involved with this," Kuperman told me, "so we said, there's two ways we could work together. First, and our preference, is that we would do a licensed deal. We would pay them some amount of money up front to show that we're serious, and then we would give them a backend share of revenues. And if that didn't work for them, if they wanted to be the publisher of record, we'll still do the development and the optimization of the game, and instead of our giving them a backend share, [they] give us a backend share. In either case, it seemed to us that they were gonna be making money that they wouldn't have been making otherwise, with a minimum amount of effort. We weren't meeting with a lot of enthusiasm. In fact, most of the phone calls were like, 'That'll probably never happen.'"
Activision and Fox responded similarly, saying they weren't sure if they had any rights but not offering any kind of permission to move forward and retaining the option of legal action if Night Dive re-released the game. Keep in mind, please, that this frustrating nonsense is all the result of Night Dive attempting to do the right thing and license the game properly. And, for those efforts, they even got a legal threat from Warner Bros., because apparently nobody over at Warner bothers to talk between departments.
Then, in December of 2014, Kuperman and Kick heard from a lawyer representing Warner Bros. Kuperman explained: "Steve [got] what I like to call, the legal term for it is a 'Scary Letter.' It comes from an attorney representing Warner Bros. and basically says they're aware of our filing for trademark, that they had contested that, and that if we went forward, specifically with a new version of No One Lives Forever, without doing a new deal with them, we would be infringing their rights and the hammer would fall."
And that was after Night Dive had been desperately trying
to do such a deal and meeting with nothing but questions over whether any of these rights Warner's lawyer mentioned even existed
. Warner further followed up saying they were no longer interested either in working with Night Dive to publish the game or publish it themselves
, meaning Warner Bros. has made the conscious decision to let No One Lives Forever
die off for good. Night Dive says it has given up the attempt and gamers who wanted a legitimate way to get a beloved old game are forced down the roads publishers claim are evil.
The people at Night Dive have ceased their attempts to re-release No One Lives Forever. They now control the trademark, but without a game to use it on, they're going to let it lapse. No One Lives Forever will remain unavailable on digital stores, and modern gamers who want to play the games will have to either track down scarce physical copies or resort to illegally torrenting them.
Intellectual property: important enough to publishers that they'll use it to kill off the attempt to release an old game, but not important enough to know if they actually have the rights to begin with.
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Posted on Techdirt - 23 March 2015 @ 9:01pm
Maybe, like me, you thought that the Bay Area Rapid Transit system was only good for illegally shutting down cell phone services in its stations to quiet protests that never actually existed. Well, it turns out we were all wrong about that. BART is also good for insanely stupid trademark oppositions. Take, for instance, the recent dispute between the transit group and FiftyFifty Brewing Company, in which the former is attempting to keep the latter from gaining a trademark on its Barrel Aged Really Tasty brew.
According to FiftyFifty owner/CEO Andy Barr, the B.A.R.T. beer has been a regular offering for several years. It has been sold at the brewery and bottled in limited production for California distribution; he has legal label approval in the state. But FiftyFifty is now ready to expand its current production (~1200 barrels per year) and start shipping over state lines, so as Barr puts it, “it was a time for a trademark.” However, one party is not so keen on FiftyFifty’s trademark application for the B.A.R.T. label: Bay Area Rapid Transit, which obviously shares an acronym with the FiftyFifty beer in question. An opposition was filed.
“We were very surprised to get opposition from Bay Area Rapid Transit,” says Barr, pointing out that trains and beer are very different things, unlikely to cause consumer confusion. “Trademarks are for specific categories. You trademark it for beer, ale, porter. The implication is that we came up with that acronym in order to monetize on the fame of Bay Area Rapid Transit — which is not true,” Barr says.
No, it certainly isn't true. Barr further explains that the acronym was devised as an homage to a dead dog that, when alive, used to run around the brewery plant and entertain the workers within it. Now, I'm not saying that trying to co-opt the intention to name a product after a beloved pooch necessarily makes BART an entity very likely run by Satan himself, but it sure doesn't help to disavow the notion, does it?
More important is Barr's correct explanation of how trademarks work and within what parameters they operate. One of the key aspects of a valid trademark is the narrow industry to which it applies. BART, for instance, has a trademark on "BART" for the industries of transit, prints, and publication. I would have to be very drunk to confuse a train with a beer, I think. One would think that this entire opposition must be some kind of mistake, except the BART officials commenting on it think they're barking up a perfectly valid tree.
“Just as any agency or business does, BART routinely protects its name and registered trademarks,” notes Alicia Trost, Communications Department Manager for the San Francisco Bay Area Rapid Transit District. “Use of the BART name by unauthorized parties for commercial gain, whether or not they are in the rapid transit business, is a violation of trademark law, and something BART must protect itself against.”
Except, of course, that because we're talking about completely different industries, and because the source of the BART beer name had nothing to do with the BART transit group, none of the above is correct. No protection is necessary at all. Having a communications person publicly comment that the competitive industry doesn't factor into the validity of a trademark claim, which is absolutely
false, seems like a huge misstep. Unfortunately, even though Barr knows he and FiftyFifty are in the right, he's facing the realities of our wonderful legal system.
“It blows me away that it would degrade and demean anyone else’s brand value,” he continues, expressing concern about the next steps. “We’re not a deep-pocketed organization … So, the question is how do we stand up for ourselves?”
Here's hoping David doesn't fall to Goliath.
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Posted on Techdirt - 23 March 2015 @ 2:40pm
I'm not a coupon person. I don't know why I'm not, but I don't find myself at the grocery store digging through a coupon wallet the way my mother did to ensure I get $.25 off on that discounted meat I like to buy for a little game I call "Will this kill me tonight?" When shopping online, however, it's a completely different story. Like many others, checking out of an online store isn't complete until I run the brand or retailer through a search engine to see if there are any online coupons I can use. One of the common sites that comes up is RetailMeNot, an aggregator of coupon codes. Sometimes the codes work, more often they don't, but it's all part of my buying process.
And you have to imagine that, for the most part, retailers love sites like this. Coupons, after all, are designed to get buyers to try out a store or a brand. Making those coupons more widely available should naturally result in more first-tries, more purchases when there might otherwise be less. It's a promotional tool, if nothing else, likely a free advertising source for these stores and brands. Mary Kay Cosmetics, in its never-ending wisdom, has decided to sue RetailMeNot for fraud and trademark infringement, litigating against the hand that feeds them.
Mary Kay Cosmetics is suing affiliate site Google Ventures-backed RetailMeNot in federal court for precisely for this reason. The company doesn’t sell directly to the public — though its corporate site makes it appear otherwise — and says it doesn’t offer deals or coupons. Therefore the company says that RetailMeNot’s presentation of Mary Kay coupons misleads consumers and harms the brand and its relationship with its sales reps (independent consultants) in several ways.
Okay, a couple of things to note from that pull quote. First, Mary Kay absolutely does
sell direct to customers on its website. Not its entire catalog, perhaps. For that, you probably have to deal with one of the low-on-the-pyramid "sales reps" that hasn't figured out the Mary Kay business model yet. As for whether Mary Kay offers coupons or deals, they absolutely do that, too. You can get free gifts with certain purchase amounts or free shipping on certain amounts, for instance. I played along at the Mary Kay website to find out, so you can see the screenshot below.
Now, while these aren't the kinds of coupons that have a code, the kind that people will usually travel to a site like RetailMeNot to get, so what? RetailMeNot is a service for alerting consumers to sales, coupons, and deals. When there is no coupon code, the site drives traffic directly to the retailer's site for the deal instead. For instance:
The Mary Kay site is displayed and consumers are directed there for their needs. I have no idea where the fraud is here and, if it's trademark infringement, it's the kind of infringement most businesses should be begging for. Driving traffic of interested consumers directly to your website? That deserves a "thank you", not a lawsuit.
And, in truth, the higher ups at Mary Kay probably have no problem with any of this. Unfortunately, the Mary Kay business model means that consumers visiting the website really aren't Mary Kay's most important customers. It's lower level employees are. The folks at the bottom of the triangle have been complaining that their customers are referencing the deals on the Mary Kay site that RetailMeNot is pointing out and demanding the same deals from the local reps. And, because Mary Kay makes a fat percentage of its money directly from those reps, rather than from consumers, pissed off "Independant Beauty Consultants" are a problem. Hence the stupid lawsuit in which Mary Kay admits as much.
RMN’s listing of these “sales,” “deals,” and “coupons” harms Mary Kay and its relationship with its customers (the IBCs). Mary Kay has received various complaints from IBCs and others, who have been pressured by customers to accept and/or honor the false or unauthorized “coupons” posted on RMN’s website.
RetailMeNot's site is pointing back to Mary Kay's website. That's what makes all of this not only legal, but certainly not
underhanded. Now, I still can't quite fathom why Mary Kay, even after admitting who its real customers are in a legal filing, can't immediately be disbanded as a pyramid scheme, but that's entirely besides the point. RMN is under no obligation to keep Mary Kay customers happy and driving traffic to a retailer's website isn't grounds for a lawsuit. And it appears the site is willing to fight, according to the statement it provided.
RetailMeNot, Inc. takes concerns related to third party intellectual property very seriously. RetailMeNot, Inc. continues to believe that it operates in compliance with law and in the best interests of consumers and its retail partners by aggregating information to help shoppers save money using its websites and mobile apps. RetailMeNot, Inc. believes the allegations in this lawsuit are without merit and intends to vigorously contest this matter.
Sigh. No good deed and all that....
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Posted on Techdirt - 20 March 2015 @ 2:42pm
Selfies: they're a thing now. Seriously, imagine yourself going back ten years in time and attempting to explain to a thirty-year-old professional that within a decade there would be a term in common usage for snapping off mini-monuments to narcissism with something called a smart-phone. Once that person was done trying to decipher what the hell you just said, he or she would likely dismiss it all completely and get to the business of asking how all the flying cars were working out for everyone. And that, dear friends, is exactly when you'd hit him with your selfie stick and really blow his mind.
Ah, yes, the selfie stick. It had to happen, of course, but if you don't know what a selfie stick is, it's a stick that you plant your phone on so that you can take an even better selfie. Science, is there nothing you cannot do?
If you extend it a tad further maybe the photo won't show how dead we are inside...
In the interest of full disclosure, I own one of these wonder-wands because how could I possibly not? I'm not good at much in this crazy, mixed-up world, but I am great at narcissism. So, you can imagine my extreme, self-aggrandizing displeasure to learn that the great selfie stick ban of 2015 has apparently commenced with a whole list of public venues where I can't bring my second favorite extendable twig.
The telescoping arms, meant to widen the angle, enabling selfie takers to incorporate landscapes and friends in their shots, have been deemed ‘hazardous’ at a growing number of museums, monuments and concert venues.
There is only one problem: selfie sticks take great, compelling photos. As obnoxious as the arms can be, we are going to miss these impossibly awesome shots. We are particularly aghast at the ban by art museums, whose purpose is to celebrate freedom of artistic expression.
The list of venues where the selfie stick has been banned includes, but is not limited to, the Palace of Versailles, The Smithsonian, most New York museums, the Colosseum, all the soccer stadiums of Brazil, and the Art Institute of my beloved hometown of Chicago.
Yes, we have a giant metal bean next to which homeless hungry people sleep. Chicago, folks...
Perhaps the most baffling venues on the list are the music venues, such as Wembley in the UK. The argument made for banning selfie sticks at concerts might sound good, until you think about it for two seconds.
"Selfies are a big part of the gig experience," a spokesperson for the Wembley SSE Arena told NME. "The sticks might mean you are refused entry to the venue so our advice is don’t bring them and stick with the tried and tested use of an arm."
If you actually break down this argument and test whether it's good theory or not, and for some reason I'm going to do exactly that, the whole premise becomes immediately silly. Picture yourself at a concert some rows back from the stage. Now picture the jackass in front of you who refused to pass that joint back now turns around and sticks his phone-on-a-stick into the air and takes a quick selfie. Annoying, right? But now picture him doing all those same things, except he sticks his big fat arm up instead. An arm, mind you, that is several times the width of a selfie stick and one which can probably only extend far enough to get his phone directly in your line of sight
, as opposed to a selfie stick which extends up further. That's way
more annoying, isn't it?
Look, the selfie stick is a silly but wonderful little tool of narcissism and public venues that operate on any premise of learning or expression really shouldn't be banning them. Free the selfie stick! Attica!
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Posted on Techdirt - 20 March 2015 @ 3:58am
Frankly, it was only a matter a time before this came to be. Two years or so ago, Mike wrote a piece about a Supreme Court ruling that gave the go-ahead to the state of Virginia to discriminate in its response to FOIA requests based on state residency. The state law that allowed Virginia to flatly refuse to comply with transparency requests from non-state residents was curious as a matter of good governance and was heralded by some, including Mike, as being a potential roadblock to national media, especially new media, to reporting on the goings on in the many states of our blessed union. The internet and new media, as perhaps should have been obvious, have their ways of routing around all this silliness.
Here to show how it's done is Deadspin, who filed an FOIA request in Tennessee, which has similar discriminatory FOIA policies, for emails between the University of Tennessee and Nike. This all stemmed from a rather banal situation going on at the school in which most of the women's teams are being rebranded from "Lady Vols" to simply "Volunteers" like the men's teams. This change in branding curiously came at the same time the school dropped its partnership with Adidas and switched to Nike, so Deadspin wanted to find out if there was some kind of influence being wielded by Nike over female athletic programs at a public university. So they filed for the FOIA request.
It was soon followed by a rejection letter ... because I'm not a Tennessee resident. As it stands, Tennessee's state laws only give the right to review records to "any citizen of this state." I am not a citizen of the state, and therefore they can tell me (and whoever else doesn't live in Tennessee, which includes everyone who works at Deadspin) to bugger off. Is this legal? Apparently so.
There's only one word for describing this way of thinking: garbage. Why don't they just put a sign at the Tennessee border saying, "Nothing to see here, please turn around"? Or just change the name of the Tennessee Open Records Act to the Tennessee Kinda-Sorta-Maybe-If-We-Like-You Records Act? Of just amend the text of the law to read, "Nah, fuck you"? Functionally, this just seems like a fantastic tool for ensuring national media can only give you glowing coverage—any documented verification is impossible, unless they want to give it to you.
That sentiment of frustration has been shared by numerous national blogs and media, including this one, if mildly so, several years back. It's a sense of the game being over if you don't happen to be a resident of the state in question. This, as it should be obvious, violates the spirit of the FOIA as a general tool for transparency, but what can you do? The Supreme Court ruled form on high, right?
Of course not
. If new media should be linked to citizen journalism and blogs in particular embrace their readerships and communities as information sources, this is a non-problem. Deadspin sees it similarly in a post entitled "Tennessee Won't Give Us Nike's Emails; Maybe They'll Give Them To You
But, hey, we've got readers everywhere, right? So I'm asking all of you, residents of Tennessee, to submit a public records request for me, if you don't mind. I'm putting a copy of my entire public records request below. Or, hey, come up with your own version if you've got a better idea for one. If you hear back from Tennessee, please let me know: firstname.lastname@example.org.
It's a wondeful tactic, and one completely in line with the idea of new media and citizen journalism, not to mention community participation amongst the readership. Too bad the University of Tennessee is apparently looking to play extremely dumb with the crowdsourced requests
Everybody got the exact same answer: a copy of the Nike branding audit and nothing else. Not a single email. Not one text message. Not even a lonely memo, draft, or letter... a return that ignores what we asked for and goes against what logic suggests is the mountain of paperwork generated when a billion-dollar university system interacts with a billion-dollar company. There are only two ways this is possible:
1. Nike intentionally conducted all business with Tennessee only over the phone or in person, specifically to keep everything out of the public record.
2. The University of Tennessee is telling us to go fuck ourselves.
The wonderful part about the school attempting to route around these valid requests this way is that even by winning, the university still loses. Now there's zero doubt something shady is going on here. Either the school is refusing to comply with an FOIA request, or it is hiding its dealings in places it thinks the light of day will never shine. Either way, interest is only piqued further, rather than being sated.
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Posted on Techdirt - 19 March 2015 @ 8:50pm
Roughly every gamer who grew up in the glorious eighties and who also owns a smart phone has been completely flabbergasted that Nintendo, that icon of our youths, had so steadfastly resisted getting involved in mobile-device gaming unless the hardware had its logo slapped on the back. Add to that the company's drumbeat against emulators on phones and tablets that would allow gamers to play the amazing back-catalog of games-gone-by while simultaneously refusing to release any of those games for those devices themselves and at times it appears that Nintendo hates money. Recently, we even covered Nintendo's odd decision to go the opposite direction and port common smartphone and tablet games to Nintendo handheld hardware. This whole refusal to get with the times has come off as downright crazy.
Well, in a spot of good news, it looks like Nintendo is finally starting to dip its toes in the smartphone and tablet market.
Nintendo announced today that the company has entered into a "business and capital alliance" with Japanese online giant DeNA. As part of this alliance, the two companies will team up (a press release specifically mentions "joint development") to release "gaming applications for smart devices". These games will use Nintendo IP.
You may be thinking, "Duh, why wouldn't
they do this?", but that's the question Nintendo fans have been asking for several years now. The fact is that the gaming giant has completely ignored the very existence of these mobile gaming platforms everyone has these days. Still, developing new games using Nintendo IP for phones and tablets is a nice move, but if it really takes off and it's successful? Perhaps that's
when we'll finally see the back catalog of games open up officially.
And, while the wording is a bit vague and Nintendo insists it will continue being in the hardware business, check this Nintendo statement out.
Nintendo and DeNA expect to develop a new core system compatible with a variety of devices including PCs, smartphones and tablets as well as Nintendo's dedicated video game systems, and are to jointly develop a membership service utilizing this system, with a launch targeted for the fall of 2015. The companies expect to further enhance their customer relationships through the membership service.
Nintendo games possibly on the PC? It'd be a bold move, and a massive departure from the Nintendo of the past... and it would be smart as hell. Perhaps the gaming giant of my youth is finally embracing the present, if not the future.
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Posted on Techdirt - 19 March 2015 @ 10:31am
Police: they have a job that demands respect, even if those doing the job occassionally do not. We talk a great deal here at Techdirt about some of the frightening uses of military grade equipment by local law enforcement agencies, about what sometimes seems like a neverending list of civil rights abuses, and so on. Still, as I said, I respect the job. It's my respect for that job that leads me to think that the Portland cops who arrested a homeless woman for charging her phone on a public outlet need a greater understanding of what it is exactly that police in this stupid country are supposed to do.
Now, if you're thinking to yourself, "There's no way police in Portland arrested a person just for plugging her cell phone charger into a public outlet," well, you're correct; they arrested two people for that in one trip.
In this case, the theft was first reported by Portland Patrol Inc., and two Portland police officers followed up to issue the woman and her co-defendant, a homeless man who was also charging his cellphone at the planter box outlet, citations to appear in court for third-degree theft of services — a Class C misdemeanor. According to the Electrical Research Institute, it costs about 25 cents a year to charge the average mobile phone. If the phone in this scenario had gone from zero charge to full charge, the cost would have amounted to mere fractions of a penny.
“Jackie,” (who did not want her real name used), says she was shocked when four uniformed officers all agreed her actions warranted not only their response, but also charges and a court summons.
Let's play a quick game. Pick out which part of the pull quote above is the most
ridiculous aspect of this story. Got it? You picked the part where the homeless woman and a homeless man were charged with theft for plugging in their phones to a public outlet, didn't you? Well, you're wrong. That is
ridiculous, of course, but any single police officer might be some asshole idiot capable of being this dumb. No, the most ridiculous part of the above pull quote is that it took four goddamned officers to respond to this request
, and they still
reached the conclusion that a citation was warranted. If these aren't verified to be the four dimmest officers on Portland's force, then the entire city has much larger problems.
Oh, and should you be waiting to jump into the comments with some snarky question about why a homeless woman should have a cell phone in the first place, please keep in mind that phones cost less than houses. Also, shut up. Because strictly from the point of view of safety, not to mention the hopes of having any kind of future employment or way to communicate with social services, a cell phone at this point is so necessary for the homeless, not to mention everyone else, that the government should probably be furnishing everyone with some kind of holographic communciations and record-keeping tool that appears on your forearm when needed.
Pictured: a homeless person in President Geigner's America
Now, the Jackie in this story has never before been convicted of a crime, but she missed her court date after losing her citation because, well, where the shit is she going to put it? It's not like she's got a damned file cabinet stocked up in the house she doesn't own. Knowing she missed the court date, Jackie turned herself in to the police and ended up being booked into jail. Keep in mind, if you can, that this is all over "stealing" electricity at levels of "fractions of a penny." Jackie is on several waiting lists for assisted housing and might actually want to work someplace in the future, but, if convicted, she'll always have to be checking that "been convicted of a crime" box now on applications, thanks to a dumb law and four brave boys in blue.
And don't think that this is a completely isolated incident, either.
Jackie’s was not an isolated incident. Public defender Jane Fox says she’s seen similar cases.
“It doesn’t happen very often, but when it does, it’s just insane,” says Fox. “The (case) that I had was somebody charging their phone by the Greyhound bus station. Don’t you have a reasonable expectation that an outlet near the bus station would be OK?”
Only if you thought there was such a thing as common sense, which is clearly in short enough supply so as to no longer be common. As I said, I respect the job of the police, but I sure don't respect the
job that these four defenders of the public good managed to do. And just to wrap a nice bow on how stupid this all is, how much do you think the public is paying in tax money to prosecute Jackie's fractions-of-a-penny theft? It seems likely that the paper the citation was written up on cost the taxpayers more than what she did, not to mention getting everyone in the court system involved. And, yet, Jackie's
the one stealing from taxpayers? Please...
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Posted on Techdirt - 18 March 2015 @ 3:31pm
It's been an amount of time that can be measured at the level of a nuclear clock, so I guess there must be another story about a dumbass trademark dispute involving a small craft brewery for some reason. I'm not sure what the hell is going on in the beer-making industry that is setting story after story after story about this kind of thing, but it really needs to stop. Too often these disputes seem to be of the silliest nature, with no customer confusion to worry about and only the most intangible similarities being fought over. But this latest story in which Bell's Brewery, a relatively large "craft" brewery, has filed a federal action against an itty bitty little beer-maker over a trademarked phrase it barely uses and hasn't registered might just be the dumbest of them all.
Innovation Brewing of Sylva, N.C. makes only about 500 barrels of beer a year, mostly sold in Jackson County. But size doesn't matter in a tough trademark dispute with the much bigger Bell's Brewery of Kalamazoo, which made more than 310,000 barrels last year. Bell's has filed a federal action against Innovation over the use of its name. Bell's says its unregistered advertising slogan "bottling innovation since 1985" could lead to confusion with customers. While the slogan is used on bumper stickers, it's not present on any of the brewery's beer packaging. Bell's also uses a slogan "inspired brewing" that's been part of the legal complaint that the company believes would be confused with Innovation Brewing's name.
Any use of the slogan "bottling innovation" by Bell's has been so minimal that the folks at Innovation Brewing can't even find examples of it. And, while trademarks don't necessarily need to be registered to be valid, one would think that if the slogan and its similarity (blech...) to the competitor's name were worth a legal claim, so too would it have been worth registering with the USPTO. In the meantime, the legal fees and costs of retaining counsel is preventing Innovation Brewing from buying the actual stuff to run its business, like brewing equipment.
Fortunately, it appears Innovation Brewing isn't entirely alone in this fight.
The Asheville Brewers Alliance, a trade organization representing 45 area breweries and beer-related businesses, has lined up in support of Innovation, a statement said.
"There are many instances where craft breweries have encountered trademark issues and have chosen to work together to resolve their differences," it said. "As an Asheville Brewers Alliance member, we support Innovation Brewing and are hopeful that, in the spirit of collaboration, Bell's Brewery and Innovation Brewing will arrive at an agreement amenable to both parties."
The dream of an amicable end to all this isn't completely pie in the sky, mind you. The craft brewing space and its penchant for creative labels and off-the-wall naming conventions has actually been surprisingly cooperative on this kind of thing. But, then, calling Bell's a "craft brewery" is massively stretching the term to the point of absurdity. Instead, it seems the legal tendancies of larger corporations have tempted the once-smaller company to the dark side of IP bullying. This, mind you, over a 500 barrel a year producing David that poses no threat and almost certainly no confusion with the much larger Goliath. I typically look forward to my Bell's Hopslam every year. This year, maybe not so much.
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Posted on Techdirt - 16 March 2015 @ 9:16pm
While dumb criminals doing dumb criminal-y things with technology aren't exactly new around Techdirt, we can't help but be amazed at the things some of these folks think they're going to get away with. That said, much of the silliness tends to occur after the fact. A murderer takes a selfie with his victim after the crime is committed. A phone thief uses the stolen phone to upload selfies of himself to his victim's account. A teen pimpette brags about her crimes after committing them.
But, in what may be a first, today we bring you a UK man who proactively used social media to post the location of his to-be-committed robbery before then committing said robbery. Not surprisingly, it didn't take long for the public and the police to put two and two together.
Andrew Hennells, 32, posted a comment on his profile which read: "Doing. Tesco. Over" at 19:25 GMT on 13 February. Just 15 minutes later, after he had held up the King's Lynn store, police caught Hennells with a knife and £410.
I must commend Hennells on his attempts to streamline police action this way. With all the fervor we've heard about attempts to use technology for so-called pre-crime efforts, folks like Hennells might give potential investors of those prospective systems pause as they negate their use entirely. Now, police weren't solely reliant on the Facebook posts to put Hennells in cuffs, but they obviously didn't harm the effort.
Sgt Pete Jessop said Hennells's Facebook confession had made it easier to secure a guilty plea.
"It was a bizarre and unusual case," he said. "The pictures and posts on Facebook helped us confirm what we already knew. None of this takes away from the seriousness of the crime or the trauma experienced by the victims of the robbery."
No, but it sure is good for a chuckle at the stupid. God's speed, Mr. Hennells.
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Posted on Techdirt - 13 March 2015 @ 3:58pm
Just as Anheuser-Busch In-Bev dropped one silly trademark opposition, it has gotten back on its bully horse and rode into town to smack around someone even smaller doing something even less threatening to its brands. This go around, In-Bev stuck its nose into the trademark application of one guy in Belfast for a juice line built on a social platform for helping homeless charities to make the lives of the unfortunate a little better.
Colin Mackey (30) was forced to withdraw a trademark application for his social enterprise juice business John Appleseed's, after receiving a letter from a law firm representing the largest brewer in the world. It claimed the name was "sufficiently similar" to its alcoholic 'hard cider' brand Johnny Appleseed.
To be clear, Mackey's juice line doesn't have anything to do with alcohol. Like, at all
. It's simply a small juice product, with some of the profits generated going to charities that help the homeless. Unlike the aforementioned trademark opposition, which concerned another brewery and chiefly raised the issue of actual customer confusion, Mackey's organization isn't even in the same marketplace. Interestingly, partially due to the explosion of craft breweries and small wineries, there has been some talk in IP circles over whether a firm distinction should be in place for similar marks being allowed in different kinds of alcohol, such as wine and beer, but Mackey doesn't even enter the conversation here because he makes juice. Not only is there no possible confusion here, there isn't any likely threat to In-Bev, which has Mackey pissed
"I'm massively angry. You put so much work into something, and then this huge behemoth comes and does this," he said. "I couldn't believe it, and it seems this kind of thing happens a lot. There are people who have wasted tens of thousands on their business before this happens."
Despite explaining he was selling non-alcoholic juice as part of a small social enterprise, with profits being injected into helping homeless charities, AB InBev stood firm in its position.
Delightful. More so, actually, considering the letter In-Bev sent Mackey affirmed the giant alcohol maker's right to seek cash awards in court should Mackey not back down. Because of the threat, Mackey did indeed change the name and brand of his business. It's a shame he felt the need to in order to continue doing his good works. The folks over at In-Bev must be proud.
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Posted on Techdirt - 12 March 2015 @ 11:40am
Hey, politicians who read Techdirt... look, can we talk for a moment? As someone with a keen interest in DC machinations and politics on a national level, I feel like I know you guys well enough to have a heart to heart with you. And I get how the DC game is played. Some story comes out creating a national outrage with some percentage of the country and the whole thing seems designed to thieve the attention you might otherwise be getting from the press and the constituency. It's not only tempting, it's downright irresistible to react to such a story in an insane way, even if only to momentarily draw attention, any kind of attention, back on yourselves. I get it, believe me. When I first saw the trailer for the new Game of Thrones while sitting in my living room with my family, for instance, I immediately stood up, took my pants off, and ran around the block a few times until my wife clotheslined me on the third lap. Because, let's face it, that's how we roll, am I right?
But, guys, seriously...there's enough meat on the bone in the Hillary Clinton super-secret unofficial email fiasco-steak to work with. You really don't have to lose your minds and draw all the wrong kind of attention to yourselves as a result. For example, don't be Lindsey Graham.
If you click that link, there's a video of Senator Lindsey Graham (we'd embed it here, but NBC still hasn't figured out how to allow HTTPS embeds, because it doesn't care about your privacy, apparently). Here's the key part of Graham's exchange on Meet the Press.
Chuck Todd asked Graham, "Do you have a private e-mail address?"
Graham's answer: "I don't email. No, you can have every email I've ever sent. I've never sent one. I don't know what that makes me."
Well, Senator, it quite likely makes you the most unqualified member of the subcommittee on Privacy, Technology and the Law
for starters. Because email is ubiquitous enough at this point that I'm not even sure it should be called "technology" without being prefaced by the qualifier "super old and probably due for displacement." To at once sit on that committee and proudly state that you've never sent an email during your time in office sounds like you're begging to be replaced on that committee.
But my point is a larger one: the Clinton email scandal is one that should not
result in any thinking person believing that having never sent an email to anyone ever is a bragging point. Put this kind of reaction into other contexts and see how far it gets you. One wouldn't, for instance, react to the cluster-bomb that has become Obamacare by proudly stating, "I've never even gone
to a doctor!" One wouldn't criticize our foreign policy in the Middle East by proudly shouting, "Dude, I've never even been out of our country!" That's just stupid.
And so is proudly claiming that you've never sent an email. You want to have some kind of massive reaction to get attention? Fine, just don't say stupid things like Lindsey Graham. My suggestion? Take your pants off and go for a jog. You'll feel better when you do, I promise.
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Posted on Techdirt - 11 March 2015 @ 9:10pm
Walmart. Just saying the company's name is usually enough to evoke unbidden brain-sounds of terrifying organ music and images of pitchfork-wielding devil-imps. But, hey, it's a large business that's been around for quite a while, so I guess it's doing alright. It seems to me that somebody might want to call a meeting with the Walmart legal brain trust, because the company's campaign against a silly and simple parody website isn't achieving much of anything at all, and is in fact Streisanding the parody site into national views.
This story starts back in 2012, when ICANN saw fit to hold a firesale on domain extensions. Buying them up was all the rage for reasons unfathomable to this author. Still, that was the impetus for how we arrived at Walmart going after a site with a .horse extension.
That explains why, for the mere price of $29, you can now purchase a .horse domain name, if you want to do such a thing. "With .HORSE, there are no hurdles between equine enthusiasts on the Internet," says United Domains. "Giddy up and register .HORSE today!" It doesn't seem like too many people have been receptive to this pun-based sales pitch, but a 34-year-old named Jeph Jacques saw the opportunity for what he calls an "art project."
"I thought, 'Alright I'm gonna buy this and do something stupid with it and see what happens," he told me. And readers, he did just that.
This grand art project? Buying up the domain www.walmart.horse
, slapping a picture of the front of a Walmart store with a, you guessed it, horse superimposed over the top, and declaring the whole thing a monumental artistic success. Seriously, this is the only thing at the website if you go there
Monet it might not be, but the image is suddenly competing with the likes of famous artists for attention and views thanks to Walmart freaking the hell out about it. In its infamous wisdom, Walmart and its crackerjack legal team have demanded that the whole shebang be taken down, claiming infringement of trademark. The C&D letter Walmart helpfully sent along suggested that Jacques' website would confuse customers into thinking that Walmart, who is not in either the business of horses nor in the business of having a sense of humor, might have some affiliation to walmart.horse. Interestingly, the letter targets the domain name, rather than the image on the site itself. I'm not personally aware of any infringement claim on domain name being refuted by the actual extension used, but this would seem to be a ripe candidate for that argument, given that Walmart is not in the horse business.
But this really shouldn't even get that far, given the whole purpose of the site itself and the artistic nature of the creator.
Jacques argues that his site is "an obvious parody and therefore falls under fair use." He also told Walmart in his response that he'd be happy to put a disclaimer on his site to let visitors know he is not actually affiliated with the Waltons. And although he doesn't want to bow to the company just yet, he says he's already proved his original hypothesis: that corporations spend an absurd amount of time policing their trademarks.
Point proven, I suppose. Meanwhile, a tiny joke site has been Streisanded into the national conversation because Walmart just couldn't resist.
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Posted on Techdirt - 10 March 2015 @ 1:31pm
Insanely popular game Minecraft is known for a lot of things. It's a fantastic creative outlet and the digital sandbox of youngsters' dreams, for instance. The game has also been known to raise the ire of unrelated companies who somehow think all that creativity by gamers is something that can be sued over. It's known for amazing user-generated content, including games within games and replicas of entire cities. The nation of Turkey is known for very different things. It's a country that absolutely loves to censor stuff, for instance. And, thanks to recent developments, Turkey is also known as a great place to get a front-row look at the incredible violence done by the Islamic State in Syria and Iraq.
But the Turkish government has a plan to keep its youngsters from witnessing too much violence: it is calling for a Minecraft ban.
Turkish websites Hürriyet Daily News and LeaderGamer report that the country's Family and Social Policies Ministry is now calling for Minecraft to be banned in the region. The ministry's report has been sent to the legal affairs department, along with instructions for the legal process for the ban to begin. Ultimately, whether the game is banned or not will be decided in the Turkish courts.
When it comes to the issue of violence corrupting the national youth, one would really think that the Turkish government might have bigger fish to fry than a sandbox game in which battling fictional and non-human monsters is almost an aside from the actual gameplay mechanics. The point of the game is to build, to be creative, to express. For a Turkish government with the barbarians quite literally at its doorstep to call for censorship of one of the more benign gaming titles in recent memory would be comical if it were parody. But it isn't.
Nor are some of the hilariously contradictory claims to Ministry made in its report.
Although the game can be seen as encouraging creativity in children by letting them build houses, farmlands and bridges, mobs [hostile creatures] must be killed in order to protect these structures. In short, the game is based on violence," the report stated (via Hürriyet Daily News). The ministry feels as though children may confuse the in-game world with the real world, and even begin torturing animals, oblivious to the pain they're inflicting. The report added that not only would Minecraft cause "social isolation," but that the online component might lead to internet bullying.
Ah, of course! It's a video game, so it has to create isolation amongst players, except it's a video game, so it must also create bullying problems because of the all the interacting going on between those isolated players. Don't think about that sentence for too long or your brain will storm out of your noggin in protest.
Turkey may be censorship happy, but going after Minecraft over violence concerns? C'mon guys...
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