Posted on Techdirt - 27 August 2015 @ 6:19am
If anyone needed the perfect example of the giant waste, fraud, and abuse a government emboldened by fear and ineptitude can achieve, that example absolutely has to be the TSA's body scanners. These glorious devices that didn't work in catching weapons or explosives but did let TSA agents see you naked, and which are administered by the TSA, an agency so perfectly unable to do its job properly that all us Techdirt writers now have carpel tunnel syndrome from writing up posts on its exploits, now have a detailed price tag associated with them. So, what did the public pay for all of this fail?
Oh, only $160 million of taxpayer money, according to Politico.
The cost breakdown, which the TSA recently turned over to some members of Congress, provides the latest look at the agency’s investment in body imaging technology since it decided to make the scanners the centerpiece of the checkpoint screening process. The price tag averages more than $150,000 per unit since the agency bought the first batch of 45 devices in 2008.
And for that money, lawmakers privy to classified reports say, the TSA has gotten a woeful failure rate. Senate Homeland Security Chairman Ron Johnson has such low confidence in the scanners’ ability to catch explosives and weapons that he says the agency should make fliers walk through metal detectors after passing through the body imaging machines.
Yes, dear sirs and madams, full body scanners, so inept that esteemed government officials are suggesting people exiting them should immediately go through a traditional metal detector, come at a $150k/ea price tag. But the danger of a program like body scanners, when it comes to government malfeasance, isn't solely in the primary failure of the program. Rather, the danger is in the way the failure then begins to infect everyone around it, like some kind of IQ-deteriorating brain bacteria. For example, the esteemed SHS Chairman mentioned above, who suggested metal detectors be used immediately after the body scanner, begged pardon if you had thought he meant that the body scanners weren't still needed
“If you really want to keep using those, and I’m not saying we shouldn’t, at a minimum we should put a metal detector on the other side,” the Wisconsin Republican said in an interview. “Why not go through two? You’ve just gotta use common sense.”
Ah, yes, common sense. Well, Senator, let me try some of this common sense thing you speak of for myself. My common sense suggests that any procedure about which the following can be written ought be permanently done away with:
A recent security audit found that TSA had failed to find fake explosives and weapons in 96 percent of covert tests. And members of Congress familiar with the classified details say the body scanners are to blame for much of the problem.
Common sense does not
inform me that, rather than removal of these devices, our best bet is to simply stack devices upon devices through which we should walk, all while being uncertain of their efficacy. The problem isn't a lack
of devices to walk through; the problem is there are too many.
Homeland Security Secretary Jeh Johnson has said he has received assurances from L-3’s CEO that the company will work with the department to improve the technology.
Ah, yes, an assurance that this next go 'round they'll get it right, from a company that screwed it up the first time. You'll excuse me, sirs, if I am laughing. The point is that it's time to give up the game. The security we get at our airports is mere theater and we know it. The devices that didn't work the first time around while costing American taxpayers a hundred and sixty million dollars shouldn't get another bite at the apple. 9/11 is far enough in the rearview mirror that we can't use fear as an excuse any longer. It's time to end the masquerade and get on with it.
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Posted on Techdirt - 26 August 2015 @ 11:14pm
Normally, when we find two breweries involved in a trademark dispute, as has become common these past few years, the dispute tends to be over the extravagant artwork on the label or the equally extravagant names of specific beers. Is this Zombie-Death Murder-Gasm IPA too close in name to Vampire-Orgy Bloodpool Belgium Wheat? Who can tell?
So it's somewhat refreshing to see a case that rests on simpler claims, even if they are laughably ridiculous, such as Budweiser's inability to determine the difference in the sexes between regal nobility titles.
She Beverage Co. of Lancaster, California, applied in December to register “The Queen of Beer” phrase with the U.S. Patent and Trademark Office. Anheuser-Busch filed a notice of opposition Wednesday, arguing that “Queen of Beer” is too similar to “King of Beers” and that consumers might wrongly believe She Beverage beers are made by Anheuser-Busch.
Now it's been some time since I took sex ed, but even I can tell the difference between a king and a queen, one being male and the other female. Instead, what AB is likely concerned about is that customers will think that the Queen of Beer mark is being used by AB as some kind of counter-marketing. Unfortunately, that worry doesn't a valid trademark concern make. The test is still about the actual likelihood of customer confusion, and it seems like quite a stretch to suggest that a small California craft brewer is going to be somehow confused for the mega-corporation that pumps out Budweiser.
Interestingly, AB's opposition filing notes that the USPTO itself has had he/she confusion in the past.
Anheuser-Busch, in its opposition filing, argued that the patent office’s Trademark Trial and Appeal Board previously ruled in its favor against another company that sought to trademark “Queen of Beers.”
“The Queen of Beer mark is virtually identical to (Anheuser-Busch’s) King of Beers marks with the exception of replacing the word `king’ with the connotatively similar word `queen,”‘ it wrote in its opposition filing.
Right! Other than the key identifier of the mark being the exact opposite, they're exactly the same. Take the king/queen out of each trademark and we're left with "the", "of" and "beers." The first two words are useless as a trademark and the last word identifies the product type. This claim, therefore, must solely rest on whether using "queen" is going to make She Beverage's customers think that it's associated with the "king." The likelihood of that seems small at best. And, given that AB has admitted its run into this situation in the past, it's a bit surprising that the company hasn't even attempted to get a trademark on "the queen of beers" to avoid this very thing in the present.
Rose said she was surprised by the opposition since Anheuser-Busch hasn’t trademarked the “queen” phrase.
“There is no `Queen of Beer,’ and we’re a female-owned company,” she said. She plans to continue to pursue the trademark.
Long live the queen.
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Posted on Techdirt - 25 August 2015 @ 4:03pm
You may recall that several months back we wrote about Major League Baseball getting into a trademark dispute with Evolution Finance, who operates a website called WalletHub. The reason for the dispute was that WalletHub's logo was a white "W" on a green background, which MLB thought was too similar to symbols used by the Washington Nationals and Chicago Cubs teams. That Evolution Finance wasn't in even remotely the same industry as two major league baseball teams is a fact that appeared to escape MLB, as the league actually had the stones to claim that customers might be confused between the "W" symbols. Adding to the silliness of it all was the simple nature of the logos.
The top left image is a registered logo for the Washington Nationals baseball team, the bottom left is the registered "W" flag the Chicago Cubs fly whenever they win a game, and the logo on the right is WalletHub's. Yes they all look somewhat similar...because they're all basically just the letter "w." Similarity or no, the idea that WalletHub's logo might cause a human person with a human brain to think that it was associated with Major League Baseball requires the kind of thinking that I'm not capable of.
But all has ended well, it appears. MLB has agreed to drop its opposition to WalletHub's trademark application after the latter agreed to amend the application to absolutely needlessly clarify that it wasn't a baseball team.
The addition of a single sentence ended a lengthy period of negotiations over trademark infringement allegations over how the letter "W" was used in logos between D.C.-based Evolution Finance's financial information company WalletHub, the Washington Nationals and Major League Baseball. With that, MLB's complaint was dismissed July 14.
Evolution Finance’s original filing said it was “creating an on-line community for users seeking financial information to participate in discussions, get feedback from their peers, read and customize their news” and other services. But the new trademark application also adds “all the foregoing not relating to baseball or softball or to a baseball or softball team, league, mascot or stadium.”
If pettiness were a sport, MLB's lawyers would be winning the pennant. Honestly, this sounds more like a legal team extracting some kind of action out of an opponent simply to justify its own existence rather than an action with any actual legal interest. But, hey, trademark, amirite?
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Posted on Techdirt - 24 August 2015 @ 6:25am
We've been covering stories here about studies and claims linking real-world violence and video games for about as long as I've been a reader/writer. An even cursory review of our own record can only lead a reader to conclude that such links are, at best, nebulous, and are perhaps less likely than likely to exist. When coupled with some recent and fascinating revelations about just how easy it is to get a study to say exactly what you want it to say, and to get that study published and reported in supposedly reputable arenas, we're left with the troubling impression that such studies linking violence and gaming are more back-patting endeavors than they are true intellectual efforts.
With that in mind, you may have heard of a recent American Psychology Association report that strongly affirms the link between gaming and aggression, which is in this context meant to be synonymous with violence. This was the product of the APA's task force for studying the existence of such a link. It might represent a scientific victory for those who have long claimed that such a link exists, were it not for the predictably massive problems associated with the task force, the studies it took into account, and the methodology for the conclusions it drew. These problems are evidenced by the over two hundred academics who have submitted an open letter to the APA sharing their collective concerns over how this all went down.
One of those signees, Stetson University psychology professor Chris Ferguson, spoke with Game Informer, detailing the problems with the task force. Among those problems are details such as the task force being mostly comprised of scholars who have demonstrated in the past a willingness to link violence and aggression, the measures they used for aggression, and task force members having previously publicly supported legislation aimed at keeping games away from children.
Ferguson tells me that of the seven task force members, four had at anti-media leanings, with another that uses aggression measures that have been called into question by some factions of the psychology community. "To some degree, they're really commenting on their own product," he says. "I think people interpret these things as neutral. You have to remember that they are commenting on their own product. These are people looking at their own research and declaring it beyond further debate. All of us would love to do that, but we don't really get that chance, nor should we."
He also notes that all seven members of the task force were over the age of 50, citing a correlation between views on media and age. "I point that out because there is solid evidence that age is a correlate for attitudes about video games, even amongst scholars," Ferguson explains. "Age and negative attitudes toward youth predict anti-game attitudes."
For those of us that worship at the altar of science, this serves as a welcome reminder that science is only as good as those conducting it. Bias is omnipresent and omnidirectional and it is something we must always be vigilant against. For instance, cited in the open letter is the fact that the APA previously stated as a matter of policy that violent games should see a reduced exposure to children and that the APA had already made recommendations to the gaming industry about exactly how violence should be portrayed in games, specifically suggesting that real-world consequences should be visited upon violent actors in digital media.
In other words, as the letter states, the APA task force essentially reached the conclusion that the APA's previous work and recommendations were on point, using a hand-picked team comprised of researchers perfectly biased to reach just that conclusion. Adding to the letter's concern over some of the sloppy methodology for drawing the task force's conclusions is the kind of simple real-world analysis of data that has me wondering just how any of this made it past the APA's review to begin with.
Ferguson and his colleagues also point to data evidencing a decrease in youth violence, which contradicts assertions that media (video games and non-interactive forms) are a public health concern. Ferguson cites colleagues at Oxford, Villanova, Western Michigan University, and more that have presented recent findings in peer-reviewed journals. These studies indicate that there is no connection between violent video games and aggression. A study by Patrick Markey at Villanova indicates that "participants who were not angry tended to be relatively unaffected by exposure to violent video games."
In other words, at the exact moment that the APA suggests violence and video games are linked, and at the exact moment that violent video games have exploded in popularity and dissemination, violence amongst youth (and the general public) is trending downward
. One would think that if a link existed, we might see some evidence of it outside of ham-fisted studies utilizing questionable methodologies.
But, alas, this is the way of things. And you should expect this to continue, probably right up to the point when most of the research of this issue is being done by a generation in which gaming was prevalent in their youth. Then the studies will likely show something more interesting than a self-created echo-chamber of moral outrage.
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Posted on Techdirt - 21 August 2015 @ 6:29pm
Under Armour, the clothing brand built on the idea that my belly fat should be clung to by a shirt while I shoot hoops in my backyard, has built up quite a reputation for itself as a trademark bully. To go along with the fun story of its battle against Ass Armor, Under Armour is notorious for trademarking roughly all the things when it comes to sportswear and equipment, and has always had a liberal idea of just how much control the law allows it to have over the use of the word "armor." Most times, very little public attention is whipped up. But now they're picking a fight with God.
In 2013, a Bible-quoting high school football champ named Terrance Jackson, upset that most of the clothing options for his 3-year-old son were covered in skulls and crossbones, decided to start his own “inspirational apparel” company with a scripture-inspired name, Armor & Glory. It recently received some major attention from America’s second-biggest sportswear empire, Under Armour, which demanded the small Maryland company change its name or face all-out legal war.
“It’s trademark bullying at its finest. I’m the little kid in the group and they’re trying to kick dirt on my new shoes,” said Jackson, 37, who said the name came to him one morning, from “the full armor of God” cited in Ephesians 6:11. “When God gave this [name] to me, I never thought once about those guys. We don’t even spell it like them.”
Indeed, much as Ass Armor did, Armor & Glory's name doesn't include the "u," unlike Under Armour. Which is only a minor point, actually, because the chief test here is customer confusion and brand identity, and it takes a more imaginative mind than mine to think up exactly how a company selling a few hundred shirts is going to be mistaken for the clothing company currently chasing Nike for the sportswear crown. More troubling still is the nature of Under Armour's request. The company's legal representation requested not only that all of Armor & Glory's inventory be destroyed, but that it would also have to hand over its domain, profits, and $100k in damages and attorneys' fees.
That would equate to about every last dollar the company has ever made, since its 2013 inception. More interesting, for me at least, is that the company's core audience is Christian athletes wearing the gear in part due to the Christianity-inspired names and slogans. Lawyers for Under Armour have gone so far as to state that if Armor & Glory refuses to cease using the bible-inspired name, the result will be "an expensive and time-consuming legal battle." A more bullying statement is difficult to compose. But Jackson, thus far at least, isn't backing down. Why, you ask?
Ed Tomlin, Jackson’s partner and a former director of football development for Under Armour (who says he left on good terms), says “it’s a matter of principle and a matter of faith.” The name, he added, “was inspired by God. … To turn our backs now would be like we were being disobedient.”
How about that
for a fun First Amendment test? If anything can whip up public support in a David v. Goliath legal battle, it's the injection of some honest to goodness bible-thumping. In fact, Armor & Glory has reportedly increased sales and brand-awareness due to the threat from Under Armour, making it all the more silly for the larger company to have engaged in this silly bit of bullying to begin with.
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Posted on Techdirt - 20 August 2015 @ 10:38am
Here at Techdirt, we've had a great deal of fun at the expense of the TSA and the agency's wonderful brand of security theater masquerading as actual airport security. Yes, the government putting on a kind of clinic in the simultaneous overreach into civil liberties for false security and the kind of wasteful government spending that makes the conservative talkshow hosts of the world dip back into the Oxy has been an ongoing source of entertainment. But the TSA can take the same kind of heart that thousands of purported UFO abductees do: you are not alone.
No, as it turns out, foreign airport security agencies can be just as laughable as we can be. Witness the Irish, for instance, and the way they bravely disarmed a three year old of a toy fart-gun.
Well, I do
want a kid wielding one of these delightful toys on an airplane, sirs. The very idea of a three year old tumbling down the aisle spraying a bunch of uptight, too-stiff adults with insufficient senses of humor in the face with banana-farts is exactly the kind of life, liberty and happiness no government ought be denying my right to pursue. What's far less funny - kind of - was the Irish authorities' insistence that they confiscated the "weapon" because it violated the rules against replica guns. Replica guns typically refer to realistic representations of actual firearms that don't work. The fart gun is not a representation of a real gun at all. And it most certainly works as intended.
The spokesperson noted that the toy was "being kept safe at the airport" so the child can get it back when the family returns, so that's nice.
It's not nice; it's exceptionally stupid. The Irish authorities are sitting on a children's toy that they absolutely know is not a weapon over a ham-fisted attempt to play by bureaucratic rules. I think it's time these lads went and had a Guinness and let the kid have his toy back.
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Posted on Techdirt - 19 August 2015 @ 10:53pm
It's been a while since we last checked in on PRS, a collection group in the UK that generally goes around acting as a kind of collection of prosthetic assbags for the musical artists it purports to represent. Actions like demanding money from a grocery store employee who happened to sing a song at work, demanding money from a woman who played some music for her horses, and demanding payment from small businesses it calls up on the off chance it might hear some music being played far off in the background are all taken under the theory that PRS has the best interests of the musical artists at heart. The problem with this theory is two-fold. First, it appears that, for a collection society, PRS is very terrible at collecting money, seeing as it has come to light that it doesn't have enough money for a copyright tribunal hearing over licensing with a television station. Second, in order to support that legal effort, PRS has decided to do what it always decides to do: slurp just a little bit more money away from the artists it represents.
When rights owners choose to licence as one through a collecting society, all deal making is subject to extra rules and regulations in order to satisfy competition law. If the society and a licensee cannot reach an agreement, the matter can be taken to a special court, which in the UK is called copyright tribunal. Which is what ITV is now doing having failed to agree a new deal with PRS covering broadcasts from the start of this year.
In the letter to its members, posted by the Music Law Updates website, the PRS executive board says that: “We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used."
And, with that supposed goal in mind, PRS announces that it will increase admin fees by 1 percent on all revenue it generates from music on television
. Not just artists whose music is played on ITV, but all music on television. For those of you keeping score at home, that means a collection society that bills itself as a protector of artists' rights has unilaterally announced an increase in its fees because it actually has to do that job
, and it's collecting those increased fees from members who do not stand to directly benefit from this legal action. That, my friends, is quite an operation they have going over there at PRS.
“The Executive Board has approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues”.
Yes, we're taking more money from you artists who will not be affected by this legal action over this license with this television station because it's extremely important to you, because we said it is. And, keep in mind, we alone have your best interests at heart, which is why we're taking more of your money.
It's always been this way. Collection societies serve as skimming operations, gently whisking away some percentage of revenue from artists under the guise of good intentions. But what else could you expect? Given how PRS treats the general public, why would artists expect to be treated any better?
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Posted on Techdirt - 18 August 2015 @ 11:08pm
And away we go. Techdirt (myself specifically) has been talking for some time about the impending expansion of major sports streaming options as the cord-cutting trend has continued. It only makes sense: leagues and marketers will go where the audience is. The most recent trend started slowly with the FCC voting to end its blackout rule. That decision was important for streaming, because one of the dumbest ideas that migrated over from broadcast and cable television was the idea that local blackouts of broadcasts and streams were in any way a good idea. Even as the NFL, NBA, NHL and MLB all have incrementally increased streaming options, those efforts have continued to be hampered by local blackout restrictions.
Well, Major League Baseball just took a giant step over the blackout line and is now effectively straddling it, announcing that local streaming will be available in fifteen markets in the 2016 season.
There is no specific timetable for a potential announcement of a deal between FOX and MLB. The two sides hope to complete the agreement around the end of this season, which would give the league and RSNs a full offseason to market the availability of the new local streams before Opening Day 2016. MLB Commissioner Rob Manfred, working with the league's president of business and media, Bob Bowman, has made in-market baseball streaming a key league priority, including personally participating in several negotiating sessions.
Per the above, this specific deal is going to be done with MLB teams that have broadcasting deals with Fox. But don't think for a single moment that that's where it ends. Even if MLB can't get similar deals in place for the other half of teams in the league, which would fully free up the fantastic MLB.TV product for local streaming, any modicum of success that Fox has with this program will be immediately adopted by the other broadcasters. They really don't have a choice. Cord-cutting isn't going away and it's been professional and college sports that have long kept subscribers tethered. The trickle of streaming options in sports has been turning into more of a deluge, and the cable industry should be expecting some tough times ahead in the next, oh, say three to five years. Because if Manfred has this on his priority list for MLB, please believe that the commissioners in the other leagues have it on theirs as well.
And when sports streaming really
gets going, it's the end of cable as we currently know it.
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Posted on Techdirt - 17 August 2015 @ 3:53pm
We've all heard it before: [industry X] can't compete in the marketplace because the public just wants everything for free. It's a mantra taken up by the film industry, the recording industry, the literary industry, and the video game industry. And, almost always, we've found that the mantra is complete nonsense. Instead, it's been clear that the public is more than willing to purchase that which is scarce and valued. It's just that those scarce and valued things are often times not the content itself.
The retro-gaming industry is instructive in this for two reasons. Piracy is typically much easier for retro games than modern titles. Most of the older consoles have been fully emulated at this point, with ROMs and games readily available for them online. For older PC titles, retro games often have no DRM or have been cracked so long ago that the cracked files are also readily available. In addition, retro titles aren't policed the same way that modern releases are. And, yet, despite all of that, or perhaps because of it, the retro-gaming industry is exploding.
Sites like GOG.com and Steam's client offer old games with smaller pricetags. The major console-makers like Nintendo, Sony, and Microsoft all have their own marketplaces for digital downloads of retro games. Those marketplaces must be doing quite well, considering that the consoles and publishers continue to support them and expand the retro-game catalogs. And, for the actual old products, the interest and prices for retro-game pieces are skyrocketing.
Giulio Graziani says it makes him feel a bit like a drug dealer, even though he's not buying anything illegal. It's part of his job digging up a steady supply of video games from the 1980s and 1990s for his store, VideoGamesNewYork, which specializes in everything from Atari and Gameboy to rare prototype NES cartridges.
Graziani, 50, has been in business since 2003, but says the market only recently began to spike. "Five years ago, I could drive through Texas and stop in little towns and buy everything," he says. "Now they're selling games out there for more than I do!" Even simple pieces, like The Legend of Zelda Ocarina of Time, which cost $12 in 2010, now go for $25. More coveted games, like Nintendo's Earthbound, can fetch hundreds of dollars, even thousands if they're in the original box.
It's always been this way. Collectors of art will always pay for original pieces, or for the items that go along with the actual content. If the public simply wanted everything for free when it came to gaming, anyone could go on the internet and get an emulator and a copy of The Legend of Zelda and have at it. But, of course, there are scarce items that go along with the collectables that can't
be downloaded, and so the prices are paid, even as they rise. And it's not peanuts we're talking about here. Estimates for how big the retro-gaming market is come in at something like $200 million per year.
For those who aren't collectors, however, there's still a reason to buy.
Luckily, for a casual retro gamer, there are some cheap solutions to get a quick dose of nostalgia. Nintendo's Virtual Console allows you to download classic titles to play on the Wii U or Nintendo 3DS. The Retron 5 console by Hyperkin sells for $159.99 and supports games for 10 systems, including NES, SNES, Famicom, SENES, Genesis and Game Boy.
Add to that GOG and Steam, along with the old-game marketplace Sony and Microsoft offer, and the RtB here should be clear: ease of purchase and the platform. Much like it is understood that iTunes is attractive because of the platform, rather than the music catalog that is also available via piracy, so do gamers appreciate the convenience offered by these marketplaces. Which is why they're growing and selling more and more.
If anything should signal the end of the "everyone wants everything for free" myth, let it be retro-gaming.
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Posted on Techdirt - 14 August 2015 @ 7:39pm
It's been quite clear over the past two years or so that the alcohol industry, and specifically the craft beer industry, has a massive trademark problem. The simultaneous and wholly related explosions of both the sheer number of craft brewers in existence and the unprecedented interest in craft brews has resulted in more threatened legal action than anyone could have anticipated. At the heart of the issue is the cultural practice of giving specific brews funky, funny, derivative and pop-culture-based names. Because of the number of brews being developed, these names often are met with concern by a secondary party who holds a trademark on something similar. Most often, these disputes come from other breweries.
But not always. Sometimes, indeed, they come from the strangest of places. Take the case of Pigeon Hill Brewing Co.'s latest offering, the LMFAO Stout. You already know where this is headed, don't you?
The latest case in a string of trademark disputes involving West Michigan craft beverage producers didn't come from a company in the industry, but rather from a pop music group.
The band, which bills itself as an “entertainment phenomenon,” alleges that Muskegon-based Pigeon Hill Brewing Co.’s LMFAO Stout infringes on its trademarked name, according to a cease-and-desist letter sent on Aug. 11. The letter caught executives at Pigeon Hill off guard as the brewery had researched potential trademark violations in the craft beverage space prior to labeling its beer, said Michael Brower, a co-founder at the brewery.
Yes, LMFAO, the band, sent a cease and desist to the brewery over LMFAO, the beer, claiming that consumers might somehow think that the band was now in the brewing business. You see, in today's permission culture, that the brewery actually took the step of searching to see if anyone had a trademark on LMFAO for alcoholic drinks doesn't really matter. Because LMFAO, the band, saw an opportunity for relevancy and jumped on it.
“We have a very famous mark,” Thilo Agthe, the attorney representing LMFAO, told MiBiz. “We have to be very careful in policing how that trademark is used and by whom. It’s possible that customers that purchase (LMFAO Stout) might associate that with the band.”
Agthe declined to comment on whether the group had specific evidence of customer confusion related to Pigeon Hill’s beer, citing the attorney-client privilege.
I can't honestly say that I've ever heard of attorney-client privilege being used as a shield for providing evidence of a trademark dispute in this way. Probably because it makes about as much sense as me putting my dog in front of a computer and shouting at her to make me a pizza. The whole point of a trademark dispute of this kind rests on customer confusion, real or possible. The proper answer to the question of "Why the hell are you bothering with this?" isn't "Haha I can't tell you because I'm a lawyer."
And we've seen more than enough of this "We must protect our trademark" excuse used in these types of disputes. A mark owner is bound to police the use of their mark within the industry
and within the bounds of trademark law
. It is most certainly not bound to police every instance of the words or phrases being used by anyone in any commerce forever and ever amen. Especially when it's been demonstrated clearly that the use by the brewery, in this case, has literally nothing to do with the band.
Pigeon Hill settled on the name for its LMFAO Stout, which stands for “Let Me Fetch An Oatmeal Stout,” after soliciting input from social media to crowdsource the beer’s name, Brower said.
Yeah, that isn't what LMFAO stands for and they know it. That said, what LMFAO does
stand for has been around long before the pop band decided to utilize it for their name. I would expect any action brought by the band to be dismissed with haste.
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Posted on Techdirt - 13 August 2015 @ 11:34pm
Sometimes you try really hard at something and you still fail. Such is the case with Mad Dogg Athletics' attempt to keep its "spinning" trademarks from becoming generic. We wrote about the company's marks on stationary bike classes nearly five years ago, when it was busy suing several gyms in Denmark for offering spinning classes. In fact, both before and after those legal actions, MDA has been incredibly active in trying to enforce its trademarks. They tried really, really hard.
But the company failed. Much like other types of workout classes, nobody sees spinning as a source identifier any longer. Nobody thinks of Mad Dogg Athletics. Hell, most people haven't even heard of MDA. But the company hasn't given up, as shown by how it got eBay to remove a listing for an exercise bike for using the term "spin."
VeRO is ebay’s Verified Rights Owner program. VeRO allows a right’s owner (someone who has a verified trademark, copyright, etc.) to request removal of an item. This action, of course, is not without controversy. Business owners have claimed that this process is often abused and overreaching. I will leave that discussion for another day. For now, you should know that a company by the name of Mad Dogg Athletics, Inc. (MDA) is a member of the eBay VeRO Program and uses this program to enforce the nearly one hundred trademarks it owns, which include: spin, spinning, spinner, spin yoga, spinfitness, and spin daddy. With that said, only MDA’s Spin® bike can be called that, and so my client’s “spin bike” listing was removed due to use of the word spin.
Actually going after eBay listings for using a word like "spin" would be ridiculous in its own right, but this is about something much deeper for MDA: the term spinning is generic. It just is. And it's not like this kind of trademark-to-generic evolution is without precedent. Yoga and Pilates went through a similar transition, having been source-identifiers for consumers but soon turning into descriptions of a particular process or type of class, rather than any kind of brand. Keep in mind, as the link above notes, the test for whether a term is generic is the wider public's perception, not the individual purchasers' perception. Go ask someone on the street whether "spinning" is associated with any particular brand and see what reaction you get. It's generic.
I know I am not a professional cycler by any stretch, but as someone who at least recreationally partakes in indoor cycling, I had never even heard of the MDA. I bet you if I polled the people at my class, most haven’t either. It’s also important mention that on its page for “indoor cycling,” Wikipedia states, “[i]t is commonly called spinning.” Yelp allows you to search for “spin” and “spinning studio.” ABC News refers to SoulCycle as a spin studio. For the record, they are not. I dare you to search any cycling studio’s reviews for the word “spin.” Almost every review I found seemed to use the word interchangeably.
This is a good thing. And, actually, it's something that MDA could take advantage of, if it so desired. After all, MDA was
indeed the originator of the term and it would be good business to make a marketing campaign out of its expertise with spinning. Instead, MDA appears to want to rage against the inevitable with legal action after legal action. Sadly, despite all of that effort, it isn't going to work -- and the company is just, well... spinning its wheels.
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Posted on Techdirt - 13 August 2015 @ 3:48pm
Before I started paying attention to trademark issues as a part-time living, I'm pretty sure I would have thought that it would take quite a bit to get a big company's lawyers firing off threat letters and legal actions. You know, like an actual threat, or a violation of trademark that had been brought to the company's attention by confused members of the public. Instead, it too often appears that the lawyers for large companies scour the world for any-might-be-possible trademark issue that can be acted upon, like a schizophrenic pouring over the newspapers in search of that secret code the government is using to control our minds.
How else do you explain when Paramount Pictures decides to fire off a cease and desist letter to The Codfather Takeaways fish and chips restaurant in New Zealand because their sign includes a cartoon fish that resembles Marlon Brando?
As part of its signage, The Codfather Takeaways has adopted Brando's Don Corleone character in the style of a fish. Paramount, owner of the trademark The Godfather, is not impressed and through lawyers has instructed the shop to stop. But Danielle Stuart, co-owner of The Codfather, reckons Paramount is being mean spirited and says both the name and insignia are staying. Stuart was in the final stages of registering The Codfather trademark when she received a letter from Paramount Pictures' lawyers opposing the application and also asking them to stop using "The Godfather stylisation".
You can see the signage in the background of this picture of the owners.
When asked, the owners admit to the inspiration the film provided for the name and the signage, but say they're confused why Paramount is targeting them because they sell goddamn fish and not movies.
Stuart said she could understand Paramount being grumpy if she was planning to open a world-wide chain of Codfather Takeaways, but she was not.
"We are just a little fish and chip shop in a small corner of the world."
Not small enough, my dear, because the beautiful minds at Paramount are always searching for any violation. Now, there are a couple issues here. First, nobody anywhere at any time is going to think a New Zealand fish and chips shop is somehow affiliated with a Hollywood movie studio. Sorry, ain't gonna happen. Second, I defy anyone to draw a fish without it looking like Marlon Brando. It can't be done.
And finally, why the hell is Paramount bothering with this to begin with? There are any number of restaurants
and chains called "The Codfather." A fish that looks like Brando really makes this one a priority?
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Posted on Techdirt - 13 August 2015 @ 1:35pm
Let's say you're a leader in an association for NYPD sergeants. Now let's say you're, like, super aware of some of the changes and backlash against the NYPD that has occurred recently, chiefly concerning policies for policing the public, charges of racist and violent practices, and the insistance that the city government find ways to keep officers accountable for their actions. You know the city is looking into NYPD officials deleting information on illegal summons quotas. You know of the concern over the fact that the NYPD has pissed off so many black men that black men kind of don't want to join their ranks. And you're especially aware of the trend of greater protections for the public filming police doing their jobs and the crackdown on the crackdown of the photographers. What do you do?
Psshh, start a Flickr account solely for the purpose of poor-shaming the homeless to try and embarrass the Mayor, right?
The Sergeants Benevolent Association is spearheading the effort, emailing a letter to members Monday urging them and their families and friends to take pictures to document the decline of the city.
“As you travel about the city of New York, please utilize your smartphones to photograph the homeless lying in our streets, aggressive panhandlers, people urinating in public or engaging in open-air drug activity, and quality-of-life offenses of every type,” says the letter from SBA President Ed Mullins, a major critic of Mayor Bill de Blasio.
Yes, Mullins (and the ironically named Sergeants Benevolent Association) then takes those photographs and uploads them to its Flickr account
, because apparently the best way to make a political point to a political opponent is to publicly shame the least able to defend themselves. Should you not wish to view this material, something for which I wouldn't blame you, the pictures almost uniformly show homeless and vagrant folk in their own misery, often captioned with such wonderfully sympathetic thoughts as "Quality Of Life For The Mayor" and "Peek A Boo" and "Homeless Takeover NYC." The idea of shaming the homeless, who might be homeless for any number of reasons, is deplorable. As are Mullins' excuses for doing so.
Noting that more cops are being recorded on the job, Mullins wrote, “Shouldn’t accountability go both ways? We, the ‘Good Guys,’ are sworn to protect our citizens. Shouldn’t our public officials be held to the same standard?” he said.
Except the two things aren't remotely equivalent. The public photographing the police performing their duties while serving that very same public isn't the same as snapshotting a 3rd party whose lives are already miserable to take political shots against the Mayor. Frankly, these are the kinds of things said by those with head injuries, not those leading a police association. More specifically, Mullins claims this is being done in response to pending city legislation that would require police to obtain permission to search a suspect if they don't have probable cause for an arrest. You know, that thing that's already in the goddamn Constitution
? Yeah, that's
why he's encouraging police to publicly shame the homeless.
Get a grip, guys...
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Posted on Techdirt - 13 August 2015 @ 5:29am
As anyone who pays attention to technology and social trends knows, selfies have been a thing for a while now, for some reason. These testaments to the massive inflation of our own egos have occasionally created pushback in a variety of forms, from the banning of selfie sticks from roughly all the places to, sigh, intrusions into intellectual property matters as they relate to damn dirty monkeys. And, in a bit of news that missed my radar for some reason, last year New Hampshire updated its laws prohibiting the photography of voting booths and records to include criminalizing individual voters taking so-called "ballot selfies", in which they proudly tweet out a picture of a completed ballot.
The original laws against this type of thing, most of which were codified in the 1970s, typically were put in place to stave off influencing the public in voting matters by a show of votes and warding off the possibility of paid-for votes being carried out with the photograph being used to confirm the vote was completed. These goals, while seemingly laudible, are misguided for any number of reasons, including the limitation on expression for fear of a might-be-possible-future-crime and the fact that all manner of people discuss their voting habits all the freaking time anyway, such that a photograph doesn't really add much to the discussion. When my friend tells me he writes in Bear Grylls for President every four years because, hey, that dude drinks his own urine, imagine what crazy shit he'll do as President, I don't shout "Pics or it didn't happen!" at him.
And, in a moment of legal beauty, a federal judge in New Hampshire agrees and has declared ballot selfies to be free and protected speech.
In his ruling, U.S. District Court Judge Paul Barbadoro said it's speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.
"You think people are going to post a photo on Facebook?" he said [during oral arguments]. "'I'm a proud seller of my vote! I just sold my vote for $25!' At some level, you have to use common sense."
The ACLU argued successfully in favor of three voters who had been investigated after posting pictures of completed ballots on social media. Included amongst those three individuals was one gentleman whose photo showed that he had written in his own dog's name because he hated all the legitimate candidates. And before anyone in our government runs off to start investigating whether Fido in fact bribed this man to vote this way, you should know that Fido was dead at the time. Dead dogs go to heaven, they don't commit federal election fraud. Cats might, pending my further study of the possibility.
In any case, the point is that political expression is perhaps the most sacred form of free speech in our republic. A law outlawing a form of that speech in favor of concern for something that hasn't ever happened probably isn't the best way to govern.
"Today's decision is a victory for the First Amendment," Gilles Bissonnette, legal director of the ACLU-NH, said in a prepared statement. "Political speech is essential to a functioning democracy. The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct."
Indeed. Selfies are many things, and not all of them good. But they are
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Posted on Techdirt - 12 August 2015 @ 11:30pm
I recently took my annual fishing trip into northern Wisconsin and, on the way, stopped for breakfast at the Paul Bunyan's Cook Shanty in the Dells. I didn't realize at the time that this wonderful establishment that hurled eggs and pancakes at me was embroiled in a strange trademark dispute. See, in addition to being an eatery, Paul Bunyan's also puts on a rather elaborate lumberjack show, complete with log rolling and cutting and all the rest. The problem, apparently, is that there is a traveling lumberjack show based out of Florida called the Paul Bunyan Lumberjack Show, and that company has filed a trademark suit in federal court against the Dells eatery.
The owners of the Paul Bunyan Lumberback Show, based in St. Cloud, Florida, filed a lawsuit this week in federal court in Madison. The plaintiffs say the owners of the Paul Bunyan Cook Shanty in Wisconsin Dells can't use the name of the mythical lumberjack in its show because they have trademarked it.
The Portage Daily Register says both shows include competition by professional lumberjacks in a variety of events, including chopping, sawing and log-rolling. The Dells show is held next to the restaurant while the Florida show travels around the country and included a stop last month in Wisconsin.
To my mind, it would be ridiculous enough for a company in Florida to lay claim to a fictional character that dates back to the early 1900's, not to mention a fictional character whose many origin stories nevertheless are relegated to the locations north of the Mason-Dixon line. It's more ridiculous still that this Florida-based traveling logger show would claim customer confusion with a Wisconsin Dells establishment that's been around since the 1950's. Paul Bunyan, by the way, is in the Public Domain.
Now, the Florida show has been using the name "Paul Bunyan Lumberjack Show since 1988, but only registered it in 2014. The Dells restaurant, on the other hand, has been using the name "Paul Bunyan" for six decades, but only started its lumberjack show three years ago. It will be on a common law claim that the Florida show's trademark suit rests. However, that really shouldn't matter
. There is little chance that any real customer confusion could be shown, particularly given the Dells company's long-established history and use of the name.
That this is all over a public domain fictional figure shows how silly trademark has become.
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Posted on Techdirt - 12 August 2015 @ 1:34pm
Anyone who has been reading here for any appreciable amount of time is likely already aware that the Tolkien Estate, representing the family of JRR Tolkien, watches over the world to seek out even the barest possibilities for intellectual property issues concerning the dead author, and then pounces on them with its horde of legal armies. The estate has even gone so far as to suggest that simply mentioning the author's name on a button constitutes infringement. The Tolkien Estate doesn't produce anything of public value, mind you. Nor does JRR Tolkien, who is a dead person. Instead, the estate simply nixes out any unauthorized references to the author or his famous Lord of the Rings works, for reasons I can't really comprehend.
What's frustratingly interesting about these stories is the bone-breaking stretching the estate goes to just to claim some kind of infringement. The latest example of this is the Tolkien Estate and Warner Bros. forcing a couple to eighty-six their Kickstarter campaign to build a "Hobbit House" on their campsite.
Last month Jan and Ed Lengyel decided to launch a Kickstarter campaign for the Hobbit house they’re building at their Suffolk countryside campsite. The married couple are running a successful holiday ‘glamping‘ (glamorous camping) business and thought the idyllic location would be very suitable for small house inspired by the popular movie.
Following a complaint from Warner Bros. the Kickstarter campaign was pulled offline without warning. The movie studio didn’t want the couple to use Hobbit references arguing that they infringe on their copyrights and trademarks. Faced with the sudden removal the Suffolk couple saw no other option than to give in to the demands and started editing the page.
Those edits revised the project to be called "Poddit Hole" instead of "Hobbit House," and altered the setting for the house as existing in "Centre-Earth" instead of "Middle Earth." Those seem like changes that are somewhat significant while still paying homage to the Tolkien works. And that's when the Tolkien Estate stepped in, claiming that the changes were still too close to "Hobbit" and "Middle Earth" and would have to be changed further. In a bit of poetry, lawyers from the Tolkien Estate insisted that the couple refrain from using names or words that rhyme with "Hobbit."
“The Tolkien Estate has asked us not to use ‘Poddit Hole’, which is absolutely ridiculous. We have got to call the project something, what would they like us to call it?” Ed Lengyel tells Daily Mail. “Even though we have bent over backwards to meet their demands they are still wanting more,” she adds.
I'll say a couple of things about this. To start, I'm not entirely clear on what copyright claim either Warner Bros. or the Tolkien Estate has grounds to make. My understanding is that the house isn't constructed to be identical to any dwelling in the films, so that isn't it. Instead, the claim appears to rest on the copyright Tolkien's estate claims on the word "Hobbit," while the trademark does the same for both that word and "Middle Earth." For the trademarks, I'm not clear on exactly when Warner Bros. or the Tolkien Estate got into the recreational camping business. If they haven't, I'm not exactly sure where the customer confusion or competition is supposed to come in to play. As for the copyright claim on the race known as "Hobbits," it's not exactly a secret that the word existed prior to Tolkien's use of it (although with an entirely different meaning), nor is it obscure knowledge that Tolkien himself based his race of Hobbits
off of other fictional work. A copyright claim needs to follow specific characters or expression. Simply mentioning the fictional race as inspiration for a camp dwelling would require stretching to meet the level of copyright infringement.
And the final point, of course, is that damn it all of this should be in the public domain by now
. Were it not for the extensions to copyright that occurred decades after Tolkien put pen to paper, we wouldn't even have to be discussing any of this. Of course, nothing goes into the public domain any more.
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Posted on Techdirt - 10 August 2015 @ 3:39am
Back in February, we brought you the delightful news that the Chicago police department was rather broadly known to be operating what was essentially a CIA-style black site within the neighborhood of Homan Square. This facility, located in a rough West Side neighborhood of the city, featured such practices as off-the-books detention, lawyer-less interrogations, and the occasional fatality. This place, where detainees would disappear for hours or days, seemed to be a vacuum of civil liberties and instead operated under the theory that Chicago police were rulers over all, and were owed whatever they demanded. The original Guardian link detailed a number of witness stories from those who had been detained at Homan Square, but very little information was available about exactly how widely the facility was being used.
Thanks to the Guardian's FOIA efforts, however, we have some clarity on how much Homan Square is used and how the police detain people there, and, well, it's extremely chilling to anyone with a modicum of interest in civil liberties.
At least 3,500 Americans have been detained inside a Chicago police warehouse described by some of its arrestees as a secretive interrogation facility, newly uncovered records reveal. Of the thousands held in the facility known as Homan Square over a decade, 82% were black. Only three received documented visits from an attorney, according to a cache of documents obtained when the Guardian sued the police.
Despite repeated denials from the Chicago police department that the warehouse is a secretive, off-the-books anomaly, the Homan Square files begin to show how the city’s most vulnerable people get lost in its criminal justice system.
I wasn't a math major, but three out of thirty-five hundred detainees receiving visits from counsel is something like not-enough-percent. And before anyone goes off on the dangers of the West Side of Chicago or goes off prospecting for dirt on those detained, a review of the charges against many of those detained at Homan Square are laughably mundane. And that's when charges were filed to begin with.
Documents indicate the detainees are a group of disproportionately minority citizens, many accused of low-level drug crimes, faced with incriminating themselves before their arrests appeared in a booking system by which their families and attorneys might find them.
The CPD response to this, even after the initial story broke months ago, has been that Homan Square isn't a black site, it's simply an undercover base for Chicago police, which, you know, you say tomato, I say black site. Either way, the city's long-running denial maintains that all those arrested are indeed processed through the booking system and can be found by attorneys and families, except the detainees at Homan Square aren't arrested until they're booked at another station, so that doesn't mean anything at all. The Guardian's review of the records show that most of these detentions have occurred under the watchful gaze of Mayor Rahm Emanuel, most of those eventually charged with a crime were charged with anything from traffic violations to drug possession, and under ten-percent of detainees were white, despite whites making up a third of the city's population. And these records only go back to 2004. Homan Square has been in operation since 1995.
After the facts are presented, the article includes the usual quotes from civil rights leaders who lament their own lack of surprise at all of this and who wonder blissfully if anyone will do anything about Homan Square this go around. To hell with that. If you have a brain cell to spare on civil rights for an entire city's population, this ought to both shock you and make you very, very angry.
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Posted on Techdirt - 6 August 2015 @ 11:06pm
For quite a while now, some of us in the business of discussing digital business models and entertainment have suggested that the ongoing trend of cable-cord-cutting, which will eventually turn the cable TV business into something completely different than what it's been for decades, would be best spurred on by better streaming sports options. What once seemed like a trickle of streaming adoption by sports leagues and broadcast partners has begun to turn into a river, with baseball and football looking to expand streaming options and some very serious web companies getting into the game as "broadcast" partners with major pro sports leagues.
It isn't stopping. In fact, it's only ramping up further. The NHL, the group with the lowest television revenue of the major sports leagues, and therefore the most to gain from streaming its product to expand the fan-base, just announced a deal with Major League Baseball to piggyback on the excellent MLB Advanced Media platform to stream NHL games.
The partnership will transform the fan experience by creating a fully integrated global hub of digital content that encompasses video, live game streaming, social media, fantasy, apps, along with statistical and analytical content. With an emphasis on deeper access into the game and telling the stories of NHL players, MLBAM and the NHL will collaborate on developing new digital products and platforms while enhancing current offerings.
The deal awards MLBAM rights to distribute live out-of-market games, including through the NHL GameCenter LIVE and NHL Center Ice subscription services in the United States and certain international markets. MLBAM will operate NHL.com, including the League's seven native language sites, and Club websites. MLBAM will operate NHL apps and be available to develop apps for the Clubs. The NHL and MLBAM will partner on the design and development of new digital products and platforms. The NHL and its Clubs retain editorial control across all platforms. The Emmy-Award winning MLB Network will provide studio space and production resources for the NHL Network for distribution in the United States and certain international markets.
This works on so many different levels, it's hard to know where to begin. First, any baseball fan, or really any sports fan, should be aware by now that MLBAM is the absolute gold standard in sports streaming. The price, the offering, the quality, the organization, the replays and the presence on new media is done amazingly well. If you're a baseball fan and you don't have MLB.TV, you clearly enjoy self-masochism in a way that I will never understand and may God have mercy on your soul. The NHL, in partnering with MLBAM, doesn't need to create their own platform
. They simply partner with the best in the business and go on doing what they do best: producing hockey games. Give up a little control, get back a ton of exposure and a platform that makes the game widely available throughout the country/world.
Which is exactly what some of us (ahem, me) said the NHL should have done immediately after the last lockout
. The promise of streaming is a customer-base unimpeded by borders or geography, one where your best fans can access your product wherever you go. The NHL, more than any other league, needs this sorely. Now they have it in a package that almost inevitably will be better than the Center Ice streaming product, which, blech. The only question is going to be just how long is it going to take, how many smart TVs need to be sold, and just how wide does the high-speed broadband net have to be cast before the leagues realize the obvious conclusion they should be drawing from all of this: they don't really need the broadcast partners anymore.
Notice the language that the NHL used in announcing this deal. MLBAM is the distribution channel for out-of-market games for the NHL. Today that means streaming the television broadcasts out of market. But also note that MLB has its own cable network and is its own broadcast partner for some games. Exactly how far is MLB away from partnering with MLB franchises to broadcast on its own station, where it can sell its own advertising, hire its own on-air talent, and all the rest? And if they can do that, they could simply stream the games as a priority and leave the television station on as an afterthought. They already know how to do this, through the MLB.TV service. Exactly what purpose are the TV stations filling that MLB can't do on its own?
And if MLBAM wants to strike up deals with other sports leagues to be their
broadcast partners on the web? Well, if you work at ESPN, you ought to be shaking in your shoes right about now.
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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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