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About Dark Helmet Techdirt Insider

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

https://www.smashwords.com/books/view/112205

http://www.amazon.com/Midwasteland-ebook/dp/B004THD8SQ/ref=sr_1_1?ie=UTF8&qid=1345132753&sr=8-1&keywords=timothy+geigner

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Posted on Techdirt - 16 September 2019 @ 8:12pm

Nintendo's ROM Site War Continues With Huge Lawsuit Against Site Despite Not Sending DMCA Notices

from the nintendon't dept

Roughly a year ago, Nintendo launched a war between itself and ROM sites. Despite the insanely profitable NES Classic retro-console, the company decided that ROM sites, which until recently almost single-handedly preserved a great deal of console gaming history, need to be slayed. Nintendo extracted huge settlements out of some of the sites, which led to most others shutting down voluntarily. While this was probably always Nintendo's strategy, some sites decided to stare down the company's legal threats and continue on.

One of those sites was RomUniverse, which not only refused to shut down, but essentially boasted that it wasn't scared of Nintendo's legal attack dogs and would continue on. That stance is about to be put to the test, however, as Nintendo has filed a copyright lawsuit seeking enormous damages against the site.

In a complaint filed at a federal court in California, the Japanese gaming giant accuses the site’s alleged operator, Matthew Storman, of “brazen” and “mass-scale” copyright and trademark infringement.

“The Website is among the most visited and notorious online hubs for pirated Nintendo video games. Through the Website, Defendants reproduce, distribute, monetize, and offer for download thousands of unauthorized copies of Nintendo’s video games,” the complaint reads.

Nintendo states that the site, which has 375,000 members, offers downloads for nearly every video game system it has ever produced.

Now, to be clear, there is nuance to our stance here. Does this constitute copyright infringement of Nintendo's property? Hell yes. Can Nintendo sue over this on solid legal grounds? Of course! Should it do so? Well, that's a more complicated question. You have to wonder just exactly what Nintendo is going to get out of all of these lawsuits. Yes, it may succeed in shutting down this and other sites. But does that mean those that use ROM sites are suddenly going to buy a Nintendo console, retro or otherwise? It's not obvious that the answer to that is "yes." Instead, those pirates will probably just not play Nintendo games at all. Or, more likely, will find another venue for ROMs, and rinse and repeat that process as Nintendo goes on its whac-a-mole expedition.

And, given that Nintendo only recently really invested in making retro games available on its consoles, these sites actually did preserve gaming history for millions of people who would otherwise have never played these aged titles. Not to mention that ROM sites are also a place for home-brewed games on these older consoles, which themselves are not infringing.

And, finally, if Nintendo really just wanted to combat piracy in all of this, why not at least start with the DMCA process?

RomAdmin from RomUniverse informed us that he hasn’t received anything from Nintendo, no recent takedown notices either. The site does respond to takedown notices.

“We’ve always immediately taken down questionable material, per their take down notices,” RomAdmin told TorrentFreak.

Instead, Nintendo went straight to the nuclear option, with a lawsuit asking for potentially over $100 million in damages. Again, it can do this, but given how much money the company is already raking in off of retro gaming... why?

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Posted on Techdirt - 13 September 2019 @ 7:39pm

Liverpool FC Fans Plan Protest Of Their Own Club Over Trademark Issue

from the not-working dept

It was only a few weeks back that we were discussing Liverpool FC, a soccer team playing in the UK Premier League, attempting to get a trademark for "Liverpool", the city in which it plays. While the club has made a point of reminding the public that its application is quite narrow, limited specifically to products and services revolving around soccer, that same public has pointed out there are both other indpendent soccer clubs in the city that would technically be infringing on that applied-for mark and that there is a culture of independent retailers selling fan gear that would get caught up in this as well. Liverpool FC, meanwhile, maintains that it wouldn't go after either group, but instead are interested only in protecting its fans from mass-makers of counterfeit apparel and the like.

Which makes it somewhat strange that it's those very fans that are now organizing a protest against the team for its attempt to trademark the city's name.

Liverpool fans are mobilising again. This time it is not in pursuit of glory or organising a massive trek to watch the men in red. They are protesting against the club, a situation the Kop had hoped was consigned to the past.

The Spirit of Shankly Supporters Union (SOS) has called for a show of strength during Saturday’s English Premier League fixture against Newcastle United. A decade ago demonstrations were a regular occurrence.

There's a culture for this sort of thing for the Liverpool FC, it's true. Still, it's not great for the message from Liverpool FC that it's doing all of this for the fans, when it's those same fans that are telling them to knock it off.

It remains to be seen exactly how big this protest is going to be, but it's been clear thus far that the soccer club doesn't have any serious support from the public in this move it says is for that same public. And not only is the everyday Joe Soccer Fan concerned. Even Liverpool's mayor has come out stating concern should Liverpool FC have its trademark approved.

Moore has said these independent operators are not the target of the trademark application. It is “not about local traders, it is about large-scale operations that are flooding the market,” he tweeted. The club will, he suggests, come up with a system that will enable them to continue. That idea creates issues of its own, such as cost and the selection process.

These assurances have not been enough to assuage many people within the city, including Joe Anderson, the mayor. SOS have asked fans “to support unique independent businesses by wearing a piece of their merchandise” on Saturday. It is a mild shot across the bows that SOS, with characteristic wit, are calling “Independents Day”.

At this point, it's hard to see how any of this worth the trouble for Liverpool FC. Probably time to just cut your losses, guys.

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Posted on Techdirt - 12 September 2019 @ 7:37pm

THE Ohio State University Loses Its Trademark Application For 'THE'

from the THE-end dept

Over the past several weeks, we have been discussing a ridiculous trademark application filed by the Ohio State University for the word "the." This entire episode has been a painful reminder of the fallout of the permission culture that has risen up out of strict IP enforcement and an overly-permissive USPTO. The idea that so common a word could be locked up by a public university for any market designation is, ahem, patently absurd. So absurd, in fact, that even OSU alumnus and college football commentator Kirk Herbstreit thought the whole thing was silly.

Still, given the Trademark Office's history of approving far too many absurd trademarks, there were still some holding their breaths awaiting its decision on the application. For now, at least, the USPTO has rejected OSU's application, though not quite as forcefully as it should have.

The USPTO's document lists says it was refused because "the applied-for mark as used on the specimen of record is merely a decorative or ornamental feature of applicant's clothing and, thus, does not function as a trademark to indicate the source of applicant's clothing and to identify and distinguish applicant's clothing from others."

Basically this ruling says is that the word wanting to be trademarked cannot just be on the apparel, but has to be part of the marketing and must be on the tag or label as well. Ohio State is not using the trademark properly according to the USPTO, and could reapply if they do begin to label their clothing in a way that goes along with the trademark guidelines.

The decision itself leaves the door open for OSU when it probably shouldn't. Essentially, the USPTO is noting the common word in question only in passing, instead focusing on how OSU is trying to use that word on apparel. Basically, the Trademark Office is saying that the manner in which OSU's application says it's going to use the word "the" isn't distinctive or source-identifying, but says perhaps OSU could prove it actually is in the future.

In appropriate circumstances, applicant may overcome this refusal by satisfying one of the following options:

(1)        Submit a different specimen (a verified “substitute” specimen) that was in actual use in commerce at least as early as the filing date of the application (or prior to the filing of an amendment to allege use) and that shows proper trademark use for the identified goods in International Class 25.  Examples of acceptable specimens that show non-ornamental use on clothing include hang tags and labels used inside a garment.

(2)        Amend to the Supplemental Register, which is a second trademark register for marks not yet eligible for registration on the Principal Register, but which may become capable over time of functioning as source indicators.

(3)        Claim acquired distinctiveness under Trademark Act Section 2(f) by submitting evidence that the applied-for mark has become distinctive of applicant’s goods; that is, proof that applicant’s extensive use and promotion of the mark allowed consumers now directly to associate the mark with applicant as the source of the goods.

(4)        Submit evidence that the applied-for mark is an indicator of secondary source; that is, proof that the mark is already recognized as a source indicator for other goods or services that applicant sells/offers.    

(5)        Amend the filing basis to intent to use under Section 1(b).  This option will later necessitate additional fee(s) and filing requirements.

It's unclear how much of this is pure boilerplate as opposed to specific guidance by the USPTO for this specific application. I would hope it's the former, because I can't begin to imagine how OSU is going to overcome the refusal on any of those counts, given that we're talking about the god damned word "the." The only reason for any of this nonsense is that alumni football players have tended to go on NFL broadcasts and introduce themselves with an emphasis on the word "the." That's literally it. How such practice could make the word "the" source identifying is pure mystery.

Given the derision and blowback, one would hope the Ohio State University would now just go away and stop all of this.

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Posted on Techdirt - 11 September 2019 @ 8:04pm

USPTO Gets One Right: Refuses To Allow Farmers Market To Trademark City's Nickname

from the sodat's-good dept

We don't spend a great deal of time here patting the USPTO on the back for getting things right, but occasionally the agency surprises us. When it comes to trademarks being granted for city or town names, the Trademark Office has a higher bar for approval but is still far too permissive. When it comes to widely used nicknames for cities and towns, the Trademark Office's rubber-stamp methods have caused issues. The point here is that, whether its a city's name or nickname we're talking about, neither are good source identifiers, given both their wide use and the fact that both serve as geographic descriptors.

But, again, sometimes the Trademark Office gets things right. Such is the case with Soda City Market, a farmer's market organization in Columbia, SC, that applied for a trademark on its name.

The U.S. Patent and Trademark Office has given the company that runs the popular Saturday market an initial refusal to its patent application. One of the cited objections by the office: Soda City now is a common nickname that cannot really be trademarked, like the name of a city itself.

Another issue raised by the trademark office: there’s another potential trademark out there that was filed for earlier.

Soda City FC, a semi-professional soccer team, had filed earlier to trademark its name, creating the potential for a conflict. Its bid also has received preliminary objections from the trademark office.

This is the right response on both counts. We've seen issues in the past when city names and nicknames are approved for trademark even in very specific markets, such as soccer clubs. To allow entities to lock up such a commonly used phrase, which also is geographic in nature, is practically begging for conflict. As for the farmer's market, it applied for its mark in market designations such as "public events", which, hoo-boy if that had been approved.

Now, the farmer's market could appeal the decision, but it sure seems like that would be more trouble than it's worth. Why the market felt the need for trademark protection on such a generic name in the first place is beyond me.

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Posted on Techdirt - 11 September 2019 @ 1:31pm

That Time Taylor Swift Threatened To Sue Microsoft Over Its Racist Chatbot

from the tay-tay dept

I don't know much about Taylor Swift, but I do know two things. First, she apparently has built a career out of making music about men with whom she's had breakups, real or fictitious. Second, it sure seems like she spends nearly as much time gobbling up every type of intellectual property right she can and then using those rights to threaten everyone else. She trademarks all the things. She tosses defamation and copyright claims around to silence critics. She sues her own fans just for making Etsy fan products. Some of these attacks are on more solid legal ground than others, but there appears to be a shotgun approach to it all.

Which is why perhaps it only comes as a mild surprise that Swift once threatened to sue Microsoft. Over what, you ask? Why, over Microsoft's racist chatbot, of course!

In the spring of 2016, Microsoft announced plans to bring a chatbot it had developed for the Chinese market to the US. The chatbot, XiaoIce, was designed to have conversations on social media with teenagers and young adults. Users developed a genuine affinity for it, and would spend a quarter of an hour a day unloading their hopes and fears to a friendly, yet non-judgmental ear.

The US version of the chatbot was to be called Tay. And that, according to Microsoft’s president, Brad Smith, is where Swift’s legal representatives got involved. “I was on vacation when I made the mistake of looking at my phone during dinner,” Smith writes in his forthcoming book, Tools and Weapons. “An email had just arrived from a Beverly Hills lawyer who introduced himself by telling me: ‘We represent Taylor Swift, on whose behalf this is directed to you.’

“He went on to state that ‘the name Tay, as I’m sure you must know, is closely associated with our client.’ No, I actually didn’t know, but the email nonetheless grabbed my attention. The lawyer went on to argue that the use of the name Tay created a false and misleading association between the popular singer and our chatbot, and that it violated federal and state laws,” Smith adds.

Note here that Swift sic'd her lawyers on Microsoft before Tay evolved into its most infamous form. See, Tay was designed to learn from its interactions with humanity to make it appear and react more human-like. This went exactly as should have been predicted, with Tay morphing into a solidly racist hate-machine that spat vitriol at nearly all who interacted with it.

But before that occurred, Swift had trademarked her nickname, "Tay." And then sent Microsoft a cease and desist notice claiming that the public would confuse its chatbot AI as having some association with Taylor Swift. That's not how any of this works. Taylor Swift, to my knowledge, is not herself an AI chatbot nor has she created one herself. Nothing in trademark law allows a pop singer to control language for a technology company.

It's only by virtue of Microsoft's good sense that we didn't get to see an epic legal battle between the two.

Tay had been built to learn from the conversations it had, improving its speech by listening to what people said to it. Unfortunately, that meant that when what Smith describes as “a small group of American pranksters” began bombarding it with racist statements, Tay soon began repeating the exact same ideas at other interlocutors. “Bush did 9/11 and Hitler would have done a better job than the monkey we have now,” it tweeted. “WE’RE GOING TO BUILD A WALL, AND MEXICO IS GOING TO PAY FOR IT,” it added.

Within 18 hours, Microsoft disconnected the bot from the Tay Twitter account and withdrew it from the market. The event, Smith writes, provided a lesson “not just about cross-cultural norms but about the need for stronger AI safeguards”.

Any chance we could make some room for safeguards against this insane ownership culture we have?

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Posted on Techdirt - 10 September 2019 @ 7:33pm

Tales From The Platform Wars: Steam Dev Says Calling 'Metro Exodus' Epic Exclusive Unfair Wasn't Intended To Incite

from the riiiiiiight dept

With us now getting on into nearly a year of the new PC gaming platform war between Valve's Steam platform and the Epic Store, you might have forgotten how this all got kicked off. Before Epic pulled a Healthcare.gov with its platform release, and before crowdfunding efforts to fund PC games began taking a hit, and even before this whole thing transformed into mostly a PR war being fought with the PC gaming fanbase, there was Metro Exodus. The game was the first major title to announce an Epic Store exclusive deal for 6 months and that announcement came shortly after the game also became available for pre-order on Steam. This, understandably, pissed off a great many people. Including, it seems, the folks at Steam, who put out a statement on the game's page. The results were as predictable as the sun rising in the East.

On Monday, the latest game in the series, Metro Exodus, became an Epic Games Store exclusive, prompting Valve to call the sudden departure “unfair to Steam customers.” For some Steam users, that’s served as a rallying cry.  This has led to sustained outcry in the form of everything from review bombs of previous series entries Metro 2033 and Metro: Last Light to irate comments on every possible social media post associated with the game.

The review-bombing kicked off almost immediately and continued for days. And not just on that game's page, but on game pages for other Metro titles. Then, as other games went Epic exclusive, the review bombing continued, even after Steam put some tepid efforts in place to remove such review-bombs that were not relevant to the game itself.

Again, this was entirely predictable. Valve isn't made up of stupid people and this was widely seen as an effort to weaponize the Steam community to punish game publishers that chose to go with Epic. It's difficult to see it as anything else. That hasn't stopped some folks at Steam from trying to pretend otherwise, however.

Speaking to Kotaku during a Valve event in Seattle last week, Steam business developer and designer Nathaniel Blue said the company did not intend to legitimize the outsized backlash to Metro Exodus’ Epic store exclusivity when it put a comment on that Steam page. The use of the word “unfair,” he said, was meant to reference the timing of the announcement rather than the entire concept of exclusivity.

“I don’t think that was our intent to upset people,” Blue said. “It wasn’t the intent of the message. It was more about the timing. The game was about to launch, and then it was [exclusive to the Epic store]. So that was the only goal of that. What came out of that was not what we expected. It wasn’t meant to be this lightning rod.”

The integrity of this specific developer aside, this is flatly unbelievable. The best that could be said here is that the entirety of the Valve team that had any hand in posting the message to the Metro Exodus was laughably out of touch with the gaming community. Frankly, that's not something I would want to be admitting to if I were Valve. More likely is that Valve knew exactly what it was doing, but perhaps didn't expect the backlash to be quite so severe. So severe, in fact, that it created problems for Steam devs themselves, who suddenly had to figure out how to combat these review-bombs to save face with the gaming industry as a whole.

It is worth noting here that Valve has refrained from commenting similarly on any other Epic exclusives.

“I don’t know that we’d go back in time and change it necessarily, but I can say that in the future we didn’t say anything,” he said. “In the future we didn’t continue to do that because our goal is not to upset the community or light anyone’s hair on fire. Our goal is to get developers close to customers, have a really valuable place for people to play games, and stay focused on that.”

There is plenty of room for disagreement on what Epic's entry into the marketplace, and its specific tactics, means for the gaming industry as a whole. That being said, this claim by Valve doesn't ring true.

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Posted on Techdirt - 9 September 2019 @ 3:37pm

How The Cyber Insurance Industry's Bottom Line Is Fueling Ransomware

from the p-and-l dept

The past decade or so has seen an explosive upward trend for the cyber insurance industry. Given the rise of malware, particularly of ransomware, it's perhaps not surprising that an insurance market sprouted up around that reality. It's gotten to the point that those of us who's day to day business is managing client networks in the SMB space are now regularly fielding requests for how to obtain cyber insurance.

But when you begin to dig into how that industry operates and the methodology by which it advises its clients, it becomes quickly apparent that the cyber insurance industry itself is fueling the growth in ransomware attacks worldwide. ProPublica has a long and fascinating post on the topic, first discussing a real world example concerning a municipality that was hit with ransomware, attempted to resolve this on its own through restoration of backups, but ultimately was advised by its cyber insurance partner to pay the ransom. In doing so, the municipality was out only its $10k deductable, while the insurance company paid out over $400k to the attacker. This was seen as a good deal for the municipality.

But was it? It turns out that the IT department for the city was putting together a restoration plan. That plan would take time to implement, require the involvement of outside consultants, and would require overtime work by the IT staff. All of that, of course, would be paid for by the cyber insurance company if the city went down that path. Instead, the ransom was paid.

This highlights two troubling trends in the cyber insurance industry. The first trend concerns how insurance companies advise their clients when attacked... and why they advise them in the way they do.

A spokesperson for Lloyd’s, which underwrites about one-third of the global cyber-insurance market, said that coverage is designed to mitigate losses and protect against future attacks, and that victims decide whether to pay ransoms. “Coverage is likely to include, in the event of an attack, access to experts who will help repair the damage caused by any cyberattack and ensure any weaknesses in a company’s cyberprotection are eliminated,” the spokesperson said. “A decision whether to pay a ransom will fall to the company or individual that has been attacked.” Beazley declined comment.

Fabian Wosar, chief technology officer for anti-virus provider Emsisoft, said he recently consulted for one U.S. corporation that was attacked by ransomware. After it was determined that restoring files from backups would take weeks, the company’s insurer pressured it to pay the ransom, he said. The insurer wanted to avoid having to reimburse the victim for revenues lost as a result of service interruptions during recovery of backup files, as its coverage required, Wosar said. The company agreed to have the insurer pay the approximately $100,000 ransom.

Examples of this abound throughout the rest of the post. Essentially, the insurance company simply calculates what will be the more expensive payout for the insurer: the ransom or the cost of recovery? If the cost of the ransom is less, the insurance company advises, and sometimes pressures, the client to decide to pay the ransom. This can often times look like the better option, as recovery from malicious disaster is time-consuming and comes without the assurance that a full recovery is even possible. What's a $10k deductible compared with a city's systems being down for two weeks? This can seem like a win for the insuree, or at least the most mitigated loss possible.

The problem is what this does throughout the rest of the world, which is troubling trend number two.

As insurance companies have approved six- and seven-figure ransom payments over the past year, criminals’ demands have climbed. The average ransom payment among clients of Coveware, a Connecticut firm that specializes in ransomware cases, is about $36,000, according to its quarterly reportreleased in July, up sixfold from last October. Josh Zelonis, a principal analyst for the Massachusetts-based research company Forrester, said the increase in payments by cyber insurers has correlated with a resurgence in ransomware after it had started to fall out of favor in the criminal world about two years ago.

One cybersecurity company executive said his firm has been told by the FBI that hackers are specifically extorting American companies that they know have cyber insurance. After one small insurer highlighted the names of some of its cyber policyholders on its website, three of them were attacked by ransomware, Wosar said. Hackers could also identify insured targets from public filings; the Securities and Exchange Commission suggests that public companies consider reporting “insurance coverage relating to cybersecurity incidents.”

To some degree, this happens whenever insurance is introduced into a specific market. Nefarious actors recognize how insurance companies calculate their decision making and react accordingly. Now that cyber insurance is commonplace, and given that those insurance companies very often recommend paying malware ransoms, there are more attacks asking for more money more often.

The cyber insurance companies, in the interest of maximizing income and minimizing payouts on their own policies, are actually fueling the ransomware industry. You might guess that the industry would see this as a problem. Given the data, however, it's likely that the increase in attacks the insurance industry is fueling ultimately benefits the cyber insurance industry.

Driven partly by the spread of ransomware, the cyber insurance market has grown rapidly. Between 2015 and 2017, total U.S. cyber premiums written by insurers that reported to the NAIC doubled to an estimated $3.1 billion, according to the most recent data available.

That reads like a classic case of causing the problem for which you sell the cure. Nobody is suggesting that cyber insurance companies are doing this on purpose, of course, but that is indeed the practical effect.

The real problem is that all of the incentives are wrong here if the ultimate goal is less ransomware. Fortunately, there will come a point where diminishing returns for the industry will incentivize it to try to reduce attacks. That's why, as the post notes, the best solutions for how to prevent ransomware attacks may well end up coming from the insurance industry itself.

But in the meantime, ransomware continues to grow and grow, supercharged by the profit and loss needs of the industry that's supposed to oppose it.

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Posted on Techdirt - 6 September 2019 @ 7:39pm

A New 'Taco Tuesday' Trademark Challenger Approaches: LeBron James

from the bad-defense dept

As we've previously discussed, restaurant chain Taco John's has waged at least a decades-long war to try to pretend that its trademarked term, "Taco Tuesday," hasn't become generic. How the chain ever got what sure looks to be a purely descriptive trademark is anyone's guess, but armed with its trademark the company has since gone after other restaurants big and small for daring to host their own "Taco Tuesdays." If all of this sounds depressingly stupid to you, well, you're not wrong.

You really would think the convergence of trademarks and tacos eaten on Tuesday couldn't get any dumber, except here comes LeBron James. Some background is probably in order. See, LeBron loves tacos. So much so, in fact, that he tends to eat them on many Tuesdays, all while Instagramming his family doing so and affecting a Hispanic accent while shouting about how much he loves Taco Tuesdays. That would have been only mildly interesting at best, except that LeBron's company has now decided to try to trademark the phrase. Side note: The New York Times should really be better about conflating copyright and trademark law, as you will see below.

On Aug. 15, a company called LBJ Trademarks LLC filed a request with the U.S. Patent and Trademark Office on behalf of Mr. James to copyright “Taco Tuesday.” The company seeks protection for use of the phrase in a host of forums, including “downloadable audio/visual works,” podcasts, social media, online marketing and “entertainment services.” USA Today first reported on the request this weekend.

There are layers of dumb here. First, it seems unlikely that Taco John's, wielding its own "Taco Tuesday" trademark, wouldn't be able to claim some level infringement in at least some of these market designations, even assuming the company doesn't have valid trademark registrations in those categories of its own. But, again, the fact that Taco John's has those trademarks on a descriptive phrase like "Taco Tuesday" is itself stupid. And, circling back to LeBron, the idea that he would take a phrase already-coined and famous, that he then simply shouted into social media, and then lock it up in a variety of markets is compounding the stupidity.

But just to add a bit more to this, LeBron's spokesperson basically torpedoed any chance his company has of getting this trademark approved with the following comment.

“The filing was to protect the company from potential lawsuits should we decide to pursue any ideas, nothing of which is in development,” a spokesman for Mr. James said this week on (taco) Tuesday. “It has nothing to do with stopping others from using the term.”

"Should we decide to pursue any ideas, nothing of which is in development" might as well say, "We're not using this in commerce and don't have any plans to." Trademark law requires that the applied for mark be actively used or planned to be used in commerce, or else you don't get the trademark. Defensive marks like this simply aren't a thing. If the USPTO is made aware of the spokesperson's comments, it would be insane to approve this mark.

Meanwhile, the whole Taco Tuesday trademark thing probably needs to just be invalidated to begin with.

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Posted on Techdirt - 5 September 2019 @ 7:34pm

Epic Accuses Cheating Minor Of Continuing To Promote Cheat Software Even After Lawsuit

from the minor-problem dept

Over the past year or so, we've been discussing Epic's somewhat strange ongoing legal dispute with a minor from Illinois over cheating software he developed for Fortnite. Epic initially went after a host of so-called cheaters for developing these tools, claiming that they were violating both copyright and TOS agreements for the game. It found out later that one of these targets was a minor. Instead of backing off in any respect, even after the child's mother petitioned the court with a letter asking it to dismiss the case as the minor can't have entered into a TOS agreement, Epic has since pressed the throttle to go after a child.

This, as I argued at the time, should have been a PR nightmare for Epic. However, after the minor retained a proper non-maternal lawyer and put in a proper motion to dismiss, Epic contends that the minor continued both cheating in Fortnite as well as promoting his cheating software through alternate channels. If that's truly the case, it paints the teen in a much less flattering light.

While plenty of kids would be terrified facing a lawsuit like this, CBV didn’t appear to be impressed. In a YouTube video where he explained the situation last month, the 14-year-old said that he wouldn’t make Fortnite videos anymore. However, he was far from apologetic.

“Fuck epic games. I mean, at least they can’t come after my channel anymore. I’m never gonna make another video. But if they really want to come at my neck for 100 Mil then they can just fuck their brand on their own,” CBV said.

Among other things, the game publisher points out that CBV didn’t halt his cheating activities after the lawsuit was filed. On the contrary, Epic claims that the defendant made another cheating video on a separate channel and registered a new domain to sell cheats.

“Defendant continues to develop and sell cheat software specifically targeted at Epic and Fortnite. Indeed, Defendant has created a new website located at <NexusCheats.us>, a domain name Defendant registered on August 1, 2019,” Epic writes.

While that looks bad, it also doesn't really effect the minor's central argument, which is that the kid was a minor and couldn't have entered into the TOS contract. Still, the courts tend not to look to fondly when the defendant is going around continuing the same activity that landed him in a lawsuit to begin with. Especially when said defendant is publicly spouting off like this.

All of that, again, is merely flavor for Epic's argument that even as a minor the TOS agreement is valid, primarily as the minor "benefited" from agreeing to the TOS, which in this case meant accessing the game.

“His arguments that he is immune from those consequences, including his claim that this Court does not have jurisdiction over him because ‘he’s a kid,’ are without merit,” Epic tells the Court.

According to Epic, not all contracts with minors are automatically void. There are exceptions, which it believes apply here. In addition, this “infancy defense” doesn’t apply, because the alleged cheater also reaped the benefits of these agreements. According to Epic’s response brief, the defendant was well aware of the potentially illegal nature of his activities – after being sued, banned and targeted with repeated DMCA notices – but he continued nonetheless.

None of this changes the reality that Epic is pursuing full force its questionable claim that cheating violates copyright against a teenager. This should still be a situation where PR overrides any legal merit and results in Epic settling this and moving on.

But the defendant appears to be undermining that calculus by spouting off.

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Posted on Techdirt - 4 September 2019 @ 8:24pm

Even Kirk Herbstreit Thinks THE Ohio State Is Being THE Silliest With Its 'THE' Trademark Application

from the touchdown dept

A few weeks back, we talked about the dumbest trademark application I've ever seen, with the Ohio State University deciding to try to get a trademark on one of the most commonly used determiners in the English language: "The." Honestly, the whole thing is painfully stupid, as trademarking such a common word cannot possibly be worked into the original purpose of trademark law, but here we are. The only good thing thus far to come out of all of this was the University of Michigan's playful suggestion that maybe it should trademark the word "Of."

Fortunately, it wasn't just us IP nerds who found all of this so silly. The public reaction writ large was fairly negative, with plenty of fun being had at the temerity of OSU. But what about OSU fans themselves? How would they react, given that all of this is built on the haughty insistence of NFL players emphasizing the "the" when announcing what school they attended?

Well, Kirk Herbstreit is a useful thermometer for this, given that he is both probably college football's most recognized analyst and a former OSU football player. And, man, does he not have kind words for his alma mater.

College GameDay analyst Kirk Herbstreit, who played quarterback for the Buckeyes in the 1990s, was the subject of an interview with For The Win this week. He was asked about the whole trademark situation. He did not hold back.

"I've never really bought into that. My dad played at Ohio State, my dad coached with Woody Hayes. Ohio State’s always been Ohio State. I have a diploma that I’m looking at right now, and it says, “The” — T-H-E — Ohio State University, and nobody’s called it “The” Ohio State University, ever, as I grew up in the ‘70s, ‘80s and ‘90s. And then one night on Monday Night Football — I don’t remember who the player was but he said, “The Ohio State University,” and it stuck. And from that point on, all the fans and everybody started saying “The,” “The,” “The.” To me, it’s Ohio State — always has been, always will be. I think it’s kind of ridiculous, the whole “The” thing.

It comes across to me as very arrogant. I’m just not a fan of it. I didn’t grow up with it. Nobody’s more Ohio State than me, and I never heard it. I never heard “The” in my life until maybe about 15 years ago."

Yeah, all of that. But when this move is getting this kind of reaction from someone like Herbstreit, you really have to start to wonder just what OSU is doing in keeping any of this up. It's a trademark that should, and probably will, be rejected for lacking originality and being too generic. It's a trademark that, by its nature, can't possibly be all that valuable even if granted. And it's apparently at best making the school look quite arrogant, if not creating outright anger, even among Ohio State fans.

It's time to realize this play isn't working and abandon it. It's the smart thing to do.

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Posted on Techdirt - 3 September 2019 @ 3:28pm

Sony Is Feverishly Battling Vita Tinkerers Despite Vita Being Discontinued

from the why? dept

Update: After this post published, the Kotaku article was updated with more input from the hacker who reversed course and stated his previous exploit still worked on the new firmware version for the Vita. Kotaku apologized for the error in reporting, as do we.

If ever there were a poster child for this strange new culture in which we don't actually own what we buy, there is a strong argument for making Sony the number one pick. Beyond all of Sony's day-to-day anti-consumer practices disguised as anti-piracy efforts, the company is also rather infamous for the Playstation 3 debacle, in which the console was rolled out with a feature that allowed buyers to install other operating systems on it, and then subsequently removed that feature via a firmware update. That Sony wasn't fully trashed in the legal and public opinions courts for doing so basically set the tone for the subsequent decade, where now this sort of bullshit is common practice.

Which brings us to the present and a discussion on the Playstation Vita. The Vita, a Playstation hand-held device, has basically been retired with PlayStation Plus games no longer rolling out to the devices and new cartridges for the system no longer being manufactured. As there had been with the PS3, the Vita has a tinkering community around it that has long worked to jailbreak the hardware to allow it do other things. Piracy is part of that, sure, but so is emulation, running other sorts of software, tinkering with hardware performance, etc. Each time someone released a way to jailbreak the Vita, Sony would patch it with a firmware update.

Including, most recently, this past week.

Less than a day after a new exploit for jailbreaking the Vita was discovered, Sony has already released a new firmware update to safeguard its sunsetting handheld.

“Surprise! h-encore² released for PS Vita firmware 3.71,” Andy Nguyen, a Vita hacker behind the recent Trinity Exploit for jailbreaking the most up-to-date versions of the handheld, announced on Monday. Unlike the Trinity Exploit, which required using a PSP game to hack the Vita, h-encore² is a native hack, meaning it can be done directly on the system. And while some hacks on work on Vitas running older software, h-encore² was designed to work on any firmware version between 3.65 and 3.71, the most recent one.

As if on cue, Sony announced firmware update 3.72 today.

A lot of the response to this has been the continued dismay that Sony won't let people who bought their freaking Vita do with it as they please. They own the hardware, but are restricted from using it the way they want. That's as insane as it was ten years ago.

But there is another track some are responding to, namely: "Why the fuck is Sony continuing this whac-a-mole game with tinkerers for a device that has been essentially discontinued?

And for all intents and purposes, Vita has also been unofficially retired, leaving some people in the homebrew community scratching their heads about why Sony has seemingly redoubled its efforts to safeguard it. The Vita no longer gets new monthly PlayStation Plus games, and production of new game cartridges ended earlier this year. “I need a movie about the 4 guys at Sony who still have to work on the Vita in friggin 2019,” wrote one person on Twitter.

Maybe Sony Pictures can make such a film. Then, perhaps, we'd get some sort of firsthand explanation as to why Sony is so committed to ensuring people can't use their hardware the way they want that it continues that practice even after the death of said hardware.

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Posted on Techdirt - 30 August 2019 @ 7:39pm

Tom Brady Fails To Trademark 'Tom Terrific' As USPTO Rightly Assesses He's Not The Most Terrific Tom

from the tom-boy dept

Earler this summer, we discussed Tom Brady, famed Patriots quarterback and winner of many games, deciding to apply for a trademark on a nickname some fans had given him: Tom Terrific. In news you'll never believe, it appeared that Brady didn't really have any idea how trademark law works. As evidence for that, Brady claimed to want the trademark because he hates the nickname and wanted to stop others from using it. That's not how trademark law works. Instead, to have a valid trademark, Brady would have to use the term himself in commerce, meaning that more people would hear his unwanted nickname in doing so.

But that wasn't the only problem. See, Tom Terrific is a well-known nickname... of Tom Seaver, the famed NY Mets pitcher. The Hall of Fame pitcher popularized the nickname in sports. Hell, I'm in my 30s and I know Tom Terrific = Tom Seaver.

And so do the folks at the USPTO, apparently, as they rejected Brady's application on the grounds that he would mislead others into thinking he was somehow associated with Tom Seaver.

The office refused the request made by the six-time Super Bowl champion Thursday because of the phrase's association with another famous athlete: "The applied-for mark consists of or includes matter which may falsely suggest a connection with Tom Seaver," the office said.

Seaver, an MLB Hall of Fame pitcher, was given the nickname long before Brady ever stepped on a football field. Seaver, who played professionally from 1967 to 1986, was the star of the "Miracle Mets" 1969 World Series championship team.

Now, trust me, I know exactly what you're thinking: "Wait, the Mets actually won a World Series at some point?" The answer to that is yes! And, in a rare bout of sanity, the Trademark Office recognized that the fame built up around Seaver, especially given his and his team's success, which then translated into the fame of his nickname, meant that Tom Brady's requested trademark was both silly and potentially confusing. Keep in mind that use of the trademark on clothing wouldn't necessarily carry Brady's well-known face along with it.

According to USPTO, the nickname "points uniquely and unmistakably to Tom Seaver," not Brady. It also said the trademark could lead fans to believe that Seaver endorses any product sold with the nickname.

Sorry, Tom. You're just not terrific enough to sneak this one past the USPTO.

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Posted on Techdirt - 29 August 2019 @ 7:34pm

Uber Takes On Beautician/Barber Over Her BeauBer Mobile App

from the portmandon't dept

There's a perception among some that the forward-looking tech companies throughout the country are more permissive in intellectual property concerns than other industries or marketplaces. And perhaps there is some truth to that. But certainly this is not without exception. For instance, you can bear witness to Uber going after a beautician over her stylist-booking app, called BeauBer.

Carolina Vengoechea, 45, tells The Post that Uber has demanded she give up the name of her beauty salon app, called “BeauBer.” But she has refused, arguing that the name is the combination of her two job titles, beautician and barber — and has nothing to do with the San Francisco-based company.

Vengoechea says she has already turned down multiple settlement offers from the $60 billion Uber, which is hell-bent on destroying trademarks that include its name. Unless the company backs down, she said, she will be forced to face them in court next year.

The fact that the portmanteau barely contains the word "uber" if you squint at it really hard is hardly any reason for Uber to have turned this into a trademark dispute. Let's just go down the list of reasons why this is ridiculous. First, these two companies are in wildly different industries. The fact that both have an app doesn't change that. Second, there is little potential for actual public confusion, given that the name in total and branding for BeauBer is quite different. Finally, the idea of Uber going after a sole proprietor in this way is ironic in the worst of ways.

Fortunately, Vengochea appears to be the rare small business owner with a backbone when it comes to trademark bullying.

“I've already spent money on BeauBer,” Vengoechea said of her app. “I feel like settling is just giving up. I know I’m not doing anything wrong. Why do I have to settle just because they have more money than me?”

Others seem to agree.

“Here, it appears that Uber has gone outside their normal zone of necessary protection and have opposed a mark which should not reasonably be opposed,” Steven Gursky, a partner at law firm Oshlan, said. “Perhaps being ‘uber’ wealthy allows them to be overly aggressive.”

Which is a shame, really. It would be rather nice if Silicon Valley companies could lead the way in having a different attitude when it comes to intellectual property issues. Apparently, though, money does in fact corrupt all things.

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Posted on Techdirt - 29 August 2019 @ 12:16pm

'Baby Shark', Derived From A Public Domain Folk Song, Now The Subject Of A Copyright Dispute

from the shark-attack dept

If you have had a toddler in your house sometime over the past few years, you likely already know all about the "Baby Shark" song. If you don't know what I'm talking about, you are among the luckiest people on the planet. Except now I'm going to embed the video below to ensure you are aware of it.

I'll give you a moment to shake off whatever ill feelings you have for me.

Now, the origins of the song are something of a minor mystery. We'll get more into that in a second. For now, you can note that Pinkfong's "Baby Shark" video was published on YouTube in 2016 and has millions of views. It was only this summer, however, that a musician named Johnny Only sued Pinkfong in South Korea for copyright infringement, claiming that the latter's music was a ripoff of his own "Baby Shark" song that he published on YouTube in 2011.

I already know what you're thinking: "But, Tim, those songs do sound very, very similar." And when I tell you that Only is claiming in his lawsuit that the songs are specifically similar in length, tempo, rhythm, and style, your first thought is probably to agree with Only entirely. But maybe your second thought would be, "Wait, why are those the only similarities he's claiming? Why not the lyrics, which are largely the same? Or the music entirely? Why is he so specific?"

The answer has to do with the mysterious origin of "Baby Shark."

Even Only admits that “Baby Shark” predates him, however. Although no one is quite certain of the song’s origin, it’s believed to have been a campfire chant developed at U.S. summer camps for kids sometime last century. The song may have emerged in conjunction with the success of the “Jaws” franchise — though that’s just another theory.

In other words, this is a song without a known author — which effectively make the original version a public domain work.

Yup, this is a song that is generally considered to be in the public domain. At the very least it's an "orphan work," in that there's no clear evidence of who the copyright holder is, and no one has stepped up to claim it in the past few years that's it's even charted. That means that, for Only's suit to be successful, he's going to have to demonstrate that the elements for which he's claiming similarity were not part of the original song, were created entirely by him, and that they are protectable given that most people consider the rest of the work to be in the public domain. That's not an impossible task, but it's a fairly high bar to clear.

SmartStudy, the company behind the Pinkfong brand, is already pointing to the public domain song as its inspiration.

While Only insists that he should receive credit for what has become a worldwide phenomenon, SmartStudy strongly disagrees. They insist that their version of “Baby Shark” was based not on Only’s, but on the public domain version that Only based his work upon.

Given that this is all happening in South Korea, it's difficult to predict exactly how the courts will decide on this. That said, this sure feels like two versions of a public domain work where the real reason for the lawsuit is that only one of them became massively popular.

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Posted on Techdirt - 28 August 2019 @ 7:23pm

Canadian Brewery Changes Name Of Brew Due To Peanut Butter Company Bully That Doesn't Ship In Canada

from the drunk-or-nuts? dept

We've been talking about the trademark crisis facing the craft brewing industry for some time. To recap, an industry explosion coupled with the habit of that industry to come up with creative and referential names for its products has collided with trademark attacks coming both from within and outside of the industry. The industry, which once had a quite permissive and fraternal approach to intellectual property, has since become corporatized. New entrants to the market, therefore, face challenges with how to name their craft beers without facing legal threats.

This is where it's worth repeating that trademark law is chiefly designed to keep the public from being confused as to the source of affiliations of a good or service. In other words, the brand name of a product shouldn't fool the public into thinking it came from somewhere it did not. That reality makes it quite frustrating to see Off Track Brewing agree to change the name of one of its signature brews due to threats issued by a peanut butter brand.

When the guys behind Off Track Brewing came up with a stout beer, using real peanut butter as the key ingredient, they needed a name.

"We were brainstorming one day, and Jon just said, 'You know what, Damn Skippy, it's just jumping out to me, it'd be a really good name,'" said Allan MacKay of Off Track Brewing in Bedford, N.S.

You already know what happened. Damn Skippy jumped in popularity, leading some to comment on the brew on social media. There, whatever legal team the Skippy peanut butter people had contracted with took notice and fired off a cease and desist notice to Off Track. It never got to the litigation level, as Off Track agreed to change the name of the brew. Normally, this is where our post would point out that the beer-buying public is certainly not going to confuse a creatively named peanut butter stout beer as having anything to do with Skippy brands, not to mention that the two products are in wildly different market arenas. All of which ought to have been sufficient to push back on the C&D and even for Off Track to have its day in court, if it wished.

But even if you don't agree with my assessment above, exactly how much potential confusion in the buying public could there be when that same Canadian public can't even buy Skippy peanut butter?

Even though Skippy peanut butter was discontinued in Canada two years ago -- months before the brewery opened -- the owners decided to give in after consulting their lawyer.

"We're gonna switch it up, so it's not a big loss," said MacKay. "The beer stays the same, which is good."

Part of the requirement to hold a valid trademark is that it be in use in the marketplace for commercial purposes. The Skippy people appear to very much be not using it in Canadian commerce. How, therefore, could there be any potential for customer confusion? And why, for the love of all that is peanut-buttery, did Skippy undertake this bullying to begin with?

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Posted on Techdirt - 26 August 2019 @ 7:23pm

Another Bad PR Sign: Indie Developer Shuns Epic Store, Saying 'My Word Means Something'

from the oof dept

We were just discussing how there are some cracks starting to show in the PR war that Epic decided to kick off when it initiated the PC gaming platform war against Steam. Part of the problem Epic has is that, despite its attempt to frame its exclusivity deals as some attempt to heal a broken PC gaming industry, the public very clearly isn't buying it. It's gotten bad enough that publishers that buy into Epic's exclusive deals are proactively messaging publicly to the gaming masses that they would prefer not to be the target of widespread harassment.

That, honestly, is bad enough to warrant concern by the industry as a whole. But when indie developers begin coming out publicly to refuse an Epic Store agreement, and frame that decision as a moral choice, the problem has only deepened. Wlad Marhulets is the solo developer behind Darq, a horror game released recently. He got an email from Epic seeking to sell the game on the Epic Store. Marhulets read the email and its request for an exclusivity deal, then he took a look at all the backlash other publishers have faced for entering into that agreement, and decided that he would be breaking his word to the public by entering into such a deal.

After asking whether Epic Games’ offer necessitated exclusivity, and hearing that it did, Marhulets turned down the deal before even discussing money. Darq had been on Steam since November, 2018, and is also for sale on GOG. The horror adventure game was within the top 50 most wishlisted games on the platform before launch. “I felt going for an exclusivity deal would show that my word means nothing (as I just had promised the game would launch on Steam),” wrote Marhulets on Reddit. The positive response from fans was huge.

To be clear, you can think that what Epic is doing is truly good for the industry while also acknowledging that stories like this show pretty clearly that Epic appears to be losing the PR war it decided to wage. Again, the public is not on the side of exclusivity in exchange for higher splits for publishers. It would honestly likely be much different if Epic offered its splits without the exclusivity. In that case, the messaging would be: "You can buy it on Steam and screw the gamemaker, or buy it on our platform and benefit them. Your choice." In that case, the moral case is much more clear than when Epic attempts to limit consumer choice the way they have.

This is shown to be all the more the case when looking at how fans have reacted to Marhulets' messaging.

Darq’s Steam comments are dominated by grateful messages from fans and some derision for Epic. “I purchased a copy of DARQ to support this fine developer’s ethical business practices. Thank you for keeping your promises and taking a stand against store exclusivity. The world needs more folks like yourselves,” wrote one. “Support devs who keep their promises and stand up against evil. It also happens to be a great game so.. what are you waiting for?” said another.

If Epic wants to be as idealistic as it claims, it can have its profit splits and cool it with the exclusivity. The way this is going, it is starting to feel clear that this isn't a war Epic is going to win long term anyway.

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Posted on Techdirt - 23 August 2019 @ 7:39pm

Rutgers Forces LA High School To Change Logos Due To Its 'R' Trademark

from the r-you-kidding-me? dept

Over the years, we've seen plenty of aggression from universities when it comes to trademark enforcement. The impetus for much of this was rulings nearly a decade ago that essentially gave universities far broader and more exclusive rights to their school logos. The fallout of those rulings became schools going after all kinds of uses and near-uses of those logos, including a strange war on pastries, and colleges going after high schools for using similar iconography.

The latter continues to the present. The latest version of this is Rutgers, in New Jersey, forcing a Louisiana high school to change its logo because it was essentially the same as Rutgers' famed "R" logo.

New Jersey's flagship university has asked a high school in Louisiana to change its logo because it's identical to the block "R'' that Rutgers has trademarked.

Lincoln Parish Schools official Ricky Durrett tells the Courier News of Bridgewater the company that manages Rutgers' brand requested Ruston High School stop using it.

Rutgers says the high school has 10 years to replace the logo on gear, social media platforms and on the school's website.

The logos, to be fair, are somewhat similar, although it seems that's more a function of them being a single letter than anything else. (Rutgers' is on the bottom.)


On the one hand, look, Rutgers' demand timelines aren't wholly oppressive. Ten years is a nice stretch of time within which Lincoln Parish can work. On the other hand, allowing for such a timeline only seems to solidify the impression that none of this is really necessary to begin with. Is Rutgers really suggesting that someone is going to be confused between the NJ school and LA high school? Is there some odd concern that parents of high school students will think they're supporting Rutgers by buying the high school's apparel? Is anyone, anyone at all, really going to be confused about any of this?

The answer sure feels like "no." Rutgers likely would state that it must take these actions or risk losing its trademark. Except that's only the case if there is the actual potential for confusion and if a court bought that it was operating in the same marketplace as a high school many states away. Both seem unlikely to me.

But, of course, the high school is changing its logo rather than fighting against the much larger Rutgers.

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Posted on Techdirt - 21 August 2019 @ 7:50pm

Cracks Showing In Epic Store's PR War As Developers Have To Plead With Public To Not Harass Them

from the the-developer's-front dept

We've been discussing the new PC gaming platform wars that kicked off with Epic releasing their own Epic Store to rival Valve's Steam and attempting to power it with game exclusives built on a more generous split with publishers. There has obviously been a lot to talk about in this new rivalry, from Steam's response, to Epic's flubbing of its store's main purpose, to the effect Epic's exclusivity deals are hampering the use of crowdfunding to get more games made. But one of the most interesting aspects of this whole ordeal is how clearly Epic's leadership has attempted to frame this all as a PR war above all else. Essentially, Epic is combating the public's natural distaste for exclusivity deals by pointing the finger back at Steam, stating that none of this would be an issue and the exclusive deals could go away tomorrow if Steam mirrored Epic's revenue splits. The argument is that what Epic is really after is a better gaming industry that makes more and better games, something that should benefit the very fans now complaining about the company's tactics.

So, how's that PR battle plan working? Not terribly well, judging by some of the peripherals. For instance, when part of the announcement for a game publisher releasing exclusively on Epic includes the company begging gamers not to hurl vitriol at it in response, that's an indication the gaming public hasn't been swayed.

One of the easiest bits of news to miss on Monday’s Gamescom Opening Night Live show was tucked away in an ad for the Epic Games Store. A simple sizzle reel that showcased a number of games exclusive to the controversial digital PC game storefront included an upcoming indie that previously wasn’t in Epic’s roster: Oddworld Soulstorm. Shortly after, Oddworld creator Lorne Lanning posted a message via the Oddworld Twitter account.

If that all reads to you as a thinly veiled attempt to plead with the public not to harass the Oddworld folks over the exclusivity deal, that's because that's exactly what it is. And, as you may have guessed, it didn't work. In fact, not only did the anger at the exclusive Epic Store release come through anyway, Glumberland, the company behind the game, was taken to task for attempting to head off the storm with the above message.

It proved to be a futile effort, as post from Ben Wasser—one of Glumberland’s two members—detailed the deluge of harassment he received for choosing to sell his game in the way that he wished. Among the usual complaints was a new one: Wasser was rude for calling the mob of harassers toxic and entitled, and that the glibness of his initial post was disrespectful.

A couple of things are worth noting here. First, most of the harassment thrown at gamemakers over their business practices is way, way out of hand. It's the kind of toxic overreaction and entitlement that gives gamers everywhere a bad name. Second, there is no real indication as to whether this is a vocal minority or majority, only that it is indeed vocal.

Still, we're at a place in all of this where publishers are proactively sending out these messages to reason with that vocal group and to attempt to head off the shitstorm of backlash over exclusive deals with the Epic Store. Whatever that is, it is most certainly not an indication that Epic is winning the PR war it chose to start.

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Posted on Techdirt - 20 August 2019 @ 7:30pm

Intra-Family Trademark Violence: SR Sues JR For Using His Own Name In Law Firm Marketing

from the sins-of-the-father dept

With the chief hurdle for infringement in trademark law being potential public confusion as to the source of a good or service, we sometimes toss that standard around as a blanket sort of thing. And, in trademark law, it kind of is just that binary. But the combination of the protectionist view of trademark law taking hold in America and the unfortunate habit of many people attempting to trademark their own names in one fashion or another, I wonder if the law might need to be updated in some ways. For example, we've seen several instances of intra-family trademark spats that arise from a person or business looking to trademark or simply use their own names. Any system of trademark enforcement that results in broadly disallowing someone to use their own name in the marketplace feels like a clear step too far, if only from a common sense perspective.

Yet it keeps happening. The latest iteration of this involves a lawyer, George Sink Sr., suing his own son, George Sink Jr., for using his own name for his law firm and marketing material. The court overseeing the matter just this week issued a restraining order barring George Jr. from using his own name to advertise his firm.

A Fourth Circuit judge issued a temporary restraining order that stops Sink Jr. from using the family name to advertise his personal injury firm on its website, in email, and on social media.

“George Sink Jr. is of course not barred from practicing law under his birth name, but in advertising for his legal services he must do more to differentiate between him and plaintiff,” writes Judge David Norton. “The mere fact that it is George Sink Jr.’s given name does not automatically shield him from allegations of infringement.”

The court documents note the similarities in the advertisements Sink’s son was using and said customers might and in some cases did get confused about which Sink law firm they were dealing coordinating with. “The logos that each party uses on their respective law firm websites, the name GEORGE SINK is more prominent than the auxiliary words,” writes Norton.

Again, perhaps this all legally correct. But that sure feels like an indication that there is a problem with the law, not with a person using his or her own name in their business' name. And the fact that this sort of dispute incorporates an inter-family squabble makes this all the more bizarre. George Jr. apparently worked for his father's firm some time ago and practiced there as George Jr. His firm handles a different type of law than his father. But now that his son has opened up his own firm using the uncreative name George Sr. gave him, it's a legal matter.

In the suit, Sink Sr. says the company name is "famous" around South Carolina and Georgia. He also notes in the document that the business' name is trademarked, and by using a similar name, his son is committing trademark infringement and creating unfair competition. According to the lawsuit, Sink Jr.'s firm was hurting his father’s online reviews and prominence on search websites.

In the lawsuit, Sink Sr. alleges that his son has always preferred the nickname "Ted," and by going by the same name as his father, he is confusing customers.

George Sr. sure seems fun. Regardless, I can't think of any reason why a bit more nuance couldn't be inputted into existing trademark law. All this really screams for is a provision in the law that would allow someone to use their birth-name so long as there was no other attempt to create confusion with another entity holding a similar mark.

That...just doesn't seem too hard to do.

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Posted on Techdirt - 19 August 2019 @ 7:36pm

THE Ohio State University Applies For THE Stupidest Trademark In THE World

from the THE dept

We've talked ongoing about how ridiculous and aggressive many universities are becoming on trademark matters. Now colleges and universities do many, many annoying things, but their tendency towards trademark bullying certainly ranks up there near the top of the list. Not as high, of course, as Ohio State's neverending insistence that everyone call it "THE Ohio State University." The school likes to point out that the "the" (sigh) is actually part of the school's legal name, when the reality is that the school is simply being haughty and pedantic.

Well, now these two worlds are colliding in what might just be the dumbest trademark application I've ever seen. You'll never guess what single word OSU wants to trademark.

Application No. 88571984, filed with the U.S. Patent and Trademark Office on Thursday, was discovered and publicized Tuesday by Josh Gerben, a prominent trademark lawyer in Washington. The application seeks a trademark on the single word "THE" for use on T-shirts and baseball caps and hats.  

For years, the university's demand that it be called "THE Ohio State University" has rankled sports fans and journalists, who've called it "pompous and stupid," "ridiculous" and "arrogant."

Partisans, including the university, point out that "the" is part of its name under state law. And Chris Davey, a spokesman for the university, told The Columbus Dispatch on Tuesday that it's important to "vigorously protect the university's brand and trademarks."

This, simply, is absurd. Trademark law is written in such a way to be wide open for abuse, but even this is a bridge further than the law will allow. Trademarks require original identifiers that indicate the source of a good or service and the bar for approval by the Trademark Office goes up the shorter and less original the identifier is. The idea that someone might apply for a trademark on the single most commonly used determiner in the English language is the sort of thing reserved for jokes in our comments section. But THE Ohio State University went ahead and did it anyway.

Other schools took notice, of course, and some of them are having fun at OSU's expense.

Michigan getting a trademark on the word "of" makes every bit as sense as OSU's application. Fortunately, despite all of the madness we see from the USPTO on a frequent basis, nobody seems to think this application is going to be approved.

Gerben predicted on Tuesday that Ohio State was "likely to receive an initial refusal of the application."

For a trademark to be registered for a brand of clothing, the trademark "must be used in a trademarked fashion," he said on Twitter. "In other words, it has to be used on tagging or labeling for the products. In this case, just putting the word 'the' on the front of a hat or on the front of a shirt is not sufficient trademark use," he said.

That careful analysis is almost certainly correct, but I much prefer to simply point out that this is all very, very crazy and be done with it.

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