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




Posted on Techdirt - 26 August 2016 @ 3:27am

Literal Fashion Police Arrest Hundreds Of WhatsApp And Instagram Users In Iran

from the seems-reasonable dept

I'll admit I've had some fun in these pages with my friends over in the Iran over the years. In my defense, they have at times made the job quite easy for me, between trying to bolster their military reputation through video game footage, trying to suggest that the West carve out a non-free speech zone when it comes to criticizing Islam or members of its faith, and the country's policy of futility in trying to block its citizens from using the wider internet. These are actions worth criticism and scorn.

But things got a just a bit more dangerous for some in Iran this past week, as the country has announced it is cracking down on its citizens for actions against Islam and for infractions of fashion on display on several social media services. It seems some portion of the Revolutionary Guard has quite literally become the Fashion Police.

Iran has arrested or summoned about 450 social media users, a website linked to the Revolutionary Guards has reported. Users of apps such as Instagram, Telegram and WhatsApp have been targeted.

"These people were carrying out immoral activities, insulted religious beliefs or had illegal activities in the field of fashion," the Gherdab website said.

Details in the report or scant, but it's likely that those that have partaken in criminal fashion activities are undoubtedly female, and the criminal activity almost certainly involves perceived infractions against modesty that are taken so seriously in Islamic theocracies. This should provide a wonderful example of the benefits of secularism over theocracy, certainly, but it should also serve as a beacon of hope for change in a country run in the most unfortunate of fashions. Although, that previous statement comes along with the caveat that even the founders of secularism can manage an insane over-correction, such as what's currently going on along the beaches of Southern France, for example.

If we've learned anything over recent years, it's that demand for internet access and the ability for expression on its mediums will only grow, not shrink. And, if citizens of countries less free than others are bucking the rules, routing around the censorship and barriers to internet access, and partaking in expression so yearned for but considered illegal, no amount of claimed providence will keep those young men and, more importantly women, from growing up and changing their society to match their values.

Facebook and Twitter are banned in the Islamic republic, though software that provides access is easily available. More than half of Iran's 80 million population is online.

That's a good thing.

Not so good is potentially the fate of those caught in the current crackdown. Still, there is a reason that Iran makes such an effort of blocking its citizens from joining the rest of the networked world, and seeing so many of them streaming around the borders of the barriers means there is hope.

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Posted on Techdirt - 23 August 2016 @ 2:37pm

And Just Like That, The Dumbest Trademark Suit Over Saying 'Thank You' Disappears

from the you're-welcome dept

It is with mostly pleasure, but a little bit of sadness, that I am here to inform you, dear reader, that the idiotic trademark lawsuit brought by Citigroup against AT&T because it dared to say "thank you" to its customers is dead. Yes, what started only a couple of months ago as an unintentional test to see just how far a large corporation could twist trademark law out of its useful intentions has been dropped by both parties with prejudice, meaning that no further legal action can be taken on the matter.

At issue was AT&T including the phrase "thank you" in some of its messaging and branding. Citigroup, as it turns out, somehow got the USPTO to approve a trademark for the phrase "thankyou" and declared that, largely because the two companies had done some co-branding work in the past, customers might be confused by an AT&T ad thanking them for their business into thinking that it has something to do with Citigroup. I read the argument Citigroup made in its filing as to why this confusion was likely, but my brain came to a screeching halt every few sentences, distracted by questions like, "How much can a bank's lawyers drink during the day?" and "Precisely how many peyote buttons would I have to swallow before 'thank you' equalled 'Citigroup' in my addled mind?"

Yet the end of this lawsuit was easily predicted after the court refused Citigroup's initial request for an injunction against AT&T. That court opinion went further in explaining to Citigroup the flimsy nature of its position than it had to, almost as a warning not to pursue this any further. And, this week, the banking company relented.

Citigroup Inc (C.N) and AT&T Inc (T.N) have ended a court battle over whether the "AT&T thanks" customer loyalty program infringed Citigroup's trademark in the phrase "thankyou." The resolution may help preserve a relationship between Citigroup and AT&T dating to 1998 that includes 1.7 million U.S. customers with co-branded credit cards.

"We have decided not to pursue this matter any further and look forward to continuing to work with AT&T," Citigroup spokeswoman Jennifer Bombardier said in a statement.

I'm sure AT&T appreciates Citigroup dropping the suit, but it's probably searching for an allowable phrase to express that kind of gratitude. What this may have more to do with is AT&T's defense that basically consisted of pointing out the ridiculousness of a single company being able to trademark a common phrase like "thank you," or iterations of it, for any category of anything ever. The end of the suit likely means the end of AT&T's challenge to the trademark, which is unfortunate.

We'll have to see if Citigroup has learned its lesson, or if it will choose to bring legal action against any other thankful companies in the future.

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Posted on Techdirt - 23 August 2016 @ 10:47am

Sony Apparently Issuing Takedowns To Facebook For News Articles About PS4 Slim Leak

from the why? dept

Recently, Sony had let it be known that it would soon be announcing some new offerings for its PlayStation 4 console. While most of the media coverage had focused on what is suspected to be a new, more powerful version of the console, a leak this week instead revealed a different console offering, consisting of a newly slimmed down form factor PlayStation 4 with a slightly redesigned controller. As an owner of a PS4, I can join others' interest in this design, with the original console being somewhat bulky. I can also join others in having only a mild bit of surprise as a reaction, given that Microsoft had already announced a slimmed down version of its Xbox product, and given that Sony has done this with previous versions of the console as well.

But I was slightly surprised to learn that Sony has apparently been setting its lawyers on spooking gaming media sites and taking down news articles from social media accounts about the leak. Reports of the latter have just started coming in.

Now, Forbes has an annoying restriction on access to its site if you are sensibly using an ad-blocker, so I won't include the link for which the takedown was reportedly issued. That said, the post references the work Eurogamer did in visiting the leaker of the image to confirm the console is for real (it is), as well as generating its own image and even video of the console working for its story on the leak. But if you go today to the Eurogamer post about the leak, the video has been replaced by the following update.

UPDATE, 7.30pm: Upon taking legal advice, we have removed the video previously referenced in this article.

Left unsaid is whether or not any contact had been made by Sony with Eurogamer, thus prompting this "legal advice," but one can imagine that being the case, particularly given Sony's threats to social media users sharing images and reporting of Sony leaks and, more to the point, threats against any media that might report on those leaks. One can understand why a gaming website might blanch in the face of Sony's legal hounds, but it's still disappointing to see the tactic work.

Which brings us to this very moment. I imagine that the entire point behind these legal threats was to keep the news of a slimmed down PS4 from spreading prior to its official announcement. But, thanks to the Streisand Effect, here we are talking about it anyway, while simultaneously discussing the attempted coverup and questionable threats to fans and media that Sony has undertaken. So...mission accomplished?

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Posted on Techdirt - 23 August 2016 @ 3:25am

What It Looks Like When The Terrorists Win: The JFK Stampede Over Fans Cheering For Usain Bolt

from the defeat dept

We've talked a great deal here about what a theater of security our national airports have become. Far from accomplishing anything having to do with actually keeping anyone safe, those in charge of our airports have instead decided to engage in the warm fuzzies, attempting to calm an easily-spooked traveling public through bureaucracy and privacy invasion. The hope is that if everyone suffers the right level of inconvenience and humiliation, we'll all feel safe enough traveling.

But it's quite easy for the 4th wall in this security theater to be broken by the right sort of circumstance. In case you missed it, one such circumstance happened recently at JFK Airport. The fallout was described in a first-person account in New York Magazine by David Wallace-Wells. Following a long plane ride after a delayed departure, Wallace-Wells describes the start of the ensuing chaos as he and his wife waited to get to passport control:

On the right of the hallway was that familiar line of people-movers, each of them stalled, when suddenly somebody realized that you could lap the line by walking down it like it was a highway shoulder in a traffic jam. Risa turned, smiled, and dashed off to take advantage. I made a show of protesting, hanging back for a second, and then followed her, but probably 50 people had swum into that lane between us in the meantime, and I couldn’t even catch sight of her to roll my eyes. Then the screaming began. I can’t remember what happened first — the flashing light of a fire alarm, the yelled warnings of a bomb and a shooter, the people turning around in a mob panic. I thought I saw smoke. I know I saw bags dropped, people falling to the floor and others stomping past them, through them, on them. Everybody was screaming. And I couldn’t find Risa. See her, really. Because there was no moving in the other direction. There was not even time or space to process what was happening, really. People were shouting about terrorism right next to me, as they ran next to me, but I wasn’t thinking about a shooter; I was just thinking, GO!

He goes on to describe being in the middle of one of several literal stampedes that had broken out throughout the airport, with travelers scattering in many directions and trampling one another. Members of the public were escorted out onto the tarmac, then back inside, then back out onto the tarmac again. Airport security alternatively either bolted for the exits when the scare began, or else were ineptly ushering the public in one direction or another. NYPD officers were inside the airport terminals, clearing them, but nobody seemed to be informing or instructing the public as to what to do. It was, in simple terms, chaos. A woman in a hijab called to her family, and everyone around her panicked. Even the set-pieces of the security theater contributed to the bedlam.

When people started running, a man I met later on the tarmac said, they plowed through the metal poles strung throughout the terminal to organize lines, and the metal clacking on the tile floors sounded like gunfire. Because the clacking was caused by the crowd, wherever you were and however far you’d run already, it was always right around you.

There was a second stampede, I heard some time later, in Terminal 4. I was caught up in two separate ones, genuine stampedes, both in Terminal 1. The first was in the long, narrow, low-ceilinged second-floor hallway approaching customs that was so stuffed with restless passengers that it felt like a cattle call, even before the fire alarm and the screaming and all the contradictory squeals that sent people running and yelling and barreling over each other — as well as the dropped luggage, passports, and crouched panicked women who just wanted to take shelter between their knees and hope for it, or “them,” to pass.

I can only imagine the terror one must feel being caught within a panic inside an airport under these circumstances. As the author notes, it was clear to anyone in the airport that day just how silly the idea is that authorities could respond to a threat at an airport in a methodical and organized way. Part of the lesson of this story is just how useless the security theater we've allowed to be propped up before us actually is. Useless as a system for when a terror event actually occurs, but more useless at keeping travelers calm and feeling safe.

Because the cause of this chaos would be laughable if it weren't so terrifyingly frustrating.

When the first stampede began, my plane had just landed. It started, apparently, with a group of passengers awaiting departure in John F. Kennedy Airport Terminal 8 cheering Usain Bolt’s superhuman 100-meter dash. The applause sounded like gunfire, somehow, or to someone; really, it only takes one. According to some reports, one woman screamed that she saw a gun.

That's all it took. A spooked public whose fear is unassuaged by the pretend security the government has set up at the airport, mixed with applause for an Olympic athlete, gets you bedlam. This is everyone's fault, from a public that can't bother to keep the threat of terrorism in perspective, to politicians that decided on a feel-good show at airports that couldn't even achieve that goal, to federal agencies keeping everyone so on edge that simple applause rang as gunfire in the minds of some.

It's hard to think of a more powerful example of how terrorism works than that.

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Posted on Techdirt - 19 August 2016 @ 2:42pm

Mexican Government Officials Have Press Creds Withdrawn From Olympics Over Uploaded Cell Phone Footage

from the still-the-most-live-olympics? dept

We've been detailing the ridiculous lengths the IOC and other Olympics organizations go in bullying others with their super special intellectual property protections. It's always quite stunning to watch an event supposedly about fostering international cooperation and sporting devolve into a mess of commercial protectionism, speech-stifling threats, and the kind of strong-arm tactics usually reserved for members of organized crime groups.

But I will give these Olympic goons credit: they appear to consider their bullying a matter of principle, deciding not to go any easier on an entire group of Mexican government officials because one of them uploaded one video of one Mexican athlete to a social media account.

According to a report by Mexico’s Eluniversal, the Rio Organizing Committee has taken the decision to withdraw press credentials from Mexico’s National Commission of Physical Culture and Sports (Conade) following a copyright dispute.

The publication says that Conade violated licensing conditions put in place by the International Olympic Committee (IOC) after one of its members filmed the gymnast Alexa Moreno using a cellphone. The video was subsequently posted to social media. According to the Committee, Conade failed to obtain the necessary rights to broadcast Olympic content, so in retaliation nine Conade members, who work for the Mexican government, had their press credentials taken away.

Yes, why didn't this government person secure the rights to take a cell phone video of one of their country's own athletes competing in an event? Didn't he or she know that the Olympics operates in a time-bubble, where the things the rest of the world does every day, like upload short videos to Facebook, don't happen?

Making this more hilarious is that Conade is a government group specifically tasked with promoting athletics within Mexico.

While the Committee probably felt it needed to set an example, taking away the credentials of the Conade staff will be felt back home in Mexico. Conade is the arm of the Mexican government charged with promoting physical education and sport in the country. Before their punishment, they were also the conduit between the Games and their countrymen.

But while the Rio Organizing Committee punishes the whole of Mexico for the sharing of a single video, thousands of people are sharing recorded events at will on sites such as The Pirate Bay.

Because nothing says international cooperation like petulantly nixing the press credentials of a country's government representatives for uploading a single cell phone video while pirate streams and video sharing go on elsewhere unabated. Gold medal.

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Posted on Techdirt - 18 August 2016 @ 11:47am

PayPal Stops A Payment Just Because The Payee's Memo Included The Word 'Cuba'

from the read-the-news-lately? dept

Earlier this year, we discussed how a Treasury Department watchlist under the purview of the Office of Foreign Assets Control was mucking up all kinds of legitimate business because some partakers in said business had scary sounding (read: Islamic) names. Everyone began referring to this watchlist as a "terrorist watchlist", as most of the stories concerned people, including American citizens, who either have names that are close to the names of terrorist suspects worldwide or because certain banks can't tell when someone is writing the name of their dog in the memo section, mistaking that name for the name of an Islamic terror group, because why not?

But as it turns out, this hilariously frustrating example of bureaucratic ineptitude isn't limited to global terrorism. It also apparently applies to decades old embargo rivalries, too. Mark Frauenfelder details a wonderful story about how his wife, a book editor, used PayPal to pay for a book review about Cuba, only to have the payment suspended and the notices from PayPal begin to fly.

Carla included a message to Ben in the Paypal transaction, which read, "Hi Ben - Your Castro's Cuba review is up! Thanks so much! Carla."

As soon as she pressed the send button, she got a pop-up message on the PayPal site that informed her that the payment was being held for review. This had never happened before and she had no idea why PayPal was holding up the transaction. Last night, an email arrived from PayPal. It turns out, the problem arose because Carla's message included the forbidden word "Cuba" (and/or possibly "Castro").

Mark embedded the entire email PayPal sent in his post, but you're not going to find much useful within it. It basically just says that using words like "Cuba", which is a country oft discussed in the United States, and "Castro", which is a crazy common last name, triggered the company's compliance controls to meet OFAC requirements. As such, PayPal is asking Carla to write an essay for the class explaining why she would dare write those words in a payment for a book review.

To ensure that activity and transactions comply with current regulations, PayPal is requesting that you provide the following information via email to compliancetransactions@paypal.com:

1. Purpose of payment 0B463347YT949791N attempted on August 16, 2016 in the amount of $30.00USD, including a complete and detailed explanation of the goods or services you intended to purchase. Please also explain the transaction message: "Hi Ben - Your Castro's Cuba review is up! Thanks so much! Carla."

Read that part of PayPal's email. Now read it again. This is bureaucracy at its finest, with a $30 payment triggering all kinds of alarms because of a friendly message about a review. Two things stand out to me. First, exactly what kind of nefarious deeds are both carried out for thirty dollars and then signed off with a friendly memo in the payment section like this? Second, if PayPal is really concerned here, exactly what are they expecting to learn from the "complete and detailed explanation" they are requesting from Carla? Would a Cuban operative using their system do anything other than lie in this explanation? Is the OFAC so strict that it requires these checks, but so lax that the checks amount to the honor system?

Or is it possible that government oversight has reached a level at which it does no good other than to serve as a useful reminder of what a pain in the ass it is?

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Posted on Techdirt - 17 August 2016 @ 1:08pm

Former UC Davis Chancellor Katehi Way More Obsessed With Her Online Reputation Than Initially Thought

from the get-me-off-the-google dept

Earlier this year, we discussed how UC Davis detailed in a report that it spent $175k with a reputation management firm to try bury the 2011 pepper-spraying incident that has become so infamous, as well as to bolster the positive reputation and search results of its former Chancellor, Linda Katehi. While Katehi was still Chancellor, she had issued something of a mea culpa that was unfortunately riddled with excuse-making and vendor-blaming, but in which she also appeared to take responsibility for the report's contents. Students protested anyway, as they should have, given how the report detailed that Katehi was far more interested in her own reputation online than she was in any kind of reform of campus police. Which, if you'll remember, was what kicked off all of the negative reporting starting in 2011 to begin with.

But now a new report has been issued that makes it clear that the $175k with the one reputation management vendor was just the tip of the iceberg, and that Katehi's obsession with her own online reputation was far more serious than anyone had known. Indeed, her attempts to meddle in her own online search results started long before the 2011 pepper-spraying incident.

When she was appointed chancellor, news accounts questioned her tenure at the University of Illinois at Urbana-Champaign, where she was provost and allegations emerged that children of politically influential backers were given preference in admissions. Katehi denied knowing anything about those admissions. The report found that she was so concerned she would be tainted by the scandal that she called an aide at UC Davis, whose name was redacted from documents, and asked him to take quick action.

“Though Chancellor Katehi was on vacation, she contacted and asked him to edit her Wikipedia page concerning her knowledge of the Illinois admissions scandal,” the report found. “(The aide) advised the Chancellor that they should not edit her online biography because Wikipedia would attribute any edits to UC Davis. Staff made the revisions under protest.”

In 2011, after a campus officer strolled past a line of seated protesting students and calmly unloaded a pepper spray can directly at them, the ensuing backlash was met by Katehi primarly with an expanded effort to control what the wider internet thought of her. While the initial reporting indicated a single vendor had been paid $175k on Katehi's request to try to control messaging about the school and herself through a barrage of good, but trumped up, press, UC Davis actually hired three different reputation management firms to do this, all to the tune of over $400k. And she appears to have been more concerned with her own reputation than that of the school she was to be stewarding.

Katehi and her staff sought out firms on the East Coast and in Sacramento, meeting with them and discussing how to create a LindaKatehi.com webpage, edit Wikipedia posts and submit op-eds under her name to publications that might crowd out negative press from others. The report noted that improving Katehi’s reputation also would improve that of the university’s. But documents show that she constantly sought help in what one aide recalled as her desire that they “get me off the Google.”

“Linda wants to understand generally how we plan to address the lingering negative pepper spray-related online search content associated with her name,” reads a September 2012 email from Barry Shiller, who was brought in after the pepper-spray incident to handle her communications strategy.

All three firms eventually hired by UC Davis at Katehi's request promised to bury the 2011 incident through editing in positive content to the Wikipedia pages of Katehi and the school, by creating a brand new website bearing Katehi's name and filled with positive coverage, and to create "listening reports" to detail any news coverage that mentioned her or the school so that coverage could be further addressed by the outside reputation consultant. Included in all of this was an investigation into those who were creating negative edits on these pages. What Katehi intended to do with that information is unclear, but it hardly seems like the information could be used for anything but retribution.

It goes without saying that as we, the link above, and several other online media outlets are discussing these revelations, and placing them alongside the original 2011 incident for context, the work of the three vendors and the nearly half a million dollars paid to them has failed. Reputation management of this sort rarely works. And when it blows up, as it usually does, the cover-up is always viewed as even more horrendous than the original crime, which is now thrust back into public discussion.

And this was really easier than making an honest apology and trying to reform campus police abuse?

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Posted on Techdirt - 17 August 2016 @ 8:48am

Nintendo Shuts Down Fan Remake Of 25 Year Old Metroid 2 Game Because It Can't Help Itself

from the samus-on-you dept

For gamers who are fans of Nintendo, it's always helpful to remember that Nintendo hates you. The general idea behind that mantra is that Nintendo, when faced between embracing the creativity and love that comes from its fans and acting like over-protective toddlers when it comes to any sort of its intellectual property, will always choose the latter. The company has issued takedowns for fan-made Mario Bros. levels just as it released Mario Maker, it as made a habit of shutting down fan-films depicting Nintendo characters, and it has even shut down fan get-togethers centered around beloved Nintendo properties just because they aren't "official." To be clear, Nintendo certainly can ensure that all of this free advertising for its products is never seen or enjoyed by the public legally, but it doesn't have to. It could instead embrace the love of its fans and work out an arrangement that would protect its IP while still allowing its fans to be fans.

But that doesn't happen, because Nintendo just cannot help itself. And that continues to the present, with Nintendo shutting a fan remake of a 25 year old game just as it was released, citing intellectual property concerns.

AM2R is a remake of Metroid II: The Return of Samus, a sequel to the popular Metroid on NES, which Nintendo released on the Game Boy back in in 1991. The fan remake, in development since 2012, adds improved sprite graphics and new gameplay in the style of Metroid Zero Mission -- a remake released by Nintendo -- on the Game Boy Advance. Released on August 6, and just in time for Metroid’s 30th anniversary, filesharing sites hosting AM2R were notified to remove the game by Nintendo’s legal counsel according to Polygon.

“Nintendo’s broad library of characters, products, and brands are enjoyed by people around the world, and we appreciate the passion of our fans,” reads a statement provided to IGN by a Nintendo representative. “But just as Nintendo respects the intellectual property rights of others, we must also protect our own characters, trademarks and other content. The unapproved use of Nintendo’s intellectual property can weaken our ability to protect and preserve it, or to possibly use it for new projects.”

As we have detailed entirely too many times in the past, that last bit about fans making fan works weakening IP protections and preventing new projects isn't remotely true. There are many avenues a company like Nintendo can pursue in reaction to this. DMCA takedowns and legal threats are but one of those avenues. Another would be to offer these projects a cheap license to make them "official" while still letting the projects go off unhindered. That Nintendo wishes to pretend like that avenue doesn't exist is disappointing, but not surprising.

Keep in mind that this game is decades old and was released for free, making it a non-commercial venture that was little other than an expression of fanship and love from dedicated gamers who are (were?) fans of Nintendo. What business sense it makes to stomp on those fans' devotion is a complete mystery to me.

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Posted on Techdirt - 17 August 2016 @ 3:43am

Citigroup Gets First Loss In Trademark Suit Against AT&T For Saying 'Thanks'

from the you're-welcome dept

A couple of months back, I brought to you a trademark suit initiated by Citigroup against AT&T that amost perfectly distilled both how ridiculously litigious trademark law has become and exactly how facepalm-inducingly lax the standards for trademark approval are with our friends over at the USPTO. The summary of the lawsuit can be described thusly: Citigroup has sued AT&T because the latter has branded messaging that says "thanks" and "thank you," and Citigroup has a trademark on the term "thankyou." And if your forehead hasn't smacked your desk yet, you have a stronger constitution than this author.

Included within Citigroup's hilarious filing was a request for an injunction by the court barring AT&T from continuing any of this gratitude towards its customers over the immense harm it was doing to the bank. Well, the court has ruled on that request by refusing to issue the injunction, all while patiently laying out within the court document all of the reasons why the court will almost certainly eventually dismiss this suit entirely.

U.S. District Judge Katherine Forrest was perhaps politer to Citigroup than expected. Instead of just saying, “No, you cannot lay claim to the word ‘thanks,’ it is part of civil conversation, and you can’t own it. Next case,” Forrest actually took time to explain why Citigroup can’t own the word “thanks” and “thank you.” In a 30-page decision, she explained to Citigroup that “the law does not allow one company to own the word ‘thanks.'”

Within the filing itself (pdf), Forrest goes on in a point-by-point and entirely too patient exposé on how little evidence there is for any customer confusion, why a company simply saying thank you to its customers doesn't warrant an injunction, and even details by color, font and size the differences between the messaging between the two companies. And, while the court takes pains within the document to note that the ruling on the injunction is not the place to rule on wider questions of the validity of the trademark as a whole or to make full determinations as to the likelihood of customer confusion, passages such as the following should give Citigroup a hint of what it's up against.

AT&T has advanced evidence indicating that, both before Citigroup first began using its THANKYOU mark and since that time, there are and have been dozens upon dozens of goods, services, and entities that made use of variations on the words “thanks” and “thank you,” including by registering their marks with state and federal registers. (ECF No. 38 ¶¶ 35-43.) A number of these are explicitly registered as loyalty or reward programs. (See id.) Such evidence undermines the argument for distinctiveness. Estee Lauder, 108 F.3d at 1511. Indeed, Citigroup acknowledged that other corporations made use of the “common term” THANK YOU in its trademark prosecution, but argued at the time that consumers “can readily distinguish between such marks without confusion.” (ECF No. 39 Exh. 2 at 4.)

The present evidentiary record does not permit the Court to draw firm conclusions regarding acquired distinctiveness. Citigroup’s loyalty programs are well-established, but seems to exist in a marketplace in which names similar to the THANKYOU marks are used by other producers, thus undercutting their distinctiveness.

The court goes on to explain the difference between the telecom and banking industries to Citigroup, too, as well as to remind it that just because the bank did some co-branding with AT&T in the past, the fact that AT&T plastered its name and logo all over the "thanks" branding in question doesn't suddenly not differentiate the originator of the message for the consuming public.

And if that feels like entirely too much effort to have gone into a single ruling within a broader scope of a trademark suit that is essentially over the ownership of the term "thank you" for business purposes, well, you're not alone. But it seems like we'll have to wait a bit longer for the full ruling and, hopefully, the eventual disbanding of Citigroup's insane "thankyou" trademark entirely.

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Posted on Techdirt - 15 August 2016 @ 10:57pm

Trademark Office Tosses Phyllis Schlafly's Opposition To Her Nephew's Brewery Name Trademark Application

from the family-flies dept

We discuss trademark disputes centering on the beer and alcohol industry around here because that particular industry is finding itself at something of a barrier centered on how brews are named. Still, one story from a couple of years ago was particularly head-scratching. That story was that of Schlafly beer, made by Tom Schlafly's St. Louis brewery, and the opposition to his trademark application from his aunt and cousin, Phyllis and Bruce Schlafly repsectively. Both family members filed oppositions to the trademark application, claiming that having their last name associated with an alcoholic product would negatively impact them. Bruce is an orthopedic surgeon, making one wonder exactly how bone-shattering Schlafly beer actually is. Phyllis, meanwhile, is a super-conservative commentator with an audience particularly cultivated amongst Mormons and Baptists, therefore an alcohol product with her surname on it would be ultra negative for her commentating business.

I said at the time that the brewery was going to win this fight. And, now, it certainly appears that it has.

Earlier this month, the Patent and Trademark Office dismissed opposition filed by the St. Louis native and her son, Bruce Schlafly, rejecting the argument that a trademark shouldn't be allowed because it's primarily a surname, the St. Louis Post-Dispatch reported. The decision doesn't mean the trademark has been awarded to the brewery, but simply removes an impediment.

The primary argument within the original opposition was that the trademark shouldn't be allowed because it consisted primarily of a surname, but this was really all about the other Schlafly's dislike of the alcohol industry. And that, thankfully, is not a basis for a trademark opposition. The opposition was especially perplexing because a lack of a trademark registration has not to date, and would not in the future, prevent Tom Schlafly from selling Schlafly-branded beer. What it would do is prevent anyone else from also doing so, meaning that preventing the trademark would potentially allow more exposure for the name to be used on alcohol products, not less.

Despite the opposition running counter to Phyllis' desires, she apparently may not be done with this just yet.

Phyllis Schlafly, who will turn 92 on Monday, declined comment, but her son and attorney, Andy Schlafly, said he may appeal.

"I'm disappointed that the decision did not come to terms with the purpose of the statute that generally prohibits obtaining a trademark in a last name," he said.

Must be a fun Thanksgiving dinner at the Schlafly house these past few years.

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Posted on Techdirt - 12 August 2016 @ 3:29am

Riot Games Joins Blizzard In Misusing Copyright To Go After Video Game Cheaters

from the you're-not-helping dept

Readers here likely have begun to associate the attempted twisting of copyright law to go after video game cheaters with Blizzard. After all, between its StarCraft and Overwatch properties, the gamemaker has made something of a name for itself by attempting to assert a combination of "you only bought a license" and "breaking the EULA creates a copyright violation" theories into a "we can sue you for hacking our games" legal sandwich. It's a terribly frustrating thing to watch Blizzard do, as it tries to pretzel copyright law in a way never intended, and typically to achieve little if any legal success by doing so.

Well, everyone knew that Blizzard wouldn't be pulling this act solo forever, and now we know who the next game company to take up this loser of a strategy will be: Riot Games. Yes, the maker of the popular League of Legends is asserting copyright violations to go after those who create and use cheats and hacks. The complaint specifically targets a cheat called "LeagueSharp," which apparently allows players to automate aspects of gameplay, including targeting other players and seeing game objects that should be hidden.

"Among other things, L# enables its users to abuse LoL by allowing them to, for example, see hidden information; 'automate' gameplay to perform in the game with enhanced or inhuman accuracy; and accumulate levels, experience, and items at a rate that is not possible for a normal human player."

While this sounds very similar to many of the cheats and hacks that Blizzard has complained about, part of the impetus for this legal action is the popularity surrounding League of Legends eSport tournaments. eSports is becoming quite a thing these days, with viewership numbers that are comparable to viewership of traditional athletic competitions. As we've said in the past, cheating in online multiplayer games is at best annoying and at worst truly disruptive to the gaming experience. The stakes only rise when we begin talking about the eSports world, with competitive professionals competing. One can see how analagous to steroids in sports hacks might be in the eSports world. Still, the theories Riot Games trots out to back its copyright claims are nearly identical to Blizzard's, and those claims don't become stronger just because eSports is a thing.

It won't help the makers of the hacks that they appear to have acted in ways that will put them in a negative light.

"Defendants or those working in concert with them disseminated personal and non-public information about a Riot employee, threatened that employee, and posted offensive comments on the employee’s social media. Additionally, knowing that this lawsuit was imminent, Defendants have been quickly and carefully destroying or concealing evidence such as their most incriminating online posts and purporting to hide behind a Peruvian shell corporation created solely for the purpose of evading liability."

Which may indeed make them assholes, but it does not make them guilty of copyright infringement. The claims by Riot Games still come down to the claim that a violation of a Terms of Use agreement renders a license for the game invalid, meaning copyright infringement, along with a claim that creating a hack for a video game violates the anti-circumvention clause of the DMCA. For that last claim to work, Riot Games would need to demonstrate that these specific cheats are lessening the value of the game in general.

Given the insane success that is League of Legends, that might be a tough claim to make. Regardless, this isn't how copyright was meant to be used and stretching it in this way serves nobody at all.

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Posted on Techdirt - 11 August 2016 @ 4:31pm

Turkish Reporter: These Grand Theft Auto Cheat Codes Are The Secret Messages Of The Failed Coup Attempt

from the idkfa dept

In a polarized America, quite often the claim is made that this or that news organization is making stuff up and calling it news. These claims usually fall along partisan lines, leading those of us that don't consider ourselves affiliated with any side to shake our heads. And, while nobody should ever be so bold as to claim that no bias exists at all, accusations of purely making up news tend to pale in comparison to what goes on in some other nations out there.

Let's take Turkey, for instance. Yes the country with the petulant and easily-upset President Tayyip Erdogan, also has some reporters that truly just make stuff up. For instance, you can read about one reporter who managed to find some secret documents from the plotters of the recently failed coup attempt against Erdogan, and you can see an image of the secret codes she found below.

If any of that looks familiar but you're still having trouble placing exactly what, here's a basic transcription of the words on the page.



I/ Health and Gun

II/Health and Armor

Yup, those are cheat codes for Grand Theft Auto 4. The reporter, meanwhile, apparently insisted that these were secret communications by the plotters against Erdogan. And you have to admit that that doesn't make any sense, because if those plotters could get more guns and health just by repeating a video game cheat code, the coup probably would have gone off without a hitch.

I'm not telling you not to be mad at news coverage in the United States. I'm just saying it could be worse.

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Posted on Techdirt - 10 August 2016 @ 4:14pm

NFL Cuts Out Shout-Out To St. Louis In HoF Speech YouTube Upload, Streisand Effect Takes Over

from the rammed-home dept

The NFL is almost a perfect study in how the combination of an attempt at strict control of its content and a complete lack of understanding of the Streisand Effect will produce the opposite of the intended result. Past versions of this have included the NFL's insane claim of copyright on the only footage that exists of the original Super Bowl, meaning nobody actually gets to see the footage, as well as the league's attempt to bury an ESPN documentary about head trauma as it relates to football. In both cases, the NFL comes out looking petty at best, and much worse in the case of trying to hide the negative health effects of the game from the parents of children who might otherwise play it.

But even that kind of evil and petty takes a back seat to the NFL deciding to cut out a portion of Orlando Pace's Hall of Fame induction speech in which he gives a shout-out to the city of St. Louis, former host of the Rams.

St. Louis football fans who hoped to see a shout-out from the Rams’ newest Hall-of-Famer Orlando Pace might have been disappointed if they watched the version of his speech uploaded to the NFL’s YouTube channel. While the other inductees’ speeches from last night’s event are presented unedited by the NFL—including Brett Favre’s 37-minute misunderstanding of “go long”—Pace’s speech is cut off before he gets to the portion where he tells St. Louis fans that “nothing can ever take [our championship] away from you.”

The Rams, of course, just recently bailed on St. Louis for Los Angeles, to the tune of much strife and controversy. And as much as I love digging at St. Louis sports fans, the NFL's attempt to control its brand message by removing a short, innocuous tip of the cap to a city that a Hall of Fame player called home for so long is almost hilarious in its petty cruelty.

And, as per usual, it didn't really work anyway. That Streisand Effect will get you every time. When people noticed that the NFL's official upload had the shout-out to St. Louis edited out, that editing was reported on, and the portion of the speech that had been omitted suddenly became share-worthy. Nice try, guys.

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Posted on Techdirt - 10 August 2016 @ 11:59am

Here Is The End Result Of The USOC And NBC's Over-Protectionist Olympic Nonsense

from the nice dept

When it comes to intellectual property bullying, the unholy alliance between the USOC and NBC seems to be trying to see exactly how far it can push things. Between NBC's "most live ever" broadcast of the games that still has unnecessary delays in both its television and streaming product and the USOC's strange belief that companies that sponsor athletes year-round somehow can't tweet out factual results or news images of those athletes as it relates the games due to trademark law, it's enough to make you laugh.

But it's not only the antics of the USOC and NBC that is chuckle-worthy. Local sports coverage of the Olympics is too, thanks to the laughable restrictions NBC has put in place. Here's my hometown sports anchor, for instance, who came up with a creative way to cover the Olympics by not covering them at all in protest.

Yes, instead of actually reporting on the games at all, Pat Tomasulo of Chicago's WGN decided to relay just how insane NBC is with its demands for how its footage is used and how other news groups are allowed to cover the Olympics. He decided to cover a different international competition run by "one of the most corrupt organization's in the world", whose logo is a series of interconnected triangles and whose theme song is Bump and Grind by R. Kelly. Then he read some Olympics results over footage of his own high school wrestling days, fully crediting his own mother.

Now, this isn't just funny, it's also a wonderful little push back against NBC for its frankly insane restrictions on Olympics coverage. As a reward for being that restrictive, at least one local news organization decided not to report on the Olympics at all. So, NBC... mission accomplished?

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Posted on Techdirt - 2 August 2016 @ 11:41pm

USPTO Rejects Whole Foods 'World's Healthiest Grocery Store' Trademark Because Naaaaaah

from the nice-try dept

We've talked surprisingly little about Whole Foods here at Techdirt. I suppose that the hipster's grocery paradise has somehow evaded most of the trappings of intellectual property concerns. Good on them for that. Less good is the company's recent simultaneous attempts to expand internationally while also applying for a trademark with the USPTO for "World's Healthiest Grocery Store." Neither are going very well, it seems, and it turns out they're interrelated.

The international push has not been as lucrative as executives hoped. That's in part thanks to efforts bycheaper options such as Walmart to expand its organic sections and preexisting upscale grocers that have claimed what might be Whole Food's clientele, such as the United Kingdom's Waitrose. Whole Foods co-chief executive Walter Robb told The Wall Street Journal that his company would open more than 80 new storefronts in Canada in 2015 and 2016. The current tally, though, is three; 2015 brought the opening of one location in British Columbia, with another slated to open in the fall. It will also open a location in Alberta this fall, Whole Foods said last year. That would bring its total store count to 13.

So, Whole Foods is a mostly US-based chain, with a handful of stores in the UK and Canada. I mentioned that this slow, barely-expanding growth through the rest of the world had an impact on its application to trademark "World's Healthiest Grocery Store." How? Well, it turns out the USPTO actually bothered to think about whether the claim in the mark was, you know, true.

Unfortunately for the grocer's efforts, the U.S. Patent and Trademark Office recently rejected its application to register that slogan. Whole Foods will have six months to update and refile the case and may choose not to do so, although that seems unlikely. The agency said it rejected the trademark because it makes a "laudatory" claim, or is based on exaggerated praise that can't be proven or has not been proved true. For instance, Papa John's slogan "Better Ingredients, Better Pizza" was initially struck down by a court in 2000 because it could not substantiate that it indeed had better ingredients than all of its competitors.

Papa John's ended up getting its trademark on the basis of its continued use of the slogan, which eventually became associated with the Papa John's brand, building an association worthy of the trademark. Whole Foods itself did the very same thing with another trademark, "America's Healthiest Grocery Store." But since it barely has any presence in the world outside of the US, the USPTO has said that there is no such association with "the world" yet, nor is there evidence that the claim is in any way true or widely believed by the international market.

But Whole Foods isn't really recognized as the world's healthiest grocery store. It functions only in the United States, England and Canada, which is hardly the entire globe. On top of that, few probably associate the phrase "World's Healthiest Grocery Store" with Whole Foods; it has never used the slogan.

Companies attempt to get these kinds of superlative marks all the time, but it's nice to see the USPTO think past the end of its own "Approved!" stamp once in a while.

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Posted on Techdirt - 1 August 2016 @ 10:58pm

Florida International University Loses Trademark Appeal Against Florida National University

from the snark-included dept

It's too rare that we see courts get trademark questions right on the merits of actual customer confusion, so it's nice to highlight some examples of when they do get it right. It's even more fun when the court takes the time to add just a dash of snark and narrow-eyed language into its opinion. Such appears to be the case in an appeals ruling between Florida International University, a public college, and Florida National University, a for-profit institution. FIU sued FNU for trademark infringement and, having lost its initial case, took it to appeal. The claim FIU made is that potential students were confused between the two schools based solely on the similarity of their names.

The appeals court was not impressed.

A U.S. District Court judge ruled in favor of Florida National University, prompting the public university to appeal to the 11th U.S. Circuit Court of Appeals. But in a 50-page ruling, a three-judge panel of the appeals court upheld the district judge’s decision. In part, the appeals court pointed to 12 other schools in the state that use the words “Florida” and “University” in their names, including Florida Memorial University in Miami-Dade.

The court went on in its decision to patiently provide the definitions of the words "national" and "international" for FIU's lawyers. You can practically hear the sneer in the text as it responds to FIU's assertion that "National" and "International" are too close so as to constitute a trademark concern.

The district court acknowledged that “Florida International University” and “Florida National University” (and the acronyms FIU and FNU) are similar in sound and appearance, but determined that the difference in the meaning of the words “national” and “international” outweighed any similarity. It explained that, in common usage, the two terms are used as antonyms to describe the domestic or overseas character of something and, therefore, they are not “so closely aligned as to create a likelihood of confusion among consumers.” Moreover, the court found, other universities use very similar acronyms and, therefore, FNU’s acronym does not increase the likelihood that a reasonable consumer would be confused as to the source of the services that it represents. FIU disagrees because, it argues, the names are quite similar and certain dictionaries define “national” as a subset of “international.”

Again we remain unpersuaded. For starters, the parties stipulated that Merriam-Webster’s On-line Dictionary classifies “international” as a “near antonym” of national. The district court reasonably attributed more weight to the meanings than to the appearance and sound of the marks, especially in a field where so many competitors have names that appear and sound similar. Moreover, in a crowded field of similar acronyms, the district court reasonably found that the addition of one more school identifying itself with an acronym containing the letters F and U would not materially add to the confusion. This is especially true in a field like post-secondary education, where the primary consumers -- potential students (and likely their parents too) -- generally spend a substantial amount of time and energy learning about their options before choosing a school and are, therefore, unlikely to be confused by similar names. See Welding Servs., 509 F.3d at 1361. Accordingly, we can find no clear error in the district court’s determination that the names and acronyms were not confusingly similar.

And with that, the bickering between two educational institutions over non-distinct marks in a crowded marketplace absolutely filled with similarly named entities should come to a close. Unless FIU needs to be taken back to school on the plain meaning of words, that is.

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Posted on Techdirt - 1 August 2016 @ 2:27pm

Blizzard Allows Release Of Fan-Game It Initially Tried To Shut Down, Reaps Rewards It Should Have Had All Along

from the derp dept

We've dinged Blizzard quite a bit in these pages for acting overly protectionist of its intellectual property in the past. And that dinging has been well deserved, with Blizzard doing things like trying to twist copyright law as a way to combat cheat software within its multiplayer games, to use intellectual property as an excuse to shut down a World of Warcraft vanilla fan-server, and has otherwise not always acted in human or awesome ways towards its own fans.

But sometimes, with much kicking and screaming and the insistence of making many a mistake along the way, even a company like Blizzard can manage to do what game companies like DoubleFine have already done: loosen the leash on its own IP and reap the rewards. StarCraft Universe is a fan-made mod that consists of a full new game in a genre that Blizzard had never taken the StarCraft universe into.

StarCraft Universe takes place in an alternate timeline where Kerrigan got torn chitinous dreadlock-from-weird spider spine at the end of StarCraft II: Wings of Liberty. After that, it didn’t take long for the Hybrids to bring down the Protoss as well. It’s up to a few remaining survivors to, you know, not die.

“We wanted to combine the third person action RPG elements of World of WarCraft, the combat mechanics of Diablo, and the starship mechanics ofFTL with the StarCraft setting,” Upheaval wrote. “We wanted the game to be completely voice acted with a unique story, custom art assets, and a fresh musical score.”

You can see the trailer for the game here and you'll see that it looks pretty slick for a fan-made construction. Fully voiced characters and an original score, combined with gameplay elements familiar to fans of World of Warcraft and FTL. Using the StarCraft IP and some homebrew elements, this is a whole new world and a whole new experience for StarCraft fans, who are amongst the most passionate.

And if any of this feels familiar to you, it's because the project had originally begun in 2011 before Blizzard smacked it down.

Just a reminder: this is the mod that got announced in 2011 as World of StarCraft, ran afoul of Blizzard’s lawyers, caused hella controversy,relaunched with a new name, got Blizzard’s approval, and went on Kickstarter to ultimately rake in $84,918.

Rather than simply whipping out the intellectual property hammer and dealing a deathblow, Blizzard ended up communicating with the Upheaval team and allowing it to eventually move forward. It even allowed the group to run a Kickstarter campaign for it, along with an ongoing IndieGoGo page where gamers can donate to the developers of what is an otherwise free-to-play game.

The result? Well, loads of comments on all kinds of articles can be generally summed up as saying, "This looks cool! I have to go buy StarCraft 2!" Which is what should have been allowed to happen five years ago, if Blizzard had had the foresight to leash its lawyers instead of its fans. But better late than never, as they say, and Blizzard is fully on board with this now, with SC Universe appearing in the StarCraft Arcade store. Good will, more paying customers, and an expanded game universe, all for the cost of not being overly protectionist of intellectual property. Lesson learned, Blizzard?

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Posted on Techdirt - 26 July 2016 @ 2:33pm

Anti-Vax Film Distributors Threaten Critic And Autistic Rights Advocate With Defamation

from the vexxing-anti-vaxxers dept

Any time we discuss the segment of our population that is still, despite all evidence to the contrary, pushing anti-vaccination conspiracy theories out into the ether, the comments section is inevitably invaded by these proponents. I know I can't stop it, so just go ahead and leave what I'm sure will be your well-reasoned, science-backed arguments as to why we shouldn't trust one of the most life-saving kinds of medicine ever invented.

That said, this is not a post about the plausibility that vaccinations are the reason for all the world's ills. It is instead a post about how the distributors of the upcoming sure-to-be smash hit film about the horror of vaccinations, creatively entitled Vaxxed, are also going around threatening people arguing against its message with defamation for pointing back at the filmmakers' own words.

Meet Fiona O'Leary of Ireland. Fiona is an advocate for autistic children, helping to run a group called ART (Autistic Rights Together) as well as a Tumblr page dedicated to dispelling the myths of autism and vaccines. On that Tumblr page and on social media, O'Leary has often set her sights on the makers and distributors of Vaxxed, including producers Polly Tommey and Del Bigtree. Included in her pushback, O'Leary points out some rather unfortunate comments both have made about autistic children, as well as interviews and videos in which Tommey in particular pushes religious faith to treat autism. Through it all are the calls for parents to not vaccinate their children.

The result of this work has been a letter sent threatening a defamation lawsuit.

Fiona O’Leary has posted the threats, from Cinema Libre Studio CEO Philippe Diaz, on her Facebook profile:

Wow you threaten to sue an Autistic Advocate and Mother to five children in West Cork! Why? Because I don’t want babies and children DYING from preventable diseases! Because I have had enough of your lies about Vaccines causing Autism! Because I am sick of how you exploit Autistic people! How dare you!

And the threat letter itself:

As always, a great rule of thumb applies here: if someone accuses another person of defamation without pointing out a single specific thing that is supposedly defamatory, it's a bullying attempt and should likely be ignored. This case appears to be no different. With all that O'Leary has said about the film and its producers, and with all that she's posted that includes responses to specific things Bigtree and Tommey have said and claimed, to fail to cite even one defamatory instance should tell you everything you need to know.

It seems that this video response in particular is what likely caused the threat to be sent. In it, O'Leary details how the two producers have compared autistic children to monkeys and dogs, threatened government officials, and even declared that firearms should be used to keep children from being vaccinated.

And now that the threat letter has been sent and then shared by O'Leary with her followers, and now that the press is picking it up, all of those comments are being shared even more widely than they would have been otherwise. It seems the Streisand Effect is taking the deplorable comments of these anti-vaxxers viral, because the universe does not lack a sense of irony.

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Posted on Techdirt - 22 July 2016 @ 10:44am

Dear US Olympic Committee: Tweeting About The Olympics Is Never Trademark Infringement

from the seems-reasonable dept

It seems the USOC is just getting started with its bullying bullshit this Olympic season. Fresh off the heels of threatening Oiselle, a corporate sponsor of an Olympic athlete (but not a sponsor of the Olympics themselves), over trademark concerns because the company posted a congratulatory tweet for its sponsored athlete that included the Olympic bib she was wearing, the USOC is now sending out a helpful little reminder to other companies that have sponsored athletes but not the games. And by helpful, I mean that it's helpful in seeing just how blatantly the USOC will outright lie in order to continue its bullying ways.

ESPN got its hands on the letter the USOC sent around.

"Commercial entities may not post about the Trials or Games on their corporate social media accounts," reads the letter written by USOC chief marketing officer Lisa Baird. "This restriction includes the use of USOC's trademarks in hashtags such as #Rio2016 or #TeamUSA."

It's the kind of blanket statement that the USOC likes to make, even as it avoids any of the pesky nuance that might call its claims into question. Certainly, as part of trademark law, a company's Twitter account could not claim to be an Olympic sponsor, or attempt to confuse followers into thinking it had some kind of affiliation. And this might translate into that company not including trademarked hashtags themselves. But what about retweets? What about posts that mention the sponsored athlete but not the hashtags? What about informing followers of the success of the athletes the company sponsors?

Well, for that last one at least, the USOC has boldly claimed it owns the rights to facts.

The letter further stipulates that a company whose primary mission is not media-related cannot reference any Olympic results, cannot share or repost anything from the official Olympic account and cannot use any pictures taken at the Olympics.

Yeah, that's not actually true. Like, at all. As we've pointed out in the past, several times, there is no applicable part of trademark law that applies to facts, such as the factual results or stats of a sporting event. And there's no line in the sand to draw between the average Twitter user and a corporate Twitter account when it comes to this, meaning that corporate sponsors of athletes are absolutely free to mention the results of their sponsored athletes at the Olympic Games or trials. Beyond that blatant lie, claiming that a company's account can't retweet an Olympic account misunderstands the very nature of social media (make your damn account private then!), while blanket claims about what types of pictures of the games can be used completely ignores any Fair Use arguments that could be made, of which there are many.

But this is SOP for the USOC, even as they further lie about the necessity for all of this bullying.

While the USOC argues that money from sponsors and licensees who pay for the rights allow them to support athletes to go to the Games, Bergesen says the stringent rules hurt the athletes because companies that can't support them during the Games can't afford to pay them because of lack of promotion.

"It costs $300,000 to send an Olympian to the Games, and for our athletes, the USOC has reimbursed them about 1 percent of that cost," Bergesen said. "Is that supporting them?"

Well, no, but of course that isn't the point of the Olympics, which long ago transitioned into a money-making machine rather than any kind of international sporting competition. The corruption is so bad, few countries even want to bid to host them anymore. But, sure, keep focusing on corporate sponsors that want to congratulate their athletes, as though that was the problem.

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Posted on Techdirt - 21 July 2016 @ 11:20pm

Running Out Of Puns: Get Ready For The Damn To Burst On Craft Beer Trademark Disputes

from the lawyers-are-coming dept

With all the trademark actions we've seen taken these past few years that have revolved around the craft beer and distilling industries, it seems like some of the other folks in the mass media are finally picking up on what I've been saying for at least three years: the trademark apocalypse is coming for the liquor industries. It's sort of a strange study in how an industry can evolve, starting as something artisan built on friendly competition and morphing into exactly the kind of legal-heavy, protectionist profit-beast that seems like the very antithesis of the craft brewing concept. And it should also be instructive as to how trademark law, something of the darling of intellectual properties in its intent if not application, can quickly become a major speed bump for what is an otherwise quickly growing market.

All of this appears to have caught the eye of Sara Randazzo, blogging at the Wall Street Journal, who notes that the creatively-named craft beers that have been spewing out of microbreweries across the country may be running out of those creative names.

As today’s Wall Street Journal explores, legal disputes in the beer world are becoming the norm as new craft breweries spring up at a rate of roughly two per day. Trademark lawyers have gotten so used to the beer disputes that they are now turning on each other. Some dozen lawyers are contesting San Diego lawyer Candace Moon’s attempt to trademark the term “Craft Beer Attorney,” which she says she rightfully deserves.

Within the rest of the post, Randazzo highlights one dispute between craft brewers in order to give a sense of just how small these belligerent parties are. It's a dispute that escaped even my radar, despite what has become something of my "beat" around Techdirt. Three professionals with day jobs decided to make a go at brewing craft beer and named their company Black Ops Brewing, the pun resting upon "hops" used in their beer, while also serving as a nod to their family members that served in the military. Three guys making beer, but the trademark dispute came almost immediately.

Within months of launching, Mr. Broussard and his partners heard from Brooklyn Brewery clear across the country. The message: They needed to stop using the name Black Ops Brewing, because the New York brewery already had a beer named Brooklyn Black Ops.

Three months of litigation and one preliminary injunction later, and the Fresno business is now called Tactical Ops Brewing Inc. “They probably spent four to five times what our company is worth in legal fees,” fellow co-founder Justin Campagne said.

Now, we could spend some time analyzing whether or not there would be any real customer confusion to consider between the two names, whether the two companies were operating in the same market, or whether Brooklyn Black Ops had to initiate all of this in order to retain its trademark. Those would be worthy discussions to have, but there is a more fundemental question: is trademark law in this instance doing more to help or hurt the craft brewery industry?

It's not a simple question to answer in the present, though I do think the trend of increased trademark actions in the industry should tell us something important. As the industry becomes more crowded, trademarks are serving as a method to push out new players, or at least making entry into the market more difficult. After all, there are only so many hop-puns specifically, and creative ways to name a specific brew more generally. With new craft breweries springing up every day and those breweries each pushing out multiple different brews, at some point we'll get to a place where there are so many breweries producing so many brews with so many names that having a trademark on all of them could render the entire industry in trademark molasses, with legal actions all over the place and nobody knowing for sure whether just putting out a new product will result in crippling lawsuits.

Whatever trademark should be, it should certainly not slow down burgeoning and explosive industries. It's becoming quite clear that craft brewing has a trademark problem.

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