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Posted on Techdirt - 1 July 2022 @ 07:39pm

U.S. Appeals Court: Amazon Has To Go To Trial To See If Public Will Confuse Fire TV Streaming With Porn

Sigh, here we go. Back in 2014, Wreal LLC filed a trademark infringement suit against Amazon. Why? Well, Wreal has a product called FyreTV that it describes as “the Netflix of porn.” Amazon has a streaming service for decidedly non-pornographic content called Fire TV. Wreal came into court armed with a couple of social media posts basically poking fun at the two names and tried to paint that as real or potential confusion in the marketplace. The case has gone through many twists and turns over the past 8 years, including the district court tossing the suit in 2019 because of the stark differences in the products and types of services being offered. From there, Wreal appealed.

Notably, there was a list of “undisputed facts” in the ruling that pretty much lay out everything anyone should need to know about all of this:

Wreal has lost money every year from its founding in 2007 to the present.

Wreal’s FyreTV.com homepage shows several rows of highly explicit pornographic images.

Amazon markets the Amazon Fire TV’s family-friendly features, advertising that the “FreeTime” service “revolutionizes parental controls – parents can choose what your kids see and set time limits for types of content and times of day.”

Wreal does not believe its use of the “Netflix” mark infringes any trademarks because it believes Netflix operates in a different market.

That last one is perhaps the most important, because if Wreal’s use of Netflix doesn’t infringe on Netflix’s trademark because they operate in different markets, then the exact same thing is true of Amazon’s Fire TV. Yet, somehow, the U.S. Appeals Court has granted Wreal its trial.

The 11th U.S. Circuit Court of Appeals said a jury could find that Amazon’s product was likely to cause consumer confusion with Wreal’s porn-streaming service, and that a Miami federal judge should not have ruled for Amazon before a jury could hear the case.

A unanimous three-judge panel noted that the products’ names were nearly identical, there was evidence that Amazon had purposely flooded the market with its trademark to drown Wreal’s out, and a reasonable consumer could think that Amazon had expanded into Wreal’s field of streaming hardcore pornography.

The panel noted, perhaps more cogently, that this was treated by the lower court more like a traditional “likelihood of confusion” case, in which the later entrant is trying to draft off the name recognition of the larger original trademark holder. But that this case was different — in that it was a “reverse confusion” case, in which the latter entrant is much bigger and more well known, and clearly isn’t trying to leverage the mark’s recognition, but rather to squeeze the original mark holder out of the market. As the Court notes in its ruling:

In a reverse-confusion case, the harms that can occur are varied. For example, consumers may come to believe the smaller, senior user of the mark is itself a trademark infringer

As such, the Court argues, different tests should apply for the likelihood of confusion.

But the other reasons for granting this trial on appeal are just plain silly. Going to FyreTV is going to bombard you with porn on its homepage. Someone would have to very much believe that Amazon had suddenly expanded into the extremely hardcore pornography industry for there to be any sort of confusion. The Appeals Court indicates that a jury may find that way. I would fear for any jury that did so, as I’d would openly wonder how that jury managed to tie its shoes in the morning.

But now this goes to trial (assuming no settlement in the interim). And hopefully a jury will show that there is no way that there is any likelihood of confusion, even “reverse confusion.”

Posted on Techdirt - 30 June 2022 @ 07:37pm

Parody Post About Nintendo’s IP Bullying Hits All The Right Notes

When I repeatedly use Nintendo as something of a virtual punching bag, it pisses off some of the company’s loyal fans. This has never made sense to me. Those fans should be pissed at Nintendo and all the different avenues the company takes just to make sure being a Nintendo fan is as difficult as possible. After all, it’s not like I’m just making this stuff up. Nintendo really is the Disney of the video game world when it comes to being an IP protectionist bully.

It is so bad, in fact, that you’ll come across parody posts on sites discussing made up bullying actions and relating them back to Nintendo. Earlier this year, for instance, we discussed a post on hard-drive.net, one which is clearly parody, talking about Sega undergoing a heel-turn and deciding to be an IP bully. Or, as the post put it, “go full Nintendo.” It was close enough to sounding real to be funny, but it was parody.

Well, that same site is back with another parody article, but this time they decided to dive into the purely absurd.

KYOTO, Japan — Video game giant Nintendo has recently filed a copyright claim on the country of Italy, according to a company press conference.

“It is after much deliberation and discussion that Nintendo has come to the conclusion that we will be filing a copyright claim against Italy,” Nintendo President Shuntaro Furukawa said during a pre-recorded address uploaded to the official company YouTube channel. “The clear instances of infringement, such as adding ‘-a’ to the end of words, growing mustaches, and eating mushrooms, that have been occurring within Italy have gone unchecked for too long. It is our job to protect the hard work of our staff and executives.”

Unlike the Sega post, this one is obviously not believable. However, just like the Sega post, the only reason any of this is actually funny is because of how already absurd the behavior of Nintendo is when it comes to intellectual property matters. No, the company isn’t going to sue Italy over the supposed existence of stereotypical “Italians”. But the company’s actual IP enforcement actions are so silly and overwrought that the joke still works.

The rest of the post is short but worth reading. It has a fake quote from a big Nintendo fan that, by my reading, is fairly spot on. It’s complete with all the apologies and excuses those that remain Nintendo fans tend to roll out when the company is criticized. Having been on the receiving end, I suppose I now know what it feels like to say anything less than glorifying Elon Musk. The vibes seem to be the same.

So, it’s funny, but also kind of not funny. This is the sort of thing that only works because Nintendo really is an IP bully and maximalist company.

Posted on Techdirt - 29 June 2022 @ 01:30pm

How The Internet Enabled A Mariners Fan And DoorDash Driver To Connect And Do Something Cool

The world can be an awful, horrible place. Lately, it feels like, in America, things are only getting more difficult. And, because my country loves its scapegoats, the internet has been routinely blamed for all the country’s, perhaps the world’s, ills. Insurrections, political radicalization, obesity, poor socialization, literally any sub-optimal thing to do with children: blame the internet.

But that’s obviously stupid. The internet is responsible for both good and bad outcomes in society, as is pretty much everything else. But the internet also is only as good or bad as those that make use of it. And sometimes, the internet enables really awesome stuff.

Take the story of Sofie Dill, Seattle Mariners fan, and Simranjeet Singh, a DoorDash driver. This past weekend, without getting into too much detail, Jesse Winker was hit by a pitch while playing the L.A. Angels and a brawl between the teams ensued. Baseball fights are plainly dumb, but some fans enjoy them, or at least root for their players in the fight. To that end, Dill, from her home in Arkansas, decided to send Winker a pizza from a local Anaheim parlor to be delivered directly to the stadium. And, for added measure, she live-tweeted her DoorDash experience for everyone to follow along.

Baseball fan or not, you should go check out the full thread. It’s a harrowing journey to see if she could in fact deliver a pizza to a professional baseball player in a visiting Major League clubhouse to express her support. The spoiler here is that the pizza did in fact get delivered, Winker reached out to her on Twitter to say thanks, and a whole bunch of people were cheering on the DoorDash driver, Singh, as he went on his dutiful journey.

As a result, Dill managed to get Singh to share his Venmo QR code and shared it out to Twitter.

And from there, the internet did its thing. Plenty of folks started sending money to Singh’s Venmo. Other’s asked they could send him money via another platform. Singh himself started sending out tweets thanking everyone, clearly overjoyed at everyone’s generosity. Then, were that not enough, two other awesome outcomes happened, just to restore your faith in humanity.

While I can’t be sure how much was donated to Singh, he certainly didn’t keep all of it for himself.

There are good people in this world. Paying it forward would have been the feel good coda to this story on its own, but then the Mariners decided to get in on the fun as well.

Dill got herself a Winker jersey from the Mariners. Singh had what he describes as a life-changing event. Mariners fans got to have a ton of fun on Twitter with all of this. St. Jude’s got a donation.

If there’s a loser in this story, I can’t find one. And all of this made possible by the evil, vile internet that too many people blame for every last thing.

Posted on Techdirt - 28 June 2022 @ 07:50pm

Dairy Queen Loses On ‘Blizzard Water’ Trademark Suit With W. B. Mason

Late last year we discussed a plainly stupid trademark lawsuit brought by Dairy Queen, which makes tasty frozen snacks, and W.B. Mason which is a strange combination of furniture and grocery store. At issue was the latter’s attempt to trademark some bottled water it sells under the brand “Blizzard Water”. Notably, W.B. Mason had sold water under that brand since 2010 without issue and it was only when Dairy Queen caught wind of the trademark application that it decided to sue over the potential for confusion with its blizzard ice cream products.

If you didn’t read that original post, you’re probably now wondering why this is a thing at all, given that water and ice cream are very much not the same products and that the two companies operate in different marketplaces. Well, according to Dairy Queen’s suit, it sells blizzards as noted, and it also sells Dasani bottled water, therefore there would be customer confusion.

Fortunately, in a massive decision, the court saw how silly that argument was and found in favor of W.B. Mason.

In a 217-page decision made public on Friday, U.S. District Judge Susan Richard Nelson found a lack of evidence that consumers were confused by the Blizzards or that W.B. Mason, an office products distributor, intended to confuse anyone.

While acknowledging that W.B. Mason, which has two trademarks for Blizzard copy paper, was not a competitor, Dairy Queen said consumers might be confused because its U.S. restaurants sell bottled water. But the judge said the products had “very different audience appeal,” and co-existed for 11 years despite evidence that Dairy Queen’s Blizzard had achieved “iconic” status, with U.S. sales reaching $1.1 billion in 2020.

Notably, as part of the facts the court uncovered and laid out in its decision, W.B. Mason doesn’t even sell its water direct to consumers. Instead, it sells water to be used in office break rooms, as the majority of its business is in office furniture. On top of that, the court points out that Dairy Queen offered no evidence of any actual customer confusion that occurred over nearly a decade.

“Dairy Queen introduced no evidence of an actual association between the two products,” Nelson wrote. “If association were to occur, in all likelihood, it would have occurred by now.”

Dairy Queen has made some noises about appealing the ruling, but I doubt that will happen. This whole thing has been a trademark suit nothingburger from the start.

Posted on Techdirt - 27 June 2022 @ 01:34pm

Facepalm: USPTO Grants Ohio State University Trademark On The Word ‘The’

For at least three years now, we have been discussing the goings on concerning a trademark application submitted by Ohio State University for using the word “the” on apparel. If your brain just came to a screeching halt, it may be because you’re not a college sports fan. See, Ohio State University absolutely loves referring to itself as The Ohio State University. Part of the tradition is for athletes who go on to have professional careers always announce their college affiliation by really leaning into the word “the”. Even college sports commentators think it’s all very stupid and the USPTO initially rejected the trademark application based largely on technical grounds.

Which was curious, because technical grounds aren’t the largest issue here. The USPTO should have rejected the application based on the notions that the word “the” is one of the most commonly used words in the English language and therefore shouldn’t get trademark protection, not to mention that a shirt with the word “the” on it does absolutely nothing to inform the public that that shirt is an OSU product. But OSU pushed for the trademark in yet another application… and the USPTO somehow decided to grant the mark.

The U.S. Patent and Trademark Office approved Ohio State’s application Tuesday by issuing a registration certificate. It allows Ohio State to control the use of “THE” on “clothing, namely, t-shirts, baseball caps, and hats; all of the foregoing being promoted, distributed, and sold through channels customary to the field of sports and collegiate athletics,” the certificate reads.

You can see the absurd certificate in the link. It looks hilarious, with just the word “the” at the top. Except that none of this is actually funny. Why?

Well, because the USPTO’s actions now mean that nobody else can make any athletic apparel, hats, or other clothing consisting solely of the word “the”. And while very few people or companies actually do that, they certainly should be allowed to. Because it’s the word “the”. No matter how annoying OSU has been with its silly little tradition, the word “the” on clothing is not identified with OSU. Or any other entity.

Because it’s just the word “the”. And the USPTO really, really should know better.

Posted on Techdirt - 24 June 2022 @ 12:01pm

Bungie Unmasks One Of The ‘Does’ It Sued For Fraudulent YouTube Takedowns

Back in March of this year, we discussed a somewhat odd story involving a bunch of DMCA takedowns for YouTube videos that included fan-content mixed with Destiny 2 music or footage. DMCA takedowns aren’t themselves strange, but in this case the makers of the game, Bungie Inc., publicly stated that it was aware of the takedowns but insisted it wasn’t them or their enforcement partner, CSC. Some of Bungie’s own official content had also been hit with claims, bolstering its defense somewhat, though it certainly isn’t unheard of for official content to accidentally get DMCA’d. Further solidifying that this wasn’t actually Bungie or CSC, however, occurred when Bungie went ahead and filed a lawsuit against 10 John Does over all of this.

Well, at least one of those Does has now been unmasked, as YouTube assisted Bungie by providing his IP address. That would be Nicholas Minor, who goes as Lord Nazo on YouTube. Bungie has amended its lawsuit naming him specifically, though it is unclear if Bungie is accusing Minor of filing all of the fraudulent takedowns. Ironically, it appears that Minor took these actions after becoming angry that Bungie and CSC took down his YouTube videos that contained Destiny 2 game music.

Lord Nazo, real name Nicholas Minor, apparently sought revenge on the development studio after CSC Global, which works in conjunction with Bungie as a brand protector, issued a number of takedown notices to him for uploading the Destiny soundtracks to his channel. The videos were uploaded in December 2021, and removed by YouTube a month later.

As reported by The Game Post, Minor allegedly created two fake Gmail accounts under the pseudonyms Jeremy Wiland and Damien Reynolds, posing as employees of CSC. He then used the accounts to issue DMCA strikes against popular Destiny YouTubers such as My Name Is Byf and Promethean, and additionally against Bungie’s own YouTube channel.

More is alleged, including that Minor used those accounts to contact Bungie directly and threaten them somewhat vaguely. For its part, Bungie is asking for a whopping $7.6 million as a result of all of this. Based on the filing for the suit, Bungie looks like it knows what it’s talking about.

Now let’s discuss briefly how this will all get talked about. If Minor did what the complaint alleges, he’s likely to be in a heap of trouble. Bungie will look like a hero here, helped by the fact that its own stance on fan-created videos is fairly lenient.

But what few will talk about is a point that Bungie actually made at the outset of all of this: YouTube’s DMCA takedown process sucks and is absolutely begging to be abused. Minor may have been found out, assuming the complaint is correct, but how many times does that not happen? How many times, in the name of promiscuous enforcement of copyrights, have such fraudulent claims at a lower level never been given this attention? We see this all the time and nobody seems to want to do anything about it.

That’s the real problem here. A broken enforcement system that is ripe for abuse.

Posted on Techdirt - 23 June 2022 @ 07:45pm

Ed Sheeran Wins Legal Costs After ‘Shape Of You’ Verdict

The saga of Ed Sheeran and the copyright case over his Shape of You song may finally be coming to a close. The case, brought by Sami Chokri, was very thin, largely centering on a two-word refrain line repeated 3 times both Sheeran’s song and Chokri’s Oh Why. Sheeran prevailed, with the court stating that there was absolutely nothing to suggest that Sheeran was influenced, even subconsciously, by Chokri’s song. After the win, Sheeran noted publicly how dumb this all is and how dangerous the culture of settlement-seeking copyright lawsuits has become for the creative industries. It’s bad enough, apparently, that Sheeran has stated he now video records all creative sessions so that those videos can be used to defend against inevitable future suits.

So why are we back on this topic? Well, in this case at least, the court has continued to get things right. The final nail in the coffin of this whole episode is that Sheeran has now been awarded legal fees by the court, to be paid for by Chokri.

Ed Sheeran and his co-songwriters have been awarded more than £900,000 in legal costs after winning their high court copyright trial over the hit Shape of You earlier this year.

That would be the dollar equivalent of roughly $1.1 million. Chokri’s lawyers had argued that Sheeran’s team failed to provide certain documentation earlier in the trial and that, if they’d seen those documents sooner, Chokri’s legal team would have altered its entire strategy in the suit. The Judge’s rebuttal was fairly simple: you didn’t alter your approach one bit once you had seen those documents, so what are you talking about?

The judge dismissed arguments that the defendants would have changed their approach to the case if some documents and explanations about how Shape of You was written had been provided earlier.

Zacaroli said: “None of the disclosure or explanations, once provided to the defendants, caused them to alter their approach at all. Instead, they not only maintained their attack on Mr Sheeran but broadened it by asserting that he was a ‘magpie’ who habitually misappropriated song ideas from other writers.”

It’s vindication of a sort for Sheeran to be sure, but none of this changes just how consuming these lawsuits can be for an innocent creator, both in terms of time, money, and the costs on his mental state. He may get the legal fees back, but certainly not his time and mental energy.

Which is why this win still doesn’t change the fact that we have a copyright culture problem in many western nations at the moment.

Posted on Techdirt - 22 June 2022 @ 08:22pm

KOTOR 2 Released On Nintendo Switch In A State That Makes It Un-Finishable

Video games have always had bugs at the time of their release, though there has been a trend coinciding with the uptick in digital game sales in which games seem to be published in broken states far too often and are then “fixed” with a day-one patch or something of the like. Some of these bugs are on the more minor side, while some involve game releases that were very clearly pushed for way too early.

And then there is the Nintendo Switch port of Star Wars: Knights of the Old Republic 2, which came out a few weeks back and, well…

Er, whoops. Aspyr, the developer/porter behind the recent release of Knights Of The Old Republic II on Nintendo Switch, has tweeted that it’s aware the game is currently impossible to finish. After some pressing from a customer, the studio acknowledged it’s aware the game is presently bugged such that it cannot be completed on Nintendo’s handheld.

Aspyr’s Twitter account replied with a, “Yup, we know, we’ll get you a patch, thanks for all your patience.” Now, a couple of things on this. First, releasing a game that simply can’t be finished on a platform probably deserves a stronger mea culpa than Aspyr offered up. Buying a game and being unable to complete it is probably worse than paying money for no product at all. The point of video games, in large part, is to play and complete them. Imagine a release of Mike Tyson’s Punchout that just shut down every time you managed to get to the fight against Mike Tyson. That’s a bit like lying on the couch while someone sits at a piano and plays every single note on a major scale except the last one. It would absolutely drive you insane.

And I’ll admit to being a bit surprised that this would happen on a Nintendo console. Nintendo isn’t the developer here. It isn’t the one that worked on the game. Still, I have long criticized Nintendo’s practice of absurdly strict control over its consoles, IP, and platforms. One of the common responses to that criticism is that such strict control gives Nintendo the ability to do great quality control on anything that touches its systems. Whatever the process was for QC testing in this case, it appears to have completely failed.

It raises some rather significant questions about the QA on the game, that it could be certified and released in a form impossible to finish. There’s also the question of for how long Aspyr has been aware its product has a game-breaking bug that affects all players, but haven’t communicated this to potential and current customers. We’ve contacted Aspyr to ask these questions.

You have to think the refund requests are arriving in droves at the moment. And this is one of things that you probably can only do once, at most. Imagine Aspyr or Nintendo announcing that the bug has been patched and then asking the public to buy the game once more.

Posted on Techdirt - 16 June 2022 @ 08:10pm

Nintendo Shuts Down Musician’s YouTube Videos Of Metroid Covers

Nintendo’s war on its own fans’ love of Nintendo game music continues. The company has certainly made headlines over the past few years (with a big ramp up recently) by going on DMCA and threat blitzes for YouTube videos and channels that have uploaded what are essentially just the music from various Nintendo games. The blitzes started by taking down 3-figure numbers of videos, then reached the thousands by 2022. Notably, this has pissed off tons of Nintendo fans, many of whom pointed out that Nintendo was disappearing all of this music that was almost entirely unavailable through legit means.

To continue to be clear on this point, Nintendo can do this… but it certainly doesn’t have to. Evidence for that would be much of the rest of the video game industry. You don’t hear this level of takedowns being done by all the other gaming companies out there.

But, I suppose if you squint really hard and have been inhaling gas fumes, you could argue somehow that a direct recording of Nintendo’s game music being on YouTube is some sort of threat to current or future Nintendo plans. That gets a little bit harder to use to explain why Nintendo is now also targeting people who are uploading their own recreations and covers of Nintendo music.

As first reported by NintendoLife, the newest member of the club is SynaMax, a YouTube channel dedicated to music. The user behind the channel, who says in the channel’s bio that they have been creating music since 2004, had previously uploaded high-quality recreations and covers of some Metroid Prime songs. However, that seems to have attracted the attention of Nintendo and its legal team. In a video uploaded yesterday, the channel creator claimed he was contacted by Nintendo lawyers on May 31 and told to remove nine videos that featured Metroid Prime music covers or remixes.

“I’m really disappointed in Nintendo that they would force me to take down these videos because they want compulsory licenses,” SynaMax said in the new video.

Here again, Nintendo is probably within its rights to demand these videos get taken down, though some of that depends on just how transformative these covers could be seen as being. It’s not something that generally needs considering, because most companies, again, aren’t doing these takedowns like Nintendo is. Over a decade ago, I wrote about OC ReMix, a site dedicated to hosting and promoting fan-created remakes of video game music. That site still operates today and still very much hosts remixes of Nintendo game music. Whether Nintendo will get around to going after that site too instead of just YouTube videos remains to be seen.

But the point here is that Nintendo very much doesn’t have to do this to its creative fans. And why it wants less interest generated in its products through this free promotion it’s getting past its fans.

However, they questioned why the company becomes aggressive instead of just demonetizing relevant videos and letting fans continue to produce and share Nintendo-inspired creations. SynaMax said he would not mind losing that revenue; they just want to share their songs with other fans. SynaMax, his frustration evident, wrapped by saying that they’re done making any more Nintendo-related content “for a very long time.”

And one less free promoter now exists for Nintendo. Surely SynaMax’s content wasn’t threat enough to outweigh his spreading interest in Nintendo music. But that’s Nintendo for you.

Posted on Techdirt - 15 June 2022 @ 08:13pm

Major League Soccer To Stream All Games On Apple TV For 10 Years

I have talked for years at Techdirt about how the cord cutting trend, while still continuing, was going to run into a wall due to the way that major sports broadcasts have always been done through cable TV deals. I have also covered the steps, baby or otherwise, different sports leagues and teams have taken to embrace streaming options. MLB’s MLB.tv service has always been great, but suffers from local blackout rules revolving around broadcast rights. Other leagues have worked out their own streaming options, mostly in very limited fashion. One MLS team even went streaming only for its games, cutting the cord from its end.

Speaking of Major League Soccer, while it certainly isn’t the most popular sports league in America, that league is making a giant leap forward for streaming. MLS recently announced that every single one of its games, completely sans any blackout rules, will be streaming on Apple TV for the next decade.

Apple claims that viewers “around the world” can “watch all MLS, Leagues Cup, and select MLS NEXT Pro and MLS NEXT matches in one place—without any local broadcast blackouts or the need for a traditional pay TV bundle.”

This will all be part of a “new MLS streaming service” that will become available in early 2023, with matches offered up through 2032. It will offer both live and on-demand video.

Now, is this going to make cable companies nervous? If they have a couple of brain cells to rub together, yes! Again, MLS is not the NFL, MLB, or the NBA. Or even the NHL. But it’s not some fly by night league, either, and this is a major move into the streaming market. And the real thing that’s going to keep cable company executives up at night should be the potential that MLS has any serious success with this move. If viewership in the league jumps as a result of this sudden new availability to stream games, you can bet other, larger leagues are going to take note.

Apple and MLS have done something notable here. With the NFL currently negotiating with a handful of streaming services for its out-of-market Sunday Ticket service and the NCAA’s Big Ten Conference in the process of selling off its next media rights package, the next big deal may end up cutting out cable altogether. According to John Ourand at Sports Business Journal, Apple is paying somewhere in the neighborhood of $2.5 billion over the 10 years of this agreement. That’s chump change for Apple… and Amazon… and Google.

Today’s announcement heralds the beginning of the end of the traditional way sports in the US are packaged for broadcast. When live, out-of-market sports are no longer the solely to be found on cable, cord-cutting is going to accelerate, much to the dismay of the regional sports networks—and even ESPN.

As predicted for some time now. The dam that is live sports may finally be starting to break, with this MLS deal being the first crack. If other leagues follow suit in any reasonable timeframe — say, in the next 5-10 years — cord cutting is going to become a tidal wave.

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