Are Overly Aggressive Trademark Lawyers Learning Not To Be Such Assholes All The Time?

from the maybe! dept

It's been just over 17 years since I coined the phrase "The Streisand Effect," which has totally taken on a life of its own. A key reason for naming it was to hopefully wake up overly aggressive lawyers to the fact that sending a nasty, threatening cease and desist letters to try to suppress information or stop someone from doing something wasn't a good idea. A few years later, a lawyer friend of mine mentioned that he thought that the concept of The Streisand Effect had done its job -- and that many, many corporate lawyers were much more averse to sending out such aggressive letters, recognizing that there might be a better approach. However, I still find it's pretty typical for many lawyers to immediately go for the the nasty threat letter, so it seemed like perhaps the lawyers hadn't quite gotten the message.

So... it's kind of a pleasant surprise to see how at least one large company -- and possibly a bunch of large companies -- handled the recent "drop" from the merry pranksters at MSCHF (who are no strangers to legal controversies). The new drop is the C&D Grand Prix, in which MSCHF was selling racecar-style shirts emblazoned with corporate logos from some of the biggest (and most legally aggressive in protecting their trademarks) brands out there:

People could buy each shirt, and then there was a special prize: anyone who bought the shirt of the "winner" of the Grand Prix would also get a MSCHF Grand Prix champion's hat. How could a company "win"? By being the first company, whose logoed shirt was for sale, to send MSCHF a cease and desist.

What's funny is that we had considered a remarkably similar idea at Techdirt many years ago (though a bit more focused on highlighting some absurdities of trademark law), but decided not to do it because we don't have a giant bank account like MSCHF does.

Of course, there were some big questions about how would the various companies respond, and, incredibly, none of the companies (as far as we can tell) actually freaked out about this and went ballistic. It's possible such letters are still coming. However, at least one of the companies prodded by the Grand Prix, Subway, actually took this all in good spirit. Very soon after MSCHF launched the Grand Prix, it tweeted "Two can play this game. Who's interested in this bad boy?" and posted an image of a Subway colored shirt, but with MSCHF's logo on the front:

Well played, Subway. Well, played.

Except, of course, to win the Grand Prix, someone had to send an actual cease and desist, and after a few users bugged Subway about it, the company complied:

The tweet says "You asked and you shall receive. Give the people hats @mschf." And the posted image says:

Dear MSCHF,

It is with great pleasure and a distinct honor to send this cease and desist to MSCHF INC. We didn't want to send this, we really didn't, but with free hats on the line, how could we not.

With that being said... stop using our logo or we'll sue you, lol. Now give the people free hats!

Strongly Worded Lawyer Sign-Off,
Subway

Now, obviously, this is joking, but it appears that MSCHF has accepted it as the winning entry in the Grand Prix.

Now, some may be slightly upset that this stunt didn't (yet?) provoke a "real" cease and desist letter, but I'm moderately happy with that fact, as it suggests that perhaps (maybe? really?) itchy trigger trademark lawyers at these big firms are (maybe? possibly?) realizing that shooting off a cease and desist letter at the first opportunity isn't the best decision.

Of course, if they had decided to use the logo of a clothing company like The North Face, perhaps the outcome would have been a bit different...

Filed Under: c and d grand prix, cease and desist, streisand effect, trademark
Companies: mschf, subway

DailyDirt: Eating At Chipotle

from the urls-we-dig-up dept

Some people really like eating at Chipotle. It's supposed to be healthy (although it really depends on what you order). The ingredients are often (but not always) from sustainable sources, and customers enjoy their meals. A few really fanatical eaters have devised some bizarre eating games with Chipotle food. Almost every fast food restaurant has a "secret menu" of some kind nowadays, but if you really like Chipotle, here are some extreme eaters who have documented their Chipotle purchases.

• Andrew Hawryluk gave up NOT going to Chipotle for Lent, and he called his strange non-abstinence "Chipotlent" and blogged about it. Since February 18, 2015, this 23yo animator from Los Angeles has been eating at Chipotle at least once a day... for over 6 months now. He's been compared to Jared who once represented Subway, but maybe that's not such a favorable comparison now. [url]
• It's one thing to order a meal at Chipotle every day, but it's another process entirely to try to maximize the weight of your food. If you want to do it, though, you can apparently get 86% more food (by weight) than just ordering like a normal person. [url]
• The 'Chipotle Quesarito' is a secret menu hack that uses a cheese quesadilla to wrap your burrito, instead of just a plain tortilla. Recently, however, Chipotle has started charging $3.50 extra for this "have it your way" hack, but it's still a popular order. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: andrew hawryluk, chipotlent, dylan grosz, fast food, food, healthy, jared fogle, quesarito, restaurants, secret menu
Companies: chipotle, subway

Subway, McDonald's And Burger King Sued Over GPS Tracking Patent... Or Something

from the stupid-patent-of-the-month dept

GPS technology has been around for a while. Wikipedia puts the start of development at 1973. But it wasn't until the 1990s that it became available for consumer use. And even then, it took some time before the government removed restrictions on accuracy that it had on its use by civilians. (The government had added an intentional error to the signal that made GPS variably inaccurate up to 50 meters.)

With the loosening of restrictions on GPS came furious development in consumer applications—and a flurry of patents.

Which brings us to this month's Stupid Patent of the Month. The dubious honor goes to U.S. Patent No. 6,442,485, "Method and apparatus for an automatic vehicle location, collision notification, and synthetic voice," filed in 1999. The "Background of the Invention" talks about a need for an automatic voice system that could speak for a driver involved in a collision and transmit location details to 911. For example, the patent says that "[i]t would be desirable to have an automatic vehicle location and collision notification system that would ascertain if a vehicular collision had occurred and communicate directly with an emergency facility."

But after this background, the patent devolves into a wilderness of made-up words and technobabble. The patent includes fabricated phrases such as "Location Comparator-Indicator Module" and "Automatic Speed Controlled Location Detection Module." (Google searches of these phrases turns up nothing other than results related to the patent.) Reading the patent to try to figure out what it means becomes an exercise in cross-referencing and guesswork. Even worse, key terms in the claims (this is the part of the patent that is supposed to clearly explain what that patent covers) don't even appear in the description of the purported invention. This means  that it is very difficult, if not impossible, to understand what the claims mean and to guess how a court might interpret them.

This sort of made-up gobbledygook is likely what has allowed NovelPoint Tracking LLP, the owner of this month's Stupid Patent, to sue over 90 companies for infringement. The latest round of lawsuits, filed on March 27, 2015, includes companies such as Subway (the sandwich artists, not a company related to transportation), McDonald's, and Burger King.

And what do these fast food franchises have to do with vehicle location, collisions, and synthetic voices? With respect to Subway, NovelPoint claims that Subway's Windows phone mobile application infringes NovelPoint's patent.

Here's the description of Subway's app from Microsoft's website:

Don't know where to find a local Subway? We're here to help. This app will display a list of local Subway locations along with the ability to get directions and let your friends know where to meet you.

We don't know what, exactly, NovelPoint thinks it owns, but it looks like it is accusing Subway of infringing because it has an app that shows a map with directions. And given the incomprehensibility of its patent, it can get away with this, at least enough to secure a quick settlement and get out before a court rules that no, in fact, it doesn't own a map with directions.

And indeed that is what appears to have happened. Of the almost 100 cases NovelPoint has filed, exactly none of the cases has had a decision on the merits of NovelPoint's claims. From what we can see, all of the cases have settled very quickly, most likely for small nuisance sums.

Patent owners shouldn't be able to get away with this. Patents should be clear and understandable. If new words are used, they should be defined. And if words already exist in the relevant art, they should be used. NovelPoint's patent is a great example of how using fake terms can be used to obfuscate what the patent actually claims, and then used to claim infringement by something no one would have considered the patent owner to have invented. We have laws that should prevent this sort of gaming. The Patent Office and courts need to start actually enforcing them. 

Reposted from the Electronic Frontier Foundation's Deeplinks blog

Filed Under: gps, location, patents, stupid patent of the month
Companies: burger king, mcdonald's, novelpoint, novelpoint tracking, subway

DailyDirt: You Are What You Eat

from the urls-we-dig-up dept

The 2004 documentary Super Size Me set out with a goal of showing everyone how unhealthy it is to eat nothing but fast food every day for a month. The movie wasn't done in any particularly controlled way, but it still seemed to provide some convincing anecdotal evidence for the common sense knowledge that fast food is usually junk food. But the counterexample for fast food is Jared Fogle who lost an incredible amount of weight eating only at Subway (and has gone on to become Subway's most famous spokesperson). Does it really matter what you eat? Of course it does, but exercise and watching how much you eat is important, too. Here are just a few other weird diets that are trying to prove some point (with varying success).

• John Cisna, a high school science teacher, ate only McDonald's food for 90 days... and lost weight and improved his cholesterol levels. Cisna exercised more than he did prior to his all McD diet, and he strictly limited his daily intake to 2,000 calories. [url]
• Sylvester Graham was one of America's first radical diet promoters in the 1800s. The Graham Diet consisted of a lot of bland foods including graham crackers (which would not be easily confused with those made by Nabisco today). [url]
• Almost anyone could probably eat nothing but pizza for a week without even really trying. The teenage mutant ninja turtles are probably not great diet role models, but there are a lot of varieties of pizza to keep things interesting. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: calories, diets, food, jared fogle, john cisna, junk food, pizza, sylvester graham
Companies: mcdonald's, nabisco, subway

Subway Claims Trademark On 'Footlong' Threatens Hotdog Seller Who's Been Selling Footlongs For Decades

from the descriptive? dept

Another day, another ridiculous trademark claim. Ubiquitous sandwich shop Subway threatened a hot dog provider in Coney Island who had been selling "footlong" hotdogs for decades, claiming that it had applied for a trademark on "footlong." The cease and desist demanded that the company cease using the designation for their hotdogs (and on their website, which is GoFootlongs.com). There are all sorts of problems with this. First, the trademark is only applied for, so Subway doesn't even know if it's going to get the trademark. Demanding a cease & desist is a bit premature. Also, it's hard to see the USPTO approving this (one hopes), seeing as "footlong" is purely descriptive, and you're not allowed (in theory) to get trademarks on something that is purely descriptive.

Even so, when the folks at Planet Money (who have a sudden, if amusingly odd, interest in trademark law), called Subway, the company claimed that the cease & desist was a mistake. A "clerical error," a spokesperson claimed. I'm confused how a clerical error leads to a legal threat, but such is life these days. The error was apparently that Subway only intends to bully those selling "footlong" sandwiches, rather than "footlong" other things, such as hot dogs.

Filed Under: footlong, hotdogs, sandwiches, trademark
Companies: subway

Subway And Quiznos Settle Dispute Over User-Generated Ads; Liability Questions Remain For Next Lawsuit

from the truth-in-advertising dept

Back in 2008, we wrote about a lawsuit between rival sandwich shop chains Subway and Quiznos over a viral ad campaign. Quiznos had set up a contest to get fans to create and upload commercials for its stores, and Subway claimed that many of the ads made false claims about Subway. To Subway, this made Quiznos guilty of false advertising. Quiznos used Section 230 to claim that it wasn't responsible for the content of the ads, since it hadn't actually created them. However, with Subway saying that Quiznos was actively involved in some aspects of the ad creation, the judge wouldn't grant a summary judgment on Section 230, and wanted the case brought to a jury to consider. Not surprisingly, at this point, Quiznos folded faster than one of its toasted sandwiches, and the two sides settled the case.

While you can understand why this happened, it still leaves us without a ruling -- meaning that there will likely be more lawsuits of this nature coming down the road. With so many "user-generated content" contests out there, the question of liability for the content could become a pretty big issue... and I'd guess that most companies trying out these contests haven't given it much thought at all.

Filed Under: liability, section 230, truth in advertising, user generated content
Companies: quiznos, subway

Does Truth In Advertising Still Apply To User Generated Ads?

from the legal-permutations dept

From a purely academic standpoint, it really is fun to see how modern technology is making life difficult for those who rely on old and potentially obsolete laws. However, the decisions made concerning these laws may have a pretty wide impact. We've discussed in the past the pitfalls of asking fans to create "user-generated" ads, but a new lawsuit raises a very interesting legal question. If you ask people to make their own ads for your product, how do truth in advertising laws apply? It's probably not much of an issue if fans are simply going out and creating an ad for fun on their own -- but what if you encourage it? Plenty of big name brands have been setting up contests, getting people to create commercials for them. Yet, when sub shop chain Quiznos did that, competitor Subway sued them, claiming that many of the ads made exaggerated in false claims about Subway's sandwiches. Quiznos, for its part, claims that thanks to the safe harbors of the Communications Decency Act, it's not liable for the content created by the participants in the contest. Subway, on the other hand, argues that by encouraging such actions with a contest, Quiznos has overstepped the boundary, and violated its trademarks. While you can see the reasoning behind Subway's argument, it's hard not to side with Quiznos on this one. No one is going to take most of the user-generated ads seriously -- knowing that they're designed to poke fun at Subway. Also, any attempt to expand "truth in advertising" type rules to fan-created ads is going to cause all sorts of unnecessary problems. Still, when politicians were first writing up trademark laws and truth-in-advertising laws, I'd imagine the possibility of user-generated advertisements never even crossed their minds.

Filed Under: advertising, safe harbors, truth in advertising, user generated content
Companies: quiznos, subway