US Court To Gruyere Cheese People: No, You Can't Ban People From Calling Their Cheese Gruyere If They Aren't Your Neighbors

from the too-late dept

One of the more annoying trends in intellectual property is when regional consortiums try to lock up terms or language around a specific style of product with arguments that only that region can produce a certain thing. If you're familiar with this concept, the first thing to leap to your mind will likely be one French wine group's control over the term "champagne" in certain regions. Another example would be a consortium of Belgian chocolate makers trying to assert that nobody can advertise "Belgian-style chocolate" unless it comes from one of them. It's all very silly, as it attempts to take a term that everyone recognizes as describing the style of a product and transform it into locked up language to be controlled by some specific originators. Like I said, silly, though, far too often, these consortiums get their way.

Not the case in the United States for a group of French and Swiss cheese-makers in the area surrounding Gruyeres, who attempted to get the term "gruyere" trademarked. After the the U.S. Dairy Export Council opposed the mark, and the USPTO somehow got this right for once and rejected the application over the term being generic, the Interprofession Du Gruyere and Syndicat Interprofessionel du Gruyere took the matter to the Eastern District of Virginia courts only to find the judge there has ruled against it too.

After a lengthy legal fight, a U.S. District Court judge has ruled that Gruyere cheese does not have to come from the area in or around Gruyeres, Switzerland in order to be labeled Gruyere, writing in his decision that Americans don't associate that cheese with that town. The Interprofession du Gruyère and Syndicat Interprofessionel du Gruyère — the associations that represent Swiss and French Gruyere, respectively — filed the lawsuit after they were denied trademark protection for the word "Gruyere" last year.

"It is clear from the record that the term GRUYERE may have in the past referred exclusively to cheese from Switzerland and France," the judge wrote, according to the AP. "However, decades of importation, production, and sale of cheese labeled GRUYERE produced outside the Gruyère region of Switzerland and France have eroded the meaning of that term and rendered it generic."

All of this legal actions follows months of the two foreign groups sending all kinds of threat letters to a variety of American dairy companies that produce gruyere cheese. Non-helpfully, those threat letters also often came with suggestions about what these companies should call their cheeses instead: alpine cheese and mountain cheese are both among the dumbest of the suggestions.

Now, while both parties have said they plan to appeal this ruling, it would be quite nice if that only resulted in a continued litigation smackdown. There is no un-ringing this bell; Americans have been consuming gruyere cheeses forever at this point and I'd wager the vast majority of them, like me until writing this post, weren't even aware that a city called Gruyeres in Switzerland existed.

What's next? Belgium style ales can't be called that unless they come from that country? IPAs that can only originate in, ironically, England? Or maybe we can just stop being so absurd about all of this instead.

Filed Under: cheese, france, geographic indicators, gruyere, trademark, us

Appeals Court Says It's Entirely Possible For Cops To Pinpoint Marijuana Odors In Moving Cars

from the also:-finding-contraband-will-salvage-unbelievable-claims dept

Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.

Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."

The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."

The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.

Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:

On October 5, 2019, the officers were on patrol in a marked squad car. Officer Steinkamp drove the car, Officer Garrett sat in the front seat, and Officer Minnehan sat in the back seat. The squad car’s front windows were up, but its back windows were down. At 5:49 p.m., the officers were driving westbound on a city street behind a black sedan that had its windows up. According to weather records, the wind was traveling between 13 and 17 miles per hour. The officers did not smell marijuana while driving behind the black sedan.

As the officers approached a four-way intersection, they saw a red Chevrolet Impala traveling eastbound abruptly turn left in front of the oncoming black sedan. The Impala’s “passenger side window was down.” At the intersection, the officers turned right and started driving northbound on the same street as the Impala. Shortly after making the right turn, the officers “started smelling the odor of marijuana, and that’s what drew [their] attention” to the Impala.

The squad car was approximately 100 meters behind the Impala when the officers first smelled the odor. The Impala was in the left lane, while the squad car was directly behind the black sedan in the right lane. The officers did not believe that the black sedan was the odor’s source because its windows were up and they never smelled marijuana while following the black sedan before turning right.

Both officers claimed to have smelled burning/burnt marijuana. They also made other ridiculous claims -- ones ignored by the court.

The officers changed lanes and sped up to position the squad car close behind the Impala in the left lane. A black truck was immediately in front of the Impala. An SUV was farther ahead in the right lane. The road was busy at that time. The officers drove directly behind the Impala “for several blocks”—approximately 30 seconds—to “make sure that [they] kn[e]w for certain without a shadow of a doubt that [it was the] vehicle that has the odor of marijuana emitting from it.”

You can't travel "several blocks" in thirty seconds, not even if you're on a freeway. The cops either followed the car for several blocks or thirty seconds. They could not have done both. And they still insisted this method of wandering around in traffic allowed them to pinpoint the location of the odor.

The officers claimed the driver had been smoking and driving, thus justifying the search. The search uncovered no evidence of this claim.

In addition to the marijuana cigarettes, the officers also recovered a digital scale with trace amounts of marijuana residue on it and a loaded nine-millimeter pistol in the center console. They did not find embers or smoke in the ashtray or a lighter.

Expert witnesses on both sides offered their findings, which were contradictory. The court decided to side with the officers' expert, who claimed it was possible to pinpoint marijuana odors while driving in heavy traffic. But he also said this, which applies directly to this case:

He admitted that marijuana cigarettes are hard to smell if they are in a closed container and that none of the marijuana cigarettes found in Shumaker’s ashtray appeared to be burning.

The Appeals Court sides with the cops and lower court's findings. Why? Because the officers were consistent in their claims they smelled marijuana.

Videos of the stop show the officers making statements both before and during the stop indicating they smelled burnt marijuana coming from Shumaker’s car while driving behind him.

So what? This is like saying no excessive force was applied because officers kept chanting "stop resisting" while they attacked an unresisting suspect. A conclusion like this simply encourages officers to maintain steady chatter about suspected illegal activity whether or not they've actually observed any. As long as officers talk a good game on camera, courts can be expected to grant deference to their cover stories.

The court also says the ends can be used to justify the means.

“Officers Steinkamp, Minnehan, and Garrett testified consistently that they smelled burnt marijuana while driving behind Shumaker” and their testimony was “corroborated by their on-video statements, Shumaker’s behavior, Frye’s expert testimony, and the evidence recovered from Shumaker’s car.”

Well, I guess that's it. If an officer claims to smell marijuana -- even in situations in which it would seem almost impossible to do so -- and then finds marijuana, the stop and the search are justified. In the cases where the officer's nose has failed him and no contraband is found, the officer loses almost nothing by rolling the dice on this unsupported claim. People stopped but never cited or charged rarely sue. Lawsuits like these are mainly filed by people facing criminal charges. The court says the discovery of contraband excuses flimsy pretenses for stops and searches. And that's binding in this circuit.

Filed Under: 4th amendment, 8th circuit, iowa, marijuana, police, probable cause, reasonable suspicion, smells

There's Still Plenty Of Time To Join The Public Domain Game Jam!

from the gaming-like-it's-1926 dept

Gaming Like It's 1926: The Public Domain Game Jam

This year, for the fourth year in a row, we're celebrating the entry of new works into the public domain with our public domain game jam: Gaming Like It's 1926. We're calling for submissions of games inspired by or making use of material that entered the public domain this year.

We're approaching the halfway point of the jam, so there's still plenty of time to sign up on itch.io and start working on an entry! You don't need to be an experienced game designer to get involved — entries can be as simple as a page of instructions for a roleplaying game or rules that require a normal deck of playing cards. If you want to try your hand at making a digital game, there are easy-to-use tools out there like Story Synth, created by our partner in running these jams, Randy Lubin.

Whatever approach you choose, be sure to read over the full rules on the jam page. And if you want to explore some newly public domain works to find inspiration, check out Duke University's overview and the Public Domain Review's countdown. On that note, while the jam is mostly to encourage the reuse of public domain works from 1926, this year we're also open to earlier sound recordings (stuff from 1922 and earlier) that also just went into the public domain due to the Music Modernization Act. The Internet Archive has made a bunch of those sound recordings available as well.

At the end, we'll be choosing winners in six categories:

• Best Analog Game
• Best Digital Game
• Best adaptation of a 1926 work
• Best remixing of multiple sources (at least one has to be from 1926)
• Best "Deep Cut" (use of a work not listed on any of the roundup articles)
• Best Visuals

And those winners will each get to choose one of our great prizes:

• The Working Futures anthology of speculative fiction
• A deck of Working Futures Cards which you can use in scenario planning
• Our board game CIA: Collect It All (a remake of the public domain CIA training game)
• A Techdirt t-shirt (e.g. Copymouse)
• Digital copies of Behind the Magic and Premise

You can also check out the winners of past jams focusing on works from 1923, 1924 and 1925 for inspiration. When it strikes, join the jam and start working on your game!

Filed Under: 1926, copyright, game jam, public domain

[UPDATE] Elizabeth Warren Is NOT Cosponsoring A Bill To Repeal 230

from the what-are-you-doing-liz? dept

Big Update: It turns out that this was a clerical error on the part of a Senate staffer, and that Elizabeth Warren is not co-sponsoring this bill from Lindsey Graham to repeal Section 230. The Congress.gov site is expected to be corrected and her name removed as a co-sponsor some time soon. I am leaving the original story below for posterity, but it's good to see that Senator Warren hasn't gone completely over to the dark side on this.

Original story here:

So, just yesterday I wrote about how Democratic Senators had been shying away from co-sponsoring bills with Senator Josh Hawley. Throughout 2019 and 2020, even as Hawley's populist fascist tendencies had become abundantly clear, Democrats were willing to partner with him because he was "anti-big tech." But after January 6th of last year, suddenly Hawley was left shouting on Fox News, rather than teaming up with Democrats to sponsor bills to regulate the internet.

So... it was more than a bit of a surprise that, yesterday, Senator Elizabeth Warren's name popped up as a co-sponsor on S.2972, a bill from Republican Senators Lindsey Graham, Josh Hawley, and Marsha Blackburn, to literally repeal Section 230.

It's such a bizarre and nonsensical move. Even for Senators who support reforming Section 230, repealing it seems unlikely to accomplish what they think it will. And, even more to the point, Warren is apparently already aware of how removing Section 230 can cause significant harm. She was behind a previous bill in the Senate that was designed to study the impact of FOSTA on sex workers, after tons of people realized (way too late, and despite widespread warnings from multiple experts) that FOSTA would create massive consequences for the sex work industry (and related industries).

Over the last couple of years, ever since she lost the Presidential primary, Warren seems to have shifted further and further away from the thoughtful Senator "with a detailed plan to fix things" to one who has fully embraced pure, naked, populism for the sake of political gain. She's especially leaned hard into attacking internet companies in ways that are extremely disappointing. Even if you believe that the big internet companies (and the wider internet itself) require regulation -- an argument that is easily defensible -- she has embraced truly extreme and unconstitutional positions that generate headlines and screams of support from people who just want to punish big companies, rather than create a better world.

This latest move -- teaming up with three extremist Republican Senators -- on a bizarrely stupid and dangerous plan to flat out repeal Section 230 makes absolutely no sense at all, and I don't see how it accomplishes any of Senator Warren's stated goals. Without Section 230, you end up helping the largest internet companies cement their position, while punishing smaller competitors and killing them with legal liability for things that they didn't actually do.

This is an unfortunate and cynical move by a Senator who I had thought was better than that.

Filed Under: elizabeth warren, intermediary liability, josh hawley, lindsey graham, marsha blackburn, populism, section 230

Daily Deal: The 2022 Ultimate Cisco Certification Training Bundle

from the good-deals-on-cool-stuff dept

The 2022 Ultimate Cisco Certification Training Bundle has 11 courses to help you prepare to earn the necessary certifications to master Cisco networking systems. Courses cover Cisco Meraki wireless access points, Cisco Modeling Labs 1 and 2, Cisco Enterprise networks, and more. It's on sale for $79.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Criss Angel Sends Ridiculous Legal Threat After Comedian Creates Parody Menu Of His Restaurant

from the that's-not-magical,-that's-being-a-censorial-asshole dept

Harrison Greenbaum is a comedian and (sometimes) magician, who noticed that the magician Criss Angel had opened a restaurant, named "CABLP" and hadn't registered the domain cablprestaurant.com. For whatever reason, the restaurant's actual website appears to be Eatblp.com, and so Greenbaum registered cablprestaurant.com and created a very obvious parody menu. I mean:

It took me way longer than it should to figure out that CABLP apparently stands for Criss Angel's Breakfast, Lunch & Pizza. Either way, this just seems like a bunch of nonsense, except that Criss Angel apparently is spending some of his very large fortune on hiring an actual intellectual property lawyer named Thomas Carulli from the law firm of KMA Zuckert to send a very bogus cease and desist letter to Greenbaum.

The letter is sillier than even I would have expected, claiming that the domain registration violates ICANN's policies.

Dear Mr. Greenbaum:

We are counsel to Criss Angel and his companies, including that which owns the CABLP Restaurant. In a social media posting you have publicly admitted that you intentionally are infringing our clients' trademarks and copyrights and are violating the Internet Corporation for Assigned Names and Numbers (ICANN) policies with which you and your domain name Registrar must comply.

Specifically, you admit that you illegally registered cablprestaurant.com as your domain name:

Criss Angel opened a restaurant this year called Cablp and forgot to register CablpRestaurant.com. I know this because, yesterday, I became the proud owner of CablpRestaurant.com.

I mean, even the most cursory glance by a lawyer of the caliber (and billing rate) of Thomas G. Carulli would note that this is not an admission of intentional infringement or "illegal" (WTF?) registration, but rather fairly obvious commentary in the form of parody, which is widely protected. And, because Carulli apparently couldn't be bothered to pull up the long history of case law on this, it is well documented that domain names making use of trademarked terms to comment on the trademark holder are very much protected. There are a bunch of cases on this (and many, many, failed attempts to use the UDRP process at WIPO to take away such domains), but a key one is Taubman v. Webfeats which makes it clear that using a trademark in a domain name for the purpose of commentary is protected speech and not infringement, so long as there is no confusion (which there clearly would not be here):

We find that Mishkoff's use of Taubman's mark in the domain name "taubmansucks.com" is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.

There are other cases along these lines as well, and you would think that a lawyer like Carulli could have maybe asked an associate to rack up some billing time looking these up? I mean, unless the purpose was to send a bogus threat letter hoping that Greenbaum would be scared and back down.

It gets dumber.

You further admitted to setting up on your website a menu that is substantially similar to the actual CABLP menu.

If you think the menu above is "substantially similar" to the actual menu at Angel's restaurant, you may want to have your reading comprehension abilities checked carefully, because they're broken.

There's more nonsense in the letter, but it's so bad it made me pause to wonder if this were all an elaborate prank by Angel and Greenbaum together to try to let people know that Angel had actually opened a stupidly named restaurant... but, that seems too low for even Criss Angel.

Filed Under: criss angel, domain names, fair use, free speech, gripe sites, harrison greenbaum, parody, thomas carulli, trademark
Companies: cablp, kma zuckert

New 'TLDR' Bill Requires Companies Provide Synopsis Of Overlong, Predatory Terms Of Service

from the good-luck-with-that dept

This week saw the introduction of the The Terms-of-service Labeling, Design and Readability Act, or "TLDR Act," for short. The bill, which, for now, has bipartisan support, would require the FTC to create rules mandating that websites must offer a truncated version of obnoxiously long and predatory terms of service (TOS) nobody actually reads. The "summary statement" websites would be obligated to provide would not only lay out the legal requirements in terms normal humans could understand, it would also require a website disclose any major data breaches that have occurred in the last three years.

A breakdown (pdf) of the bill also states it will require websites to disclose what data is collected upon a user's visit, and what kind of control a user has over that data. Any violation of the new law would be declared to be within the realm of "unfair and deceptive" under the FTC Act, giving the agency the authority to act on it. Rep. Lori Trahan had this to say about the need for such a law:

"For far too long, blanket terms of service agreements have forced consumers to either ‘agree’ to all of a company’s conditions or lose access to a website or app entirely. No negotiation, no alternative, and no real choice,” said Congresswoman Trahan, a member of the House Subcommittee on Consumer Protection and Commerce. “To further slant the decision in their favor, many companies design unnecessarily long and complicated contracts, knowing that users don’t have the bandwidth to read lengthy legal documents when they’re simply trying to message a loved one or make a quick purchase."

Yes, most TOS are overlong and that length is often used to obscure bad behavior or quietly erode consumer rights (see: binding arbitration). But many TOS are also overlong because U.S. law and compliance are complicated as hell. The idea that you can always simplify everything a company needs to get across to a user to comply with the law and reasonably cover your ass in a sentence or too is probably a little simplistic. At the same time, I'm not sure the American consumer, many with the attention span of a goldfish, would even read the truncated version of a TOS anyway.

While "more transparency" is certainly good, it also only goes so far if you're not willing to tackle the deeper problem(s). For example the FCC is pondering a transparency label on broadband connections outlining all the sneaky ways you're getting ripped off by your internet service provider. And while knowing the precise parameters how you're getting ripped off is nice, users in monopolized markets can't switch ISPs anyway because the FCC generally isn't willing or able to combat monopolization and limited competition. So transparency only accomplishes so much.

Here too, websites, apps, and services use overlong TOS to obfuscate all manner of behaviors U.S. regulators either don't have the resources to police (the FTC has 8% of the staff dedicated to privacy issues as the UK, despite the UK having one-fifth the consumers to protect) or are apathetic to because of revolving door corruption (see: telecom, banking, adtech, etc.). Expecting the FTC to do a whole lot more stuff without notably expanding funding seems a bit short sighted. And this is all assuming the bill is actually well written and doesn't cause new, unforeseen problems via sloppy language.

So while well intentioned, this feels like a bit of a band aid on problems policymakers can't or won't tackle head on. Like limited competition. Or the complete and total lack of anything even vaguely resembling accountability in telecom, adtech, or the data broker space. Or privacy reform. Or antitrust reform. All of these problems lead to bad behaviors companies are hiding in their TOS, and making those bad behaviors clearer to the end user is only part of a process. Knowing you're getting screwed or spied on is only helpful if you have the recourse to do something about it, and regulators willing to stand up for you when push comes to shove.

Filed Under: congress, ftc, terms of service, tldr, tldr act