Canada Too Has An Issue With Arbitrary Applications Of Morality In Trademark Applications

from the you-bastards dept

In our recent discussion about the delightfully vulgar filing by the Washington Redskins in an effort to point out the arbitrary application of morality by the government to trademark law, the point in the filing was driven home by just how many similarly vulgar and offensive terms the USPTO has been happy to sanctify with a valid trademark. Perhaps some of you out there thought that this was a uniquely American problem, something resulting from our overabundance of political correctness. It's not. A case in Canada over the trademark application for "Lucky Bastard Vodka" shows this quite well. It also shows the inherent problem in trying to have a government institution apply morality to business in this way.

In 2011, LB Distillers applied to the Canadian Intellectual Property Office (CIPO) to register “Lucky Bastard vodka” as a trademark. About eight months later, the agency responsible for trademarks, patents and copyright replied.

“The examiner came back and said it was immoral, scandalous and obscene, and that the general population of Canada would agree that it was an immoral name,” LB Distillers co-owner Cary Bowman said.

The micro-distillery’s appeal was rejected in 2012, but the company persisted, filing a separate application to register “Lucky Bastard.” On Oct. 8, CIPO sent a letter to LB Distillers stating that it “does not appear registrable” because it violates the Canadian Trade-marks Act, which prohibits trademarks that include “any scandalous, obscene or immoral word or device.”

So, here, as with the Redskins, we have a trademark office refusing a business a trademark because of the offensive nature of a word -- "bastard," in this case. Now, we could have a giant discussion over whether or not that word is truly offensive, as LB Distillers indeed tried to do with the government. Or, on the other hand, as LB Distillers also did, it could instead simply point out the blatant and glaring hypocrisy of the government's position.

A search of the trademark database reveals several containing the word “bastard” — including Fat Bastard wine, he noted. The situation amounts to one examiner applying his or her views to the process, he said.

“When it’s one person who’s deciding the fate of something like that, and they’re basing it maybe on their own morals as opposed to anybody else’s, and yet calling it everybody else’s, that’s quite unfair.”

And, really, that's the problem with these cases. We may think of trademark offices or government more generally as a sort of singular entity within our minds, but they're all just ultimately made up of people. People with differing views, different sensibilities, and different tolerances for different words. With both the American and Canadian trademark provisions around offensive langauge being so open to interpretation, what ends up happening is that these examiners are left to apply their own morality to these cases, which of course means that such morality will be applied inconsistently across all applications. That's how you get "bastard" being rejected by one examiner while it's already been approved by others. And that's partly why an appeals court found the part of trademark law that allows this in the US unconstitutional last week.

There are two possible solutions to this problem. The first is to harmonize the morality standards across all examiners in a trademark office so that they all apply government morality consistently. If that sounds impossible to you, it's because it is impossible. The only workable solution is to get trademark examiners out of the morality business entirely and judge these things purely on business and commerce grounds.

Filed Under: canada, disparaging, free speech, lucky bastard, morality, offensive, redskins, trademark

Judge Does Mental Gymnastics To Deem Left Nut Brewing Trademark To Be Non-Offensive

from the paging-the-redskins dept

We had just been talking about the awkward place the Washington Redskins most recent legal filing has left the government in, regarding the team's trademark. In that filing, the team pointed out the sheer hypocrisy of the government's stance that the term "Redskins" is too offensive to receive trademark registration status, yet the government has seen fit to award that status to all kinds of terms and phrases that are equally if not more offensive on any number of levels. But it isn't only for already-registered marks that the awkwardness exists. For new applications too, the courts now have to weigh whether offense applies to granting new trademarks. And, frankly, it's causing some in the Trademark Trial and Appeal Board to employ some serious mental gymnastics when ruling.

The most recent example of this concerns a brewery out of Georgia named Left Nut Brewing Company. A recent ruling has allowed the brewery to trademark its name.

On November 16, the Trademark Trial and Appeal Board decided to allow a Georgia-based brewery to register their name as a trademark . Established about 30 years ago, “Left Nut Brewing Company” will finally be allowed to register after the reversal of an examiner’s decision that the brewery’s name was too vulgar for registration.

To get the appeal board to allow this, the brewery pointed to langauge on its own website about how the name was derived. The site claims that its name is not of the vernacular one might initially think, but is instead a vernacular use with, according to the site, a different meaning.

Instead, it is “built on a vernacular which epitomizes the willingness to give up something of extreme value to do something or create something unique.” In allowing the name to become a trademark, Judge Shaw used such meaning for the phrase to defend his ruling saying that the figure of speech can mean a multitude of things and only one was arguably vulgar.

Okay, let's not play around. The only meaning this refers to is indeed about a willingness to give up something of value: a man's left-leaning testicle. That's it. That's what left nut means. Now, I happen to love the brewery's name and think it should be adopted in every kind of industry, but the claims about the name having some other etherial meaning is laughable at best. But the judge's ruling claims to have bought the brewery's argument so as to grant it a trademark.

What's becoming clear is that even having to go through these mental gymnastics is dumb and nothing more than a waste of time. The easiest solution would be for the government to get out of the offense-measurement business entirely on trademark matters.

Filed Under: brewery, confusion, left nut beer, offensive, redskins, trademark, uspto

Joke Tweet Gets Man Arrested

from the funny-story dept

Joke tweets: the ones that land people in jail or under arrest typically aren't all that funny, usually aren't all that offensive or believable, and too often result in a massive overreaction that is more about emotions and cover-your-ass than about anything remotely resembling justice. From obviously not-serious jokes about blowing up an airport simply for being closed to obviously over-the-top sarcasm about the state of one's own mind, there's simply no reason why we must criminalize humor that deals with serious topics. Just because a joke is in bad taste, or isn't particularly funny, shouldn't make it illegal. Otherwise, the entire concept of comedy breaks down completely, where any topic of a joke can simply claim offense and have me the comedian arrested.

Yet it's happened again. Over in the UK, a 19-year-old man made a mildly offensive and mildly funny joke in the wake of a garbage truck driving over a 100 people after the driver lost control. And he totally got arrested for it.

The tweet said: "So a bin lorry has apparently driven in 100 people in Glasgow eh, probably the most trash it's picked up in one day".

Tasteless? Meh, I guess. Funny? Eh, perhaps a tiny bit. Criminal? Oh, possibly, according to the Northumbria Police, who informed the media that the young man, Ross Loraine, was being sought on suspicion of making a malicious communication. Loraine has since made bail and is presumably shaking his head vigorously at how silly this all is.

See, the problem with magically using the law to make something "offensive" into something "malicious" is that there are no literal limits on something so subjective. Suddenly you have the Danish cartoons situation on your hands, except that the self-censorship results from the actions of a state willing to be offended on behalf of its citizens. So much so, in fact, as to allow that state to levy criminal complaints against people for thinking some stuff is funny when other people don't. The lever that puts this insane machine into action appears to simply be "offense taken", which puts any semblance of free speech, not to mention humor, at grave risk.

Filed Under: free speech, glasgow, joke tweet, jokes, malicious communication, offensive, social media, uk

Redskins Decide That Suing Offended Native Americans Should Really Help Their Case

from the the-white-man-cometh dept

When last we checked in on the DC area's professional football team, we had just learned that the USPTO had decided to remove certain trademark protections from certain aspects involving the team's name on the basis that it is a demeaning slur against Native Americans. Whatever you think of that particular decision, things are about to get strange. That decision was made following a petition by five Native Americans who appeared before the USPTO and argued successfully that the term "redskin" is disparaging and racist. Daniel Snyder, owner of the Redskins, has since claimed that the team's name is not racist at all and has vowed to continue the fight to keep his trademarks in place.

One would have thought that this would mean going through the normal USPTO appeals process. One would have been wrong, it turns out. Daniel Snyder and the Washington Redskins, who insist that they respect Native Americans, have instead decided to take the five Native Americans who petitioned the USPTO for the removal of the team's trademarks to court in a lawsuit.

In June, the five activists – Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh – won a landmark decision from the US Patent and Trademark Office to cancel the NFL franchise’s trademark registration. In their decision in June, the Patent office board said the trademarks were “disparaging to Native Americans.”

In response, instead of taking the case to an appellate court, the team decided to sue the five petitioners in a US district court in Virginia. This is an option used when there is a dispute over a trademark; two companies selling products under the same or very similar logos or names, for example. This case is extremely unusual because the five defendants have no vested interest in the team name or logo – they petitioned to have the trademark protection removed because of its offensive nature. On this basis, the defendants’ lawyers filed a motion to have the case dismissed.

And that filing was denied by the judge, who will allow this ridiculous lawsuit to go forward. The team's lawyers apparently feel that using a lawsuit outside of its intended purpose is just fine in this case, even if it means the five activists will have to go through the legal proceedings, which will certainly involve some sort of time and monetary cost to them. It's beginning to look as though Daniel Snyder can't take a breath without pissing off at least some Native Americans. But, again, regardless of what you think of the team's name, the important part of this story is that Snyder and the Redskins are pursuing a path specifically designed to chill speech regarding trademarks a corporation might have in place. Should this start some kind of movement to allow for lawsuits against mere petitioners in trademark disputes, well, the team with the most money wins. The point is that allowing this sort of thing to go forward attaches a legal firearm to every dollar a company has within its coffers. Who will dispute a trademark with the threat of an expensive lawsuit staring them down?

But even this move might backfire. While legal experts seem to agree the move is absurd, some of the involved parties are champing at the bit.

David Glass, the president of the National Coalition Against Racism in Sports and Media, said that he welcomed the legal challenge. “We’re all smiling. We want to get Dan Snyder in court,” he told the Guardian.

I imagine one of the things Glass wants to get on the table is Snyder's ridiculous claim that the removal of trademark protections violates his free speech rights, all while taking five activists to court simply for speaking their minds. It'll take some serious tap dancing to make that look logically consistent.

Filed Under: daniel snyder, lawsuits, native americans, offensive, racist, redskins, trademark, uspto

Heartbleed Suspicion And NSA Denial Show Why NSA's Dual Offense/Defensive Role Must End

from the it's-a-problem dept

We've talked for a while how dangerous and ridiculous it is that the NSA has a dual role as both handling "offensive" attacks and (supposedly) stopping incoming attacks in a "defensive" role. While technically, the NSA is supposed to be handling the "defensive" side while the US Cyber Command handles the offensive, there is no real separation between the two. The US Cyber Command is headquartered within the NSA and is run by the same person. Despite multiple recommendations to split the roles, the White House refuses to do so. Meanwhile, the NSA itself has been doing more and more offensive work anyway.

However, the claim late last week that the NSA knew about and exploited Heartbleed, followed by the quick denial by the NSA, really puts an exclamation point on how untenable this dual role is for the NSA. It's difficult to take the NSA seriously given the competing interests within it. Add to this, President Obama basically giving his broad approval for the NSA to exploit security flaws it finds, and you have a very dangerous setup for your average internet user. The NSA, despite its job, will have little interest in actually protecting internet users.

Julian Sanchez summarizes the issue nicely by pointing out that the two roles are simply incompatible:

But the denial itself serves as a reminder that NSA's two fundamental missions – one defensive, one offensive – are fundamentally incompatible, and that they can't both be handled credibly by the same government agency.

The NSA's history of being less than forthright in the past, as well as many of the Snowden revelations, combined with its dual role, simply means that most people won't believe the NSA's denial about Heartbleed, even if it was much more strongly worded than earlier denials. If the NSA's role, however, were made much clearer, such that it was only focused on protecting systems, without the offensive elements, then it would be both a lot more believable, and a lot more trustworthy. However, the very fact that the administration (and the NSA) appear to have little interest in moving in this direction says a lot about how much they really prioritize protecting our computer systems.

Filed Under: cybersecurity, defensive, nsa, offensive, surveillance, us cyber command

USPTO: The Term 'Redskins' Is Offensive And Can't Be Trademarked

from the paging-Dan-Snyder dept

Months back I and others were questioning whether or not the NFL's Washington Redskins team could trademark their name, given that trademark law includes some fairly explicit language that bans such marks on offensive, racist, or derogatory language. While some folks raised understandable concerns about the flimsy nature of the oft-offended, it was and is my opinion that the United States government should not be in the business of sanctifying rich, white men making gobs of money off of a reference to the skin color of a group of people that same government had nearly obliterated. Crazy, I know, but 'yam what I 'yam.

And now, amazingly, we appear to have our answer. And that answer is that you of course can't trademark the term "Redskins" because it's derogatory.

Late last month, the U.S. Patent and Trademark Office denied an application to register a trademark for "Redskins Hog Rinds," a product wholly unrelated to the Washington football team. The USPTO's reasoning for refusing the trademark is simple: It's offensive. From the USPTO decision:

"Registration is refused because the applied-for mark REDSKINS HOG RINDS consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols."

As Deadspin notes, this is unrelated to the Washington team, which already has their mark and does not have to go through this same review process, but the point appears to be clear: the USPTO says you can't trademark "Redskins" because of the nature of the word. The timing of this is likely worrisome to Dan Snyder, owner of the Redskins, given that there is a lawsuit brought by a group of Native Americans sitting before the Trademark Trial and Appeal Board, who is sure to point to this application denial as evidence in their claim. Losing the mark wouldn't infringe on Snyder's speech by preventing him from using the word for his team and merchandise. It would simply allow everyone who wanted to use an openly racist term on merchandise to do so, which would almost certainly lead to Snyder changing the name of the team to something less horrific.

So...er...thanks, USPTO?

Filed Under: offensive, redskins, trademark, uspto

How Trademark Law Can Finally Kill Dan Snyder's Racist Dreamworld

from the trademark-slurs dept

Before we dig into this, let's put a couple of facts into evidence. First, Dan Snyder is the owner of the NFL’s Washington Redskins football franchise. Next, as we've covered before, Dan Snyder is an idiot. In addition, the term "Redskin" is a taboo word, commonly considered offensive and detested by Native American groups that have visited with the team to explain to them that they'd prefer not to be disparaged in such a manner. Now, there is a contingent of strange people in this country that insist that fighting back against an NFL team using the Native American version of "darky" is the height of our overly political correct culture and is a waste of time. If you're one of those people, I invite you to voice that opinion in the comments section, not because I think your stupid argument has any merit, but rather because I just want to watch you look silly.

That said, the controversy over the team's name has existed since roughly the time us white folks landed on this land and began helpfully distributing small-pox-ladened blankets to shivering women-folk. So how do we finally get the name changed? As it turns out, the answer just might be trademark law. See, the United States government is a lot of things, and not all of them good, but they sure don't like to officially sanction racial slurs. Couple that with how important trademarks are to NFL teams and we have a light at the end of this racist tunnel. Per trademark lawyer Christine Haight Farley:

Since 1905 federal trademark law has banned the registration of scandalous or immoral marks. In 1947, marks that may disparage, bring into contempt or disrepute persons, institutions, beliefs, or national symbols were also banned. U.S. trademark law is not unique in prohibiting the registration of offensive trademarks. Many other countries' trademark laws contain similar provisions.

So, the starting point is that you can't trademark an offensive term. This, for obvious reasons, essentially amounts to the government not wanting to be in the business of hate-speech. Court cases have been brought in the past asserting the Redskins mark to be invalid on these grounds, with a tribunal in 1999 agreeing that the mark should be cancelled. Unfortunately, that ruling was overturned on federal appeal, which asserted that the lawsuit was brought by old people who should have been offended long before they formally stated so (unjustified delay in bringing the suit) while simultaneously stating that they just weren't quite sure most Native Americans disliked being referred to primarily by their ill-described skin.

However, a younger group of Native Americans has refiled and a ruling is expected fairly soon. If Farley's analysis is correct, there seems to be only one logical way for the court to rule.

The term used by the Washington football team has been demonstrated by overwhelming linguistic and historical evidence to constitute a disparaging epithet insulting to Native Americans. Many Native American organizations, including the National Congress of American Indians, the National Indian Education Association, the Native American Journalists Association, the Native American Rights Fund, the Morning Star Institute, the International Indian Treaty Council, and the National Indian Youth Council, have publicly and vociferously opposed the continued use of the term in trademarks or as the name of sports teams. The director of the Smithsonian National Museum of the American Indian has said he considers that name to be the most offensive name in current use. The trademark office tribunal was satisfied by survey evidence that showed that 37 percent of the Native Americans surveyed found the word the team uses as their name to be offensive.

Now, while the cancellation of the mark wouldn't require the team to change its name, or even stop using the epithet in commerce, it might as well. Trademarks on team names, perhaps most-so in for NFL teams, is where a vast amount of team revenue is achieved. If they lose the mark, it would open the commerce door to all manner of groups to use the name in commerce. That isn't something a team run by Dan Snyder would stand for. In other words, trademark might actually kill off the most offensive team name in sports. As far as I'm concerned, it can't happen soon enough.

Filed Under: dan snyder, offensive, redskins, trademark

Police In Tasmania Explain To The Public That Someone Saying Something Mean Online Is Not Illegal

from the sign-of-the-times dept

We've seen it over and over again: some people seem to think that if anyone says something you don't like about you online, it's illegal, and you can go after them for it. Of course, in most places that's not even close to true, but it doesn't stop some people from trying. Slashdot alerts us to the news that police in Tasmania are so fed up with people coming to them about things they don't like online that they've put out a statement telling the public to stop contacting them whenever they find something they think is "abusive or harassing" on Facebook or other social media sites. They specifically state that they have no interest in censoring the internet:

"If the conduct complained of would not amount to an offence if it occurred off-line, then it is not an offence simply because in a particular instance it was undertaken with the aid of digital technology," the department noted.

"For example, complaints have been received about comments posted on Facebook which are abusive or harassing. If this behavior occurred in a public place it would not be a reportable offence.

"It is not the role of Tasmania Police to censor internet content."

My first thought was "good for them" for putting out such a statement. But, my second thought was to be surprised that so many people go to the police about such things. Perhaps it's a cultural difference, but here in the US, they'd just threaten to sue (or actually sue) in the courts directly, rather than seeking criminal charges that would involve law enforcement.

Filed Under: free speech, offensive, police, social media, tasmania

Judge Says Bombarding Someone On Twitter With Offensive & Threatening Messages Is Free Speech

from the tough-cases dept

Earlier this year we wrote about a tough case, involving a guy who apparently spent nearly all of his waking hours bombarding a Buddhist leader he had a falling out with, with nasty, offensive and threatening messages on Twitter. He was charged with criminal stalking. This raised an awful lot of questions about the First Amendment, and a judge has now ruled that the tweets were, in fact, protected free speech. I tend to think the ruling here is correct, though I can see how this troubles people. As the judge noted, however:

Even though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment as there is "no basis for qualifying the level of First Amendment scrutiny that should be applied" to online speech.... Indeed "whatever the challenges of applying the Constitution to ever-advancing technology, basic principles of freedom of speech and press, like the First Amendment's command, do not vary when a new and different medium for communication appears."

Funny. I would think that this same reasoning would apply against domain seizures and SOPA, but it never seems to come up. That said, if the guy represents a real threat, I would think there are other laws that should cover that, outside of this broad "anti-stalking" law that was used. The fact that he caused "emotional distress" to the person his tweets were directed at is unfortunate and sad... but not illegal.

Filed Under: free speech, offensive, stalking, twitter
Companies: twitter

Rhode Island Says Police Can Decloak Anonymous People Online If They Find Them Offensive

from the anonymity-is-protected-by-the-first-amendment dept

We've been noticing a trend of various states attempting to pass laws against being a jerk online -- with a particular distaste for anonymous jerks. But it seems that Rhode Island is taking it to new levels. Via Copycense, we learn that Rhode Island is pushing forward with a broadly written law (for the children, of course!), which would let police get names and other identifying information from service providers for online speech that they find to be "offensive" or harassing, without requiring that it go through a judge for a warrant first. Technically, the bill allows for law enforcement to issue an "administrative subpoena" on such issues, rather than having to get a judge-approved warrant. While much of the bill is targeted at uncovering those involved in child porn, it uses that fact to mask the broad powers this gives to law enforcement to uncover who's behind all kinds of anonymous speech, without any consideration for the First Amendment protections for anonymous speech. This kind of law seems ripe for abuse by law enforcement, and the ACLU notes that Rhode Island law enforcement has already been known to seek this kind of info under questionable reasons:

Fears about the scope of this bill are not exaggerated. In the past year, there have been two highly publicized incidents of police seeking to track down the posters of comments posted online about political figures. Last fall, the Rhode Island ACLU called on Narragansett's Police Chief to drop criminal “cyberstalking” charges lodged against two town residents in separate incidents. Under this bill, police could unilaterally issue subpoenas to obtain the information.

Filed Under: anonymity, free speech, offensive, rhode island