Apparently the maker of the gun preferred by (yes, fictional) James Bond has been able to get a trademark on the design, as "James Bond's weapon of choice." The USPTO initially rejected the trademark request, leading the company, Walther, who makes the PPK handgun, to do an online survey that suggested 54% of gun owners recognized the gun, with some of them mentioning James Bond in explaining how they recognized it. Apparently this online survey was enough to convince the USPTO that it had made a mistake. Who knew that the USPTO could so easily be influenced by online surveys? Can we have 4chan or Reddit folks stuff the ballot on future online surveys that might influence USPTO rulings?
Rose M. Welch points us to this recent News.com story about how the popular homemade crafts website Etsy has had to balance trademark issues, since many people like to make "fan art" and often would like to sell it on the site. In some ways, it appears to be the same sort of thing that many content creators went through with people creating fan fiction or other forms of fan art online, complicated (of course) by the fact that Etsy is used to sell these goods. The overall article is about what you'd expect.
However, I did want to take issue with one part of the article, which repeats the (oft-repeated) claim that trademark holders have to block such uses of their work. That's not quite true, and it's annoying that it gets repeated as fact all the time. Rights holders do have to protect unauthorized uses of their work that are likely to confuse, but don't have to protect in cases where there wouldn't be any confusion at all. Separately, (and this is the part that most often gets ignored) if they come across an unauthorized use, they absolutely can issue a free license to make it authorized -- and thus, not risk "losing" the trademark. However, very few brands do this, in part because of the myth that they absolutely must stop all unauthorized uses. There are other options, and granting a license is a good one.
It does seem odd that Nevada Senate candidate Sharron Angle (who apparently has a half-decent chance of winning) keeps running into intellectual property issues. Angle, of course, was the candidate who promised to sue Harry Reid, whose job she's trying to take, for copyright infringement, because his campaign reposted an older version of her website to suggest she was changing her positions. As far as I can tell, no such lawsuit was ever actually filed. However, Angle got into some infringement hot water herself when Righthaven sued her for copying a LVRJ article on her website. Now we can add Hasbro to the list. Hasbro, the notoriously overprotective game maker, is threatening Angle because she put up a fake gameboard for a game which attacks Reid. Apparently, the boardgame looks too much like Monopoly for Hasbro's tastes. Apparently, Hasbro wants to make sure it keeps its monopoly on Monopoly... If Angle actually wins, it would be nice if she then used her new job to help fix problematic intellectual property laws that get in the way of free speech, but seeing as she seemed willing (at least in talking) to use the laws herself in the same manner, I doubt we'll see anything productive from her on this topic.
We've talked, regularly, about how trademark law is quite different than patent and copyright law. Patent and copyright law come from the "progress clause" of the Constitution, and are there to create incentives for "promoting the progress." Trademark law, on the other hand, falls under the "commerce clause" of the Constitution and is really about protecting consumers from confusion and harm (such as believing a product is from one reputable source, when it's really from someone else). Unfortunately, after some lawyers successfully lumped them all together as "intellectual property law," there's been an ongoing effort to treat trademark law more and more like copyright law -- and that's a problem. This is most clearly seen in the more recent "innovation" within trademark law of moving beyond "a likelihood of confusion" into the concept of "dilution."
Trademark lawyer Ron Coleman, who runs the excellent Likelihood of Confusion blog, has now written a paper that highlights his concerns about where trademark law has been trending recently, and comparing it to the excesses of copyright law these days. The first part of the paper details just how ridiculous copyright law has become lately, way outside of its Constitutional moorings. For example, he highlights the serious problems and misunderstandings of the purpose behind statutory damages by the court, to produce awards that make little sense, and clearly go beyond the law's intended purpose:
Under the Copyright Act, statutory damages are, contrary
to popular belief, not intended to be a windfall for the lucky
holder of an infringed copyright. Rather, they are meant to
effect just compensation that bears a reasonable relationship
to compensatory damages that may be difficult or impossible
to prove, albeit with an added consideration--added, but not
disproportionately dominant--of the need to deter future
infringement.
[....]
In fact, statutory damages are not penalties. The purpose
of statutory damages is to permit a wronged plaintiff to recover
where there is insufficient proof of actual damages or profits.
Substantial damages are, the courts typically hold, only be
awarded for substantial injury.
Yet something--it is not obvious what this something
is--within the judicial system keeps fighting against these
fundamentally fair principles, and doing so with increasing
vigor. Only months ago a jury awarded $2 million--little more
collectible than "all the money in the world"--to the Lords of
Music for what was indeed knowing copyright infringement of
two dozen songs.
And, unfortunately, rather than recognizing the problems of this kind of excess, trademark law appears to be moving in that same direction:
Many "IP enforcement" attorneys believe that while there
is no shortage of bona fide infringement to occupy at least a
large number of them, trademark law practice has, to a very
large extent, descended to an anti-competitive methodology
utilized by dominant market players not to prevent consumer
confusion, as was its original rationale, but to reduce consumer
choice and overall welfare by preventing competition.
Combined, Coleman notes, copyright and trademark law have both become unhinged and threaten legitimate business interests:
The civil litigation system was not designed for the use of
large companies to put small enterprises out of business, but
it is perfectly suited for doing so. Copyright and trademark
law, in tandem and with reference to each other, were meant
to protect, respectively, creativity and reputation or consumer
interests. They were crafted to apply to narrow bands of behavior
affecting specifically identified bundles of rights. The enterprise
of convincing a court to invoke them and restrain the behavior
of others once required admissible and reasonably rigorous
proof of infringement consistent with ancient Anglo-Saxon
judicial norms. Today, however, trademark and copyright are
methodologies of "IP enforcement," and even of censorship.
Notwithstanding the existence, and even the growth, of real
threats to intellectual property rights, especially in copyright,
strategies for abusing IP claims to achieve entirely unrelated
tactical goals are utilized routinely, formulaically, and often
successfully.
The Internet has provided a post-industrial economy with
once unimaginable vistas of entrepreneurial possibility. Yet the
more central the Internet becomes to the economy, the more
of a threat its relatively untamed nature is to companies with
the most to lose to innovators.
Those are just a few snippets from the overall paper, which is an excellent read.
Earlier this year we covered how Facebook was suing a site called Teachbook.com, claiming that any social network that ended in "book" was infringing on its trademarks. It's continued to do so, with at least a threat against the site Placebook. Of course, it seems that it's not only the "book" that Facebook claims ownership of, but the "face" part as well. Reader marak was the first of a few of you to point to the news that Facebook is suing the site Faceporn for trademark infringement (the article says copyright, but I'm pretty sure it means trademark -- isn't a publication like PC Mag suposed to understand the difference?).
Marvel, now owned by Disney, apparently is not a fan of Airbase Industries introducing a new line of power tools under the brand name "Hulk." The USPTO allowed Airbase to register its own trademark, but Disney started an opposition proceeding. Of course, then Airbase came out with its first "Hulk"-branded powertool... and it's green. That made Disney angry. So, Disney has now filed a lawsuit, arguing that the combination of the name, the logo and the green color might lead to some confusion. The green color does seem a bit over the top, but a trademark is really only supposed to cover the areas of business that the mark is being used in, and I don't recall Disney power tools anywhere on the market...
Nearly two years ago, we wrote about the pending issue of Twitter squatting, with various people taking over the trademarked names of well-known companies on Twitter -- and suggesting that Twitter needed a clear policy in handling such disputes. To date, however, Twitter basically seems to more or less handle these claims on a somewhat arbitrary basis.
Case in point, Elan Arbitsman points us to the news that Twitter simply handed over the username @NFLLockout to the NFL Players Association. Some other folks had registered the name and used it to discuss a possible NFL lockout. After they had done so, the NFLPA had registered the domain name NFLLockout.com, and then sought to get the Twitter handle from the guys. They offered to give them some stuff (apparently a life-sized poster or something). When the guys turned this down, the NFLPA went to Twitter, and Twitter just handed them the username. Even worse, Twitter implied that one of the reasons they did so was because the guys tried to "sell" the username -- though they say they didn't try to sell it, they just listened to offers from the NFLPA.
As the article notes, the NFLPA doesn't own either NFL or "Lockout," so it's not entirely clear how they have a legitimate claim on the user account. I can see why the NFLPA would want the username, but it seems a bit weak that Twitter just handed it over (and scolded the original users in the process).
Last week, we wrote about The NY Times threatening Kachingle, over a silly publicity stunt that Kachingle pulled. As we explained, Kachingle, which is a voluntary micropayment-type solution (somewhat similar to Flattr), for blog and journalism content, had put up a site where it encouraged the NY Times not to set up the paywall it's planning. To "convince" the NY Times not to bother, it wanted people to contribute to the various NY Times' bloggers via Kachingle, and Kachingle would use the amount raised to try to let the NY Times know there were alternatives. Of course, no one really believed that the NY Times would stop its paywall because of this. It's just a silly publicity stunt.
As we noted, it seemed clear the NY Times was overreacting, and only drawing more attention to the effort. My only question was where the actual money was going, and someone from Kachingle explained that the money would be sent to the email addresses associated with each blog. I'll admit, that seemed questionable to me, as I would bet that the NY Times most certainly does not allow any of its bloggers to accept money from outside sources for its blogging.
That said, it still seems positively ridiculous to now find out that the NY Times has taken it to the next step and filed a lawsuit against Kachingle claiming that the whole effort is a trademark violation. You can see the full lawsuit below:
While the Times does mention copyright questions, it did not include copyright in the lawsuit -- though Kachingle says the NY Times has told it that it has filed a DMCA takedown to Kachingle's ISP. The lawsuit looks exceptionally weak. It seems to focus on the fact that Kachingle uses the little icons associated with each blog to highlight each blog in its leaderboard. The thing is, though, no one reading the Kachingle site is likely to be confused about whether or not the Times has a relationship with Kachingle. It's abundantly clear they do not. The copyright claim (not in the lawsuit, but apparently in the DMCA takedown) also looks weak. Kachingle appears to use a tiny fragment of content.
Either way, I can't figure out why the Times is doing this. It seems to just be pure whining by the Times' lawyers, because they don't like the fact that the paywall is being mocked. There is no likelihood of confusion here. Yes, the Kachingle publicity stunt is childish, but it's the sort of thing that the Times would have been much better off just ignoring (or mocking back), rather than going to court. These days, it really seems that the NY Times has such an inferiority complex about the internet, and it doesn't make the company or the publication look good.
A writer/speaker who set up a website at entrepreneurology.com apparently received a cease and desist letter from Entrepreneur Magazine, who is also opposing his attempt to trademark the term. Nice of Entrepreneur Magazine to be so supporting of other entrepreneurs, huh? The guy has preemptively sued the magazine's publisher to have it declared that he's not infringing:
While the lawsuit does feel a bit like the entrepreneurology guy marketing himself, it still doesn't explain Entrepreneur Magazine's silly cease and desist letter. And, of course, the end result is that the guy ends up getting a lot more attention anyway.
We had just written about the rise of a bunch of new pre-settlement shakedown shops, who send out massive amounts of lawsuits over claims of file sharing in order to get people to pay up. Just recently, some had noticed that these firms all seem to copy from each other, and now two of the firms may be heading to court over it. Seriously.
An anonymous reader passed along the news that the Media Copyright Group -- which was set up recently by a divorce lawyer to work with porn providers -- has filed for declaratory judgment against US Copyright Group, the offshoot of Dunlap, Grubb & Weaver (the firm that was the first to get attention for bringing these sorts of pre-settlement deals to the US). We had already noted that US Copyright Group appeared to have copied its website from a competitor, but apparently even though US Copyright Group thinks it's okay to copy others, it doesn't like anyone else copying it. A lawyer from Dunlap, Grubb & Weaver sent a cease and desist to Media Copyright Group, alleging trademark infringement. Media Copyright Group filed for a declaratory judgment that it is not infringing:
All I can say is that there's something quite amusing about watching two of these law firms suing each other in court, arguing over whether or not one infringed on the other's "intellectual property."
