Vice Media Sends Cease And Desist To ViceVersa Over Trademark Infringement

from the vexing-vices dept

We're going to have to keep hammering this home until more people get it: trademark law is about preventing confusion in the marketplace. The reason why that needs to be understood is that just about every time you read a story about one entity going after another over a trademark issue, the refrain of "we must protect our trademarks or we lose them" is trotted out like some kind of bower card that trumps the rest of the discussion. That excuse is just that: an excuse. And it certainly doesn't lift from those that use it the burden of being called trademark bullies.

Here to show us all an example of this kind of bullying is Vice Media, which decided to fire off a cease and desist letter to ViceVersa, a barely-making-it punk band.

Vice Media, a company valued at $2.5 billion whose CEO once spent $300,000 on dinner, wants ViceVersa, an unsigned Los Angeles indie band whose members are struggling to pay rent, to change its name — or else.

In a cease-and-desist letter sent to the band, a copy of which was obtained by The Huffington Post, the media behemoth says the three-piece rock outfit’s name and logo both sound and look too similar to Vice’s own name and logo. The band, the letter argues, is “infringing on the exclusive rights held by Vice Media in the VICE® Mark” and is “likely to confuse consumers as to the source of services offered under [ViceVersa’s] mark, and wrongly implies that Vice Media sponsors, endorses or is otherwise affiliated with [ViceVersa].”

There's enough gall here on the part of Vice Media to make this funny in a sad kind of way. Now, to be fair, Vice Media does indeed operate Vice Music, a label which has released records with some very big names in the music industry. It also owns a ton of other media outlets, such as magazines, book publishers, films and digital television. And it claims to own the rights to the word "vice" in basically any permutation or word combination for all of those markets. That isn't actually true, of course, but that doesn't keep a behemoth from trying to stomp on a little punk band.

I'll note that the threat letter arrived just after the USPTO approved the band's request to trademark its name, ViceVersa. Not that we should take the USPTO's opinion on whether a mark is valid as gospel, certainly, but I daresay that Vice Media isn't exactly an unknown around the USPTO offices, yet it approved ViceVersa's trademark. Which is when the threat letter arrived, seriously suggesting that ViceVersa was infringing on its trademark for "commercial profit and gain, to the great detriment of Vice Media."

Below you can see a video released by the band that is about to bring one of the media giants of this world to its knees.

Those do indeed look like dangerous folk, I guess. Now, Vice Media hasn't yet trotted out the aforementioned excuse that it must protect its trademark or else lose it, but it will if asked. That's what these companies do. And it's common.

Harry Finkel, ViceVersa’s attorney, says these kind of cease-and-desist letters are common. “You have a big company that is overzealous in protecting its mark,” he said.

Finkel says he wrote a letter back to Vice offering to change some of the language in Morales’ trademark application, so that it was clear that the band “would not be doing anything with TV shows or magazine publishing or publishing in general” that could be seen as encroaching on Vice’s territory. He says he never heard back from the company. Instead, Vice in March filed a letter of opposition to the Trademark Trial and Appeal Board, asking that ViceVersa’s trademark application be denied.

Nope, they're not talking to you, sir. Parley is part of the pirate's code, after all. Honorable folks like Vice Media would never engage in conversation in order to stop bullying a punk band in California. Vice Media has a history of doing this kind of thing, of course, but hopefully the USPTO smacks this opposition down tout de suite.

Filed Under: bands, trademark, vice, viceversa
Companies: vice media

Too Bad: SXSW Shuts Down Useful App For Finding New Bands You'd Like

from the why? dept

I went to SXSW last year and had an amazing time. Having never gone before, and hearing people talk about it every year, I was pretty cynical heading there for the first time, but I have to admit that the event was really, really fantastic, and was tremendously productive while also being a lot of fun. Due to other commitments, I can't make it back this year, but I fully intend to go again in the future. However, I'm surprised, and a bit disappointed, to hear that the folks at SXSW have taken to IP bullying, of sorts, in forcing what sounds like a useful app to shut down. Evolver.fm had a profile of a nice little app to help you find bands that you'd probably like at SXSW:

To that end, each spring sees a new crop of tools that let you apply your personal taste to the SXSW artist list to find bands to see, or at the very least, hear from afar. Lastsx.sw is the best we’ve seen this year so far.

EarthPeople cobbled together the nicely-designed Lastsx.sw by grabbing your favorite artists from Last.fm (you are scrobbling, aren’t you?), finding similar artists in the SXSW 2012 artist list, and presenting you with handy links so you can hear those artists on Spotify and check out their official websites.

Lastsx.sw worked great for me — in fact, I’m enjoying some new (to me) stuff courtesy of the site right now in Spotify and scrobbling it to both Facebook and Last.fm, but that’s a different story. Also, I may never have realized that old fave The Wedding Present are playing SXSW this year, so now I have that to look forward to.

Neat, right? Except at the top of the story, Evolver now notes that SXSW forced the app to shut down. Digging deeper, and on the lastsx.sw page they explain:

we had to shut down this site.

sxsw lawyers:
"We strongly believe that anyone who sees your solicitations or promotions will assume that we are endorsing your company".

as if this was a company endevour, or had any promotions or solicitations. total lameness. here's a thought for you: launch a public api. have a look at roskildelabs.com. their idea/attitude: perfect.

They do, however, have their source code up for anyone who wants to do anything about it. Either way, this seems like a silly move by SXSW. Every year tons of new apps show up, and use SXSW as a useful proving ground. SXSW encourages this. And this seems like a particularly useful app for the music side of the event. Clearly, the concern from SXSW is over the trademark issue, and the fact that the app has "SXSW" sort of included in the name. But the likelihood of confusion here was slim to none. Just because someone uses your name in an accurate and descriptive manner doesn't mean that there's infringement.

More importantly, as the folks who made the app note, this was not a commercial endeavor. For trademark infringement to occur, it has to be used in commerce. In other words, no trademark infringement, and it's too bad that SXSW jumped the gun in threatening these app makers. I realize they want to protect the SXSW trademark, but part of that is not over-protecting and going beyond what the law allows -- especially if doing so shuts down useful and innovative tools. Hopefully, SXSW recognizes the error of its ways and changes its mind on this one.

Filed Under: bands, lastsxsw, music finder, recommendations, sxsw, trademark
Companies: sxsw

Vancouver Olympics Silences Indie Rock Acts With Contractual Gag Order

from the stay-quiet-now dept

We've covered how the Olympics has time and time again abused intellectual property law to try to silence all sorts of reasonable activity, and the upcoming Vancouver Olympics have been no exception. In the latest move, sent in by drewmo (though he forgot the link, and made us go searching...) is that a Vancouver-based musician, Carey Mercer, is pointing out that the Vancouver Olympic Committee is pushing contracts on musicians that include a gag order against saying anything bad at all about the Olympics.

The Olympics always has a "cultural component," a cultural Olympiad, and this year, to quote their puke-in-my-mouth inducing website, they have made a back-patting hullabaloo about including "cutting edge indie rock." And each and every "cutting edge" performer that has agreed to play has signed a contract that includes the above clause. A clause that states, in case you skimmed over it, that these artists must never say anything negative about an entity that will spend 900 million dollars on "security." An entity that has already infuriated anti-poverty and anti-homeless groups who accuse VANOC of not living up to its promise of providing affordable housing.

Most participating artists claim to be unaware of this clause.

Part of Mercer's complaint is that no one seems to be able to determine if the Olympics is a public or private entity, since censorship by a government entity would seem like a big no-no:

No one, including our courts, can figure out if it is a public or private entity. It seems to be public when it needs tax dollars (6 billion), but private whenever it is challenged...

And, sure, you can understand why the Vancouver Olympics might not want musicians it hires to say anything bad about them, but putting a contractual gag clause in there seems to suggest that the organization simply can't take any criticism. Mercer is also concerned about what this does for the musicians who signed these gag orders, often without realizing it:

When artists are not allowed to critique their government, or the governing agency that endows them with grants and funding, then what they are asking for is nothing more than propaganda.

Filed Under: bands, gag order, olympics, vancouver

More And More Bands (And Their Labels) Giving Fans A Reason To Buy

from the good-news dept

Peter Davias alerts us to an article over at Indyweek noting how more and more bands are adding value in order to get fans to actually find it worthwhile to buy the album. The article includes a bunch of examples down at the end, including a limited edition comic book based on each song on an album (by the band The Hold Steady). The band Sunn O))) apparently offered up some different options, including just getting a patch with the CD... or if you bought both the CD and a t-shirt, you got the patch along with a sticker and a poster. And on and on it goes. But, what's worth mentioning here is that many of these promotions appear to be done with the record label in question. I know it's fashionable for some to claim there's no need at all for a record label any more, but I still think there's a place for labels in helping the bands that don't want to figure out these business model issues themselves. It's just that the old "model" of bands signing away everything to those labels is likely to change drastically. Still, it's nice to see more and more record labels recognizing that the way to sell these days is to provide additional value beyond just the music.

Filed Under: bands, connecting with fans, music, reason to buy

Band Used By The Prosecution In Pirate Bay Case Releases Latest Album... On The Pirate Bay

from the whoops dept

Advance Patrol was one of the bands used by the prosecution in The Pirate Bay trial as an example of a band harmed by The Pirate Bay. Except... apparently the band didn't think so. Isak sends in the news that the band has released its latest album on The Pirate Bay, with a message saying how they love The Pirate Bay:

The hiphop group known as Advance Patrol hereby release its new album on The Pirate Bay today. They do so to spread their music to as many as possible, and at the same time discredit the prosecution against The Pirate Bay, a prosecution where Advanced Patrol has been used as a weapon in the circus around the court proceedings....

We never asked to be plaintiffs in this case, Gonza from Advance Patrol explains, they used us as a weapon in a fight in which we don't wish to participate. We refuse to be used in a war against our fans!

You cannot legislate away file sharing, Gonza says. Those who share our music are also those who appreciate it the most. They are my friends, and friendship is something to be valued highly. That's why we're giving away El Futuro to the internet, to our friends.

Once again, the further this goes on, the worse and worse the lawsuit looks for the entertainment industry...

Filed Under: advance patrol, bands, file sharing, music
Companies: the pirate bay

Bands That Take Selling Seriously

from the don't-forget-the-merch dept

We recently wrote about how bands are (successfully) experimenting with different models to sell more merchandise at shows, and Ian Rogers of Topspin (who I also -- finally -- got to meet at the Leadership Music Digital Summit) writes about two bands he recently saw who clearly understand the value of selling (and, as he notes, neither band is using Topspin, so he's not promoting his own partners here) by actually realizing that selling merchandise is part of their job. He describes how one band, Halestorm, was opening for another band, but rather than being just a typical opening band that fades into the background, they made sure that people knew about them, first by putting on a great show and then by making it clear that (a) they have affordable merchandise for sale and (b) the band itself will be hanging out with the crowd and wants to meet everyone. From Ian's post:

• Lzzy starts solo with a guitar around her neck and a mic, just singing acapella. Long notes, killer voice. She has people cheering for her before the rest of the band even walks out on stage. Before her voice gets hidden behind the rock, she lets 'em know she can sing and you can see people are impressed straight away.
• The rest of the band appears and they tear through a few songs. It's straight-ahead rock, on the heavy side but ready for pop radio. Everyone in the band is high-energy and engaging, even Lzzy's brother Arejay on drums is standing up for parts of the songs and just generally being a showman.
• Mid-way through the set Lzzy announces they have a new record coming out in a few weeks but you can buy a pre-release of it now for $5 at the merch stand.
• There's a drum solo-y part that doesn't go on long and ends with the entire band at the front of the stage playing drums and the crowd cheering as they go crazy with it.
• During the last song Lzzy reminds them that they have their own merch stand upstairs and CDs for only $5. She also says the whole band is going to be up there after their set and that she wants to meet everyone.
• I head over to the merch stand after the show and watch their tour manager relieve the woman who runs the merch table so she can disappear into the crowd below with a box of CDs with "Halestorm CDs $5" written on it.
• The merch stand is mobbed. It's surrounded by people and they are selling merch literally as fast as their tour manager can manage.
• The band appears (after breaking down their own stage setup) and meets and talks to as many people as possible, while helping to sell their merch.
• Free stickers list their MySpace page, etc.

As Ian notes: "I'm not worried about these guys at all. Even if the record doesn't work at radio (it may) they're going to do just fine building their audience one show at a time." The band is doing everything right. They're using every opportunity to connect with fans, while also giving them a real reason to buy. They're not waiting for their record label to get them on the radio or MTV. They're doing everything they can to actually build up a rabid supporting fanbase from the bottom up.

Filed Under: bands, merchandise, music

Another Band With Another Unique Business Model

from the turning-your-fans-into-promoters dept

Often, when we describe a certain business model put in place by one band that embraces the basic economics of the music industry, someone shows up in the comments to claim "while this might work for musician X, that's an exception... it'll never work for big/small/mainstream/niche/whatever artists." This sort of comment misses the larger point. We are not suggesting a single "business model" for the entire industry. In fact, we're just explaining the economic forces at play, and showing a variety of different business models that embrace those economics. It's those different business models that makes the market so interesting and dynamic and allows bands to stand out from the crowd.

For the latest example, reader James Saunders points us to the band Umphrey's McGee, who implemented a business model for their latest album that helped turn their fans into promoters. Saunders explains the band's "unique plan":

As more people pre-ordered, the band would add more "extras" to the release. There were eight tiers of potential content, each unlocked once a predetermined number of albums were purchased. The result was a massive effort by fans to promote the album for the band; if they got more people to buy it, their own purchase would have more value. I bought my copy over 2 months ago, and I convinced two friends to get it as well. Eventually, all eight tiers were unlocked, so a good number of albums must have been sold. The whole experience offered more to fans than just "music tracks" which could be pirated. Instead they were given a chance to help a band they love reach a wider audience, while at the same time "earning" more for what they were already willing to pay."

This is a neat variation on a similar model we've seen from musicians like Marillion and Jill Sobule to get fans to agree to pay up early in exchange for some benefit. The addition of having different beneficial levels "open up" just adds to the appeal, and it helps turn fans into promoters as well. Again, this is not "the" business model for all bands -- but yet another example of a band recognizing one way to implement a business model that really does focus on connecting with fans and giving them a real reason to buy.

Filed Under: bands, business models, economics, tiers, umphrey's mcgee