I can't honestly claim to know a whole lot about e-cigarettes. That's because when I was still smoking, I smoked the old fashioned kind of cigarettes. You know, the ones made from tobacco, that cured acne, and that made my breath smell as cool and fabulous as a pub toilet. Plus, everyone was doing it and my lungs weren't going to give themselves cancer, so you know. But, even knowing little about e-cigarettes, I know enough to know that they aren't ale houses located in Riverdale, New Jersey. This is a conclusion that the lawyers over at Lorillard, makers of "blu" e-cigarettes, think is likely to escape the larger population, as they have decided to file a trademark dispute against Blu Alehouse over its name and logo.
The lawsuit filed by Lorillard Technologies Inc. centers on a logo that NJ Ale House LLC is using at its Blu Alehouse in Riverdale, N.J., Law360 reported. According to the news website, the logo features "the word 'blu' surrounded by smoke or flames." The subsidiary of Greensboro-based Lorillard (NYSE: LO) claims that the logo is too much like the branding for blu eCigs.
Let's leave everything else aside for a moment and simply take a look at the two logos to see if they look substantially similar on their own. First is the logo of Blu Alehouse. Note that this logo normally appears alongside the full name of the establishment.
And now the logo for blu Cigarettes.
Neither logo is particularly complicated, but even failing to correct for the simplicity of the designs, the two logos are distinctly different. If both logos didn't incorporate the word "blu" in them, there would be absolutely nothing to argue about here. And, again, that's strictly taking the logos into account with no other context. Because once we use the likelihood of customer confusion and the markets of competition tests, I'm failing to see how this wasn't tossed immediately upon a judge's review. An ale house isn't competing with cigarettes in any way. Add to that that it would be quite difficult for even the most moronic and hurried citizens to mistake the two companies for each other, what with the ale house's logo typically appearing alongside other signage that identifies itself as an ale house.
Strangely, an actual judge reviewing the claim thought differently.
U.S. District Judge Kevin McNulty found that Lorillard — along with another subsidiary, LOEC Inc. — made "plausible claims for trademark infringement and unfair competition," and he ruled that the case could go on, Law360 reported.
How is the claim of unfair competition even possible? The two companies aren't competing with each other at all. The only mention of competition in the court filing by Lorillard is over the fact that sometimes they advertise their cigarettes at drinking establishments.
LTI and LOEC allege that Blu Alehouse bar and restaurant is directed at a similar consumer base as LTI and LOEC's BLU products because BLU products are promoted at bars, restaurants, and lounges.
But that doesn't actually put the companies in competition with one another. That would be like Budweiser claiming that Big Buds Magazine, here to serve all of your marijuana information needs, infringed on Budweiser marks because they occasionally sell beer to high people. Why should that matter at all?
Hopefully as this case moves forward, a more sensible conclusion is reached.
Okay, I know that it's become something of a cliche for blogs and news sites to repost John Oliver clips, but dammit, if the guy doesn't keep on covering the types of stories that we normally cover around here. I mean, Stephen Colbert and Jon Stewart used to touch on related topics maybe once every six months or so, whereas Oliver seems to hit on a Techdirt-worthy topic basically every other week (so often we don't get to all of them!). This past week, he did his big segment on the nasty games that Big Tobacco plays around the globe to market its products to just about everyone. Yes, in the US, most cigarette advertising is blocked, but Big Tobacco has just shifted to more vulnerable populations around the globe. That topic, by itself, isn't directly in Techdirt's wheelhouse -- but in the middle of the segment, there's a discussion about corporate sovereignty, and specifically the use by Big Tobacco of "investor state dispute settlement" (ISDS) provisions to allow the big tobacco companies to sue countries for daring to try to regulate cigarettes, advertising or packaging.
The segment on corporate sovereignty starts at around 6 minutes, right after showing examples of ridiculous tobacco commercials that are shown around the globe:
Now countries can try to counteract the influence of that kind of marketing, but if tobacco companies feel threatened, they'll put them through legal hell. Let me take you on a world tour of how they attack laws intended to protect public health, because it's kind of amazing.
Let's start in Australia. In 2011, they passed a plain packaging law, and what that means is this. [Shows (fair use!) news clip describing required packaging of cigarettes with no branding, and scary health pictures]. Australia's plain packaging law bans tobacco company branding from packaging and replaced it with upsetting photos, such as the toe tag on a corpse, the cancerous mouth, the nightmarish eyeball, or the diseased lung. Now, yes, I'm pretty sure I'd find a healthy lung disgusting, but, that thing does look like you're trying to breathe through baked ziti, so [instructing staff] take it down! Just take it down!
Perhaps unsurprisingly, since this law was implemented, total consumption of tobacco cigarettes in Australia fell to record lows and... nightmares about eyeballs have risen to record highs. [Instructing staff] Take it down! Take down the demon eye!
To get these laws, though, Australia has had to run a gamut of lawsuits. First, two tobacco companies sued Australia in its highest court to stop them. The result, was a little surprising, as Australia's attorney general let everyone know. [Shows clip of AG announcing not just the victory, but Big Tobacco having to pay the government's legal fees.] Yes! Score one for the little guy! Even if that little guy is the sixth largest country in the world by landmass.
And the tobacco companies didn't just lose. The judges called their case "delusive," "unreal and synthetic" and said their case had "fatal defects." ....
But Australia's legal troubles were just beginning. Because then, Philip Morris Asia got involved. [Shows clips of a news report saying Philip Morris considering using ISDS provisions to take the Australian government to a tribunal claiming it lowered the value of the company's trademarks].
That's right. A company was able to sue a country over a public health measure, through an international court. How the fuck is that possible? Well, it's really a simple explanation. They did it by digging up a 1993 trade agreement between Australia and Hong Kong which had a provision that said Australia couldn't seize Hong Kong-based companies' property. So, nine months before the lawsuits started, PMI put its Australian business in the hands of its Hong Kong-based Philip Morris Asia division, and then they sued, claiming that the "seized property" in question, were the trademarks on their cigarette packages.
And you've got to give it to them: that's impressive. Someone should really give those lawyers a pat on the back... and a punch in the face. But, a pat on the back first. Pat, then punch. Pat, punch....
He then goes on to point out how Big Tobacco further got three other countries to file complaints with the World Trade Organization (WTO) against Australia, claiming the plain packaging law violates trade agreements: Honduras, Dominican Republic and Ukraine. Oliver then shows a clip noting that Ukraine does not have any tobacco trade at all with Australia, showing how ridiculous the WTO claim is.
Next, he shows how Big Tobacco is sending threatening letters to other countries, like Uruguay, Togo and Namibia for considering health regulations around tobacco products, even going so far as to totally misrepresent the total loss of its lawsuit in Australia, pretending that it was a victory. Oliver's researchers got letters that Big Tobacco sent these countries, threatening "an incalculable amount of international trade litigation."
There's even more in the video -- though it would be great if Oliver also took on the fact that these kinds of ISDS/corporate sovereignty agreements are at the heart of key trade agreements currently being negotiated today by the US and much of the rest of the world in both the TPP agreement and the TTIP agreement.
It's because of stories like this that we're so concerned about these corporate sovereignty provisions. Defenders insist they're necessary to stop countries from absconding with assets built by foreign companies and investors, but that risk tends to be fairly limited, compared to how these agreements are actually being used: to allow corporations to effectively step in and block regulations designed to protect the public.
Mr. Burns: Since the beginning of time, man has yearned to destroy the sun. I shall do the next best thing: block it out.
Mr. Bloomberg: Yes. The people must be protected from the sun’s harmful UV radiation!
Mr. Burns: Umm, sure, whatever. [Activates Sun Blocker]
Mr. Bloomberg: Excellent.
I fully believe that Bloomberg would ration sun time if he could — or at the very least force everybody to wear sunscreen. Like your mother, he simply thinks that he knows what is better for you and what you should be allowed to do. And he’s willing to use any means necessary, fair or unfair, legal or illegal, to make you do what he thinks you should be doing.
The latest: since he can’t force stores to display horrific images with the purchase of cigarettes, he now wants to prohibit stores from displaying cigarettes at all.
Will the courts smack him down again?
The WSJ Law Blog has a very interesting analysis of the possible legality of Bloomberg’s (a former smoker) latest attack on cigarettes. Here’s the actual law that Bloomberg is proposing:
A retail dealer shall not display or permit the display of any cigarettes or cigarette packaging in a manner that allows a person to view such cigarettes or cigarette packaging prior to purchase at any place of business operated by such dealer.
You’re allowed to buy them, but not look at them… because looking at them will remind you that you are LIVING IN A FREE COUNTRY and can do what you want.
But this paternalistic restriction might be legal, or at least not as illegal as Bloomberg’s attempt to force cigarette sellers to have posters of lung cancer:
Enacted in 1965, the Federal Cigarette Labeling and Advertising Act required that cigarette ads and packages contain those now-ubiquitous health warnings. But it also offered tobacco companies assurance that they wouldn’t have to comply with a whole other set of local labeling laws.
Federal courts concluded that New York City’s poster law failed to conform with the national standard.
But in 2009 Congress amended the statute to give cities and states more leeway to impose tobacco restrictions. Local governments still couldn’t regulate the “content” of tobacco advertising or promotion. But they could say where and when cigarettes may be sold.
Great, so saying “smokes can only be sold out of a trashcan in the alley out back after you put your money into a rat’s ass” might be legal.
You know, law is better when people are just honest about what they want. If Bloomberg wants to ban the purchase of cigarettes in the city, he should just say that. Pass a bill (does he even have to pass these bills? Is the New York City Council even awake?) outlawing smoking and argue it to a court. Go ahead, let’s fight this battle between personal freedom and public health out in the open, and let the courts (or, you know, the people) decide.
But trying to slowly erode the rights and freedoms of New Yorkers is for the birds. Bloomberg is hoping that everybody will wake up one day and just not want to smoke (or have soda, or eat salty food). But like your mother found out, nagging people to death doesn’t change their desires. It just makes people more creative about doing what they want behind their mothers’ backs.
A bunch of folks sent in this bizarre trademark lawsuit in Australia, where tobacco giant British American Tobacco is suing Australian importer Trojan for trademark infringement. Where it gets bizarre is in what BAT claims is infringing on its trademark: it's claiming that since the mandatory health warning placed on cigar packages covers part of BAT's logo, it's trademark infringement. Think about that for a second. One of the readers who sent this in, Bruce, points us to a little bit of background as well. Apparently, Australia has a new rule coming into effect that says all such products must soon be offered in plain packages -- and some lobbyists in support of the tobacco companies have been claiming that plain packages violate trademark, and go against Australia's treaty obligations -- including its free trade agreement with the US. For years, we've noted that when lobbyists break out the "international obligations" claim, you know that they're really full of it, but this seems especially ridiculous. It's difficult to see how this is anything more than a massive twisting of trademark law.
In the aftermath of 9/11, facial recognition software was a hot topic for a while. The idea was that it could be used to help catch criminals and terrorists as they wandered through cities or airports. There was just one little problem: it didn't work. And, by didn't work, I don't mean it sorta worked some of the time. I mean, it didn't work at all. The places that tested it out soon ditched it as a total waste of time and money. It turns out that making an exact match on faces is not an easy problem, and while the technology may eventually reach that point, it's nowhere near close enough to be useful for things like finding terrorists. That doesn't mean it can't be used in other scenarios, and over in Japan it appears that they're about to put facial recognition to the test as a way of stopping kids from smoking. Yes, one company has integrated facial recognition software with cigarette vending machines, so that it will not sell you your pack of smokes if you happen to have a babyface. You can wonder how effective this might be (my guess: not very effective), but it's still interesting to see those behind facial recognition software looking for different markets where the results don't need to be as perfect.
