About Face: Left Hand Brewing Abandons Attempt To Trademark 'Nitro', Invites Other Breweries To Their Nitro Fest Instead

from the quite-a-turn-around dept

It's rare for us here at Techdirt to be able to offer a follow up story on a company attempting to trademark a common term with one in which that same company does a complete one-eighty and behaves in an awesome way. Yet, that's exactly what I get to do for all of you today. You may recall that Left Hand Brewing Co. had attempted to trademark the term "Nitro" for one of its brews, leading to a backlash from many other breweries. The problem is that the usage of nitrogen in alcohol is not especially unique, even if Left Hand was the first brewery to bottle its beverages that way, and the term is ultimately descriptive of a process, not a brand identifier. So, how'd that whole thing work out?

Last summer, Left Hand quietly dropped its efforts to trademark both the word "Nitro" as it relates to beer and the more specific "Nitro Milk Stout" in order to focus on building the brand across the country and on rebuilding goodwill among customers and competitors.

"It was never meant to piss anybody off, but to protect a ton of money and time that we had spent on it," says Left Hand spokesman Chris Lennert of both the process of packaging a nitrogenated beer and the efforts to trademark the name. "We were trying to protect ourselves from having one of the big guys come out with a package like that. But we said if we are going to get all this flak for it, then we don't want to do it. So we came back and shifted our focus. We didn't want to be negative."

At the very least, it would appear that Left Hand decided to listen to the public's reaction to the trademark attempt and back off. The claim about not wanting to be a negative in the industry might be easily written off as the positive spin of a company spokesperson, except that Left Hand is backing it up with some pretty cool actions.

This weekend Left Hand will celebrate that effort and nitrogenated beers in general (not to mention the brewery's 21st birthday) with an unprecedented festival: Nitro Fest is the first beer gathering to exclusively feature beers poured using nitrogen rather than carbon dioxide gas. Nitro beers pour smooth and creamy, with cascading bubbles; it looks similar to what many people are used to seeing when they order a Guinness on draft. There will be 21 well-known or highly thought-of breweries in attendance, some of them with beers that have never been nitrogenated before. They include Colorado stars like Oskar Blues, Odell, Breckenridge, Elevation, Ska and Boulder Beer, along with big out-of-state names like Founders, Cigar City, Dogfish Head, Firestone Walker, Green Flash, Lagunitas, Sierra Nevada, Victory, Elysian and Deschutes.

That's right, the company not only decided to throw a festival around its nitrogenated beers, but it invited a bunch of its competition to partake as well. If this is nothing more than a show of good faith to Left Hand's brewery peers that it isn't trying to lock down the use of nitrogen in drinks, it's a damned good one. The end result should be even more positive for Left Hand: creating a buzz over nitrogenated beer, a market it ought to be particularly good in. Add to that building up a bunch of good will among us drinkers for creating a beer festival and inviting a bunch of breweries and this is a nice ending to a once-irritating story.

Filed Under: breweries, common sense, nitro, trademark
Companies: left hand brewing co

Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures

from the this-is-just-sad dept

One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns, highlighted by multiple lawyers, by focusing on quoting cases out of context and searching for legal loopholes to justify the seizures. Of course, if you dig into the actual case law, you find that the legal loopholes they highlight don't actually apply in this situation.

However, I wanted to step back from that, and take a look at the bigger picture, rather than focus on the legal loopholes that the lawyers are tossing around gleefully.

And from the bigger picture, I can't see how anyone who isn't interested in "the game" of winning a legal argument can possibly justify these seizures from a common sense standpoint. The US is based on certain key principles, and while some can mock those of using phrases like "due process" and "free speech," those aren't joking concepts. They are the underpinnings of a free society, and both are clearly under attack by the crux of these domain seizures.

First, the due process claim: defenders of the seizures claim that "due process" exists because a magistrate judge rubber stamps an affidavit, no matter how many mistakes there are. Of course, if you look at this from a common sense standpoint, no one thinks that due process includes the government seizing your property and letting you sue them at some later date (months later) to get it back. Supporters will point to the history of government seizures, leaving out (conveniently!) the intent of such seizures. It's always been about seizing evidence that might otherwise disappear. Yes, over the years some law enforcement folks have stretched this, but that doesn't mean it makes sense to abuse it in this manner.

The key point here is that there is no justifiable reason why these domains had to be seized without first hearing from the domain holders. None. No one has offered up a justification for seizing them pre-hearing at all. And holding a hearing would allow the government to avoid colossal screw-ups like relying on flatly incorrect evidence from the RIAA or taking down 84,000 legitimate sites and accusing them of being involved in child porn.

This isn't a minor issue. People in the US have been taught that we're innocent until proven guilty. Would it really have made that big of a difference for the government to actually hold a trial before seizing the domain? The answer is no. I mean, it would have meant that the government had to actually make a real case, rather than use questionable evidence, but that's why we have the concept of due process. It's not supposed to be easy for the government to take property or lock people up. That's kind of a key point in a free society.

On the free speech point, the First Amendment is pretty clear that Congress shall make no law abridging the freedom of speech. Of course, over the years, the courts have chipped away at this here and there, but when the government is seizing speech or even tools that are key to use in speech, most people recognize that this should involve a high level of scrutiny to avoid the obvious opportunity for abuse.

We've already seen governments in other countries use questionable copyright claims to stifle the speech of critics. And it's not difficult to see how this could happen in the US as well -- especially given the recent domain seizures. Considering the vast number of perfectly legal sites seized, how hard would it be for political operatives to target critical sites using a similar "copyright" claim? Not hard at all. And that's why we protect our First Amendment rights quite strongly.

In fact, I'm troubled by the claims that seizing speech is fine because it's "copyright infringement." That ignores the fact that the speech we're concerned about isn't infringing speech at all, but it was also taken down due to these seizures. And, as in the due process discussion, there's simply no justifiable reason for why the government could not have waited until a court actually determined what content was infringing (if anything) and targeted any takedown or seizure to that content.

No one tossing out these (generally incorrect) legal loophole arguments seems willing to address either issue. They hide behind misreadings of case law, but can't defend the seizures to the man in the street who is extremely worried about the government blatantly censoring websites with no trial and no due process, while making frequent mistakes undermining the entire claims of the lawsuits. Perhaps there is an actual common sense justification for seizing domains without a trial first, but we haven't seen anything other than misquoting caselaw. So, for those who continue to brush off the due process and free speech concerns, can you explain an actual common sense reason why there couldn't have been an actual trial first?

Filed Under: common sense, constitution, domain seizures, due process, free speech

Following Your GPS Over A Cliff Is No Excuse For Bad Driving

from the in-case-you-were-wondering... dept

Verve alerts us to the news that one of the many drivers who have been chronicled following their GPS over their own common sense has discovered that "following my GPS" is not an acceptable defense in court. In this case, the guy followed the GPS's commands down a "narrow cliffside path" until the car got stuck against a fence, overlooking a sharp drop. He's now been convicted of "driving without due care and attention." The prosecutor wasn't exactly kind, but apparently the following was convincing to the judges:

The path was not designed for motor vehicles yet Mr Jones slavishly continued to follow the satnav system to the point where his eyes and his brain must have been telling him otherwise to such a degree he was not exercising proper control of the vehicle

For his part, the guy admitted he was an "idiot," but said he was just following instructions:

I might have been an idiot for taking the wrong road or carrying on but I have not driven without due care or attention.

Filed Under: common sense, driving, gps

People Tend To Follow The Advice Of Experts Over Their Own Common Sense

from the rational-behavior dept

Just as yet another new startup is launching, designed to give individuals "expert" decision making advice, reader ChurchHatesTucker points us to a new study that notes that people all too often stop thinking after being given "expert" advice -- even if that advice is bad. While the folks behind the study use this as another crack to make fun of economists who believe in rational behavior, I'm not sure they're right. What's more likely is that individuals are still acting rationally. It's just that they believe that the "experts" really do have more information/knowledge/wisdom about a certain topic -- and thus they trust it over their own info. That's still quite rational. The real question should be just how often the "experts" give really bad advice. The problem with the study in question was that the expert was giving bad advice that he wouldn't normally give, making much of the actual experiment kind of meaningless. This sort of thing really is only a problem if the experts frequently give bad advice.

Still, this probably isn't too surprising. We've seen over time that people tend to rely on any sort of "expert" input, even if it's from a computer (such as driving off a cliff thanks to GPS or believing a financial model that suggests the likelihood of massive subprime mortgage defaults is almost non-existent). It's not so much about going against common sense. It's just that we tend to believe the "authority" over common sense, because we know we don't have all the info that we need in many cases -- so, we assume (often reasonably) that the authority or expert is better prepared to direct us than our own common sense.

Filed Under: common sense, economics, experts, rational thinking

Do Emergency Calls Need More Technology Or More Common Sense?

from the if-you-can't-hear-this-message,-dial-5-now dept

A guilty verdict in a rape and murder case in the UK is raising some questions about the country's emergency call system and its ability to deal with callers who can't speak. In this case, the 17-year-old victim dialed 999 (the British equivalent of 911) while she was being abducted, but she was obviously unable to speak directly to the operator without alerting her killer. The system followed its usual procedure for silent calls, giving the caller a recorded message to either tap their phone or hit the 5 key twice. That is fine for somebody whose only problem is that they can't speak; but for users who can't listen to the message and don't know to hit keys (which doesn't have to be an extreme case, but could also be the victim of a stroke or other medical emergency), it doesn't offer much help. Authorities are working on a text-based system for people with hearing and speech impediments, as they should, but again, that leaves many incapacitated people out in the cold. There will surely be a search for some technological solution to the problem, but maybe what's needed is some more common sense. For instance, is it very well publicized that people should hit the 5 key if they can't speak? Why not advertise that and make it more well known as a start? Inevitably, this sort of case will attract a lot of attention to the supposed technical shortcomings of the emergency call system, and indeed, it's something that should be a target for constant improvement. But the solutions to consider shouldn't only be technical ones.

Filed Under: common sense, emergency calls

Would You Believe People Trust Their Real Friends Over Bloggers?

from the oh-my! dept

In what may be one of the most pointless studies done in quite some time, a research firm has discovered to its own amazement that people tend to trust their own friends more than well known bloggers. Well, I should certainly hope so. Were there really people out there who thought that folks with high trafficked blogs actually held more sway than a personal friend? This is really nothing more than a retread of a (much more academic) report back in January noting that so-called "influentials" don't really have very much influence. What that study found was that "word of mouth" works, but where those recommendations come from tend to be somewhat random. So things bubble up from everywhere, rather than starting with well-known bloggers. This shouldn't be surprising to anyone, but after a few years of ridiculous media coverage suggesting that top bloggers have influence, it's nice to see a few reminders that influence is a much more democratic system.

Filed Under: bloggers, common sense, friends, influence