Netflix Seeks Cancellation Of "Choose Your Own Adventure" Trademark

from the you-have-chosen...poorly dept

This really should happen more frequently than it does. You will hopefully recall the ongoing drama between Chooseco, the company behind the Choose Your Own Adventure series of books we all remember from the 80s and 90s, and Netflix, producer of the hit series Black Mirror and its recent iteration entitled Bandersnatch. To catch you up, Bandersnatch was an interactive streaming show that billed itself as a "choose your own adventure" show, allowing the viewer to influence the progression of the story via choice. Chooseco sued Netflix over this production, claiming trademark infringement. Chiefly at issue is the appearance of a book mockup in the series, trade dress and marketing surrounding the show, and the fact that a character in the show refers to his own video game creation as a "choose your own adventure" game.

Separately, wielding this trademark, Chooseco inked a lucrative deal with Amazon to develop CYOA stories for the Amazon Alexa (keep this in mind for later). Chooseco also separately went after other indie game developers for using the phrase in their own marketing (again, important for later). And while Netflix sought to have the case tossed on grounds that its use of the phrase and trade dress was protected by the First Amendment, and was not protectable for Chooseco, and that there was no chance of customer confusion. The court, somewhat predictably, decided that those were arguments better made at trial.

And so here we are, with Netflix setting forth those same affirmative defenses... but with one notable addition.

Netflix is asking for the cancellation of Chooseco’s ‘Choose Your Own Adventure’ trademark, as the dispute between the two companies over a “Black Mirror” episode rumbles on.

Netflix, in a new filing at the US District Court for the District of Vermont on Tuesday, February 25, argued that not only has the term “choose your own adventure” become generic (and available under principles of fair usage), but also that characters and storylines from its 2018 interactive episode “Bandersnatch” differs from other interactive productions.

Yup. In addition to the affirmative defenses laid out in its motion for dismissal, Netflix is now asking that Chooseco's trademark be cancelled entirely. This is going to have a ripple effect across all of the other actions Chooseco has taken as set forth above. Those indie game threats? Those go away if Chooseco doesn't have a trademark to wield. Future lucrative deals such as that struck with Amazon? Nope, those are gone, too, potentially. By picking this wholly unnecessary fight, Chooseco has potentially given Netflix the ability to yank away the one poker chip it had left to play.

From the filing:

The alleged “Choose Your Own Adventure” marks that are the subject of Registration Nos. 2,913,403; 4,682,357; 5,651,588; 2,807,473; and 3,234,147 lack distinctiveness, are generic, and therefore are unprotectable. As detailed herein, the phrase “Choose Your Own Adventure” no longer denotes a single source or origin. Instead, it is a common phrase used by the general public to refer (a) to any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, or (b) to any interactive fictional work that employs a “branching” narrative style, regardless of the source or origin of the work.

As used in the context of fictional works, the phrase “Choose Your Own Adventure” encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species.

Anyone really want to argue that the above isn't true? It sure seems to be. I have long known what a CYOA book was. I, until covering this story, had zero idea that there was a single company with a registered trademark behind those books. Because, really, there isn't. CYOA is essentially a genre. And somewhat descriptive. And not particularly identifying as to a source of a product.

There are legions of interactive novels, for instance, that are self-described as CYOA. And, yet, here we are in 2020, the year of our lord, first seeing legal action by Chooseco over it? Come on.

Again, I wish we saw this more often. Trademark bullies looking for a payday should more often have to at least face the risk of losing their trademarks entirely. While there is no guarantee that this will work in Netflix's favor at trial, at least this threat would deter more bullying in general.

Filed Under: bandersnatch, black mirror, choose your own adventure, generic, trademark
Companies: chooseco, netflix

Restaurant Association Looks To Take Back Taco Tuesday For The People

from the nacho-trademark dept

You may have noticed something of a steady stream of posts from us on the topic of a "Taco Tuesday" trademark held by the chain Taco John's. Taco John's has used this descriptive trademark to bully all kinds of other restaurants into not advertising their own taco Tuesday offerings, while also leaving alone the vast majority of small purveyors of tacos on Tuesdays. The ubiquity of Taco Tuesdays is mostly what has everyone confused as to why Taco John's is acting like Taco Jerks: the term is descriptive and, even if it weren't, fully generic at this point.

It was enough to, and I can't believe I'm saying this, get LeBron James involved. You see, just like dragons, LeBron loves tacos. And he likes promoting his own consumption of tacos on Tuesdays and he very much thinks that everyone should be able to use the phrase as they please. To that end, LeBron took to the Trademark office pretending to want to trademark "Taco Tuesday" for himself when he was actually hoping to get denied due to the generic and descriptive nature of the mark... which is exactly what happened. We said then that it was now only a matter of time before someone decided to go on the offensive to take Taco Tuesday back by inviting Taco John's to issue a threat so that this hero group could point to the Trademark Office's denial of LeBron's trademark, with the ultimate goal being invalidating the Taco John's trademark.

Well, that has now happened. The Orange County Restaurant Association has gone all in, going so far as to by the tacotuesday.com domain.

Now joining the effort is California’s Orange County Restaurant Association, which recently bought the domain TacoTuesday.com. Why OCRA? Well, its members know a thing or two about a good taco—and the domain presents a great marketing opportunity for them, founder and president Pamela Waitt told the Orange County Business Journal.

“That’s part of our agenda here, is to really illuminate the Orange County restaurant industry, which can be challenging when you’re sandwiched between Los Angeles and San Diego,” Waitt said.

But she notes that there’s also a bigger goal at play: OCRA hopes to open the phrase up to everyone else, creating a resource for taco culture in general. In a news release, Waitt characterized the group’s role as “peacemaker.”

OCRA can characterize itself however they like, but this is pretty clearly a shot across the bow at Taco John's, practically begging the chain to issue a threat or file suit. If that occurs, OCRA would likely seek declaratory judgement that its use does not infringe due to the generic nature of the trademark, which would get the ball rolling on invalidating the trademark.

The association plans to relaunch the website next spring with 500 listings of taco shops in five states, providing the listings for free to restaurants. OCRA says it will make the domain “an umbrella brand for taco events, social media activations, media tours, guest chef interviews, and an opportunity to foster strategic partnerships, corporate citizenship, philanthropic giving, and beyond.”

None of which really requires having a domain name of tacotuesday.com, except if the organization wants to promote itself through the news, poke Taco John's in the eye, or both.

So maybe, just maybe, our long national taco nightmare will come to an end soon.

Filed Under: generic, taco tuesday, trademark
Companies: ocra, orange county restaurant association, taco johns

LeBron James Declares Victory In Losing Bid For 'Taco Tuesday' Trademark

from the generic-taco dept

It was only a couple of weeks ago that we wrote about LeBron James, part-time NBA superstar and full-time taco-lover, and his attempt to get a trademark for "Taco Tuesday" in the markets of podcasts, entertainment services, and social media. As we mentioned in that post, the idea that LeBron could get such a trademark on a fairly descriptive and widely used term is insane. Nearly as insane, as we noted, as the fact that the Taco John's chain already has such a registered trademark. It was the latter bit that we, as well as many other commentators on the topic, predicted would be the reason LeBron's application would be denied, as it would be identical to an already registered trademark.

But the USPTO never ceases to amaze, it seems. While the USPTO did in fact deny the application, the confusing trademark it cited in doing so wasn't Taco John's, but another application for an advertising company out of Nevada.

But there was another preceding trademark filing which Yahoo Finance also caught for “Techno Taco Tuesday” that proved to be a key piece in the downfall of James’ attempt to lock up the rights to Taco Tuesday.

The techno twist on the Tuesday was actually trademarked by a Las Vegas entertainment company back in 2018, specifically for the “advertising and marketing services” category for which James was seeking protection. As such, James’ application was denied for being “confusingly similar to the registered mark.”

Okay, so the USPTO decided that the fact that both applications included "Taco Tuesday" and the "Techno Taco Tuesday" application was both filed first and was in the same market as James' application. That might normally be the end of the story, and a particularly boring one at that, except that LeBron's team is declaring victory. Why?

Well, because of the other reason the USPTO gave for refusing to approve the trademark.

However, it’s not all bad news for the Los Angeles Laker. James could still respond to the USPTO filing with added or adjusted language within six months if he so chooses. And according to what someone in his circle reportedly told ESPN, James still may have achieved what he set out to do by establishing “Taco Tuesday” as a generic term to cover for any legal claims that could be brought against his use of the term.

“In this case, the applied-for mark is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment,” the USPTO examining attorney wrote in the declined trademark filing.

That sound you hear is the clicking of computer mice as every restaurant that has a Taco Tuesday event is bookmarking this ruling for when the Taco John's people come calling claiming trademark infringement. I can't imagine it's going to be terribly long before some company, or group of companies, seek to invalidate the Taco John's trademark that TJ's has wielded like a cudgel for so long, because this statement by the USPTO is fairly clear: "Taco Tuesdays" is generic as all hell.

We cast narrow eyes at LeBron for filing this in the first place, but if he can end the madness that is Taco Tuesday trademarks, even I'll call him King.

Filed Under: generic, lebron james, taco tuesday, trademark

SLCC Rankles Judge With Social Media Posts As A Jury Prepares To Rule

from the oversharing dept

We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.

Andrew Baker, associate professor of marketing at San Diego State University, reviewed the survey for Salt Lake Comic Con and testified Wednesday that the results are flawed. Because of risks he saw of "good participant bias," and because the online survey didn't include a way to weed out unreliable responses from people who may have attempted to fill out the survey for money, Baker criticized the results as inconclusive.

"This study cannot be relied upon to tell us the percentage of people who think comic con is a brand," Baker testified.

Bryan Brandenburg, one of the partners behind SLCC, took the stand to recount the process by which they came up with the name Salt Lake Comic Con. As you'd expect, he recounted searching around for other similar conventions, noting that nearly all of them were using the "comic con" phrase, or some variant of it, and concluding that this is just what those types of shows are called. It's an understandable position, particularly given the descriptive nature of the phrase. A "comic con" is a "comic convention." Simple. One would hope the jury would understand that simple fact.

But there was some minor drama in the courtroom surrounding SLCC's desire to speak out about the case on its social media platforms, specifically to do with Brandenburg's testimony and the defense he would offer.

The post announced that Brandenburg would take the witness stand to show that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world."

Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, "tell him to bring his toothbrush with him."

Notably, Brandenburg did not raise that defense on the stand, so His Honor was not forced to put him in jail. But this wasn't the only remark Judge Battaglia made on the subject. He expanded upon it in a way that shows him bristling with the striking down of his earlier gag order on SLCC from speaking at all about the case.

"The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday.

Well, okay then. While I've cheered on SLCC discussing the case in public for the benefit of that public, and while we were quite critical of Battaglia's gag order, the freedom to speak is not without its dangers. It's a little surprising that SLCC would be so cavalier with its public comments on social media sites that run directly contrary to the orders of a judge who had already tried to slap it with a gag order. That's just silly and a sign that, whatever happens moving forward, SLCC should probably get its PR house in order.

Regardless, the jury is in deliberations and you can be sure we'll be commenting on the results they bring back.

Filed Under: comic con, free speech, generic, social media, trademark
Companies: salt lake comic con, san diego comic-con

Velcro's Hilarious Trademark Lesson Video Actually A Good Lesson In Just How Stupid Trademark Law Has Become

from the genericide-insanity dept

So, you've probably heard stories in the past about the fear some trademark lawyers have about "genericide" -- where their product's name becomes so attached to the product that it's considered generic and the trademark no longer applies? Think kleenex and xerox for example. We've found, over the years, that people get a bit too worked up about this, leading trademark lawyers to make some really dumb demands along the way to try to "prevent" what is generally impossible to actually prevent. We also often see people claim (falsely) that this means companies are required to stop any and all uses of their mark, even when not infringing (or, even worse, seeing people falsely claiming that the same thing applies to copyright). Either way, the company Velcro has taken... well... quite a unique approach to the fact that everyone calls their most famous product "velcro" -- even when made by competitors. They made an absolutely hilarious "We are the World"-style video begging you not to call it Velcro and telling you, in no uncertain terms, that they it's "fucking hook & loop." Really.

When I first saw it, I thought it was a John Oliver or SNL-style parody video, but nope. It's real. It's on Velcro's official YouTube feed, and they even have a behind the scenes "making of" video to explain how the video was made and how it came about (including the fact that two actual Velcro lawyers are in the video).

Of course, they insist they're doing this to get people talking about the importance of calling it "hook and loop" though I think at best, it will just get people talking about how incredibly dumb trademark law has become, where this kind of thing is seen as necessary. The only people who will now start calling it "hook and loop" are likely to be people doing it ironically. In which case, they may go with the longer "this is fucking hook and loop," as the song suggests. But, as the song itself suggests, it's totally ridiculous that the company has to do this to try to get you to stop saying the brand name that the company spent "60 plus years" building. The song also jokingly references other genericized brands, such as Clorox, Band-Aid and Rollerblades.

Thankfully, they don't seem to get the finer points of the law really wrong in the song -- noting that the patent on velcro expired 40 years ago, and if everyone calls everything similar velcro, the company might "lose our circle R." Of course, they leave out the fact that if they lose the trademark... it's actually probably not that big a deal. People will still call all similar products velcro, but Velcro-brand velcro will almost certainly still be able to charge a premium, since people will recognize the brand name.

And that's really what highlights how dumb all of this is. Even if you lose the trademark to genericide, that doesn't mean the company packs up and moves on. It just shows how much the brand itself has resonated, and companies have lots of ways to continue to capitalize on that brand, even without the registered trademark. So, while I can always get behind hilarious videos concerning oddities in trademark, copyright or patent law, this video seems like a much better lesson in the stupidity of trademark law (and how much lawyers overreact to the fear of genericide) than any legitimate argument against calling someone else's velcro-like fastner "velcro."

Filed Under: generic, genericide, songs, trademark, velcro
Companies: velcro

Taco John's Continues To Wage A Long-Lost Trademark War To Keep 'Taco Tuesday' From Becoming Generic

from the trademark-tuesday dept

Way back in 2010, Mike wrote about how the Taco John's restaurant chain had threatened a small restaurant in Oklahoma for daring to use the phrase "Taco Tuesday" in a promotion for cheap tacos on...you know...Tuesdays. Taco John's did indeed have a trademark on the term in 49 of our 50 states, with the exception being New Jersey, because life is strange. The question at the time, as tends to be the question in most trademark disputes, was whether or not there was any potential customer confusion to worry about. Given the somewhat descriptive nature of the phrase, not to mention its widespread use both commercially and in common parlance, the whole thing seemed rather silly.

Six years does little to change things, it seems. Taco John's recently fired off a cease and desist notice to the Old Fashioned Tavern and Restaurant in Wisconsin for using the phrase.

For almost a decade, the restaurant had sold $2 tacos on Tuesday night. Other restaurants and bars in the area had similar promotions, and in cities like San Francisco and Los Angeles, Taco Tuesday specials are as plentiful as yoga classes.

But the author of the letter claimed that “Taco Tuesday” was a federally registered trademark that belonged to Taco John’s, a chain of around 400 Mexican-style fast food restaurants. And as Old Fashioned manager Jennifer DeBolt told the local Cap Times, they quickly realized that “the law firm is completely legit.”

And, because this kind of trademark bullying totally works, the restaurant decided to change the name of Taco Tuesday and set up a poll on its Facebook page for fans of the business to suggest new names. Those suggestions are certainly creative.

• Cease-and-Desist Taco Special
• Trademark Tyrant Taco Day!
• Edible Taco Tuesday
• Tacos on the Square
• Taco-tastic Tuesday
• Dy-no-mite Taco-nite
• Ye Old Fashioned Taco Tyme
• Corporate-free Taco Night
• Totally Renamed Tuesday
• Wistaco Day
• The Tuesday Special That Shall Not Be Named

You get the idea. Taco John's trotted out the usual excuses about the need to protect this trademark, lest it devolve into generic status. Simultaneously, it also seems to fully understand exactly how generic the term has become.

“Over the years we’ve certainly asserted our trademark against national companies, restaurants big and small, and even pharmaceutical companies,” says Billie Jo Waara, the chief marketing officer at Taco John's. (Waara can’t reveal details, but we suspect the pharmaceutical company used “Taco Tuesday” in a drug ad.) “We also recognize that the unauthorized use [of Taco Tuesday] is prolific, and we do our best to communicate ownership. It’s a challenge for sure.”

So prolific, indeed, that it would be silly at this point to claim that there is any actual customer confusion for which to be concerned. Should the average person drive down the street in their hometown and see a tavern advertising "Taco Tuesdays!", that person is not going to think of Taco John's at all, let alone wonder whether there was some kind of affiliation. That's because there is nothing in the phrase that acts as a source identifier. It's mostly descriptive, involves mostly generic words, and the company's protectionism typically induces a sneer.

The biggest threat to Taco John’s ownership over Taco Tuesday, however, is not a populist backlash. It’s that so few people know about its claim. When the Los Angeles Times asked a waitress at a Mexican restaurant about the trademark issue, she responded, “Give me a break. Everybody has Taco Tuesdays.” And that was twenty years ago.

Taco Tuesday belongs to the people now. It'd probably be best for everyone if Taco John's just gave it up.

Filed Under: generic, taco tuesday, tacos, trademark
Companies: old fashioned tavern & restaurant, taco john's

Urban Outfitters With A Surprising First Win In Navajo Trademark Dispute: Navajo Isn't Famous

from the hmmm dept

Earlier this year, we wrote about an ongoing trademark dispute between the Navajo Nation and Urban Outfitters. The clothier had released a line of clothing and accessories, most notably women's underwear, with traditional Native American prints and had advertised them as a "Navajo" line. The Nation, which has registered trademarks on the term "Navajo", had sued for profits and/or damages under trademark law and the Indian Arts and Crafts Act, which prohibits companies from passing off goods as being made by Native Americans when they were not. In that post, I had focused on whether or not the term "Navajo" was deserving of trademark protection at all, or whether it ought to be looked at in the same way we consider words like "American", "Canadian" or "Mexican", as generic terms to denote a group of people.

Interestingly, the first ruling has come down in the case. It's in favor of Urban Outfitters, although admittedly not in the form that I would have expected. The court has granted partial summary judgment in favor of the company on the claims of blurring and tarnishment by use of the trademark, stating that the term "Navajo" is not famous by the dilution standards.

"While plaintiffs' evidence may be relevant to their infringement claim, it is not legally sufficient to establish a 'famous' mark and, hence, to defeat defendants' motions for partial summary judgment on the claims for dilution by blurring and garnishment," said US District Judge Bruce Black in New Mexico, according to The Fashion Law. "'Famous' requires more than just widespread distribution and significant advertising expenditures," he said, though he acknowledged that "very few courts have found a mark legally 'famous.'"

Which is true. The standards set within the Federal Trademark Dilution Act reserve relief for dilution and tarnishment for what it considers famous marks. The idea between this and the generic nature of a trademark are similar: if nobody is associating the use of the mark with the trademark holder in the first place, then there is no dilution or tarnishment being done. For either to occur, consumers need to make that connection to begin with.

I'll say, separately, I'm a bit surprised by this. Off the cuff, if someone had asked me if I considered the term "Navajo" to be of a level of fame to be widely known by the average person, I would have said yes. I would have added a caveat in that its widespread usage and understanding is an exact example of why I would consider it to be generic and not a source-identifier in the first place, however.

This doesn't end the lawsuit, of course, and there is still potential trademark infringement to be considered, just not the claims of dilution and tarnishment.

A search for the word "Navajo" on Urban Outfitters' site no longer turns up any results, but the Navajo Nation claims that the retailer has sold more than $500 million worth of Navajo-branded goods. The case is not yet over, though, so there's still time for some of those earnings to change hands: six counts are still pending against Urban Outfitters, including trademark infringement, unfair competition, and false advertising.

Yet it seems clear to me that the same reasoning that brought about the rulings on the dilution and tarnishment claims are easily translated to the remaining claims. If the trademark is brewing confusion, due either to a lack of notoriety or its generic nature, then the rest of the claims may fall as well.

Filed Under: famous, generic, navajo, trademark
Companies: urban outfitters

Spin Bike EBay Listing Removed Because 'Spin Bike' Is Apparently A Non-Generic Trademark

from the sit-and-spin dept

Sometimes you try really hard at something and you still fail. Such is the case with Mad Dogg Athletics' attempt to keep its "spinning" trademarks from becoming generic. We wrote about the company's marks on stationary bike classes nearly five years ago, when it was busy suing several gyms in Denmark for offering spinning classes. In fact, both before and after those legal actions, MDA has been incredibly active in trying to enforce its trademarks. They tried really, really hard.

But the company failed. Much like other types of workout classes, nobody sees spinning as a source identifier any longer. Nobody thinks of Mad Dogg Athletics. Hell, most people haven't even heard of MDA. But the company hasn't given up, as shown by how it got eBay to remove a listing for an exercise bike for using the term "spin."

VeRO is ebay’s Verified Rights Owner program. VeRO allows a right’s owner (someone who has a verified trademark, copyright, etc.) to request removal of an item. This action, of course, is not without controversy. Business owners have claimed that this process is often abused and overreaching. I will leave that discussion for another day. For now, you should know that a company by the name of Mad Dogg Athletics, Inc. (MDA) is a member of the eBay VeRO Program and uses this program to enforce the nearly one hundred trademarks it owns, which include: spin, spinning, spinner, spin yoga, spinfitness, and spin daddy. With that said, only MDA’s Spin® bike can be called that, and so my client’s “spin bike” listing was removed due to use of the word spin.

Actually going after eBay listings for using a word like "spin" would be ridiculous in its own right, but this is about something much deeper for MDA: the term spinning is generic. It just is. And it's not like this kind of trademark-to-generic evolution is without precedent. Yoga and Pilates went through a similar transition, having been source-identifiers for consumers but soon turning into descriptions of a particular process or type of class, rather than any kind of brand. Keep in mind, as the link above notes, the test for whether a term is generic is the wider public's perception, not the individual purchasers' perception. Go ask someone on the street whether "spinning" is associated with any particular brand and see what reaction you get. It's generic.

I know I am not a professional cycler by any stretch, but as someone who at least recreationally partakes in indoor cycling, I had never even heard of the MDA. I bet you if I polled the people at my class, most haven’t either. It’s also important mention that on its page for “indoor cycling,” Wikipedia states, “[i]t is commonly called spinning.” Yelp allows you to search for “spin” and “spinning studio.” ABC News refers to SoulCycle as a spin studio. For the record, they are not. I dare you to search any cycling studio’s reviews for the word “spin.” Almost every review I found seemed to use the word interchangeably.

This is a good thing. And, actually, it's something that MDA could take advantage of, if it so desired. After all, MDA was indeed the originator of the term and it would be good business to make a marketing campaign out of its expertise with spinning. Instead, MDA appears to want to rage against the inevitable with legal action after legal action. Sadly, despite all of that effort, it isn't going to work -- and the company is just, well... spinning its wheels.

Filed Under: bike, generic, genericide, spin, spin bike, trademark
Companies: ebay, mad dogg athletics, mda

Patent Not Sufficiently Broad Or Generic? Cloem Will Help You By Automatically Generating Dozens Of Nearly Identical Patents

from the a-mass-transit-vehicle-for-abuse dept

VentureBeat has news on two "startups" (which neither really are) that could possibly "upend" intellectual property laws: Qentis (copyright) and Cloem (patents).

The first, Qentis, was covered here previously. Qentis isn't actually a company. It appears to be the trolling byproduct of artist Marco Marcovici. The "company" claims to be algorithmically generating millions of photos and pages of text at a rate that will soon see it creating copyrighted material faster than the creators themselves. At some point, Qentis will hold the copyright of everything that can possibly be created, making every new creation instantly infringing.

Never mind the fact that no one has the computing power to generate photos and text at the rate Qentis is claiming it can, or the fact that algorithmically banging out creative works in advance of others doesn't make independent creations automatically infringing. Never mind pretty much all of it because the claims are so blatantly false as to be laughable, especially considering the source.

On the other hand, Cloem's business model seems a bit more grounded in reality. VentureBeat describes Cloem -- and its aims -- this way:

[A] company that provides software (not satirically, it appears) to linguistically manipulate a seed set of a client’s patent claims by, for example, substituting in synonyms or reordering steps in a process, thereby generating tens of thousands of potentially patentable inventions.

Cloem describes its team as a mixture of patent experts and "computer linguistic specialists." The key element of its potentially-patentable variations lies within "seed lists," which draw from a variety of sources, including (according to Cloem) "70,000,000 patent documents." Its algorithms then brute force together lists of "new" patent claims, which can then be filed and used offensively or defensively.

Cloem's business model seems custom-built for patent trolls, who will be able to "expand" their already-broad patents to nail down even more IP turf. Cloem's service also makes it easy for non-inventors to jam up patent offices with me-too "inventions" based on minor iterations of existing patents. While there's a good chance some of these will be tossed due to prior art, more than a few will inevitably make their way past examiners. With millions of patents just waiting to be iterated into "new" methods, Cloem's service further separates "inventing" from "invention."

It's a system that's built for abuse, but Cloem doesn't see it that way. In response to a somewhat critical post at RatioIP, Cloem's rep offers up the defense of "Hey, we just make the tool. We can't control how it's used."

In our view, Cloem is a logical and natural evolution of the patent system. The technology in itself is neutral. Like a tool, we can use it in many ways, both offensive and defensive. It may well be that we could help to “raise the bar” and get rid of undue patents. Some see our system as an embodiment of the “skilled person” (i.e. which indicates what “routine work” can produce and reach), although we do think that cloem texts can be inventive, that is not excluded from patentability.

And that's mostly true. Entities wishing to protect their prior inventions could "fence off" adjacent territory and deter future lawsuits by producing and filing very closely-related patents. But a tool like this -- if it creates anything patentable at all -- will always be more attractive to the "offensive" side of the equation.

Cloem's pitch sets the company at the forefront of an IP revolution, but its envisioned future is no more heartening than Qentis' dystopian, IP-generating machines of loving grace. At least Qentis is a joke. Cloem's taglines only read like jokes.

With Cloem, you can invent more, faster and cheaper.

Except there's no "invention" taking place. Nothing generated by Cloem's algorithms will be any more "inventive" than all the re-skins and palette swaps clogging up the "Games" section in mobile app stores. Cloem hopes to bridge the gap between its "silos of knowledge" and its silos of synonyms, somehow coming up with worthwhile patents in the process. Sure, previous knowledge always informs new creations, but it takes more than swapping the sentence "a plurality of discrete content items arranged chronologically" around in the method description to generate inventive, worthwhile patents.

Filed Under: algorithms, automation, generic, inventions, patents
Companies: cloem

San Diego Comic-Con Fighting With Salt Lake City Comic Con Over Trademark

from the comical dept

Comic-cons are awesome. They occur all over the country and they're literally the best place to people watch on the entire planet. You should know this. What you probably don't know is that "Comic-Con" is a trademarked term used by the famous San Diego convention, arguably the most successful of its kind. You likely don't know this because, like any other sane comics enthusiast, comic-con has become a generic term meaning a comics convention. It isn't associated with any particular company or brand any longer. It's generic.

Which is what might make it surprising to learn that the San Diego Comic-Con is suddenly going after the Salt Lake City Comic Con over trademark infringement. The cease and desist letter the San Diego convention sent out makes hysterical claims.

"Attendees, exhibitors and fans seeing use of 'Comic Con' in connection with your convention will incorrectly assume that your convention is in some way affiliated with SDCC and its Comic-Con convention," the letter from attorneys for San Diego Comic-Con wrote in the letter sent Friday. "In fact, we are aware of multiple instances where persons have incorrectly believed that the Salt Lake Comic Con convention was an SDCC event."

Uh huh. I can remember attending a comics convention in Chicago recently and thinking, "Holy shit, I can't believe all these guys from San Diego came out here to run this convention." Because they didn't, obviously, and it takes a special kind of silly to think that anyone using the shortened version of the term "comics convention" must be the same folks from California. The term has become diluted on its own, certainly, but also due to the San Diego convention's inaction when it comes to all the other comic-cons out there. The Salt Lake City convention included this in its response.

The 13-page response filed Monday in Southern California's U.S. District Court denied the bulk of San Diego's claims, including that its name violates the trademark the West Coast convention holds on the title "comic-con," with a hyphen. The non-exhaustive list of conventions includes Baltimore Comic Con in Maryland, Pittsburg Comicon in Pennsylvania, and Rose City Comic Con in Oregon, all of which remain uncontested by the flagship convention in San Diego.

"(San Diego Comic-Con) has allowed competitors and consumers to use the words 'comic con' or 'comic-con' as the generic name for comic conventions," the filing states. "The general public understands the words 'comic con' or 'comic-con' to refer generally to a comic convention and does not associate these words with any particular source of such conventions."

Rendering this all really silly is that the San Diego convention is both insanely successful and is also certainly not threatened by other conventions put on in other cities. On the off chance that they can find someone who thinks that all "comic-cons" are run by the SDCC, so what? They've already failed to protect their mark, which was eventually going to become generic, and I'm pretty sure folks in Salt Lake City going to the convention aren't taking anything away from the SDCC. So what's the point of all this again?

Filed Under: comic con, generic, salt lake city comic con, san diego comic con, sdcc, trademark