Friday, October 23, 2009

Domestic Violence in the Big Easy

Trademark fights can get intense but usually not with so much colorful language.

We can Slap Ya Mama, but you better not Punch Ya Daddy.

At least, that's what the Walker & Sons spice company is saying to the Falcons.
See, they sell a spice blend called "Slap Ya Mama" and Falcon has just started selling his "Punch Ya Daddy" spice mix.
Boy, Cajun spices can be rough on the family unit.

I haven't found a copy of the Complaint, but I can see a couple of issues from the stories I've read. One is called dilution. Basically, W&S is saying their product is very well known, and if anyone were allowed to just come along and sell something so similar that people would think they made it, the value of their mark would be diminished. If someone produced a crappy product with such a name, the reputation of the famous maker would be hurt, even though they didn't make the bad product.
Of course the key word there is "famous." You have to have a famous mark to get dilution protection. But what's a famous mark? Well there's where the lawyers make their money.

Another issue is the obvious similarities of names: "(strike) Ya (parent)".
Unless it's a ubiquitous practice at Cajun barbecues for people to go around eating spicy food then playing pugilist with progenitors, I think this is a pretty clear win for W&S. If a name is confusingly similar it can be said to be infringing.

Finally there's trade dress. That's basically how your product will look when a consumer is shopping. Do you have a distinctive "style"? So basically they are saying that even if the names were different, the package of one looks an awful lot like the package of the other. I say this is true too. The primary color being yellow or white - those are the 2 "metals" in medieval heraldry which can be based with any color to be distinctive at a distance. I'm sure modern marketing design types have another name for it, but basically they are interchangeable in many instances. Then a color band at the top with the maker's name on it, the use of paired chili peppers around the title; the fonts may differ, but font and color don't seem enough to me.

I'd say this is an easy win for W&S, especially given they've been in business for more than a decade and Falcons is a newcomer.

The thing to remember in all of this is it all hinges on likelihood that a consumer will be confused as to the source of the product. On one level trademark is a consumer protection scheme.

Of course I could be wrong. Maybe family fisticuffs is the state sport of Louisiana and neither name is protectable for being merely descriptive.

Wednesday, October 21, 2009

Arbitration and the Violent Criminal Act

Another non-IP post, but this is so important I just want to put my thoughts down.

The Senate voted for the Franken Amendment to the Appropriations Bill.
That amendment prohibits funding going to a government contractor who uses contracts to interfere with a crime victim's right to seek redress in the courts.

Jamie Leigh Jones was the brave woman who made the story of her own rape and brutalization and false imprisonment by her co-workers so very very public.
She stood beside Senator Franken as he presented his amendment and as the voice vote was taken.
Ms. Jones was raped several times by coworkers, vaginally and anally then locked in a shipping crate for days. She finally persuaded one of her guards to let her have a phone, which she used to call her dad. Dad called his Congressman and they went to work rescuing an American captive in Iraq. Somehow this didn't make as much news as rescuing soldiers captured in Iraq; probably because she was captured by her own employer.

I don't do criminal law and don't know much at all about criminal law as it relates to actions outside the US by US entities toward other US entities (or citizens). The articles say there's some loophole that makes it virtually impossible to prosecute an American who commits a crime overseas, even if the victim is another American. That needs to be stopped, but in the short term at least we can stop paying for it.

As their website says: "When you become part of the KBR team, your opportunities are endless." For instance, the opportunity to be gang-raped and stuffed in a box for days. No thanks.

I want one!

that is all.

Tuesday, October 13, 2009

Criminal Poking

Normally I try to keep this blog on the topic of copyrights and trademarks, but occasionally I will find something so fascinating or so funny that I feel compelled to post.

This time it's how social networking can land you in jail.

I'm a big fan of Facebook. (here's me:
I just read 2 stories where Facebook users got arrested as a result of their activities there.
The first is from last month. Seems one Jonathan G. Parker decided to break into a neighbor's house and see if there was anything worth stealing. Apparently there was, as 2 diamond rings went missing.
How are we so sure Mr. Parker was the thief? While inside the victim's house he decided to use her computer to check his Facebook page. Facebook addiction is pretty pervasive, but come on. Focus on your work a little!
So Mr. Parker for whatever reason had enough of Facebooking in the victim's house, grabbed the rings and left before anyone got home to catch him.
But he left the computer on, and left himself logged into Facebook.
Victim comes home, discovers her home has been broken into, sees drawers and cabinets left open, sees the computer on, calls the police. Having access to his Facebook profile they quickly identify and arrest him.
That just falls in the stupid criminals file.

The next is far more interesting to me.
A woman has been arrested for "poking" someone on Facebook.
The story so far hasn't told us what their previous relationship was, but apparently it got so bad that Dana Hannah had a restraining order against Shannon Jackson. The Order prohibited Ms. Jackson from contacting or communicating with Ms. Hannah at all. Ms. Hannah must have really had problems with Ms. Jackson to get this order issued.
Then what does Ms. Jackson do? She "pokes" Ms. Hannah on Facebook.
Well, that seems like a contact or communication (is that what it is? I've never understood poking on Facebook) so Ms. Hannah calls the police. Boom. Ms. Jackson finds herself in jail for anywhere up to a year just for clicking the poke button.

One weird detail to consider: You can only "poke" friends. If Ms. Hannah had such a bad experience with Ms. Jackson that she had the restraining order issued, why didn't she remove her from her friends list? We may never know.

Read the story for yourself.

Sunday, October 11, 2009

Olympic Committee wins gold medal in obnoxious enforcement of IP

The United States Olympic Committee (USOC) has gone a little overboard in enforcing its rights to the word "Olympian".
The newspaper in Olympia Washington is "the Olympian" - and it has been so since 1889. Washington wasn't even a state then!
What difference does statehood make? None. I just thought it was interesting; but if you don't then how about 'before the modern Olympics'?
That's right, the modern Olympic Games began in 1896, 7 years into the run of the Olympian newspaper.
Now the USOC thinks it has some kind of priority over the name Olympian.

Why would they think that? I mean, the games ante-date the newspaper, and the committee itself wasn't called as such (or really formalized) until 1961. Why would this relative babe in the use of the term claim it had an exclusive right to the name?
Well, the Amateur Sports Act of 1978 is why.
That law was set up to protect the rights of athletes and provide some consistency across national borders. It also gave the USOC the exclusive rights to the trade names "Olympic" and "Olympiad."
In 1998 Congress gave us The Ted Stevens Olympic and Amateur Sports Act. That gave even more power to the USOC, and added some words to the exclusive trademark regime of the USOC - though oddly, it did not add the word "Olympian".
What's even more interesting though is that the Congressional Record (where all the debates in Congress are, well, recorded) includes background statements from at least one Senator explaining why there is an exception in the law for businesses in the part of Washington state around the Olympic Mountains. He (then Senator Slade Gordon) said it would only be fair to let those people keep using the name of their location.
Well, it looks like the USOC no longer wants to play fair.

So what are they doing about it now? In 2006, the Olympian newspaper in Olympia Washington applied for registration of their name as a trademark with the United States Patent and Trademark Office. The newspaper tried to register their mark and the USOC is trying to stop them, claiming "Olympian" is so similar to "Olympic" or "Olympiad" that consumers will get confused.
Yeah, I know I hate it when I want to buy tickets for a biennial sporting event and instead end up with a newspaper covering western Washington state.
The two are so similar.

Seriously? Confusion? And this hasn't come up in the past 100+ years the two entities have been operating?
This is actually pretty standard fare for the USOC. In preparation of a possible Chicago Olympic Games, the USOC forced Chicago businesses "Olympic Meat Packers" and the "Improv Olympic Theater" to stop using the names (now they are Olympia Meat Packers and iO Theater).
Was there really a fear that someone might confuse a side of pork with the Olympic Games?

USOC is acting a lot like the parent IOC (International Olympic Committee).
The IOC has a tradition of greedily claiming everything they can.
The most recent to hit the news being the take down letter sent to Richard Giles. (IOC Letter)
Seems they are not too happy about him taking photographs of their events and posting them on Flickr with a Creative Commons license.
I don't think the IOC has a chance of stopping him. From what I can tell, they seem to be making 2 claims:
1 - Upon entering the Olympic event you agreed to certain terms, including limitations on how you may use any photos you take there.
2 - The Olympic logo is intellectual property and you don't have a right to make a copy of it (say, photographing an Olympics flag) or to distribute said copy.

The second is pretty much a dead claim since there are more fair use exceptions available than there are pictures of barely clad female athletes on Richard's Flickr Page

The first strikes me as more fruitful for the IOC since it's basically a contract claim. The problem is they said he could use his photos for "personal" use, but there's no definition of what that means. I suspect putting your photo up on your Flickr page is personal, even if you let other people take and modify copies.

It will be interesting to see it play out if they do bring a legal action. His deadline to comply was Thursday - and the photos are still there.