Comments on: Loaded terms: How a Pittsburgh artist beat the most bogus trademark in drinking game history http://boingboing.net/2013/02/25/loaded-terms.html Brain candy for Happy Mutants Tue, 21 May 2013 13:43:00 +0000 hourly 1 http://wordpress.org/?v=3.4.1 By: Zach Hoyt http://boingboing.net/2013/02/25/loaded-terms.html#comment-1667354 Zach Hoyt Thu, 28 Feb 2013 15:48:00 +0000 http://boingboing.net/?p=215217#comment-1667354 Generic, in trademark law, is a legal term and whether something is generic or not is fiercely contested.  It could be used to flag things, but the problem is in the way trademark registration works.  Unlike patents, there is very little review before a trademark is issued.  All they do is check that it doesn't fall into one of the prohibited areas (see http://www.bitlaw.com/source/15usc/1052.html  Technically they are supposed to check for similar names already in use, but usually this only means searching the trademark databases (because it is so easy to register a mark, it is presumed anyone who has an interest in it would have registered). If there is no registered mark that it conflicts with, they'll publish it and see if anyone objects.  If no one objects, it is presumed valid until it is contested. Generic, in trademark law, is a legal term and whether something is generic or not is fiercely contested.  It could be used to flag things, but the problem is in the way trademark registration works.  Unlike patents, there is very little review before a trademark is issued.  All they do is check that it doesn’t fall into one of the prohibited areas (see http://www.bitlaw.com/source/15usc/1052.html  Technically they are supposed to check for similar names already in use, but usually this only means searching the trademark databases (because it is so easy to register a mark, it is presumed anyone who has an interest in it would have registered). If there is no registered mark that it conflicts with, they’ll publish it and see if anyone objects.  If no one objects, it is presumed valid until it is contested.

]]> By: Zach Hoyt http://boingboing.net/2013/02/25/loaded-terms.html#comment-1667343 Zach Hoyt Thu, 28 Feb 2013 15:25:00 +0000 http://boingboing.net/?p=215217#comment-1667343  You are correct, but only if she proved he was acting in bad faith. Here is a good article about this: http://www.panitchlaw.com/documents/2006-1102-DRI-Article-on-Awards-of-Attorney-Fees-to-Prevailing-Parties-in-Trademark-Cases.pdf  And of course, then she has to collect which, judging from this article, is going to result in more attorney's fees and she will get pennies on the dollar if he seeks bankruptcy. The USPTO is probably off the hook.  The federal government cannot be sued by a citizen unless it has waived sovereign immunity or consented to the suit.  The only places I know of that the government has waived immunity are for torts (e.g. assault, false imprisonment,) or breach of contract.  Average errors during the course of duty are exactly the kind of things sovereign immunity are meant to protect against.  You are correct, but only if she proved he was acting in bad faith. Here is a good article about this: http://www.panitchlaw.com/documents/2006-1102-DRI-Article-on-Awards-of-Attorney-Fees-to-Prevailing-Parties-in-Trademark-Cases.pdf  And of course, then she has to collect which, judging from this article, is going to result in more attorney’s fees and she will get pennies on the dollar if he seeks bankruptcy.

The USPTO is probably off the hook.  The federal government cannot be sued by a citizen unless it has waived sovereign immunity or consented to the suit.  The only places I know of that the government has waived immunity are for torts (e.g. assault, false imprisonment,) or breach of contract.  Average errors during the course of duty are exactly the kind of things sovereign immunity are meant to protect against.

]]> By: Zach Hoyt http://boingboing.net/2013/02/25/loaded-terms.html#comment-1667327 Zach Hoyt Thu, 28 Feb 2013 15:08:00 +0000 http://boingboing.net/?p=215217#comment-1667327 If you can show bad faith in obtaining or enforcing a patent or trademark,  both patent trolls and trademark trolls can be held liable for the costs of fighting them (attorney's fees).  This doesn't solve the problem, because you still have to front the money to fight it (or find a lawyer willing to take it on pro bono or on contingency,) and you still have to collect it once it has been awarded.  You can also get awards/sanctions for dilatory and bad faith legal tactics.  Ali may be awarded $30k in attorney's fees, but she has to collect it, which will be another legal battle.  And if the troll files for bankruptcy, this is an unsecured claim so she would likely only get pennies on the dollar because she has to wait in line behind any secured creditors. The system still has a lot of problems, but all of the comments saying "it should be like this" are generally describing the way things already are.  If you can show bad faith in obtaining or enforcing a patent or trademark,  both patent trolls and trademark trolls can be held liable for the costs of fighting them (attorney’s fees).  This doesn’t solve the problem, because you still have to front the money to fight it (or find a lawyer willing to take it on pro bono or on contingency,) and you still have to collect it once it has been awarded.  You can also get awards/sanctions for dilatory and bad faith legal tactics.  Ali may be awarded $30k in attorney’s fees, but she has to collect it, which will be another legal battle.  And if the troll files for bankruptcy, this is an unsecured claim so she would likely only get pennies on the dollar because she has to wait in line behind any secured creditors.

The system still has a lot of problems, but all of the comments saying “it should be like this” are generally describing the way things already are. 

]]> By: The Rizz http://boingboing.net/2013/02/25/loaded-terms.html#comment-1667034 The Rizz Thu, 28 Feb 2013 01:39:00 +0000 http://boingboing.net/?p=215217#comment-1667034 I meant the trademark equivalent of a patent troll; this guy took an already-in-use generic term and trademarked it in order to force all competition from the market. If a small business slides a trademark for "web browser" past the USPTO, and MS/Apple/Mozilla/whoever bankrupt them, then good - they deserve it for trying to use the TM system for extortion. That is exactly what happened here, and being forced to pay for the legal fees to defend against his bogus, malicious, extortionist, fraudulently-registered trademark is the least of what he deserves. I meant the trademark equivalent of a patent troll; this guy took an already-in-use generic term and trademarked it in order to force all competition from the market. If a small business slides a trademark for “web browser” past the USPTO, and MS/Apple/Mozilla/whoever bankrupt them, then good – they deserve it for trying to use the TM system for extortion. That is exactly what happened here, and being forced to pay for the legal fees to defend against his bogus, malicious, extortionist, fraudulently-registered trademark is the least of what he deserves.

]]> By: Tess http://boingboing.net/2013/02/25/loaded-terms.html#comment-1667002 Tess Thu, 28 Feb 2013 01:01:00 +0000 http://boingboing.net/?p=215217#comment-1667002 This isn't an example of patent trolling though. I mean, the guy's a complete jackass, but he filed for a trademark, was awarded it, and defended it more or less according to trademark law. Imagine if a big company like Microsoft or Apple could go after some guy with a trademark, and if they won, he had to pay their legal expenses. As an small business, they bankrupt you.Aside from the guy being a jackass, the real problem is USPTO -- they made an obvious mistake that they even acknowledged, and yet they still forced her to go through all that expensive additional work. They should be the ones picking up the tab. This isn’t an example of patent trolling though. I mean, the guy’s a complete jackass, but he filed for a trademark, was awarded it, and defended it more or less according to trademark law.

Imagine if a big company like Microsoft or Apple could go after some guy with a trademark, and if they won, he had to pay their legal expenses. As an small business, they bankrupt you.Aside from the guy being a jackass, the real problem is USPTO — they made an obvious mistake that they even acknowledged, and yet they still forced her to go through all that expensive additional work. They should be the ones picking up the tab.

]]> By: TheOven http://boingboing.net/2013/02/25/loaded-terms.html#comment-1666694 TheOven Wed, 27 Feb 2013 20:50:00 +0000 http://boingboing.net/?p=215217#comment-1666694 I thought that if a case like this was unsuccessful, the plaintiff, (Mr. Asshat) would have to pay the defendant's court & lawyer fees. No? Wouldn't that prevent a lot of these frivolous lawsuits? What about the USPTO who's cock-up allowed all this to happen, would she now be free to go after them for her expenses? I thought that if a case like this was unsuccessful, the plaintiff, (Mr. Asshat) would have to pay the defendant’s court & lawyer fees. No? Wouldn’t that prevent a lot of these frivolous lawsuits?

What about the USPTO who’s cock-up allowed all this to happen, would she now be free to go after them for her expenses?

]]> By: Steve Nordquist http://boingboing.net/2013/02/25/loaded-terms.html#comment-1666088 Steve Nordquist Wed, 27 Feb 2013 03:05:00 +0000 http://boingboing.net/?p=215217#comment-1666088 Somewhere there's a Schumpeterian angle; here this normal-lookin' twentysomething can pound 100oz. of fine Belgian or Non-Belgian beer or ale in a hour, and sing to all these people who can also (try to) throw that long tail down. Maybe they're all 7'9" or do MoCap for League Of Legends to burn it off; maybe she grows extra livers. Somewhere there’s a Schumpeterian angle; here this normal-lookin’ twentysomething can pound 100oz. of fine Belgian or Non-Belgian beer or ale in a hour, and sing to all these people who can also (try to) throw that long tail down. Maybe they’re all 7’9″ or do MoCap for League Of Legends to burn it off; maybe she grows extra livers.

]]> By: Steve Nordquist http://boingboing.net/2013/02/25/loaded-terms.html#comment-1666084 Steve Nordquist Wed, 27 Feb 2013 02:52:00 +0000 http://boingboing.net/?p=215217#comment-1666084  Now THAT we are told there is. It's not like they don't order replacement computers from this century (and an occasional minor supercomputing and LOC compliance entry that gets its own name and a blessing from national labs.) Which I just now suck at finding...with sequestration, they might need some help hauling 50' wind masts out of the file room for use to keep tablets humming; so, the 'bad' news is the Federal Transparency we want is gonna be on Craigslist. (n.b. that's a Fancy-Based statement.) Though PatentlyO.com seems to be a nice place for velvet typography if you wanted to glance at those bits. Or, for just domains e.g. http://www.thedomains.com/2012/10/23/udrp-filed-against-generic-domain-name-interiordesign-com/ UDRP would be universal domain request for patent.  Now THAT we are told there is. It’s not like they don’t order replacement computers from this century (and an occasional minor supercomputing and LOC compliance entry that gets its own name and a blessing from national labs.) Which I just now suck at finding…with sequestration, they might need some help hauling 50′ wind masts out of the file room for use to keep tablets humming; so, the ‘bad’ news is the Federal Transparency we want is gonna be on Craigslist. (n.b. that’s a Fancy-Based statement.)

Though PatentlyO.com seems to be a nice place for velvet typography if you wanted to glance at those bits. Or, for just domains e.g. http://www.thedomains.com/2012/10/23/udrp-filed-against-generic-domain-name-interiordesign-com/
UDRP would be universal domain request for patent.

]]> By: Steve Nordquist http://boingboing.net/2013/02/25/loaded-terms.html#comment-1666050 Steve Nordquist Wed, 27 Feb 2013 01:19:00 +0000 http://boingboing.net/?p=215217#comment-1666050  It seems she's hellproof, yet could stand to be gifted 30k plus interest and tax ($30k in prepaid legal gift cards as cheesy lagniappe) and some hard liquor to age and sample later in thanks from a hopefully wiser Steve. Roose. Is this article a more ephemeral tag than I think? Perhaps there is a more appropriate tracker of deplorable compliance that would be a sort of 'pet sematery' sign (Scarlet Letters being canny (or feminist canon, or Demi Moore teaching late 18th century literature) for almost nobody at all.)  It seems she’s hellproof, yet could stand to be gifted 30k plus interest and tax ($30k in prepaid legal gift cards as cheesy lagniappe) and some hard liquor to age and sample later in thanks from a hopefully wiser Steve. Roose. Is this article a more ephemeral tag than I think? Perhaps there is a more appropriate tracker of deplorable compliance that would be a sort of ‘pet sematery’ sign (Scarlet Letters being canny (or feminist canon, or Demi Moore teaching late 18th century literature) for almost nobody at all.)

]]> By: teapot http://boingboing.net/2013/02/25/loaded-terms.html#comment-1666017 teapot Wed, 27 Feb 2013 00:14:00 +0000 http://boingboing.net/?p=215217#comment-1666017 Ali Spagnola is an awesome musician, a hero of teh interwebs and very funny on twitter... go follow her! https://twitter.com/alispagnola Also worth watching her appearances on NSFW where she covers the whole mess and also sings awesome songs: http://bbliveshow.info/Ali_Spagnola Ali Spagnola is an awesome musician, a hero of teh interwebs and very funny on twitter… go follow her! https://twitter.com/alispagnola

Also worth watching her appearances on NSFW where she covers the whole mess and also sings awesome songs: http://bbliveshow.info/Ali_Spagnola

]]> By: Donald Petersen http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665961 Donald Petersen Tue, 26 Feb 2013 23:12:00 +0000 http://boingboing.net/?p=215217#comment-1665961 It would seem the demand has gone up. It would seem the demand has gone up.

]]> By: Hannah T http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665824 Hannah T Tue, 26 Feb 2013 20:58:00 +0000 http://boingboing.net/?p=215217#comment-1665824 We have that now too in London - the 100 beer shots in 100 minutes; we call it 'Centurion'. We have that now too in London – the 100 beer shots in 100 minutes; we call it ‘Centurion’.

]]> By: Raoulduck http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665723 Raoulduck Tue, 26 Feb 2013 19:32:00 +0000 http://boingboing.net/?p=215217#comment-1665723 Back in the 1980's you could buy a new liver with 30 grand. Back in the 1980′s you could buy a new liver with 30 grand.

]]> By: The Rizz http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665646 The Rizz Tue, 26 Feb 2013 18:22:00 +0000 http://boingboing.net/?p=215217#comment-1665646 This is a perfect example for why patent trolls should be able to be held liable for the costs of fighting them. Roose should be forced to repay the costs for fighting his bogus trademark, especially since he damn well knew there was prior art. This is a perfect example for why patent trolls should be able to be held liable for the costs of fighting them. Roose should be forced to repay the costs for fighting his bogus trademark, especially since he damn well knew there was prior art.

]]> By: Miss Demeanor http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665560 Miss Demeanor Tue, 26 Feb 2013 17:16:00 +0000 http://boingboing.net/?p=215217#comment-1665560 Ali is my new hero, thanks for the story!  Ali is my new hero, thanks for the story! 

]]> By: scifantasy http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665524 scifantasy Tue, 26 Feb 2013 16:45:00 +0000 http://boingboing.net/?p=215217#comment-1665524 Almost correctly. The spectrum runs from "arbitrary and fanciful" down to "generic," with "descriptive" as the edge case--a descriptive mark with acquired distinctiveness stands, but a descriptive mark without, such as "Power Hour," dies. "Distinctive" isn't actually a term on the spectrum, specifically because of its role deciding the edge cases. Almost correctly. The spectrum runs from “arbitrary and fanciful” down to “generic,” with “descriptive” as the edge case–a descriptive mark with acquired distinctiveness stands, but a descriptive mark without, such as “Power Hour,” dies.

“Distinctive” isn’t actually a term on the spectrum, specifically because of its role deciding the edge cases.

]]> By: blueelm http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665466 blueelm Tue, 26 Feb 2013 15:41:00 +0000 http://boingboing.net/?p=215217#comment-1665466 God I hate beer, and a game like that with liquor I think would be classed as a suicide. More, uh, power to her though! I hope she has more than recovered the 30k. God I hate beer, and a game like that with liquor I think would be classed as a suicide. More, uh, power to her though! I hope she has more than recovered the 30k.

]]> By: TimEatsApples http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665457 TimEatsApples Tue, 26 Feb 2013 15:28:00 +0000 http://boingboing.net/?p=215217#comment-1665457 How about instituting some sort of system at the USTPO where people can upload and track generic terms as they come into existence, so that people can't try to trademark them as they go mainstream? How about instituting some sort of system at the USTPO where people can upload and track generic terms as they come into existence, so that people can’t try to trademark them as they go mainstream?

]]> By: Michael Hassall http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665437 Michael Hassall Tue, 26 Feb 2013 15:11:00 +0000 http://boingboing.net/?p=215217#comment-1665437 This Power Hour, sounds like a poor man's Centurion or Decimation depending on your preference for name. 100 shots of beer, over 100 minutes, and every 10th shot is a spirit of some kind. At the end of the game, people surviving are given a crown and hailed as Centurions for the rest of the night. This Power Hour, sounds like a poor man’s Centurion or Decimation depending on your preference for name. 100 shots of beer, over 100 minutes, and every 10th shot is a spirit of some kind. At the end of the game, people surviving are given a crown and hailed as Centurions for the rest of the night.

]]> By: Davis http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665305 Davis Tue, 26 Feb 2013 07:12:00 +0000 http://boingboing.net/?p=215217#comment-1665305 Kudos to the writer here not just for the excellent story, but also for being one of the rare journalists to correctly discuss trademark law. Kudos to the writer here not just for the excellent story, but also for being one of the rare journalists to correctly discuss trademark law.

]]> By: Stickarm http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665159 Stickarm Tue, 26 Feb 2013 02:28:00 +0000 http://boingboing.net/?p=215217#comment-1665159 <blockquote>Some sort of digital Scarlet Letter that can brand him until he does so many good deeds that he deserves the opportunity to live a normal life.</blockquote>This idea may be emotionally appealing, but it seems like a strange suggestion after a story illustrating the problems with bureaucracy. It's probably better if we try to look for positive solutions to these problems at this point. For example, there was an uncorrectable clerical error in the chain of events described above. How about changing the system at the USTPO so that clerical errors of that sort can be followed up without a private citizen having to spend $30,000 out of their own pocket on legal fees?

Some sort of digital Scarlet Letter that can brand him until he does so many good deeds that he deserves the opportunity to live a normal life.

This idea may be emotionally appealing, but it seems like a strange suggestion after a story illustrating the problems with bureaucracy. It’s probably better if we try to look for positive solutions to these problems at this point.

For example, there was an uncorrectable clerical error in the chain of events described above. How about changing the system at the USTPO so that clerical errors of that sort can be followed up without a private citizen having to spend $30,000 out of their own pocket on legal fees?

]]> By: Philboyd Studge http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665124 Philboyd Studge Tue, 26 Feb 2013 01:43:00 +0000 http://boingboing.net/?p=215217#comment-1665124 It could be done, but the end was not pretty. That game was our generation's Viet Nam. It could be done, but the end was not pretty. That game was our generation’s Viet Nam.

]]> By: jimh http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665092 jimh Tue, 26 Feb 2013 00:56:00 +0000 http://boingboing.net/?p=215217#comment-1665092 I never threw up during the game, but it did become a hell of its own! My experience was one of time being quite elastic. At first it moved along at a very leisurely pace, but by the end the clock moved so fast you barely had time to pour your next shot before it was time to drink. BTW, we used very light (and cheap) beer for this. Piss early, piss often. I never threw up during the game, but it did become a hell of its own! My experience was one of time being quite elastic. At first it moved along at a very leisurely pace, but by the end the clock moved so fast you barely had time to pour your next shot before it was time to drink. BTW, we used very light (and cheap) beer for this. Piss early, piss often.

]]> By: Pope Ratzo http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665009 Pope Ratzo Mon, 25 Feb 2013 23:47:00 +0000 http://boingboing.net/?p=215217#comment-1665009 It seems like this "Steve Roose" guy got off scot free after making life hell for this young woman. There must be some way he can be tagged for the rest of his earthly existence with a big "asshat" label so anyone who ever thinks of doing business with this guy knows what kind of person he is. I only think it's fair.  Some sort of digital Scarlet Letter that can brand him until he does so many good deeds that he deserves the opportunity to live a normal life.  I'm not saying his progeny should be cursed for seven generations or anything, but he shouldn't be able to just go right on to the next deplorable act without pause.  It seems like this “Steve Roose” guy got off scot free after making life hell for this young woman.

There must be some way he can be tagged for the rest of his earthly existence with a big “asshat” label so anyone who ever thinks of doing business with this guy knows what kind of person he is.

I only think it’s fair.  Some sort of digital Scarlet Letter that can brand him until he does so many good deeds that he deserves the opportunity to live a normal life. 

I’m not saying his progeny should be cursed for seven generations or anything, but he shouldn’t be able to just go right on to the next deplorable act without pause. 

]]> By: EH http://boingboing.net/2013/02/25/loaded-terms.html#comment-1665010 EH Mon, 25 Feb 2013 23:47:00 +0000 http://boingboing.net/?p=215217#comment-1665010  Me and my friends did a hundred shots in 100 minutes in 1987, and the real challenge was to finish without puking. None of us did, but I believe the last hold out lasted until around 90. For the record, it's a beer every 12 minutes for an hour and a half (plus 10min). You start to dread the approach of the next minute.  Me and my friends did a hundred shots in 100 minutes in 1987, and the real challenge was to finish without puking. None of us did, but I believe the last hold out lasted until around 90. For the record, it’s a beer every 12 minutes for an hour and a half (plus 10min). You start to dread the approach of the next minute.

]]> By: jimh http://boingboing.net/2013/02/25/loaded-terms.html#comment-1664982 jimh Mon, 25 Feb 2013 23:24:00 +0000 http://boingboing.net/?p=215217#comment-1664982 We played it in college during the late 80's, but it was called "Century Club". One hundred one-ounce shots of beer in one hundred minutes. Running to the bathroom to take a leak in the middle of it and being back before the second hand got around was a challenge. We played it in college during the late 80′s, but it was called “Century Club”. One hundred one-ounce shots of beer in one hundred minutes. Running to the bathroom to take a leak in the middle of it and being back before the second hand got around was a challenge.

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