Black-light acrobats Fighting Gravity send trademark threat over unrelated fantasy novel called "Fighting Gravity" —

That Neil Guy sez, "Writer Leah Petersen received a Cease and Desist notice. Seems the title of her debut novel, Fighting Gravity, is also the name of a live performance group that appeared on America's Got Talent. As Leah writes on her blog, the claim is that 'the title of my science fiction novel about a couple of teenage guys in a romantic relationship is an infringement on the trademark for their black-light, gravity-defying illusion performance group.' Now she gets to pay for a lawyer. Lucky her."

Update: And it's off: "Fighting Gravity To Leah Peterson and her fans: Disregard the cease and desist letter that was issued by our lawyers. Although imitation is the sincerest form of flattery, some people have taken that too far and we have had to deal with it. By no means is Leah Peterson one of those people, our lawyers were just doing their jobs and trying to protect our name and trademark. We wish the best for Leah and hope her book becomes a great success! " — Cory •

You've probably heard that an old pub called The Hobbit in Southampton is under threat from the film company that controls the licensing for the Tolkien canon. After a public outcry, the company agreed to sell the pub a license to go on using the name it has had for decades. Stephen Fry and Ian McKellan -- who are both in the Hobbit movie (Fry is in NZ right now, shooting) -- decided that this was stupid, so they've paid the license fee themselves.

She said: "I had a telephone call on Saturday evening, while we were trading, from Stephen Fry's business partner and manager. That's when he told me.

"I was very shocked.

"They've said as soon as they finish filming they would like to come down and visit the pub."

...Sir Ian, who plays Gandalf in the Lord Of The Rings films, described the film company's actions as "unnecessary pettiness" and Fry said it was "self-defeating bullying".

Hobbit pub copyright row: Stephen Fry and Ian McKellen to pay licence (via Techdirt)

Update: Simon Phipps writes, "The Hobbit is one of my locals, and I thought you'd like some background. I wrote about the case here. While the pub has existed for a long time, The Hobbit started opportunistically abusing their movie-related paraphernalia a while back and has been trading on it for years without seeking permission - presumably because someone there knew they'd never get it. They could have commissioned their own artwork but they didn't. Far from it being a case of a bully acting improperly, I think actually Zaentz acted uncharacteristically well here. This wasn't about the pub calling itself 'The Hobbit' primarily, it was about ripping off movie stills and using them for advertising. They challenged that abuse and then offered an amazingly easy settlement. Meanwhile, instead of any sign of a mea culpa, some people have been wildly slandering Zaentz. Given how much the law sucks and is being weaponised, I think we should be encouraging previously abusive companies like Zaentz to act this generously in future."

A Canadian oil company called Paramount Resources has changed its name to Pixar. Seriously.

Previously known as Paramount Resources, I guess the executives got tired of being named after one of Hollywood’s has-been brands. As far as I can tell, this is not a joke, there’s even a serious sounding press release composed without a hint of irony. It’s being reported in the wider media as well.

Oil Company renames itself Pixar (Thanks, John!)

Notch, the game developer who struck gold with his multimillion-dollar bestselling low-rez indiegame Minecraft, has a novel proposal for resolving the stupid trademark threats he's been receiving from Bethesda games, who are upset that he's working on a game called "Scrolls" (Bethesda makes a game called "Elder Scrolls"). Rather than giving a whack of dough to lawyers to settle this, Notch has challenged Bethesda's devs to a three-on-three Quake 3 blood match, top fragger take all.

I challenge Bethesda to a game of Quake 3. Three of our best warriors against three of your best warriors. We select one level, you select the other, we randomize the order. 20 minute matches, highest total frag count per team across both levels wins.

If we win, you drop the lawsuit.

If you win, we will change the name of Scrolls to something you’re fine with.

Regardless of the outcome, we could still have a small text somewhere saying our game is not related to your game series in any way, if you wish.

I am serious, by the way.

Hey, Bethesda! Let’s settle this! (Thanks Fipi Lele!)

(Image: QuakeLive.jpg, Wikimedia Commons/Timothee Besset)

Read the rest

A Disneyland look-a-like theme park outside of Beijing called Shijingshan has been shut down by Chinese authorities, apparently as a consequence of the deal to open a Disneyland Shanghai park. Shijingshan sported some intensely crappy rides and attractions that seemed to have been designed by making wild guesses about the equivalent rides in the actual Disney parks (amusingly, the "American Adventure" ride was a haunted house).

Shijingshan management claim that they aren't copying Disney, merely taking their inspiration from the same sources. It's an interesting example of the difference between copyright and trademark; from the particulars I can see online, I don't think there's much merit to a copyright claim here -- though there are a few examples where there are clear derivative works, most of the design is merely generically derived from public domain sources such as castles and fairy tale characters. On the other had, there's a very strong trademark case here, since the use of distinctive ride-names and such seem deliberately chosen to confuse customers about the nature and origin of the park's designs.

Deputy general manager, Yin Zhiqiang, said: "The characters in our park just look a little bit similar to theirs. But the faces, clothes, sizes and appearances are different."

"We do not have any agreements with Disney."

Despite the striking similarities to foreign characters, Yin insisted the Beijing park's are all locally designed.

"Take our Cinderella as an example. The face of Disney's Cinderella face is European, but ours is a Chinese. She looks like a young Chinese country girl," he said.

Fake Disney Theme Park in China forced to Close (The Disney Blog)

'Fake' Disney park faces closure (Metro.co.uk)

(Image: DSCF6882, a Creative Commons Attribution (2.0) image from maxview's photostream)

Jim from the Open Rights Group sez, "We are asking people to donate a few quid or dollars to help http://eco-labs.org, a small artist environmental NGO, defend their use of their domain from a spurious claim from http://www.ecolab.com the multi-billion dollar cleaning business. These plucky Brits are willing do defend their use, which is not confusing and was used prior to the registration of the UK trademark, but need about £800 ($1300) to defend themselves at .org - please help!"

Jim from the Open Rights Group sez, "Activists in the UK organising a 'Radical media conference' have been told by ad agency @radicalmedia that they cannot organise a 'radical media' conference. The agency claims trademark infringement. As the activists say, 'We Make Radical Media, You Make Adverts'."

A little trademark thought-experiment: under a proposed UN treaty, Internet Service Providers (as well as search engines, social media sites, online auctions, online games, and sites like Etsy and Thingiverse) will be responsible for detecting and interdicting trademark infringement and helping punish infringers by retaining and providing their personal information on demand from a trademark holder, without a court order.

Now, many coffee shops today are ISPs (that is, one of the kinds of intermediary targetted by this proposal). And many coffee shops today are the locus of trademark infringement -- say, when you walk in with your kid clutching a fake Barbie from a stalls market or a blanket in Santee Alley or on Broadway. If you applied this intermediary liability standard to the real world, every barista would have to be on the lookout for this kind of trademark infringement. If someone in the shop were to say, "Hey, I work for Mattel, and that Barbie's a fake!" it would be the barista's duty to leap over the counter and take away the fake Barbie.

But her responsibility wouldn't stop there: her employer would have to set up cameras and cash-register logs so that they could identify infringers later. So after you left with your kid (who is by now in tears, screaming for her lost Barbie) (or "Barbie") the barista would have to pull your name off your credit card receipt and hand it over to the random dude who says he works for Mattel, without seeing any ID (much less a court order). And she'd have to print out the photos and turn them over too.

Or she could refuse -- but if she's wrong and the Mattel guy is right, well, her boss will be on the hook for the trademark infringement, too. The barista had better be some trademark expert if she plans on refusing the request.

Many institutions are "intermediaries" for bad acts: kids ride the subway to parties where they drink before they're legally allowed to; is it the transit authority's job to police alcohol laws? Cruel pet owners hit their dogs with rolled up newspapers; adulterers meet in hotels; fraudsters use telephones, pens, photocopiers and envelopes. All these criminal acts are not subject to policing by intermediaries -- why should one industry's civil actions be the entire world's responsibility?

Discuss.

(Image: Abandoned Barbie, a Creative Commons Attribution (2.0) image from derekgavey's photostream)

FreeNYTimes writes, "The twitter account I set up to broadcast data from the NY Times API, @freeNYTimes, was recently suspended, ostensibly for trademark infringement. But I set up a mirror at @freeUnnamedNews, which should be good to go because it doesn't use the paper's name in the feed. Right?"

Some background: the new NYT paywall allows for unlimited free article views for people following links from Twitter. The @FreeNYTimes feed created links to all the NYT stories, which meant that you could read the whole paper gratis, simply by following the feed (presumably, you could also create an index of Twitter URLs that corresponded to all the URLs on the Times's site, a kind of codex of free backdoors to the paper).

The NYT has many options to fight this sort of thing. They could program their firewall to restrict Twitter referers, or to simply block anything from the @FreeNYTimes account. Instead, the Times lodged an utterly bogus trademark complaint with Twitter -- bogus because trademark doesn't generically give you the right to stop people using your product or company's name; rather, it stops people from doing so deceptively. The Times's position effectively was that Times readers would mistake @FreeNYTimes for a big-hearted gesture from the Times itself, operated by the Times in order to defeat the Times's paywall. This is a stupid thing to assert.

It's also damaging to journalism: there are many trademark holders, from Sarah Palin to Dow Chemical, who'd love it if the NYT could only use their name with permission. There is no trademark confusion when the Times prints Sarah Palin's name; there is also no trademark confusion with @FreeNYTimes.

So now there's @FreeUnnamedNews, and there's no trademark basis to use to stop the account. The next step from the Times may well be to object on the basis "deep linking," and that is a doctrine that is nearly as damaging to journalism as the exotic trademark theory the Times has already advanced: for if plain true facts ("this page exists at this URL") are property, then the Times had better get its checkbook out, as there are plenty of true facts in every edition of the Times whose putative owners would love to get paid rent for them -- and there are plenty of true facts whose "owners" would love to deny to journalists altogether (think, for example, of the true facts surrounding political corruption). And, of course, in order to sue, the Times (whose reporters have gone to jail to protect their sources) will have to demand that Twitter turn over the personal identity of the FreeNYTimes/FreeUnnamedNews person.

On the other hand, the Times might just add more complexity (and more brittleness, expense, and false positives and negatives) to its paywall by instructing it to inspect Twitter referers in detail and reject those coming from @FreeUnnamedNews. Over time, the paper will compile quite an enemies list in this fashion, a long catalog of people who are not allowed to refer other people to NYT stories.

Commercially, this is not good. As I wrote before, the mental state that the Times paywall strives to evoke in its reader is "Hey, I'm getting so much value from this site, I think I'll sign up as a paying customer," not "Oh, those bullies at the Times have clobbered another programmer and this is the fifteenth time this month that it mistook me for a freeloader. Screw them!"

The Times's staff have tweeted that they are glad to have traffic from users who leap the paywall -- a visitor is a visitor -- and implied that I've mis-stated the nature of their strategy. However, this trademark theory, hostile to free speech and an open society, belies their bravado. The problem with the Times's paywall isn't (just) that it won't work -- it's that it will lead an institution whose mission is free speech, transparency and due process into a war with its readers that demands that it oppose these values to hold its ground against them.

The fun-loving weirdos at the World Intellectual Property Organization have a new and terrible wheeze they want to unleash upon the world: a treaty that would require "intermediaries" (web-hosts, ISPs, social networking sites, auction sites, etc) to enforce trademarks on behalf of mark-holders. Under the proposal, these companies and organizations would not only have to delete material that is alleged to infringe on a trademark, they'd also have to narc out their users, supplying IP addresses and other information to the trademark holders, without a court order.

Combine this with the current vogue to copyright trolling, where scumbag lawyers send out indiscriminate shakedown letters demanding copyright "settlements," these being sums priced below what it would cost a victim to get legal advice as to whether they should cough up, and you've got the making of a fine racket for the next generation of legal fraudsters, bottom-feeders and blackmailers.

I love that this UN agency has made its mission to provide full employment for extortionists and trademark lawyers.

English : Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications : Twenty-Fifth Session (Thanks, Nick!)