Trademark thought experiment: when should intermediaries be cops? (Barista vs. Barbie)

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). Read the rest

New York Times advances weird, self-destructive trademark theory to prop up its paywall

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. Read the rest

WIPO proposes punishing, extortionist-friendly trademark treaty aimed at eBay, Google, and Twitter

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!) Read the rest

Is it legal to print Settlers of Catan tiles on a 3D printer?

When a Thingiverse contributor uploaded 3D-print-ready homebrew tiles for German superboardgame Settlers of Catan, it raised a bunch of interesting legal questions. Is it illegal to make your own Settlers tiles? To download 3D files describing these tiles? To host the files? To print the files?

Now, Public Knowledge provides some legal analysis:

Let's start with copyright. Settlers of Catan is probably protected by copyright. Importantly, that protection does not cover the entirety of the game. Instead, copyright protects the design on the game tiles. This makes sense - the image on the tile (of pastures, or fields, or rocky quarries, or the like) is just a picture, and pictures are well within the scope of copyright. However, Sublime's 3D designs make no attempt to copy the images on the tiles. Copyright might also protect the shapes of the pieces, except these shapes are so generic and utilitarian (rectangles for roads, simple houses for settlements) that any protection would be extremely limited. Moreover, Sublime's pieces are generally more ornate that the official versions.

Copyright does not protect the shapes of the tiles (they are designed to fit together, and are therefore most likely "functional objects" outside of the scope of copyright). Nor does copyright protect the actual rules of Settlers of Catan. Game rules, like recipes, have a limited number of ways that they can be expressed. Copyright protects expressions, not ideas. Therefore, in order to protect the free flow of ideas, recipes and game rules are rarely protected by copyright.

Read the rest

Sarah Palin Circle-R wants a trademark on her name

Some details on Sarah Palin's crazed attempt to register a trademark in her name; apart from making stupid errors in her application, there's the curious business that she considers "running for election" to be the same as using her name in commerce. Also, turns out Bristol Palin also wants a trademark on her name, for "motivational speaking services in the field of life choices."
On November 29, the application was rejected for two reasons. First, the examiner pointed out, the fact that your name appears in a news article or on your Facebook page is not evidence that you are "providing a website" featuring political information. Second, Palin did not sign the application.

The examiner pointed out that if a mark is the name of a particular living individual, it can't be registered unless that individual has signed or there is some other record of consent. (The examiner cited cases involving "Little Debbie," who is in fact a real person, and "Prince Charles," who arguably is too.) Because Palin hadn't signed, the application could not be granted.

It seems like signing your name is not something you would forget when your name is what you're trying to trademark, but she's a busy woman.

Sarah PalinTM Having Trouble With Registration

(Image: Sarah Palin, Queen of Pork, a Creative Commons Attribution (2.0) image from llyn_hunter's photostream)  Fake Disney movie trailer for the Sarah Palin story - Boing Boing The Sarah Palin Turkey Video - Boing Boing Video footage of Sarah Palin's church - Boing Boing Palin Debate Prep Flowchart - Boing Boing Computer-Generated Sarah Palin Interview - Boing Boing Vlad and Boris: Love Song for Sarah Palin, our Alaskan Neighbor ... Read the rest

Sony Ericsson sues Clearwire over logo

Metallic green swirls are in! Cellphone maker Sony Ericsson is suing Clearwire over the similarities between the two companies' logos. The trademark infringement comes down to the 'swirl' motif, color scheme and both companies' presence in the same market. Complaint [PDF via Engadget] Read the rest

ACTA will force your ISP to censor your work if someone lodges an unsupported trademark claim

New revelations on ACTA, the Anti-Counterfeiting Trade Agreement (ACTA), a secretive global copyright being privately negotiated by rich countries away from the UN: ACTA will require ISPs to police trademarks the way they currently police copyright. That means that if someone accuses you of violating a trademark with a web-page, blog-post, video, tweet, etc, your ISP will be required to nuke your material without any further proof, or be found to be responsible for any trademark violations along with you. And of course, trademark violations are much harder to verify than copyright violations, since they often hinge on complex, fact-intensive components like tarnishment, dilution and genericization. Meaning that ISPs are that much more likely to simply take all complaints at face-value, leading to even more easy censorship of the Internet with nothing more than a trumped-up trademark claim.
At first glance, the leak suggests intermediaries such as ISPs and search engine portals may now be liable for trademark infringements by their account holders - unless there are clear exceptions such as the Safe Harbour provisions available under the Copyright Act regulations.

Professor Anna George, adjunct professor at Murdoch University and former DFAT negotiator on WTO TRIPS and the digital economy chapters of the US-Australia Free Trade Agreement, believed such a change would potentially be bad news for Australia's trade relations.

ACTA: ISPs could be liable for trademark infringements (Thanks, NeilM!) How ACTA will change the world's internet laws USA caves on secret Internet treaty Secret copyright treaty: USA caves on border laptop/phone/MP3 ... Read the rest

Philip K. Dick's estate threatens Google

Nexus One, the new cellphone from HTC and Google, is named in homage to the the Nexus series of androids in Philip K. Dick's novel "Do Andoids Dream of Electric Sheep," filmed as "Blade Runner." Dick's estate's response? It's threatened Google. Names can't be copyrighted, so the vague legal mutterings imply a trademark fight. As there are hundreds of live trademarks for the term "Nexus" -- one filed by Google last month! -- this'll be a fun one. Read the rest