Peter Black's Freedom to Differ

Mad Men Twitter fan fiction

Business Week has an interesting story on how Mad Men fans are using Twiiter in a way that is "blurring the lines between brand infringement and brand extension":

On AMC's hit show Mad Men, character Peggy Olson is the ambitious secretary-turned-copywriter at fictional Manhattan advertising agency Sterling Cooper. On the show, which is set in 1962, she's excellent at keeping secrets—such as how she bore a child out of wedlock. Off the show, she's more forthcoming. Olson—or rather, a person posing as her—uses the microblogging service Twitter to give fans a peek into her inner thoughts: "The men in the office are headed to the Oyster Bar. I'm going to the library. It doesn't seem quite fair," she wrote on Aug. 25.

Olson isn't the only Mad Men character on Twitter. Sterling Cooper creative director Don Draper began it all by issuing his first status update on Aug. 12. A few days later, seductive secretary Joan Holloway joined the fray, writing on Aug. 19, for instance: "Hoping @don_draper will be eating lunch outside of office again today, as he usually does. There's a sale on intimates at Macy's." That was the day Peggy Olson popped up.

In all, more than 15 Mad Men characters are Twittering, and more appear every week. All are posted by individual fans of the show and to date, none are known to be associated with the series. At least one blogger has speculated that Don Draper, Peggy Olson, and the others are actors hired by AMC interactive marketing agency Deep Focus, but AMC spokeswoman Theano Apostolou emphatically denies it. Several of the Mad Men Twitterers also said in interviews that they're independent fans, unaffiliated with Mad Men or AMC.

The unofficial Mad Men are using Twitter to push fictional characters into a new digital frontier—at the same time blurring the lines between brand infringement and brand extension. While a show's creators and distributors might ordinarily welcome the publicity that comes with seeing it depicted in a positive light beyond normal viewing times, they're also on alert for signs that their brand is being misused in some manner. Content owners are especially vigilant in an age when users can spread content quickly by means of social media, such as Facebook or Google (GOOG)'s YouTube. In July, Hasbro (HAS) sued the creators of an unauthorized version of its Scrabble word game (BusinessWeek.com, 7/24/08) that had become wildly famous on Facebook. For a time, Twitter disabled Mad Men accounts amid inquiries from AMC as to their origin—though AMC denies having asked for the accounts to be blocked.

Read more here.

Twitter squatters

Techdirt has a fascinating post on Twitter squatters:

In 1994, reporter Joshua Quittner famously registered the domain name mcdonalds.com, and wrote a whole article about how so many top brand names were available for registering by anyone who wanted them. Reading the article sounds pretty amazing in retrospect. The one and only domain name registrar at the time, InterNIC had a grand total of 2.5 people reviewing each and every application and trying to avoid "obvious" conflicts -- except that didn't seem to work. As Quittner points out, Sprint had registered MCI.com. There was eventually a bit of a battle over mcdonalds.com, and once people finally realized this was a big deal, a process, the Uniform Domain Name Dispute Resolution Policy (UDRP) process was created.

Of course, these days, there are many more ways that your brands interact online than just by your domain name. Erik Heels, an internet-savvy lawyer (and regular Techdirt reader) has gone through Twitter and discovered that of the top 100 global brands, only 7 have their main brand registered as a Twitter ID. Most of the others have Twittersquatters who have already taken the name. Heels, himself, grabbed the Twitter ID for Moet & Chandon and even made it look slightly "real." And, of course, it goes beyond just Twitter as well, where usernames at plenty of other services are increasingly important as well.

Many of these services have ad hoc processes by which they will "resolve" a dispute over a name, but Heels worries about how that will work. In the case of Twitter, basically the company just reserves the right to do what it thinks is right. But, that could obviously lead to some questionable situations -- and eventually even some lawsuits (remember the cease and desist sent by Burger King using Twitter? Why are the fast food burger joints at the center of all of these disputes?). Heels proposes extending the UDRP into a much more complete system for Uniform Username Dispute Resolution Policy or UURP. This way there's a clear process for anyone who disputes the use of a username in any particular service. It certainly seems like an idea worth discussing.

Read more here.

Who killed online Scrabble?

Techdirt has a good post on how Hasbro and Mattel killed online Scrabble:

We've been chronicling just how badly both Hasbro and Mattel screwed up in responding to the massive success of Scrabulous on Facebook. The ridiculously popular application was attracting over 500,000 users every day and (amazingly) making Scrabble cool again, pumping up sales of the physical board game. But, of course, the intellectual property lawyers freaked out and said "this must stop." The resulting legal threats and lawsuits created quite a lot of backlash and anger (and a boycott of Hasbro games). Venturebeat is now looking at the aftermath, and shows that the fight effectively killed all momentum for Scrabble on Facebook. Part of the problem may be that the game is now fragmented, with a Hasbro version serving some countries, a Mattel version serving others and the Scrabulous makers' "modified" Wordscraper on the market as well. The end result is that each has significantly fewer users than Scrabulous had. In fact, the monthly number of users pales in comparison to the daily number of users that Scrabulous had. Great way to kill a wonderful (free) promotion that was attracting thousands of new fans to the game.

Read it here.

Today Popeye, tomorrow Mickey Mouse?

This week the cartoon character Popeye came out of copyright protection and into the public domain.  Techdirt observes that it "be quite interesting to see what happens next, as it will be something of a preview of the eventual Mickey Mouse fight that will be coming":

Disney was able to continually extend copyright to keep Mickey Mouse out of the public domain for years -- in part because copyright wasn't an issue that the general public cared about or that really impacted them in a noticeable way. Obviously, over the past decade, that's changed quite a bit. Disney must know that it will have an awfully difficult time extending copyright yet again (though, the company will almost certainly try). In the meantime, though, what happens with Popeye in the UK may be a rough guide as to what will happen should Mickey Mouse hit the public domain.

And... the reality is that not very much different might happen.

That's because even though the copyright on the character has fallen into the public domain, the trademark remains -- and the current holder of the Popeye trademark in the UK, King Features (owned by Hearst), is expected to "protect its brand aggressively." That means people will still be quite limited in how they can use Popeye. If King Features is able to successfully use trademark law to keep Popeye under control, perhaps Disney won't go quite so crazy trying to extend the copyright on Mickey Mouse again... Either way, this little "experiment" will be worth watching.

Read it here.

Today Facebook, tomorrow Twitter

Techdirt asks did Burger King really just issue a C&D through Twitter?

Now that it's legal to serve papers to someone through Facebook, Burger King has apparently sent a cease and desist via Twitter to the user "whoppervirgins" for an unauthorized use of trademark. "Whopper Virgins" is the latest multi-million dollar ad campaign from Burger King to hit the airwaves, featuring documentary-like ads depicting Hmong, Inuit and Romanian villagers eating burgers for the first time. Sure, "theBKlounge" account may not really be Burger King, or the C&D could actually be an in-character joke. But, really, did nobody at the agency think to simply grab the twitter account "whoppervirgins" to begin with? From the start, this campaign seems to have attracted criticism. In addition to flak for being "corporate colonialism," "cultural bullying" and "the worst kind of Ugly Americanism," this campaign has been ridiculed for not doing enough good SEO to support the campaign. In any case, perhaps Burger King purposely planned these strange moves, in order to generate fodder for bloggers to chew on, since in all honestly, I am really, really craving a Whopper right now.

Read it here.  (And read my op-ed piece on service via Facebook here.)

New IP podcast

UCLA Professor Doug Lichtman has launched a new podcast, Intellectual Property Colloquium.  This is how he describes it:

The project is called the Intellectual Property Colloquium, and it is essentially an online audio program devoted to intellectual property topics. We aspire to be something like an NPR talk show, but focused on copyrights and patents, and aimed primarily at a legal audience. The programs are neither lectures nor debates. They are conversations, ideally thoughtful ones, with guests drawn from academia, the entertainment community, and the various technology industries.

Each program lasts one hour; is downloadable; and (the kicker) any lawyer who listens to our programs can earn (free) CLE credit in California, New York, and any state that accepts one of those through reciprocity. (We should soon be able to offer CLE in all the states, but for now the combination of California, New York, and reciprocity should cover most of our audience regardless.)

I host each program; and our first one, a lively conversation with Fred von Lohmann of the EFF, is up and ready to go. A schedule of up-coming shows is already posted on the site, as are a variety of subscription features that provide updates every time a new audio is available.

Subscribe to listen to the podcast here.

Taste we can believe in

Over at Madisonian.net, Ann Bartow highlights a trade mark parody we can believe in:

Is the DataPortability logo cursed?

TechCrunch's Michael Arrington reports that the DataPortability Workgroup is once again having legal problems over its logo:

The DataPortability Workgroup ... now faces its second legal challenge to, of all things, its choice of logo.

In February, Red Hat sent a cease and desist letter claiming trademark infringement over their Fedora logo. Instead of fighting Red Hat in court, DataPortability simply held a new logo competition and announced the winner last week.

With that behind them, the group has been focused on drafting technical best practices guideline and getting community feedback.

Today, though, the new logo has been challenged as well - this time by Vivendi Mobile Entertainment’s trademark agent, who claims to be “very surprised to notice your new logo for Dataportability which is very close and similar to their logo.” They add:

The mere comparison of the two signs is self-explanatory and we are sure that you will understand that our clients could not leave you to use such a logo in relation to identical of at least similar services.

Vivendi is using their mark in connection with a service called ZAOZA, a self-described “simple and fun architecture that permits the legal peer sharing of exclusive and quality content.” They are demanding that DataPortability immediately stop using the logo.

Dataportability co-founder Chris Saad says they aren’t going to fight this challenge, either, because it’s too distracting to their core mission:

We’re going to speak with our lawyers, tweak it slightly and move on. These C&D tactics are really disappointing and counterproductive… We’d really rather everyone focused on the Technical Best Practice Drafts we released last week.

Read more here.

Australian domain name transfer made easier

The Australian Trade Marks Law Blog reports that .au domain name transfer is to be made easier:

As of 1 June 2008, a new and more flexible registrant transfer policy comes into effect, allowing domain name registrants to transfer their domain name licence to another eligible entity for any reason. The new policy has been approved by the Australian domain name administrator .au Domain Administration Ltd (auDA) - the policy authority and industry self-regulatory body for the .au domain space.

Key Features of the New Policy

Exact details and wording of the new policy is not yet available. However, the following key features of the policy are available here and can be summarised as follows:

• .au domain names can not be registered for the sole purpose of resale;
• a 6 month holding period for newly registered .au domain names applies;
• after 6 months domain names may be offered for sale/transfer by any means;
• standard transfer forms will be used for processing transfers; and
• auDA will ask parties for voluntary and confidential disclosure of the sale method and price.

The current domain name registration policy including domain name eligibility criteria remain unchanged. Similarly, the new policy will have no effect on the current dispute resolution policy.

Read more here.

Trademark trouble for Google

Media Post's Just an Online Minute considers a series of trademark lawsuits against Google:

When Google decided four years ago to allow trademarked names to trigger paid search ads, the company had to have anticipated that litigation would result.

And it has. American Airlines, insurance giant Geico and computer services company Rescuecom are among those that have sued Google for trademark infringement. They’ve all complained that Google allows their rivals to bid to appear as a sponsored link when users type their names into the query box.

They tend to argue that they’ve built goodwill in their brand names and that it isn’t fair for rivals to capitalize on that by using those brands to trigger ads. Rescuecom went even further than that in a federal appellate court this week. In an argument before the Second Circuit, Rescuecom’s lawyer said that consumers who search on the company’s name expect to see the company — and only the company — in the sponsored results.

But that argument doesn’t appear to be supported by any empirical evidence. In fact, Eric Goldman, a professor at Santa Clara University School of Law, told MediaPost that studies show the contrary: People use brand names as shorthand for broad categories. Certainly in the offline world, people have long done so, using “xerox,” for example, synonymously with “copy.”

Another factor that Rescuecom — and American Airlines and the other litigants — aren’t considering is that people conduct searches for companies for a variety of reasons beyond simply wanting to navigate to retail sites. For instance, if people want to know about Rescuecom’s reputation, they probably don’t want to get that information from the company itself but from more objective sources. That’s one of the reasons why the digital rights group Electronic Frontier Foundation weighed in on the case, arguing that allowing companies the opportunity to bid on a trademarked term can help protect free speech.

Read more here.

Fox Business News misses out

News Corp loses its domain name battle over Fox Business News:

NEWS CORP.'S 6-MONTH-OLD FOX BUSINESS News has lost its battle for the same domain name.   

The World International Property Organization's Arbitration and Mediation Center has ruled that Florida businessman Derek Hodges, of Sebring, Fla., properly registered the domain name FoxBusinessNews.com in February 2007. Hodges runs Worldwide Directory Services, which resells domain names and also offers Internet marketing services.

Hodges had been using the name Fox Business News since 2002, but didn't register the domain name until Feb. 8, 2007--the same date that News Corp. CEO Rupert Murdoch announced its new business channel, then known as Fox Business Channel. Hodges said he had attempted to register the Fox Business News name in 2006, but wasn't able to at the time. Last year, news that Fox was planning a new channel prompted him to investigate whether he could still claim Fox Business News as a domain name. Fox didn't register the trademark for the name "Fox Business News" until last July.

The arbitration panel ruled that Hodges could continue to use FoxBusinessNetwork.com because he had presented evidence that he had used the term "Fox Business Network" for his company for several years. Hodges also has been known by the nickname "the British fox" since the late 1990s.

Read more here (from Media Post).

Trademarking nakedness

The Wall Street Journal Law Blog reports on an unusual case:

When the Law Blog strolls through Times Square and sees the so-called Naked Cowboy — the guitar-strumming street-singer whose uniform is limited to cowboy boots, a hat, and a pair of briefs — several questions occur to us: Doesn’t the Naked Cowboy get cold? When does the Naked Cowboy eat? Does the Naked Cowboy have a family?

But here’s a thought we never had: Does the Naked Cowboy ever worry about identity theft? How about trademark infringement?

Well, according to the New York Post, he indeed has law on the brain. The Naked Cowboy, whose real name is Robert Burck, is suing Mars Inc. for $6 million for dressing an animated M&M in Burck’s signature outfit and broadcasting it on a video billboard. While not quite a doppleganger, the animated M&M is reportedly dressed in a white cowboy hat, boots and briefs for several seconds of a nearly five-minute video that also features the candy in street scenes and as city icons, including King Kong and the Statue of Liberty.

“My initial response was like, ‘Wow that’s cool,’ ” said Burck, 37. “The artist seeks to create the world in his own image. Obviously I was overjoyed . . . . It took years for people not to say that’s a stupid idea. . . . All I’ve got is my underwear. It’s the most brilliant thing that’s ever been created from a marketing perspective. You can’t stop it.” Mars declined to comment to the Post.

Read more here.  And this is the Naked Cowboy:

What do Britons really value?

A fun story from The Guardian:

Porn? Sex? Britons value cruises much more

It used to be sex that mattered most, but the world of internet domain names was rocked by a more genteel pleasure yesterday as a tour operator made cruises.co.uk the UK's most expensive piece of dotcom property.

The website cruise.co.uk has paid the German travel company Nees Reisen £560,000 for the rival name cruises.co.uk. The price paid for that extra 's' in the address - called a domain name - dwarfs the last largest British dotcom domain deal, when recycle.co.uk was bought by City financiers ASAP Ventures for £150,000 in October.

The price for British domain names is still well behind the levels reached for US - or .com - addresses. Sex.com remains the world's most expensive domain name after it was bought for $12m (£6.1m). Many of the other top US names changed hands during the dotcom boom of the late 1990s including business.com for $7.5m and beer.com for $7m in 1999.

Read more here.

Surprising win for MySpace in domain name dispute

The Guardian reports on a win for MySpace:

MySpace has won the right to have the MySpace.co.uk domain name despite another firm having registered it six years before the social networking website launched.

The ruling, by domain registry Nominet's dispute resolution service, has caused controversy in the industry because Total Web Solutions of Stockport registered the myspace.co.uk name in 1997, long before the US social networking website launched.

"This dispute resolution service decision is counter-intuitive at first sight and serves as a warning that domain registrations are not guaranteed and need to be secured by pro-active management as well as a clear understanding of the dynamic nature of the industry," said Jonathan Robinson, the chief operating officer at web services company NetNames.

However, the ruling, made by independent expert Antony Gold, found that while myspace.co.uk had initially been used to offer email services and mini-websites to subscribers it had changed its model to exploit MySpace's popularity.

TWS started to use the myspace.co.uk address to lead to a "parked" web page with advertisements for social networking websites including MySpace.

The arbitrator decided that this was evidence of abusive registration, that TWS was profiting unfairly from the association with MySpace.

MySpace.co.uk was awarded to News Corporation-owned MySpace as a result.

Read more here.

Google to kill domain tasting

Good news from Google, according to the Domain Tools Blog:

A confidential informant says Google will stop monetizing all domains if they are less then five days old. This potential new policy change by Google could stop all Domain Tasting in its tracks. The Add Grace Period (AGP) is a time period when registrars can delete a domain at no cost, but in this time frame a registrant could register millions of these temporary domains and place Google Adsense for Domains on them. The result is the ability to produce millions of temporary websites that literally generate millions of dollars in income per week for Google. It was disclosed in court that one partner that Google had was generating as much as $3 million dollars a month from the practice and that was after Google’s revenue share. Oversee.net and other companies have been using this practice for years and it will have a direct impact on them. The gravy train of free money might be coming to a halt very fast. This policy change at Google should be announced to the channel partners soon and it will have a huge echoing impact on the Industry.

The Good news is that the Quantity of advertising will be spread among fewer domains now and so those domain owners that actually own real full domains should receive more money if bid prices start to rise as a result of this. However some advocates of Domain Tasting say that perhaps no one will be able to serve the niche for some ads and no one will make money on the unserved ads.

I think this is a return of the “Be Good” motto Google had a few years ago.

Read more here.

Cyberlaw and cyberlawgs

Blogging for the Electronic Frontier Foundation, Corynne McSherry looks at a rather "silly" trademark case:

Eric Menhart may call himself a cyberlawyer, but we think he has a lot of learn about cyberlaw -- and common sense. Menhart is the author of a blog about cyberlaw issues called, logically if not innovatively, "Cyberlawg."  (As he says in the top right  corner, “Cyberlawg = Cyberlaw + blog.”)  And he is "principal  attorney" in a firm called "CyberLaw P.C." OK, OK, we get it, he practices technology law. Based on this, he’s applied for a trademark on the use of the term “cyberlaw” in connection with the practice of, um, cyberlaw. That's like a soda company claiming a trademark in the use of the word soda in connection with the sale of soda. Or an apple farmer claiming a trademark in the use of the term apple in connection with the sale of apples. Or ... well, you get the picture.

What is worse, he's threatening other lawyers with legal action based on this silly "mark." Menhart has demanded that attorney Michael Grossman change the title of his blog about technology law, "CyberBlawg."  Presumably Stanford's Center for Internet and Society, with its Cyberlaw Clinic, as well as the Berkman's Center for Internet and Society, and Elliot Zimmerman's blog, CyberLaw.info, are in Menhart’s sights as well.

I wish I could say I was surprised by this one, but such overreaching invocations of IP rights are all too common -- even where, as in this case, there are no actual "rights" to speak of. But an IP lawyer should know that courts (and trademark examiners, and many tech companies that might be potential clients) don't look kindly on efforts to abuse trademark law to control everyday language. Here's hoping Menhart figures that out fast.

Read more here.

Why not auDRP?

Yesterday I noted a post by David Jacobson on Ricky Ponting commencing proceedings in the Federal Court about an unauthorised website (see here).  David Jacobson wondered why Ricky Ponting chose litigation over the domain name disputes resolution procedure administered by .auDA.  Today David Starkoff has the answer.  Read more here.

 

Cricketing domain name dispute

At Australian Regulatory Compliance Review, David Jacobson comments on an interesting domain name dispute:

Australian cricket captain Ricky Ponting has lodged an application (set for hearing in the Federal Court on 8 February 2008) claiming misleading and deceptive conduct against the operator of a website which described itself as "the official Ricky Ponting site": Ricky Thomas Ponting v Kevin Leonard Consulting Pty Limited (ACN 087 382 858) & Anor) (also see Computerworld story)

It is not clear why Ricky Ponting has chosen litigation rather than the domain name disputes resolution procedure administered by .auDA.

Read more here.

More and more domain name disputes

The Wall Street Journal Law Blog looks at the rising numbers of domain name disputes:

Any securitization lawyers out there looking for work? We’ve got a suggestion. Litigate domain-name disputes!

We love domain-name disputes. You know, like when Nutrisystem files a complaint against some cybersquatter who registered www.nutrisystems.com? Or the when F. Hoffmann-La Roche, the maker of Valium, files a grievance against someone who registered www.prescriptionvalium.com? Or when The Donald goes after some dude who registered www.trumptajmahal.com?

There’s something about them that takes us back to those crazy dot-com days at the turn of the millenium. But who knew that these disputes are hotter than ever? It turns out that the number of complaints filed by trademark owners against cybersquatters under the “Uniform Domain Name Dispute Resolution Policy” (UDRP) hit an all-time high in 2007, according to this data from the World Intellectual Property Organization. Check this out:

1999: 1
2000: 1,857
2001: 1,557
2002: 1,207
2003: 1,100
2004: 1,176
2005: 1,456
2006: 1,824
2007: 2,156

We checked in with Doug Isenberg ... a lawyer in Atlanta who runs The GigaLaw Firm, a solo practice specializing in representing companies in domain-name disputes and other areas of Internet law. Isenberg, who also maintains a blog on these issues called GigaLaw, attributes the ever-increasing number of disputes to the continued growth of companies doing business on the Web and the growing number of cyberscams.

Read more here.

Arrington: "Run the business clean, and build your own brands and community. That’s my advice."

On Christmas Eve, I posted this:

techPresident and Tech President

The website techPresident is upset by TechCrunch running a "Tech President Primary" and has emailed Michael Arrington of TechCrunch outlining their concerns.  After a fiery initial post complaining about the use of the term "Tech President" as "identity theft" (see here), techPresident has now adopted a gentler position:

... the basic issue for us is our concern that TechCrunch may be inadvertently stirring up confusion as to whether our nonpartisan blog, TechPresident.com, is holding a primary or endorsing a candidate. To be clear, the purpose of my first email to Michael Arrington was to politely, I thought, ask him to make a clarification to this end. When we didn't hear anything back, and saw an additional subsequent post, we decided that we had no choice but to make our concerns public.

...

As for whether there is a copyright or trademark violation, I am honestly not interested in the legal interpretation so much as I'm interested in seeing people do the right thing. Several experts have convinced me that the legal argument is murky at best over whether or not TechPresident is a copyrightable term, or a meaningful trademark. Fine, I withdraw my complaints against TechCrunch violating copyright or trademark.

What I still am concerned with is plain old public confusion. The simple and decent thing for TechCrunch to do is to post some kind of disclaimer, in the relevant places, making clear that its Tech President Primary and Endorsement are not connected to this blog. Then we can both go back to doing what is far more important, which is getting the political system to pay more attention to our common issues.

Read more here. While I agree the arguments in copyright and trademark law are weak for techPresident I do understand that confusion could be caused by TechCrunch using that same phrase.  Indeed, as an avid reader of both sites, I was confused when I saw the "Tech President Primary" promoted on TechCrunch, and up until reading techPresident's angry post I was uncertain as to whether any relationship existed between the two sites.  So techPresident may have initially overreacted but I understand their frustration (even though there is no obvious legal option for techPresident).

Read it here. 

Given this, I found Michael Arrington's recent post WebGuild Using Questionable Tactics To Promote Events intriguing and possibly a little hypocritical.  Here is an extract of what Michael Arrington had to say:

Are you going to the Web 2.0 Conference later this month? No, not the one put on by O’Reilly in San Francisco. I’m talking about the Web 2.0 Conference & Expo put on by WebGuild later this month.

Or do you plan on attending the popular Future of Web Apps Conference? Not the one put on multiple times per year by Carsonified. This is a different Future of Web Apps conference, also held by WebGuild.

Confused? So am I.

...

Putting legal issues aside, This is still not ok. O’Reilly and Carsonified took a lot of financial risk and time in building up their brands around their conferences. For someone else to come in, take the brand and put on their own conference around it is just not ethical. To compare this with people downloading music is a red herring. A better analogy would be a new band calling themselves U2 and selling CDs under that name. It just smells off.

In fact, attendee confusion is the biggest issue I have with the event. Someone new to the community may have heard about the Web 2.0 Conference or The Future Of Web Apps, click on one of the spam links and buy a ticket for an event they think is something else. I asked Baran if he thought some people might be confused by his conference names. His response was “I don’t know.”

The confusion issue is real. I actually first emailed Ryan Carson to ask him if he was putting on the Future of Web Apps conference in partnership with WebGuild. Given how immersed I am in this community, I’m pretty sure that if I was confused, others will be, too.

Apart from these issues, WebGuild seems like a legitimate organization. They hold monthly events with high profile speakers at Google and elsewhere. Baran claims they are a non-profit organization, and that he takes no salary from his position there.

So why wade into grey areas of trademark infringement and blog spamming?  Run the business clean, and build your own brands and community. That’s my advice.

Read the full post here.  I'll let you draw your own conclusions ...

Some Christmas IP

At The Huffington Post T Jeremy Gunn identifies the "real Christmas grinch":

Did you know that "Help Save Christmas" ®  is a registered trademark of Liberty Counsel (Reg.No. 3,273,650)? It's true. If anyone tries to print "Help Save Christmas" ® without noting Liberty Counsel's trademark on the phrase, they just might sue you.

That's not all.

Those caring lawyers over at Liberty Counsel have also registered "I [heart] Christmas." ® Reg.No. 3,273,656.

In another burst of tough love, the Alliance Defense Fund has now officially trademarked "Merry Christmas. It's okay to say it. ™" Sort of makes you afraid to say it, doesn't it?

I'm not making this up. 

So be careful what you say.

The Christmas Enforcers, who have been selling the myth of a supposed 'war on Christmas' for years now are on the loose again. They are going to make you take just the right dose of Christmas. Hold the cheer.

For the past few years, having forgotten the real "spirit of Christmas," a rag-tag bag of Politically Correct Christmas Crusaders have taken upon themselves the role of patrolling stores and byways to see who is saying "Merry Christmas" in just the right way and making a list of who should be punished.

Read more here.

techPresident and Tech President

The website techPresident is upset by TechCrunch running a "Tech President Primary" and has emailed Michael Arrington of TechCrunch outlining their concerns.  After a fiery initial post complaining about the use of the term "Tech President" as "identity theft" (see here), techPresident has now adopted a gentler position:

... the basic issue for us is our concern that TechCrunch may be inadvertently stirring up confusion as to whether our nonpartisan blog, TechPresident.com, is holding a primary or endorsing a candidate. To be clear, the purpose of my first email to Michael Arrington was to politely, I thought, ask him to make a clarification to this end. When we didn't hear anything back, and saw an additional subsequent post, we decided that we had no choice but to make our concerns public.

...

As for whether there is a copyright or trademark violation, I am honestly not interested in the legal interpretation so much as I'm interested in seeing people do the right thing. Several experts have convinced me that the legal argument is murky at best over whether or not TechPresident is a copyrightable term, or a meaningful trademark. Fine, I withdraw my complaints against TechCrunch violating copyright or trademark.

What I still am concerned with is plain old public confusion. The simple and decent thing for TechCrunch to do is to post some kind of disclaimer, in the relevant places, making clear that its Tech President Primary and Endorsement are not connected to this blog. Then we can both go back to doing what is far more important, which is getting the political system to pay more attention to our common issues.

Read more here.  While I agree the arguments in copyright and trademark law are weak for techPresident I do understand that confusion could be caused by TechCrunch using that same phrase.  Indeed, as an avid reader of both sites, I was confused when I saw the "Tech President Primary" promoted on TechCrunch, and up until reading techPresident's angry post I was uncertain as to whether any relationship existed between the two sites.  So techPresident may have initially overreacted but I understand their frustration (even though there is no obvious legal option for techPresident).

Google's Law

Greg Lastowka has published an interesting article titled "Google's Law":

Lastowka, Greg, "Google's Law" (September 2007). Available at SSRN: http://ssrn.com/abstract=1017536

Abstract: Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google's control over results constitutes an awesome ability to set the course of human knowledge.

As this paper will explain, fortunes are won and lost based on Google's results pages, including the fortunes of Google itself. Because Google's results are so significant to e-commerce activities today, they have already been the subject of substantial litigation. Today's courtroom disputes over Google's results are based primarily, though not exclusively, in claims about the requirements of trademark law. This paper will argue that the most powerful trademark doctrines shaping these cases, initial interest confusion and trademark use, are not up to the task they have been given, but that trademark law must continue to stay engaged with Google's results.

The current application of initial interest confusion to search results represents a hyper-extension of trademark law past the point of its traditional basis in preventing consumer confusion. Courts should reject initial interest confusion doctrine due to its tendency to grant trademark owners rights over search results that could easily operate against the greater public interest. On the other hand, the recent innovation of trademark use doctrine improperly relieves trademark law of any role in the supervision of the shape of Google's search results. The absence of any state involvement in the shape Google's results will effectively cede the structure of our primary online index to Google's law. Google may enjoy substantial public goodwill, but what is best for Google will not always be what is best for society.

Part I of this article describes the history of Google and its business model. Google is not the only search engine today, but it is the leading search engine in terms of United States market share. Additionally, Google is playing the most important role today in search engine litigation. It is a unique search engine in many respects. During its evolution, Google followed a very different path than many of its competitors. Today its competitors are largely imitating its model, yet are unable to dethrone its centrality in search. Understanding how Google rose to prominence is essential to understanding its motives and how it might act in the future.

Part II of this article sets forth the contemporary law pertaining to search results. It begins with a short discussion of recent (failed) attempts to regulate Google's results through laws other than trademark. It then describes current theories of trademark law. It concludes by summarizing how trademark law has been applied to search engines, starting with early meta tag cases and concluding with Google's current attempts to insulate itself from liability under an expanded doctrine of trademark use.

Part III criticizes the current application of trademark law to search engines. It argues that the judicial innovations of both initial interest confusion and trademark use are inconsistent with the traditional purpose of trademark law and the new realities of the e-commerce marketplace. It concludes that a simple focus on the likelihood of confusion standard, which some courts have already supported, is overdue. It concludes by explaining why, despite the fact that trademark law today will likely permit Google's current practices, Google's bid for the carte blanche freedom permitted by trademark use doctrine should be rejected by courts. In its relatively new role as a protector of the social value of indices, trademark law must retain the ability to curb potential abuses of the commercial power enjoyed by Google.

Two significant decisions

There have been two significant decisions from the US this week - and both constitute bad news for Perfect 10. 

In the first, the US Supreme Court turned down Perfect 10's appeal of a decision holding that credit card companies were immune from liability for users' violations of state intellectual property laws.  From Media Post:

The Court let stand a ruling by the 9th Circuit which held that the federal Communications Decency Act shielded Web companies for users' violations of laws in California and other states. If that expansive opinion is followed by other federal courts, Web companies will be shielded from liability in a wide array of lawsuits stemming from state intellectual property laws, says Eric Goldman, an assistant professor at Santa Clara University School of Law and director of the High Tech Law Institute.

"This leaves on the books a very important 9th circuit ruling," Goldman says. "It wipes out a bunch of claims."

Perfect 10, which sells images of models to paid subscribers, sued credit card company CC Bill and Web hosting company CWIE for enabling piracy by doing business with sites that sold pirated images. Perfect 10's theory was that CC Bill and CWIE violated trademark law in California and other states by providing services to the infringing companies.

CC Bill and CWIE claimed immunity under the federal Communications Decency Act, which gives Web companies immunity from liability for information published by other content providers. That statute contains an exception for intellectual property claims, but the 9th Circuit held that the exception applies only to federal claims and not those brought under state law.

If other courts follow the 9th Circuit ruling, many state intellectual property laws could effectively be gutted, including Utah's recent Trademark Protection Act. Enacted earlier this year, that law attempts to ban marketers from bidding to appear as sponsored links when people conduct searches for the names of rival companies. Although that law was quietly passed in March, it hasn't yet gone into effect.

Read it here.

In the second, the 9th Circuit held that Google can display tiny photos in search results, even when the images are copyrighted, under the fair use doctrine.  From the Los Angeles Times:

The U.S. 9th Circuit Court of Appeals on Monday reaffirmed its earlier support for the socially redeeming value of searching the Internet for nudie pictures.

The San Francisco court, in reviewing a case it initially considered in May, reiterated its finding that Google could display tiny versions of photographs by Perfect 10 Inc., a Beverly Hills-based adult publisher, in search results, even when those images were copyrighted.

The court focused on the legal question of which party holds the burden of proving whether Google's use of Perfect 10's images constituted a "fair use" under copyright law. Fair use is a defense that allows the use of copyrighted works, under certain circumstances, without the owner's consent.

The appeals court initially said Perfect 10 had the burden of proving that Google couldn't make its case. It corrected itself Monday, saying it was up to Google to articulate its defense, even in a case such as this one, which dealt with whether the courts could issue a preliminary injunction.

Nevertheless, the court said, Google met that test. The justices ruled that a larger public interest in searching for information -- or, in this case, images of partially clad women -- amounted to a "transformative use" that trumped Perfect 10's copyright claims.

The small legal tweak did not change the appeals court's original May decision.

The court overturned part of a ruling by the U.S. District Court in Los Angeles, which had found that Google's thumbnail-sized images of Perfect 10's nude models constituted infringement. The lower court imposed an injunction barring the use of the images, but the appeals court invalidated that decision.

It also asked the district court to reconsider the question of whether Google or Amazon .com Inc., which also was named in the suit, could be held liable for damages because they linked to websites that displayed Perfect 10's copyrighted images without permission. The 9th Circuit judges wrote that the lower court erred and needed to consider whether the search engines knew of the infringement but failed to take simple steps to stop it.

Read more here.

Red Hot Chili Peppers sue Showtime over Californication

From The Huffington Post:

The Red Hot Chili Peppers on Monday sued Showtime Networks over the name of the television series "Californication," which is also the name of the band's 1999 album and a single on it.

The lawsuit alleges unfair competition, dilution of the value of the name and unjust enrichment, claiming the title is "inherently distinctive, famous ... and immediately associated in the mind of the consumer" with the Red Hot Chili Peppers.

Read it here.