Levi’s Suing Everyone Over Jeans Designs

NYT has a great look at Levi’s recent deluge into the trademark protection abyss.  From the article:

Executives at Levi’s concede they missed important fashion trends as the denim industry ballooned over the last several years, but they deny the lawsuits are connected to any downturn in their business.

Instead, they say they are simply trying to preserve their intellectual property. Like pharmaceutical companies that sue generic drug makers over their patents or technology companies that duke it out over who owns the right to microchip designs, Levi’s says it is trying to protect its most valuable asset, its trademarks.

Really?  Would old Mr. Strauss not have continued making jeans if he couldn’t prevent others from mimicking his back pocket design?  Silly me, I thought it was all about the product.  But still, does imitating Levi’s back pocket create confusion?

“It was an original design,” [Steven Shaul, the founder and chief executive of Jelessy Jeans] said. “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

Very true.  Does anyone paying $200 for jeans think they’re buying Levi’s?

The Frypod

It’s been a while since Apple has sought to reserve the use of “pod” all for itself, so I thought I’d try and fan the flames since it makes for some good entertainment, if you are of that sort.  While home over Christmas, I had an enjoyable meal at Burger King with my kid brother following some frantic last minute shopping on Christmas Eve.  I was treated to see this come with my order:

Alas, it played no music when I plugged my headphones into it, but my confusion was soothed by the tastiness of this pod’s contents.  It’s even funnier to think that the “Frypod” also sounds like “iPod.”  Confused minds may disagree about whether this little dandy tread’s on Apple’s “pod” turf, but I get a kick out of seeing the word “pod” plastered on anything.

Have your own “pod” sighting?   Well please, send it in.

IP Bounty Hunters

The lighter side of IP, via BB:

The Day After

Democrats really have swept the House, and it looks like they’ve taken the Senate too, so they should be congratulated for not flubbing their chance to take power.  But what does the Democrats’ victory mean for the state of IP?  The honorable Mr. Patry looks at who will be the next chair of the IP subcommittee.

Perfect Pod Coffee

There people go again using “pod” as some sort of generic term for personal portability enabling device.  This time it’s Perfect Pod, which “lets you create self-contained, single-use pods for use in virtually any coffee machine.”  Another Apple “pod” suit in the works?  Funny enough, this product seems to be the anti-Apple:

Sure there are many machines out there that use the single-use pods, but they’re all one-cup systems and vary the pods enough so you can only use the manufacturer’s own pods in the machine. And what if you are attached to a favorite brand of java, like Starbuck’s or Dunkin’ Donuts? Make it easy by making it in advance. Make it disposable. Make it in the perfect strength. Make as many cups as you want with one pod. Make it your favorite blend. Make it Perfect Pod.

Apple’s FairPlay certainly does make their pod less than perfect and I’m not sure who’s going to confuse coffee with digital music.

Via BB.

Making the Long Tail Big

I’ve been fascinated by this whole long tail thing for while now and how a coherent view of online niches interacts with IP.  Here’s Wired on the “meganiche.”

Say It Ain’t So Steve-O!

Looks like YouTube was DMCA’d by Viacom over clips from The Daily Show and The Colbert Report.  Unfortunately for Colbert, he makes heavy use of his stuff being online, most recently the Green Screen Challenge, so it will be interesting to see if he reacts to Viacom’s recent move.  Colbert is actually all over making his show about more than just watching TV: he has built a sense of community around his persona.  For example, throughout August he campaigned for users to vote for him in a Hungarian bridge naming contest and he ended up winning.  The clip is quite funny, with the Hungarian Ambassador to the US coming on the show to proclaim him the winner, but the clip has been pulled.  While it may have the right to pull these clips off YouTube, to actually do so is so dumb that I fail to grasp how it makes any economic sense for Viacom, especially since it’s too late for it to try and get an equity stake in YouTube.  The last thing Colbert needs is for his fans to turn on him, which is exactly what may happen thanks to Viacom.

How Much Is Too Much

A thought:  at what point does downloading too much music go from being an aficionado to be obsessive?  Is 90,000 songs too much?  An interesting anecdote from Wired discusses this.  Purchasing music solely for enlarging one’s library may have bad consequences for art/culture (the work itself becomes worth less), but I’m not sure that this kind of thing is any different than what came before digital music.  Sure, one’s record collection no longer confined to how big their apartment is, but rather how big my hard drive is, or confined by cost, since there’s always p2p and piracy, but are there really that many people who are so obsessive about music now that they wouldn’t have bought the CD or vinyl equivalent of 90,000 songs back in the day?

Assuming that the low costs of owning music (purchasing and storage) are actually enabling people to fulfill unrequited desires of building massive collections that can complement any mood, guest, or situation, what does this mean for the status of the artist?

If you would like, please share how many songs are in your library.  I’m rocking it out with 4754, which gets me 13 days without hearing the same song twice.

Polluter Intimidates Environmental Group with TM Threat

TXU, accused of being a major Texas polluter, has threatened suit for trademark infringement against Downwinders at Risk, a small Texas environmental group, over the group’s eight foot tall effigy depicting Texas Governor Rick Perry kissing a smokestack covered with the logos of several other Texas polluters.

The TXU mark is the blue one at the top.  It’s so tiny.

Public Citizen is involved in the case and decries TXU’s abuse of trademark law to stifle protected speech (the link also leads to copies of the correspondence between PC, DAR, and TXU).

Since not even a moron in a hurry would think TXU is the source of this protest piece, DAR’s use of the TXU logo should clearly not  be trademark infringement.  From Mattel, Inc. v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002) (at bottom of page 10488):

The First Amendment may offer little protection for a competitor who labels its commercial good with a confusingly similar mark, but “trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.” L.L. Bean, Inc. v. Drake Publishers, Inc. 811 F.2d 26, 29 (1st Cir. 1987). Were we to ignore the expressive value that some marks assume, trademark rights would grow to encroach upon the zone protected by the First Amendment. See Yankee Publ’g, Inc. v. News Am. Publ’g, Inc., 809 F.Supp 267, 276 (SDNY 1992).  When unauthorized use of another’s mark is part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right.”). Simply put, the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function. See Anti-Monopoly, Inc. v. Gen Mills Fun Group, 611 F.2d 296, 301 (9th Cir. 1979).  (“It is the source-denoting function which trademark laws protect, and nothing more.”).

Dilution works differently and is concerned with free riding on the fame or good will of a well known mark.  However, the Federal Trademark Dilution Act section (A)(4)(B) creates an exemption for “noncommercial use of a mark,” even if dilution exists.  DAR is “diluting” TXU’s mark (ie. using TXU’s trademark to “mischaracterize” it as a polluter), but is doing so in a noncommercial way.  Since DAR’s use is political speech and not commercial, it should fall under the FTDA’s safe harbor.

Via Techdirt.

Follow the COPA Trial

Read the play by play from the Child Online Protection Act (COPA) trial (full text) by Rufus Griscom here at Nerve.com.  The outcome will determine the legality of publishing “material harmful to minors.”  Background here and here.

The case is ACLU v. Gonzales, 98-CV-5591.

Not Sympatheitc for Studios

LAT runs a nice piece on the growing tension between studios and talent in Hollywood, which the paper suggests may even lead to a strike as labor unions, such as the Screen Actors Guild are becoming testy towards studios’ behaviors.  The issue boils down to entertainment contracts, with talent wanting to ensure they get a cut from new technology while the studios are trying to insist that everything new is covered by the old contracts.  One key point seems to be residuals, where artists are paid for every time their work is shown.  For example, the number of times a commercial runs on TV is kept track of and, depending on their deal, those involved in making it get a small check each time it airs.  This is standard, but not yet for online.  Back in February, ABC said that it was applying its homevideo rates to content bought on iTunes, meaning above the line talent would get about about four times less than it would under the rates for regular TV (which is only about 1.2% anyway).  Ask youself, is iTunes or YoutTube like homevideo, or is it something decidedly different?

Entertainment companies taking advantage of artists is nothing new and only gets worse as technology changes.  Back in April, the Allman Brothers and Cheap Trick sued BMG over what their contracts had to say about digital distribution, which was nothing at all since the contracts predated online music.  First off, it turns out that BMG still deducts packaging and other costs tied to CDs, when there are no CDs.  Second, BMG gets 80 cents of every 99 cents spent on iTunes and pays the bands only 4.5 cents because that is the rate for sales, as opposed to 30 cents per song if it were characterized as being licensed to users.  BMG argues that, in fact, these are sales while the artists argue for the licensing scheme.  Funny, though, that Big Content always seems to suggest the license argument when they opt for new DRM.

And then there is Mr. Yankovic.  In June, Weird Al was asked whether he made more money from sales of CDs or mp3s and the answer was decisive: CDs net him way more money.  Since making those comments his new album, Straight Outta Lynwood, debuted at #10 on the BillBoard 200.  This is the first time he has cracked the BillBoard top 10 and has less to do with his music somehow being better (I’ll argue its not as good as the old) than that he’s tapping into what can be done online with free downloads and video.  Weird Al has himself credited the Internet for the success of his new album.  Only upon going this route did he make the top 10.  Seems counter-intuitive: pursue the format that doesn’t make as much money and yet end up with the biggest hit of your career.

Whether it be with movies or music, there is a clear whiff of greed coming off Big Content as it lumbers into the online marketplace.  It always drops the “we’re just protecting the artist” card, but Hollywood and the labels have shown that they themselves may be the biggest danger to most artists.  Plus, the kind of free promotion that Weird Al used (no DRM, free sharing and downloads, videos on YouTube) to break the top 10 are exactly the kinds of things the studios and the RIAA consider stealing and blame for destroying the entertainment business.

I’d bet $20 that the above the line talent gets screwed in their deal with the studios, putting the studios in the unenviable position of both seeking to monopolize their power through copyright and monopolizing the ability to screw artists.

What Hath the iPod Wrought?

WaPo runs two articles on digital music in light of the upcoming 5th anniversary of the iPod.  One discusses the disaster of different digital formats and DRM that characterizes most digital music offerings.  The other, a look at the way music has changed since the iPod debuted.  Quote of the day, from Yahoo! Music director of product management, Ian Rogers:

I feel for anybody spending $10,000 to fill up an iPod today… It’s like spending $10,000 on eight-track tapes in 1978: You’re going to be super-bummed come 1990.

Wag the Tail

Ars hails Universal’s announcement that the 3,000 out of print tracks it released in February have been downloaded more than 250,000 times since,as an example of the long tail in action. I’m a bit of a copyleftist and don’t necessarily see this as a good thing. Yes, hooray for consumer choice and all those dying to get their hands on music by Eddie & the Hot Rods. Hiss for the hit to the public domain.

Here’s the problem with the long tail. Out of all the copyrighted material that Universal (or any other Big Content player) controls, only a fraction of it is valuable, and an even lesser percentage of the old stuff. The ‘short tail’ world made these materials generally worthless and, especially if copyright renewal were mandatory, made it more likely that the material would pass into the public domain. Would Universal complain about Eddie & the Hot Rods going into the public domain? No, but think about the Beatles. Remember how we dealt with Mickey? In the long tail world, all of these obscure materials can actually make money for their owners rather than toil away the years locked up because they’re not worthy of shelf space. Obscure works may not rake in much individually, but a company would enjoy a comfy cushion with a large enough library of them. Thus, the odds are good that Big Content is not only going to work harder in lengthening copyright terms, but also crack down on public archives, all thanks to Anderson’s neat little use of a picture (read his thoughts on Universal’s announcement here).

Recall the ominous warning of The New Yorker’s review of The Long Tail:

In recent years, eBay has sharply increased its commission rates; Amazon has admitted charging its customers different prices for the same goods; and Apple Computer has stubbornly refused to make its iTunes service compatible with portable music players other than iPods. Has the New Economy really moved past the familiar “winner take all” dynamic? That depends on whether you’re looking at the long tail—or at who’s wagging it.

It is probably the best critique of the book and the idea, unless you are of the Lee Gomes persuasion and like numbers.

I thought Anderson’s original article was smart, but was dissapointed with the book (does an Amazon rank of #147 qualify as being in the long tail yet?) because I was hungry for more. What does a coherent understanding of the long tail mean? Is such a view of online commerce an unquestionable good? Will access to the darkest corners of Big Content’s libraries make us more likely to accept it being wrapped in DRM? Anderson fails to address these questions, focusing more on the fact that the long tail represents a huge money machine for those with enough stuff to peddle.

Maybe a better title for this post would have been “If You Meet Chris Anderson on the Road, Don’t Drink His Kool-Aid.”

OJ Keeps His Ego, For Now

The family of Ron Goldman’s lawsuit against OJ to seize his publicity rights, in order to recover the estimated $38 million OJ owes the family from their wrongful death lawsuit, has been “tentatively rejected” by the judge handling the case.  It’s not a final order and the whole affair is expected to wrap up in the next couple weeks.

Steal This Recipe

Sometimes you just have to stop and wonder what is going on.  Legal Fixation comments on an article in Food & Wine on intellectual property in the kitchen.  Efforts include patenting certain concoctions, as well as copyrighting the expression of recipes themselves.  Of course, outright plagiarism of published recipes is a no-no, and some food processes (like engineering absinthe or molecular gatronomy) may seem apt for some sort of IP protection at first glance, but it still remains to be seen whether most cooking is truly inventive.  Chefs may disagree, but their self-interest in protecting their ritzy concoctions should be checked by some sanity.  Surprisingly, the fashion industry, which mirrors cooking in that they’re both evolving arts, has been making strides in protecting their wares, with legislation even being considered in Congress, but I’ll send you to Counterfeit Chic for more on that.  Still, we should consider the cultural implications of such food rights for fear that they go too far.  Rather than buying my food, it’s easy to imagine a time when a restaurant licenses me the right to eat their food, much like the entertainment industry is seeking to characterize “purchases” of songs and movies as merely purchasing limited licenses to use.  Upcoming chefs often work in apprenticeship type positions, meaning at some point they will be confronted with NDAs and be forced to sign away all rights to recipes they come up with to their restaurants (who will of course be in dominant position of power given the stiff competition in the industry).  Worst of all, if food patents become big business, the difficulty in proving prior art in culinary seems overwhelming and the likelihood of patent trolls seems inevitable.  Chefs had better be careful what they wish for.

A Defense of Blawgs

Findlaw’s Julie Hilden defends a lawyer’s right to blog, in light of New York’s proposal to equate blogs with ads and regulate them as such, and argues that such a rule 1) is against the First Amendment, 2) is elitist, 3) would mean that everything a lawyer writes or says is then also an ad, and 4) would make the market for lawyer services worse by depriving potential clients of info about a lawyers ability beyond their resume.

If we want the best arguments to win in court, why shouldn’t we let the best bloggers win clients, too? State bars should affirmatively encourage legal blogs, rather than chilling them by regulating them as if they were no more significant than a banner on the back of a bus.

If you feel strongly about this, Likelihood of Confusion has pointed out that comments on the proposed rulemaking in New York can be sent, by November 15, to:

Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004

Phone’s Ringing, Oh My God

The Register of Copyrights has ruled that mastertones (actual recordings of songs used as ringtones) are covered by the compulsory license requirements under Section 115.  This may lead to reduced royalty payments to music publishers and thus cheaper ringtones for all.

Boycotts v. Sucks

WIPO has decided that the site Boycottwalmart.com is not confusingly similar to Walmart.com and thus rejected Walmart’s bid to kill the site.  The WIPO panel said:

The Complainant has argued that formulating a domain name by adding a derogatory term to a trade mark always results in a domain name that must be seen as confusingly similar to the trade mark… A domain name which combines a disparaging or critical term with a trademark may well be confusingly similar to the trademark, but not always. This panel considers that confusing similarity will be established where those persons who are mostly likely to want to access a complainant’s website will be confused as to whether the complainant is the owner and operator of the website to which the disputed domain name resolves.

For those keeping score at home, that means that adding ‘boycott’ to a recognized URL is ok, but adding ‘sucks’ may not be, highlighting the problem of arbitration where panels are not bound to follow precendent.  Techdirt has a good look at this.

Wikipod: Neat Idea Inviting Trouble

BoingBoing links to a new program called Wikipod that allows a user to download Wikipedia onto their iPod.  It’s a great idea and many will find it valuable, but there’s a problem in the name.  Profit Pod, Tight Pod, Podcast Ready (maker of myPodder software), and Spodradio, among others, have been sent cease and desist letters for their use of “pod” in their names, possibly in an effort by Apple to strengthen its tradmark claim to the term “podcast” itself.  Whatever the merits of these trademark claims or Apple’s motivation, it should only be a matter of time before Wikipod finds itself the recipient of a C-n-D from the Apple legal department.

Is Pod a Generic Term?

Those crazy Apple people are at it again, this time sending a cease and desist letter to the Podcast Ready people over their use of the word “pod.”  It seems pretty clear that a “podcast” is a generic term for downloadable radio-style segments, despite the fact that the term is derived from iPod’s name.  In fact, nothing about the word “pod” really seems all that distinctive, but rather it’s the use of the “i” ( as in iMac, iBook, iTunes, iSight, etic.) that makes Apple’s mark strong.  But no, Apple’s lawyers are fretting about other people using the word “pod” in their names and on their products to the point where they are essentially claiming that using the word “podcast” infringes Apple’s trademark rights to the iPod.  Pox on Apple.  If they keep this up someone will fire up an iWasBulliedByApple website (or at least until Apple sends them a letter).