A Moron In A Hurry

July 22, 2006

Name that Smell

Filed under: copyright, patents, trademark — nick @ 11:18 am

There has been lots of discussion on-line recently as to the IP status of scents.  Here is a quick round-up of the discussion and a technological development that could change everything.

It seems that the stink first wafted over the Atlantic due to recent decisions in France and the Netherlands that have recognized copyrights in perfumes. Counterfeit Chic was the first to report on this and the NYT followed (or here) up a few weeks later.

Info/Law thinks that a smell, more specifically a perfume, should be protected by patent law rather than copyright, but also notes the way that the French are much more protective of the moral rights of artists.

There’s also the question of trademarking a smell. As The Trademark Blog has pointed out, a Lituanian pizza parlor is arguing that the smell of their pizza has secondary meaning that affords it trademark protection:

“Opinion polls show that many consumers in Lithuania identify the pleasure of eating pizza with our trademark,” said Mindaugas Gumauskas, marketing director of the [pizza chain]. “This makes us believe that the scent of freshly baked pizza is a subject to our copyright.”

If the request is granted, it does not mean that other pizzerias would have to stop making the oven-baked dish, but only [the chain] would be able to make the claim that its food smells like freshly baked pizza.

Thus highlighting the potential peril of such an expansion of intellectual property rights.

Since trademark is all about brand protection, there are always people looking to protect nontraditional marks such as smells, tastes, feels, and etc. Here’s also a bit of history behind protecting nontraditional marks.

Generally speaking, smells have usually been denied protection because there is no good way to define one. For instance, registering a trademark requires a graphical representation of the mark, which is impossible for a smell, as the Court of First Instance of the EC ruled in Eden v. OHIM in denying trademark protection for the smell of strawberries.

A patent requires both that the subject being patented be new and non-obvious.  Using the smell of strawberries as an example, the scent is clearly neither new nor non-obvious; everyone knows and can recognize the smell of strawberries.  However, gene patents have become fairly commonplace since a case, Diamond v. Chakrabarty, 447 US 303(1980), first loosened the accepted ban on patenting living organisms.  There, SCOTUS said a man-made organism was patentable.  Gene and other bio patent seekers attempt to exploit this kind of loophole, with moderate success, through the drafting of narrow claims over extracted or purified biological elements.  Thus, while a regularly occurring gene as it occurs in nature might not be patentable, using mechanical processes to isolate it increases the odds that the lab version can be patentable.  Though, gene patents are hotly contested as being incompatible with the plain meaning of patent law, especially as more obvious biological phenomena are being patented.

So what do gene patents have to do with scents?  In 2004, Dr. Richard Axel and Linda Buck were awarded the Nobel Prize for scientifically describing how scents are processed by the nose.  It should be no surprise then that, based on this discovery, researchers are working on a machine that is able to record a smell and play it back.  If successful, not only does this mean that the smell of my mother’s one of a kind apple pie – using a mix of McIntosh and McCoun apples with cinnamon, nutmeg, and a dash of cardamom – could be recorded and coded (ie. fixed in tangible form), it could also be duplicated for all sorts of uses.

And once there’s money to be made the IP lawyers and suits will follow.  If you fix it, they will come.  Such a smell machine would break down many of the practical barriers in denying scents IP protection.  Copyright?  Here’s the olfactory code of my smell, much like a computer program.  Trademark?  With the ability to reproduce at will and package ingeniously, building secondary meaning is no longer so difficult or implausible.  Patent?  Like with gene patents, if I modify the smell of strawberries and can isolate it from its natural source, what’s stopping the USPTO from giving me a patent?  All of a sudden, what seems practical – scents are too ill-defined for IP protection – starts to smell a bit fishy.


July 19, 2006

YouTube or YouScrewed?

Filed under: Uncategorized — nick @ 9:55 am

I never realized this before reading this post on Wired, but YouTube’s Terms & Conditions grants it the right to use and distribute (royalty free of course) any material you upload to the site however it wishes.  Also, it seems as if MySpace is in the process of changing its terms of use.  Any time I see somthing like this, something that I’m sure someone would have noticed and mentioned before, I turn to the Wayback Machine to double check for any hanky panky.  What does it say when a company blocks the Wayback Machine from keeping tabs on companies making sneaky changes to their Terms & Conditions?

If anyone knows whether YouTube’s terms have been changed recently or have always been this way, please let me know.

July 18, 2006

Judges Not Above the Rest of Us

Filed under: Judiciary, trademark — nick @ 7:30 pm

What would happen if a judge, who confesses to owning counterfeit goods, presided over a trademark case involving counterfeiting? An interesting anecdote from Counterfeit Chic.

Pirate Hunting Merit Badges

Filed under: china, copyright — nick @ 10:00 am

The NYT reports today on the Boy Scouts of Hong Kong and their new Intellectual Property Badge Award Program:

Starting this summer the Hong Kong government plans to have 200,000 youths search Internet discussion sites for illegal copies of copyrighted songs and movies, and report them to the authorities. The campaign has delighted the entertainment industry

One of the concerns that the program, helped put in place by the Motion Picture Association, raises is that these Scouts are going to be teased and labeled uncool by their friends. In response, the MPA is flying in a bunch of movie stars to meet with the Scouts to make them feel cooler about what they’re doing.

The program actually could be good for the Scouts, even if the program was rolled out here, so long as the kids were taught both sides of copyright without all the propaganda. The Boy Scouts should be aiming to teach kids the things they need to know to be good citizens that they aren’t taught in school and teaching about copyright is a brilliant move. Of course, the lack of a Fair Use Merit Badge shows that this program is helplessly out of balance.

July 11, 2006

Are We All Pirates?

Filed under: copyright — nick @ 10:49 am

The LA Times posts an editorial We Aren’t All Pirates, criticizing Hollywood’s efforts to put the balance that copyright law is supposed to create between artists and the public out of whack, declaring that:

Lawmakers shouldn’t assume all consumers are bootleggers and every digital device is a hand grenade aimed at Hollywood.

That many of Hollywood’s actions involving copyright stiffle innovation isn’t news, but that Hollywood’s local paper agrees seems surprising.

July 8, 2006

Copying in Music Not All Bad

Filed under: Uncategorized — nick @ 4:18 pm

Wired has an article on the booming musical instrument business and the Gibson lawsuit.  In late 2005, the Sixth Circuit held that Gibson competitor PRS Guitars could market and sell guitars that imitated the distinctive Gibson look.  As to consumer confusion, one of Gibson’s attorney’s even admitted at oral argument that “You’d have to be an idiot not to know which guitar you’re buying.”  The article suggests that the decision is good for instrument makers, if not music in general, since most musicians start out emulating thier favorite stars.  A prime example of the theory that less stringent IP laws can actually improve a market and create more wealth, and with numbers that appear to back it up.

July 7, 2006

OED Says Google is a Verb

Filed under: trademark — nick @ 4:13 pm

The OED has officially announced that using Google as a verb is now an acceptable use of the English language. The announcement means that Google’s efforts to protect it’s name from becoming a generic term for Internet search must begin in earnest.

Here are some historical cases of famous marks becoming generic:

Here’s an overview of trademark law and includes a helpful section on the danger of genericism.

An interesting thought is whether Google could sue the OED over this. It could be argued that by validating the use of “Google” as a verb, the OED in effect is diluting the strength of the mark, especially since the OED is the authorotative source on the usage of the English language. If that were to occur, I would like to see the OED argue that its definitions are subject to its own subjective editorial discretion, and thus that they’re not at fault, just as Google tries to defend itself in disputes over its listings.

Evan Brown of InternetCases fame has a good look at verbs and genericide.

Yell Sues Yellowikis

Filed under: trademark, Wikis — nick @ 2:32 pm

Yell, the largest publisher of Yellow Pages in the world, has reportedly threatened to sue the site Yellowikis out of existence, claiming trademark infringement:

Yell is demanding that Paul and Rosa close down the website, transfer the domain names to Yell and agree to pay damages to Yell for loss of profits. Yell made $2.4bn in 2005, whereas Yellowikis had a loss of $500. The $500 was used to print T-shirts promoting Yellowikis at the Wikimania conference in Frankfurt.

The term Yellow Pages should probably be considered generic at this point, since many wouldn’t be able to connect the term with a company and generally consider Yellow Pages to apply to any yellow book that contains a directory, regardless of its source. In addition, infringement would require some showing of consumer confusion, and finding a sufficient number of people who confuse Yell with Yellowikis doesn’t seem likely. And according to Wikipedia, the term Yellow Pages and the walking fingers logo have been in the public domain since the 1950s when AT&T failed to renew their registrations.

Yellowikis was founded by Paul Youltin and his 14 year old daughter who thought it unfair that small businesses couldn’t be added to Wikipedia since they were deemed “non-encyclopedic.” ZDNet has a case study of Yellowikis from last year, noting that the company has the potential to be disruptive in its market by utilizing the wiki; that is, disruptive in the sense of being cheaper, bigger, and better. It’s should be obvious now that advertising supported physical phonebooks are on the way out, as the number of people who use the internet to find businesses is ever increasing, making phonebooks irrelevant.

While the threat of a suit may not proceed any further, in a sense, Yell is almost obligated to make a fuss in order to defend whatever trademark claims it thinks it has, much in the same way that Xerox has to police the use of its name to prevent it from becoming a generic term for photocopying, for once a mark becomes generic it loses its trademark protection.

Jordan Lookalike Sues Jordan

Filed under: right of publicity — nick @ 12:36 pm

What do you do if you look like someone famous and people bring it up all the time? One man who looks like MJ thinks:

… suing Jordan for defamation and permanent injury and emotional pain and suffering. He’s suing Knight for defamation and permanent injury for promoting Jordan and making him one of the most recognized men in the world

is the best solution. Allen Heckard, the MJ lookalike, is suing MJ and Knight for $416 million each because, as he says:

Well, you figure with my age and you multiply that times seven and ah, then I turn around and ah I figure that’s what it all boils down to.

Right. Dear Michael, I am suing you because you look like me and had the nerve to become the greatest basketball player of all time, making my life miserable. People hassle me every time I lace up my Nikes to play ball and it’s all your fault.

It’s like trying to sue a celebrity who shares the same name, as if your name was Michael Bolton, but only more subjective. Suing, however, is not the only way to cash in on being a celebrity lookalike.

July 5, 2006

Stealing Coke’s Secret Formula

Filed under: Uncategorized — nick @ 7:49 pm

Three people have been charged with stealing classified documents from Coca-Cola and trying to sell them to rival Pepsi Co., though it remains unclear whether documents contained the secret formula for Coke Classic or for a new product being developed.  Pepsi contacted Coke and the FBI after the perps offered to sell it the information.

What a potential coup it would have been for a soda company, especially Pepsi, to get its hands on such a vaunted secret.  It would have put Pepsi in a difficult position because the Coke recipe is one of the primo examples of the definition of a trade secret, but regardless, Pepsi should be commended for its upstanding behavior (disclosure: I’m a die-hard member of the Generation Next).

One thing that caught my attention is that the group’s point man asked to be addressed as “Dirk.”  It seems worth asking whether adopting a porn name gives credibility to an anonymous person peddling in secrets or whether it is a sign of amateurishness (Deep Throat being the exception).  I guess the process works, since a porn star and an informant both have something stashed away that they’re looking to share.

July 3, 2006

Christians and the Media

Filed under: Uncategorized — nick @ 10:35 pm

Two developments in the culture war that deserve mention.

A few weeks ago CBS was fined $3.3 million by the FCC for an episode of Without a Trace feating a flashback to an afterschool orgy (without any nudity).  The Parents Television council manufactured all but 2 of the over 4,000 complaints the FCC recieved.  The really sad part is that the episode originally aired months earlier, drawing no complaints, and the complaints that the rerun drew were not submitted until weeks after, once the PTC hosted the clip on its website and asked visitors to generate complaints.  CBS has, not surprisingly, challenged the FCC’s fine by declaring the complaints invalid since none were written by people who actually saw the show.

Ars lays out the whole story, while Copyfight questions the FCC’s latest attempt at censorship, both of which are worth reading.

Best of all, the PTC originally hosted a clip of the scene on its website (courtesy of the Wayback Machine), but has since taken it down and altered the page.  I can’t help but wonder if CBS threatened to sue for copyright infringement – I mean, people have been sued for less – and perhaps that would be an effective strategy against future manufactured PTC complaints.

The second part of this story involves outrage that the movie Facing the Giants, a Christian-themed movie, recieved a PG rating rather than GAccording to its website, the movie:

Follows the story of a football coach at a Christian high school who uses his faith in God to guide and strengthen the decisions he makes at home and on the field with his players.

The website also offers several testimonials, from college football coaches to NFL players, attesting to the power of Christianity in football.  This time Rep. Roy Blunt is leading the crusade in accusing the MPAA of giving the movie a PG rating because of its religiosity.  The MPAA denies this, duh, but Blunt trumps this as a further sign that the MPAA ratings process is a bunch of bunk.

Shit.  No one complained when Radio was rated PG and I can’t imagine this movie being any more tame that that.  It’s football!  And football involves at least a modicum of violence.  Little Giants: PG.  Remember the Titans: PG.  Rudy: PG.  Come to think of it, has any football movie ever been G rated?

But complaining about a Christian-themed movie getting a PG rating – the position being that a “Christian” movie should have a G rating almost by definition – is amusing for two reasons.  First, it seems as if it’s just desserts for religious inspired complaints against the FCC.  The FCC is supposed to protect “the public” and not every parent wants to bring their child to a Christian movie.  That’s a fair choice for a parent to make, hence the “Parental Guidance Suggested” label.  Second, it gives a little fodder for the “what rating would the MPAA give the Bible” debate.  Murder, rape, incest, fire and brimstone, mass smotings, and epic battles, all conducted under the watchful eye of a vengeful deity, would probably not recieve a G rating.

Seems to me that the groups that complain most about parents not having the tools to protect their kids aren’t so keen about having the tables turned on them.

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