Maybe, like me, you thought that the Bay Area Rapid Transit system was only good for illegally shutting down cell phone services in its stations to quiet protests that never actually existed. Well, it turns out we were all wrong about that. BART is also good for insanely stupid trademark oppositions. Take, for instance, the recent dispute between the transit group and FiftyFifty Brewing Company, in which the former is attempting to keep the latter from gaining a trademark on its Barrel Aged Really Tasty brew.
According to FiftyFifty owner/CEO Andy Barr, the B.A.R.T. beer has been a regular offering for several years. It has been sold at the brewery and bottled in limited production for California distribution; he has legal label approval in the state. But FiftyFifty is now ready to expand its current production (~1200 barrels per year) and start shipping over state lines, so as Barr puts it, “it was a time for a trademark.” However, one party is not so keen on FiftyFifty’s trademark application for the B.A.R.T. label: Bay Area Rapid Transit, which obviously shares an acronym with the FiftyFifty beer in question. An opposition was filed.
“We were very surprised to get opposition from Bay Area Rapid Transit,” says Barr, pointing out that trains and beer are very different things, unlikely to cause consumer confusion. “Trademarks are for specific categories. You trademark it for beer, ale, porter. The implication is that we came up with that acronym in order to monetize on the fame of Bay Area Rapid Transit — which is not true,” Barr says.
Category: Ignorant or unreasonable
Mary Kay Goes After Retailmenot For Promoting Mary Kay
I’m not a coupon person. I don’t know why I’m not, but I don’t find myself at the grocery store digging through a coupon wallet the way my mother did to ensure I get $.25 off on that discounted meat I like to buy for a little game I call “Will this kill me tonight?” When shopping online, however, it’s a completely different story. Like many others, checking out of an online store isn’t complete until I run the brand or retailer through a search engine to see if there are any online coupons I can use. One of the common sites that comes up is RetailMeNot, an aggregator of coupon codes. Sometimes the codes work, more often they don’t, but it’s all part of my buying process.
And you have to imagine that, for the most part, retailers love sites like this. Coupons, after all, are designed to get buyers to try out a store or a brand. Making those coupons more widely available should naturally result in more first-tries, more purchases when there might otherwise be less. It’s a promotional tool, if nothing else, likely a free advertising source for these stores and brands. Mary Kay Cosmetics, in its never-ending wisdom, has decided to sue RetailMeNot for fraud and trademark infringement, litigating against the hand that feeds them.
Mary Kay Cosmetics is suing affiliate site Google Ventures-backed RetailMeNot in federal court for precisely for this reason. The company doesn’t sell directly to the public — though its corporate site makes it appear otherwise — and says it doesn’t offer deals or coupons. Therefore the company says that RetailMeNot’s presentation of Mary Kay coupons misleads consumers and harms the brand and its relationship with its sales reps (independent consultants) in several ways.
Okay, a couple of things to note from that pull quote. First, Mary Kay absolutely does sell direct to customers on its website. Not its entire catalog, perhaps. For that, you probably have to deal with one of the low-on-the-pyramid “sales reps” that hasn’t figured out the Mary Kay business model yet. As for whether Mary Kay offers coupons or deals, they absolutely do that, too. You can get free gifts with certain purchase amounts or free shipping on certain amounts, for instance.
Music Group Wants ISPs to Spy on Customers to Stop Piracy
Following intense pressure from the Australian government, ISPs were warned that they had to come up with a solution to online piracy or face a legislative response.
In collaboration with some rightsholders, last month a draft code was tabled by ISPs which centered on a three-strikes style system for dealing with peer-to-peer file-sharers using systems including BitTorrent.
In a response to the code just submitted by the Australasian Music Publishers Association (AMPAL) – which counts EMI Music Publishing, Sony/ATV Music Publishing, Universal Music Publishing and Warner/Chappell Music among its members – the companies accept that the proposals are moving in the right direction but suggest boosting them in a number of ways.
Firstly, in an attempt to plug the so-called ‘incorporation’ loophole, the publishers say that all Internet subscribers should be subjected to the graduated response scheme, not just residential customers. While that suggestion could cause all kinds of problems for businesses and providers of public wi-fi systems, that’s just the tip of the iceberg.
AMPAL says it recognizes that the code requires rightsholders to do their own online monitoring of file-sharers. It’s a practice employed around the world in every jurisdiction where “strikes” systems are in place. However, the publishers would prefer it if the draft code was amped up to the next level.
“The Code does not place a general obligation on ISPs to monitor and detect online copyright infringement,” the publishers write. “AMPAL submits that ideally the Code should include such a duty using ISPs’ monitoring and filtering techniques.”
The publishers don’t elaborate on their demands but even in this form they are troubling to say the least.
While rightsholders currently monitor only file-sharers distributing content without permission, in theory and to meet AMPAL requirements ISPs may have to monitor the activity of all customers. Not only that, the ‘filtering’ aspect would mean that ISPs become much more than mere conduits of information, a real problem for those seeking to avoid being held liable for infringing activity.
But AMPAL’s plans for ISPs go further still. Not only should they be pro-active when it comes to monitoring and warning subscribers, ISPs should also use technology to actively block access to infringing content on other levels.
UK Police Can’t Confirm Or Deny Investigation Of Journalists It Publicly Confirmed In 2013
If you’re a UK-based journalist who’s reported on the Snowden leaks, it’s safe to say you’re under investigation. Not only are you being investigated, but that investigation itself is so secret, it can’t be discussed. The Intercept’s Ryan Gallagher sent a Freedom of Information request to London’s Metropolitan Police (the Met) for more information about the investigation — something twice publiclyconfirmed by Met representatives.
But when asked specifically for information on the ongoing investigation, the agency had nothing to say.
[T]he Metropolitan Police… says everything about the investigation’s existence is a secret and too dangerous to disclose. In response to a Freedom of Information Act request from this reporter, the force has repeatedly refused to release any information about the status of the investigation, how many officers are working on it, or how much taxpayer money has been spent on it. The Met wrote in its response:
“to confirm or deny whether we hold any information concerning any current or previous investigations into the alleged actions of Edward Snowden could potentially be misused proving detrimental to national security.’
In this current environment, where there is a possibility of increased threat of terrorist activity, providing any details even to confirm or deny that any information exists could assist any group or persons who wish to cause harm to the people of the nation which would undermine the safeguarding of national security.”
Never question the victim?
Because if you question the victim, you’re committing the crime of perpetrating “rape culture.” Well, you know, unless the story is complete bullshit. Then, I guess that “rape culture” is just a nasty way of pronouncing “the truth” or “due process.” See Erik Wemple, Charlottesville police make clear that Rolling Stone story is a complete crock.
RIAA Bites Grooveshark With Record Google Takedowns
It would be fair to say that the relationship between the world’s major recording labels and streaming music service Grooveshark is a rocky one at best.
Founded in 2006 as a site where users could upload their own music and listen to streams for free, friction with record companies built alongside Grooveshark’s growth. EMI first filed a copyright infringement suit against the company in 2009 but it was withdrawn later that year after the pair reached a licensing agreement.
Since then there have been major and ongoing disputes with the labels of the RIAA who accuse Grooveshark of massive copyright infringement. Those behind the service insist that Grooveshark is simply a YouTube-like site which is entitled to enjoy the safe harbor protections of the DMCA.
Part of Grooveshark’s DMCA responsibilities is to remove infringing content once a copyright holder asks for it to be taken down. Grooveshark doesn’t publish any kind of transparency report but there is nothing to suggest that in 2015 it doesn’t take that responsibility extremely seriously.
However, Google’s transparency report reveals that the world’s major recording labels are currently hitting Grooveshark particularly hard. In fact, between the RIAA, IFPI and several affiliated anti-piracy groups, Google handled 346,619 complaints during the past month alone, with up to 10,000 URLs reported in a single notice.
U.S. Court Extends Global Shutdown of DVD Ripping Software
Last year the decryption licensing outfit AACS launched a crackdown on DRM-circumvention software.
The company sued the makers of popular DVD ripping software DVDFab. It won a preliminary injunction based on the argument that the “DVDFab Group” violates the DMCA’s anti-circumvention clause, since their software can bypass DVD encryption.
Initially DVDFab did not respond to the court, so the order was entered by default. However, after the injunction was issued the company responded in the name of Feng Tao, with a request for the court to revise its earlier judgment.
One of the counterarguments DVDFab raised was that the DMCA’s anti-circumvention provisions don’t apply worldwide, and DVDFab was promising to no longer do business with U.S. customers.
“It is well-established that the Copyright Act doesn’t apply extra-territorially,” the company argued, asking the court to quash the injunction or limit it to the United States.
AACS contested the good intentions of DVDFab and showed the court that the software was still readily available to the U.S. public. According to AACS the circumvention software was still being offered and promoted though new domains and services.
For example, new circumvention tools and services were offered from TDMore.com, BluFab.com, Boooya.org, DVDFab.de, and FabImg.net, among others. To stop DVDFab from bypassing the court order, AACS asked for an updated injunction to cover these new products and domains.
This week District Court Judge Vernon Broderick ruled on the motions from both sides with AACS the clear winner
The Judge argues that DVDFab’s explanations for the continued offering of software in the U.S. are not credible so has ordered the seizure of several new domain names.
“Tao’s explanations for his continued trafficking of infringing products into the United States—the product is not his, the product was not created ‘primarily’ for AACS circumvention, or the product was not intended for U.S. users — is simply not credible. The record overwhelmingly demonstrates these statements are not true,” Judge Broderick writes.
The injunction bars DVDFab from distributing its software in public and allows AACS to seize seizure a wide range domain names. In addition, the company’s social media accounts are to be blocked and other services including online banks cut off as well.
While the Judge understands that the DMCA doesn’t apply in other countries he argues that, considering DVDFab’s conduct after the initial injunction, it will only be effective if it applies worldwide.
“It was not my intention to sweep within the Preliminary Injunction lawful conduct, i.e. entirely extraterritorial conduct. However, Defendant’s recalcitrant persistence in accessing the United States market makes clear to me that no more narrowly-tailored relief would be effective,” the Judge writes.
As a result DVDFab will lose control over TDMore.com, BluFab.cn, BluFab.com, Boooya.org, DVDFab.de, DVDFab.cn, FabImg.net, Woookao.cn, and Woookao.com which were found to be in violation of the DMCA. Two other domains, TDMore.cn and Boooya.com, were not added as there’s not enough evidence that they are operated by the software vendor.
There is no doubt that the broad injunction will severely impact the Chinese company. Aside from its domain names, the court also ordered payment processors to stop working with DVDFab, which will make it very hard for the company to sell its products anywhere in the world.
Emails Show Jeb Bush Coordinated With Florida Legislature for Favorable Primary Date
Emails obtained by The Intercept via a public records request reveal Jeb Bush closely coordinating with the Florida legislature to schedule Florida’s 2016 presidential primary in a way most favorable for Bush.
State Representative Matt Gaetz wrote to Bush on January 2nd that he is “concerned that Florida’s current primary date will lead to proportional allocation of delegates” and that a “winner take all” system would be preferable.
“Unless you ask me otherwise, I’ll file legislation to move our primary date back a week,” Gaetz told Bush, who responded to say that his political advisor Sally Bradshaw would give Gaetz a call. “10 4,” Gaetz shot back.
The email exchange had begun with Bush emailing Gaetz, the son of State Senator Don Gaetz, president of the Florida Senate in the previous session. Bush thanked the younger Gaetz for his “willingness to head to Iowa to go door to door,” adding, “Wow, what a generous offer! Happy New Year!”
The email exchange ended on January 3rd. But last week the primary arrangements proposed over email became a reality.
On Thursday, Gov. Rick Scott signed a bill that sets the date of Florida’s primary as March 15th, the first date on which states may award their full quantity of delegates on a winner-take-all basis under Republican National Committee rules. States scheduling primaries between March 1st and 14th must award delegates in proportion to the percentage of votes they receive or lose half their delegates, as Florida Republicans did in 2012.
As the Palm Beach Post noted, the bill appears to be a “a boon for U.S. Sen. Marco Rubio or former Gov. Jeb Bush, who both are considering a presidential run.” Such a front-loaded system often benefits establishment candidates with the most money to spend on television advertisements, as was the case with Mitt Romney in Florida in the 2012 race.
Florida, the state Bush governed for two terms, is perhaps the most important primary election for Bush in his expected quest to secure the GOP presidential nomination. Bush could lose the first few primary elections — which award delegates on a proportional basis — yet come out decisively in the lead in terms of delegates if he is able to win Florida’s winner-take-all primary, with its projected 99 delegates.
The New York Times recently reported that Bush’s political operatives have developed a confidential plan code-named “Homeland Security” to ensure victory in Florida for the primary and general election. The report notes that the Bush team intends to spend $50 million to secure support in Florida.
“Pay Off Your Credit Card Debt By Ratting on Software Pirates”
Representing major software companies, the BSA encourages people to report businesses that use unlicensed software.
If one of these reports results in a successful court case, the pirate snitch can look forward to a cash reward, which could amount to a million dollars per case.
According to a BSA executive the campaign has been very successful. It has resulted in many referrals and a decrease in software piracy rates.
Sounds great, but the way BSA recruits their snitches on Facebook is dubious and somewhat surrealistic. Instead of appealing to people’s ethics, the software group chooses to frames the campaign as a get-rich-quick scheme.
BSA continues to surprise us with new ads mainly targeting people who are short on money. For example, a few days ago this ad appeared in the timeline of thousands of Facebook users.
“Looking to pay off your credit card debt? If you know a company using unlicensed business software, file a report today to be eligible for a cash reward,” BSA’s latest Facebook ad reads.
It appears that every time we think BSA has found a new low, they come with a new ad that’s even more questionable. During the holidays, for example, they also appealed to the fact that many people are short on cash.
“Money can get tight during the holidays. If you know a company using unlicensed business software, file a report today to be eligible for a cash reward,’ the holiday ad reads, and there are more examples here.
While the BSA promises a quick cash solution, those who decide to report a pirating company are in it for the long haul. In the fine print it’s explained that people will only get a reward if a successful legal proceeding results in a settlement.
New Zealand Spied on WTO Director Candidates
New Zealand launched a covert surveillance operation targeting candidates vying to be director general of the World Trade Organization, a top-secret document reveals.
In the period leading up to the May 2013 appointment, the country’s electronic eavesdropping agency programmed an Internet spying system to intercept emails about a list of high-profile candidates from Brazil, Costa Rica, Ghana, Indonesia, Jordan, Kenya, Mexico, and South Korea.
New Zealand’s trade minister Tim Groser was one of nine candidates in contention for the position at the WTO, a powerful international organization based in Geneva, Switzerland that negotiates trade agreements between nations. The surveillance operation, carried out by Government Communications Security Bureau, or GCSB, appears to have been part of a secret effort to help Groser win the job.
Groser ultimately failed to get the position.
A top-secret document obtained by The Intercept and the New Zealand Herald reveals how GCSB used the XKEYSCORE Internet surveillance system to collect communications about the WTO director general candidates.
XKEYSCORE is run by the National Security Agency and is used to analyze billions of emails, Internet browsing sessions and online chats that are vacuumed up from about 150 different locations worldwide. GCSB has gained access to XKEYSCORE because New Zealand is a member of the Five Eyes surveillance alliance alongside the United States, the United Kingdom, Canada and Australia.