Tuesday, December 02, 2014

Sovereign patent funds are a new wrinkle in the patent troll debate

Here’s another wrinkle in the patent troll problem, “sovereign patent funds” SPF's), devices countries (most of all China) use to protect their own home industries from competition, as explained here.   The article uses the term “mercantilism”, a term I was asked to explain on my first high school history test in 1959 (then, with respect to Britain and the colonies).  I got “off 15” on that question.
I actually got emails from China about whether I wanted to register my domain “doaskdotell.com” in China, which would append its own tld.  I thought I was banned.  It seemed like a cumbersome process.  But I do have traffic there according to Urchin.  

Tuesday, November 18, 2014

Wordpress software company has a transparent way to handle trademark complaints about blog names

I discovered the Trademark Policy for “Automattic”, the company that hosts Wordpress.  The link is here.  Notice that the directions specifically say that a blog that uses a company or business name to parody a product of the business (like a movie or music) is not generally considered to be committing trademark infringement. 
Chilling Effects has a FAQ on trademark which is undergoing review, here. Note that some practices are real infringement, such as intentionally driving traffic away from a trademark holder with link or "metatag farming".  
Only blogs actually that say “powered by Wordpress” can be reviewed by “Automattic” for trademark claims.  Some hosting services (like Bluehost) do actually use Wordpress to power the content. 
A lot of “frivolous” complaints are based on the idea that some people really do need a wide profit margin on their sites (to support families or other employees) and others don’t. 

Thursday, November 13, 2014

I get "honorable mention" from another trademark law site

I’ll pass a long a link sent to me in a tweet that “honored” me this morning, “The Trademark, Copyright and Business Law Digest”, here.  I get mentioned for my Wordpress posting (link there) showing all the movie studio trademarks, under the Arts and Entertainment sectuin.  I guess Wordpress postings get found as quickly as Blogger.  I put that posting up to make the point that studios should play their entire trademarks and music before the movie starts.  20th Century Fox is the only studio (using Newman’s fanfare) to do this.  But Paramount (that is, Viacom), one of the more litigious of studios in protecting its intellectual property rights (and in leading the fight against piracy, which went over the top in 2011 with the SOPA debate) doesn’t usually play its “100th Anniversary” Music (which is pretty effective).  For example, with Christopher Nolan’s “Interstellar”, the music (by Hans Zimmer) for the film started as the Paramount mountain showed.  I think it is far more correct (legally) to show all the trademarks and play all their music first, and only then start the movie.
On another trademark issue, I repeatedly get invitations to load Adobe Flash Player when I go to Major League Baseball, but the site offering it is something called “Easy Computer Repairs”.  That sounds like a scheme to transmit malware, and that the copy of Flash would be fake.  But I notice that all the Adobe trademarks and usual messages are reproduced perfectly, just as with bank phishing schemes.  Trademark violation would be one way to go after these schemes, although it isn’t easy when they’re overseas and hosted in formerly communist countries.   

Saturday, November 08, 2014

Some companies still advertise that "you can patent an idea"

I’ve been seeing some ads recently “How to patent your idea”.  I jerk when I see a claim like that, because as we know, abstract patent claims (for mathematical algorithms) usually are abusive and have resulted in a lot of patent trolling, especially for software in recent years, even resulting in claims against customers as well as vendors.  However the site promoting this verbage, link here  does, when read, indicate that you have to have a working prototype, and have something new that really does work. 
The code of a major computer system (like Vantage in mainframe life insurance processing, or Facebook apps in social media) are pretty easy to copyright.  When acceptable, a patent is indeed even stronger protection than a copyright, because a patent has to do with actual novel functionality of something, not just the expression of something.  A typical resource on the question is here.   

Monday, October 06, 2014

New trademark between book author-consultant and food company over the word "How"

There is now a legal trademark battle between two entities over using the word “How”, as in a front page New York Times story today by Jonathan Mahler, “Of the Word ‘How’ Is Trademarked, Does This Headline Need a (trademark symbol)?” link here

Book author Dov Seidman, of “How: Why How We Do Anything Means Everything” is suing large Greek yogurt manufacturer Chobani for its “How Matters” logo on its products, claiming trademark infringement. Seidman says, this is not a "how to" book, but a "how" book.  (No, it wouldn't fit the "For Dummies" trademark, either.) 

The story indicates that Seidman has a business, LRN, advising companies on ethics.  There is a question as to whether the trademark applies mainly to the book, or to a wider service.  Normally, a single book or movie title cannot be trademarked, but a series (like “Harry Potter” or “The Hunger Games”) can.  There is obviously a question, as the article points out toward the end, whether consumers would confuse the brand that connotes a service (or book title) with yogurt or a food product.  Common sense tells me that most consumers would not be confused.  The USPTO allows the same trademark wordmark to apply to different businesses.  

I have only one Chobani product in the house right now, and it doesn’t have the mark.  The next time I go to the supermarket, I’ll look for it so I can get a better illustration. I just came back today but didn’t know about this case until just now.

I’ve just ordered Seidman’s book from Amazon.  It has an introduction by Bill Clinton.  I’ve got two other books in my queue right now (one on Ebola, one on OBE’s) but this looks pretty important.  At least both companies got me, a consumer, to buy one unit of each to see what the fight is about.
As I’ve explained here before, I have three books in my “Do Ask, Do Tell” series (1997-2000; 2002; 2014).  I have not applied for a formal trademark, assuming it is a common phrase.  I would have an issue if another book series (or a motion picture series) was based on this phrase, so maybe I need to look at this again – since I am getting ready (finally) to push screenplays and film videos based on the book material. (Yes!)   I don’t think there is an issue if a psychological counseling service or particularly HIV-prevention forum wants to use it.   The phrase has a somewhat universal political and social meaning now, even if much of the original is came as the negation of the now repealed “Don’t Ask, Don’t Tell” policy for gays in the military.   (What if it were “Don’t Ask, Do Tell?”)  

Monday, September 08, 2014

Cato discusses need for patent reform, especially for software patents

The Cato Institute (in “Cato Unbound: A Journal of Debate” offers a major essay by Eli Douardo on the need for patent reform.  The piece is titled “The true story of how the patent bar captured a court and shrank the intellectual commons”, link here.

The two biggest problems are that the federal circuit is the only appeals court that takes up patent cases, and that patent statutes remain too ambiguous as to what can be patented when it comes to intellectual processes (software).  Another problem is that it is difficult for another inventor to look up software patents.  The nature of the beast invites predatory trolling.

Further, the “trolls” may have the mentality that this is “just business”.  They’re all lawyers with families to support, right?  The irony is that “real life” thinking seems to drive predatory behavior rather than real competition.
The writer thinks that the patent problem has become a big drain on economic growth and “legitimate” jobs recovery, especially in some IT areas.

Monday, September 01, 2014

ALSA drops "ice bucket" trademark attempt

Well, thankfully, the ALSA (Amyotrophic Lateral Sclerosis Association) did pull its trademark application for “ice bucket challenge”.  Fortune has a story by Tom Huddleston, Jr. here.  Vox Media offered a tweet when ALS first attempted to TD it.     One legal problem is that ALD would have been trying to trademark something had not invented itself.  Erik M Pelton Associates had written about the legal challenges here.  EMPA’s blog covers branding and social media so it very likely has other posts relevant to me;  I’ll check later.   I had written about the idea that the ice bucket challenge is a bit manipulative on my main blog Aug. 26.

Wednesday, August 20, 2014

My own domain names -- quick update

As I indicated on my main blog Tuesday, I am interested in working with other news sites or organizations to help them with specific issues.

I have previously (on March 20) discussed the name “Do Ask, Do Tell” used in my series of books (three of them). I haven’t yet taken any action on the trademark issue.  Normally, a trademark applies to commercial activity.
A book series title can be trademarked.  A website name might be if its commercial purpose is obvious enough (example, Amazon).  Use of a common phrase would probably be considered negatively in a trademark process.  Phrases similar to mine would include “Keeping them honest” (which Anderson Cooper uses), and “connecting the dots” (which the US intelligence community uses in public a lot).  

The phrase could be attractive to a news group.  I have every intention of using it myself indefinitely even though it doesn’t make a lot of money (the mere presence of ads on a site or blogs supporting a sit means that technically it is in commerce).  I still think it would make a great name for a film production and/or distribution company, for “out of the box” experimental and documentary film.  I would love to get involved in that.   

Update Nov. 16, 2014

I've found a copy of the old abandoned trademark application by Robert J. Powers in the 1990s, link here.  

Tuesday, August 19, 2014

Podcaster troll settles out of court, probably collects nothing but defendant still has to pay his own fees

Electronic Frontier Foundation has a story today by Daniel Nazer, “The Good, the Bad, and the Ugly of Adam Corolla’s Settlement with the Podcasting Troll”, link here
The settlement is “confidential” but it seems almost certain that Corolla will not pay Personal Auto a penny, but will not be able to recover his own legal fees.  

That’s why we need a “loser pays” bill, and some kind of mechanism to order defendants fees paid for patent suits levied in bad faith.

Monday, August 11, 2014

Hatch will re-introduce a patent litigation reform act with "fee shifting" in 2015

Senator Orrin Hatch (R-UT) says that he will reintroduce patent litigation reform legislation next year, and will insist that any bill include "fee shifting", to apply in cases where the lawsuit should not have been brought, similar to "loser pays".  A Southeast Texas newspaper has a story by Jessica M. Karmasek, link here.

Hatch had introduced the Patent Litigation Integrity Act in 2013.

Thursday, July 17, 2014

Small retail, convenience and food businesses often use the same name; does franchising boom threaten them? My own mischief.

While “on the road” yesterday, I stopped at a little place on US 522, just north of downtown Culpeper, VA, called “Westover Market”.  I mentioned to the clerk that I was from Arlington and often went to the Beer Garden of “The Westover Market” and she said, “but that’s so far away”. 

A couple years ago, an Arlington restaurant called “Lost Dog” tried to claim a trademark on its name (here) at least in West Virginia.  I covered that here in July 2012 and later.  As far as I know, that was dropped.  
What’s apparent, of course, is that across the country, and even across one state (or any large city like NYC or LA) there can be many identically named local retail or food businesses.  It’s common in the bar business (especially the gay bar business).  And it may become increasingly hard for small businesses to do this, in an Internet age where people can post things and move around so quickly. 

Of course, that brings up the whole topic of franchising,  It’s a bit deceptive as a concept:  you own the business, but you have to follow the rules of the trademark owner, who licenses its use.   The fast food and convenience store industries are the biggest to use this idea.  Franchise trademark holders will say that centralizing brand names brings more sales and profits and maybe it sometimes does.  It also represents a loss of personal freedom for the small business owner, often in a small town.

Up to more mischief, I also passed a “National Theater” in downtown Richmond, on Broad St (site),  Any connection to the National Theater in downtown Washington DC?  (Drama blog, Jan. 5. 2012).  I doubt it.    

Tuesday, July 15, 2014

Congress ponders a "TROL" Act that may not accomplish much

Electronic Frontier Foundation is constructively critical of the June 7 draft of a proposed “TROL” Act, to be called “Targeting Rogue and Opaque Letters Act”, as it explains in this article, July 11, 2014, by Daniel Nazer.  The article notes that the bill would nullify moderately effective laws in several states, and would not really add any authority that the FTC doesn’t already gave to go after letters in bad faith.  The FTC is said to be investigating MPHj.  The biggest offenders seem to be related to “scan to email technology” and WiFi service in small cafes. 

Sunday, July 13, 2014

Virginia church trademarks its food pantry drive

Today I visited Columbia Baptist Church, at one of its three congregations, in Falls Church VA, and noticed that the church had registered the name of its food pantry charity with the USPTO.  It is “Spend Yourself.”  Yes, it has an interesting meaning if you think about it.  The link from the Church is here.  You can find the mark on the USPTO database under TESS.  But it’s disturbing to find “common everyday words” used as a trademark.  

Sunday, July 06, 2014

Is the Lohan suit against GTA5 like a trademark suit? (is "right of publicity" like a "brand"?)

I don’t think a lawsuit based on “right of publicity” really involves trademark law as such, but some celebrities to market their names and likenesses as if they were “brands”. 
The recent lawsuit by Lindsay Lohan against the owners of the game “Grand Theft Auto V” may fall under the theory that her likeness is a “brand”, although many legal sites say that this action will go nowhere, like here.  I wonder what “the Legal Guys” on CNN would say.  

Thursday, June 19, 2014

Supreme Court, in Alice case, holds that a mere "abstract algorithm" is not patentable

The Supreme Court has upheld a full DC Federal Circuit  appeals court ruling, in the case of Alice Corp, v CLS Bank, that the “invention” claimed (an algorithm for estimating financial settlement risk) is not by itself eligible for patent protection.  The algorithm, while implemented in a computer system, was essentially like a mathematical theorem and proof, that is, a law of nature.   The opinion (link here) suggests that Alice did not add “anything of substance to an underlying abstract idea”.   Justice Thomas wrote the opinion for a unanimous court, and Sotomayor wrote a concurring opinion with Breyer and Ginsburg.  Their opinion seemed to be even more concerned with the underlying abstract nature of the process, as if the petitioner wanted to patent an alternate proof to the Pythagorean Theorem!   

Wednesday, June 18, 2014

USPTO cancels NFL Washington Redskins's team name trademark registration

The United States Patent and Trademark Office has issued an administrative decision canceling the legal force of the trademarks and wordmarks for the Washington Redskins NFL professional football team.  The team says it will appeal.  The text of the opinion is here.

Although the team can still continue to use the name, it can no longer bring legal action against others who try to use it.  There would be no conceivable action against domain names based on the Redskins, for example.
The USPTO says it did research and claims that the name has been understood as a racial slur against native Americans.
One wonders about some other sports teams names, like Cleveland Indians and particularly Atlanta Braves (MLB), or even Kansas City Chiefs (NFL).
The Redskins’s play has been on a slide ever since losing the playoff game at home to Seattle in January 2013 when then coach Shannihan failed to remove the charismatic and superstar quarterback Robert Griffin III after an injury.  The team finished a pathetic 3-13 in 2013, and seems distracted by the name controversy.   (If they had put Cousins in immediately, they would have won that game.)  You could tell that with the first home game against the Philadelphia Eagles. It would be better to change the name now and put this behind them.  Even so, the city of Richmond VA (picture above) made a big deal of hosting the teams training camp and opening practice sessions to the public in late July 2013.  

Friday, June 06, 2014

LDS church pursue dating site for using name "Mormon" in trademark claim

Here’s a good example of a potentially frivolous trademark claim.  The Church of Jesus Christ of Latter Day Saints has made trademark complaints against a site called “Mormon Match”, according to an Electronic Frontier Foundation story, here. The domain name is “Date Mormon”, link here. The Huffington Post has a similar story here. Trademark is supposed to be used to brand products and services in actual commerce, not to stifle speech associated with a religious concept. 
The formal complaint has been made by "Intellectual Reserves" (link) which handles intellectual property issues for the LDS church. 
There are companies around named after religious groups.  “Lutheran Brotherhood” (insurance) in downtown Minneapolis comes to mind.  

Monday, June 02, 2014

Supreme Court overrules federal circuit, limits "indirect infringement" liability exposure

Electronic Frontier Foundation informs us that the Supreme Court has overruled the 'technocratic" federal circuit (the DC Circuit Court of Appeals) in two critical patent cases. The EFF article is by Cera Raineri, here.
In Limelight Networks v. Akami Technologies, the Supreme Court has overruled the federal circuit and ruled that the liability of an end or intermediate user to patent must be clearly related to the innovation involved.  The Court seems to be headed toward a "reasonable certainty" test that will be disfavorable to patent trolls. And the influence of the gurus in the federal circuit may be waning.   

Thursday, May 22, 2014

Silicon Valley companies forget that parody in a domain name is not trademark infringement

I have to remain courteous with this post, but Electronic Frontier Foundation is reminding big Internet companies that use of parody in setting up a domain name does not by itself constitute trademark infringement.  This story is like a "Dear Russia" video, link here

Saturday, May 03, 2014

Does Supreme Court understand that patent trolls can go after end users?

Electronic Frontier Foundation has weighed in on another case before the Supreme Court, Akamai v. Limelight, with oral arguments, where there is some confusion as to whether consumers can be held liable for “infringing” on patents that they don’t even know are used in products or services they have paid for from vendors.  The concept that this happens still boggles the mind.

The link for the story is here

I’ve never been questioned about patent use myself, but I wonder if there is always a first time.  

Tuesday, April 29, 2014

SCOTUS overrules strict Federal circuit standard on "loser pays" for patent troll suits

The US Supreme Court has overruled the Federal Circuit in the very narrow way the appeals court implemented the “loser pays” (or “European rule” or “fee-shifting rule”) for putatively frivolous lawsuits by patent trolls. The story in Forbes today by Daniel Fisher is here

The opinion for Octane Fitness v. ICON is here. Another case is Highmark v. Allcare Health Management System, here.

The usual rule, where each litigant has to pay its own legal fees, is called the American System.  Sounds appropriate.  

Monday, April 28, 2014

Nate Berkus (as well as Shaun White) uses his name for a brand for goods

In a visit to Target today, I found what I wanted OK (pajamas, finding them in the larger but older Falls Church store but not earlier in Merrifield), but when looking for some new bedding I found another namesake brand.

This is Nate Berkus, now a trademarked brand of many home products that have some sort of design aspect.  I’ve seen this recently with Shaun White and sports clothes, but Nate adds a new aspect to branding:  if one is a well-known LGBT person, that aspect may add to the effectiveness of the brand, particularly in large cities (in western countries or more progressive states).  Can the social or political message associated with a name be viewed as a significant aspect of the legal strength of a brand recognition? One might also ask the same question of “right of publicity”.  Either one of these two personalities could use their names easily as brands if they get into independent film (maybe Shaun is going to do that; Nate already hosts his own syndicated TV shows).   It would seem that Reid Ewing’s “Reid.ing” or “Reid Rainbow” would make a good commercial mark (for a film franchise)  if the particular videos weren’t “free” (a bit of an irony given what the films say).

Also, just a little life lesson. The picture below shows how to misplace something in plain sight, and waste twenty minutes finding it.  

Thursday, April 17, 2014

Some product brands use the "trademark concept" to preclude consumers' rights to sue

One benefit to a business from the branding concept of a trademark is that it can use it to protect itself from litigation.
The New York Times reports, in Business Day Thursday, in an article by Stephanie Strom, that General Mills is forcing customers who used any online benefits at all for any of its branded products to agree to arbitration and never sue the company or engage in class-action suits.  The title of the article is “When ‘liking’ a brand online voids the right to sue”, link here.  Notice the Likeonomics.  Apparently “liking” one of the brands on Facebook or YouTube voids the right to sue. 
I remember a Crunchy Nuts (Kellogg’s) commercial about three years ago that seemed to offer a male outdoor hiker whom I think I’ve met.  The cereal boxes didn’t include the picture. 
Remember all those deals in the 1950’s (like for baseball cards or gloves or toys) where you had to mail in cereal boxtops?  We sent these in every summer in Ohio.   

Wednesday, April 02, 2014

Supreme Court justices sound wary during oral arguments on software patents case

The Supreme Court heard oral arguments concerning the “settlement” software patented by Alice, challenged by CLS Bank, Monday.

The basic link for the oral argument text is here

Adam Liptak has a story in the New York Times Business Day Tuesday, “Justices seem wary of software patent case”, link here

The Court is wary of discouraging innovation by invalidating all software patents, but is also aware the patenting of functional concepts has been inviting trolling, which can even affect end users.
One justice said that the underlying concept in the Alice case was simply “solvency”.

Robert Barnes has a similar story in the Washington Post March 31, here

Imagine the possibility that the “Opposing Viewpoints” database and scripts that I proposed on my main “BillBoushka” blog (Feb. 29, 2012).  Suppose there was a database and associated object oriented methods source code, available to social media companies, or perhaps even to public school systems or universities teaching history, government or political science.  It’s hard to imagine this concept as a patent, the software would certainly be copyrightable.
Vox Media might have a similar issue when it develops is “news apps” (IT jobs blog, Mar. 27, 2014). 

Saturday, March 29, 2014

Vox Media editor gives us a detailed history of software patents, in the Washington Post

Timothy B. Lee, now a senior editor at Vox in Washington, has a major essay in the Washington Post giving the history of software patents, which are controlled by the USPTO and are less often granted than copyrights, which can exist intrinsically.  The link for the March 28 story is here

The Federal Circuit of the US Court of Appeals hears most trademark and patent cases and is regarded as having “expertise”. 
Originally, the Supreme Court had said that “algorithms” can’t be patented.  In the earlier days of mainframe software, IBM made companies pay to rent hardware and lent them the software for free.  Other mainframe vendors like Univac, for whom I worked in 1973-1974, did the same.  The practice became complicated in the early 1980s and other manufacturers, like Ahmdahl (in use at Chilton in Dallas, where I worked through much of the 1980s) using IBM DOS and them MVS operating systems. It would be a good debate whether this issue helped drive out IBM’s competitors from the mainframe market. 
Gradually, the idea that an algorithm could be patented if it required computer implementation and led to a tangible result of some economic importance.  I doubt the University of Connecticut could patent the algorithm it used to prove the four-color problem in topology unless it could show an economically useful application. 
The Supreme Court approved its first such patent in 1981, having to do with rubber curing.  All of this was at the beginning of the Reagan years, when overregulation and unionization had seriously undermined competitiveness and quality of American products (look at cars).  That would change.  I could tell that as a consumer myself in the 1980s.  Products got better.  The Court passed the wand to the Federal Circuit, over near Judiciary Square in DC at that time.
A patent having to do with mutual funds was approved in 1998.  Today, the controversial case is Alice Corp vs. US Bank, having to do with “settlement risk” in financial transactions.  (US Bank occupies that odd circular tower in downtown Minneapolis.)  The obvious risk to the public has become patent trolls, which seem to go after “consumers” (as small businesses) of processes that they claim weren’t licensed for use by consumers.  The concept seems odd; how can I as a consumer be pursued for using a product if I don’t sell anything with it.  The idea of copy protection of DVD’s (although more closely tracks to copyright) and the DMCA provides an analogy.  Patent holders could argue that unauthorized use by me of some product could eventually give me some sort of advantage that leads to commercial gain. 
The Computer History Museum has a debate “Resolved: Software patents encourage innovation” from 2011.

The Computer History Museum  is in Mountainview, CA. 

Thursday, March 20, 2014

Publication of my third "Do Ask, Do Tell" book does re-animate the trademark question

First, let me introduce today’s post with a tiny anecdote.  Yesterday, in a major Target store in Falls Church, VA I noticed that Olympic snowboarder Shaun White, 27, has his own brand of inexpensive athletic clothing, and even his own little trade dress symbol. (See TV blog, Jan. 26, 2014 for a review of his documentary film.)  It wondered, if there was another Shaun White somewhere who wanted to use his name commercially, would he experience a problem.  I’m luckier in that my last name is eastern European, somewhat unnaturally spelled, and uncommon (except in a few areas in the Midwest). 

I also feel a bit like a fool over this on this first day of Spring.  Yesterday (a rather funky, drizzly day in more than one way), I went to the Angelika Mosaic theater in Merrifield, VA for a movie (“The Grand Budapest Hotel”) and then drove over to Falls Church, through the traffic on Gallows Road, to the Target – completely forgetting that there is a new Target in the Merrifield complex across the street, complete with the red Target circles, suspended high in the air like a spaceship.   I’ve been in the new place once.  I’ll try it again.  But box stores all seem to be the same.  I was in the store on Route 36 in Roseville MN many times when I lived there, and even interviewed the company once in 2003 to be a debt collector.  And there’s even a row.  Over the phone, a business rejected my target card, but the card still worked yesterday.  There’s no evidence that it was compromised by the breach.
Now to get to the main course today.  Having published (through XLibris LLC) the third of my series of books that I call “Do Ask, Do Tell”,  that is “Do Ask, Do Tell: Speech Is a Fundamental Right, Being Listened to Is a Privilege” (Books blog, Feb. 27, 2014), should I try to trademark the name of the series?

You can't trademark an individual book or movie title, but you can brand a series (like "Star Wars" or "Harry Potter") or even the lead character of a series (like Tarzan, probably).  It's common for unrelated single books and movies to have the same name, although sometimes there have been fights (as with the :eee Daniels "The Butler" film).    
I don’t know yet, and the motive for doing so would be to help improve sales potential for the books and any potential derivative films.  I absolutely have no intention of behaving like a “troll” and disturbing others who use the common English, politically-related phrase (clearly related to the “don’t ask, don’t tell” policy regarding gays in the military from 1993-2011). 

In fact, the phrase would make a good name for a motion picture company that produces and/or distributes films on social and political issues.  The closest example today might be Participant Media, a name which itself makes sense.  But I can imagine getting together with some other people, and doing kickstarter for a few interrelated media projects.  That is still somewhat “down the pike” (to borrow a phrase from a young medical student).

It's noteworthy that in the movie business, companies often both produce and distribute content.  At some point, production is probably regarded as a service, where as actual film copies are goods.  It appears that the USPTO allows and expects them to register marks for each business activity, which may often be based on the same wordmark and trade dress.  However, some variations may occur in the way trade dress is displayed to consumers;  most movie companies have musical trade dress motives as well as visual but don't always use them, and sometimes vary their marks slightly in different distribution environments. 
I have not yet called a trademark attorney.  I may very well do so.  But I did look at what USPTO says about the process online, and the main link seems to be this. Both six-minute videos are important. 
Note the trap: it is possible to pay the application fee, fill out the forms wrong and blow the fee which is not refundable.  It’s critical to distinguish between “goods” (or products) and “services”. 

What then gets interesting is the “Trademark ID Manual”, link. The most applicable category for my books would seem to be 139-016, “Series of non-fiction books in the field of (indicate topic or field)”.  But the last of my series has both a “non-fiction” and a “fiction” section.  About 60% of the text is in the “non-fiction” portion.  Also, it isn’t about just one “field”.  It’s about “connecting the dots” among all fields.  I really have no clue yet as to whether this would be a problem for USPTO.  

Update: April 2, 2014

See my "Book Reviews Blog" April 1, 2014 for discussion of the new website "Doaskdotellbook3", by Xlibris, promoting the latest book in my "Do Ask, Do Tell" series.

Monday, March 03, 2014

Supreme Court hears oral arguments on patent trolls, while Senate ponders House Innovation Act and proposes transparency in demand letters

Erik Mershon has an important story in Politco, Feb. 27, 2014, “’Patent Trolls’ Draw High Court Scrutiny”, p. 6.  The article does not seem to be online yet.
Ju stices at the Supreme Court heard oral arguments Feb. 26 in “Octane Fitness v. Icon Health and Fitness” and then “Highmark Alliance v. Allcare Management Systems”.  The Court reportedly was skeptical about questioning the DC Federal Circuit on where to draw the line on requiring losers to pay in the case of seemingly frivolous litigation. The Federal Circuit, said to be a guru in patent law, has said that current law requires fee-shifting only in exceptional cases of gross abuse or bad faith.  The justices said it could be difficult for them to second guess the Federal Circuit’s judgment on what is exceptional.
The Senate Bill for “Targeting Patent Trolls” is reportedly on fast track, with the House having passed the Innovation Act, HR 3309 in December., 325-91, with a report here
There are many bills, identified on the website Patent Progress, here.  Some of them overlap.  The most important Senate bill seems to be the Patent Transparency and Improvements Act, S1720.  

Friday, February 21, 2014

"Functional claiming" undermines the entire patent concept

The US Patent and Trademark Office has a page on abusive patent legislation, here. It’s interesting that the USPTO notes that a patent owner may, in legal principle, control how a product is used or who may use it.   The office says that a variety of responses are possible when a letter is received, including no reply.  A cease and desist letter is not a lawsuit.  The USPTO’s pages to acknowledge that it is possible for a small business (or even a consumer) to buy a service from a vendor and then be challenged separately by a patent owner.  This does not make sense to many end users, why vendors don’t “protect” them in patent use.
Mark Lemley of Wired has an article on “functional claiming,” that is, “Let’s get back to patenting the solution, not the problem”, here.   Many patent trolls try to claim that a particular function is what is patented, rather than the invention that performs the function.  This could be particularly true of software.  When I was working in mainframe IT, employers owned all the code that I wrote, and it could have been viewed under both patent and copyright laws.  Yet, I often wrote similar code for different employers to perform similar functions.  This was more of an issue in the days when companies hired programmers to write all their in-house applications, until they gradually shifted to buying from vendors.
The White House is beginning to look at the problem if a patent system that encourages trolling and hinders innovation, as in this statement, released Feb. 20, 2014.  The White House gives an explanation of the “attributable owner” concept in promoting transparency. 

Friday, February 14, 2014

Personal Auto patent troll case (claim about podcasting) results in unprecedented subpoena of donor for defense

A company called Personal Auto, with convenient headquarters in litigation-friendly East Texas, has sued a few content providers claiming patent violation.  These include Apple, and the Adam Corolla, for “How stuff works”, Togi Entertainment, and “How Stuff Works”.  Apparently it is claiming that it owns a patent even on the concept of a podcast – syndicated, downloadble episodic content. 
I suppose in theory self-syndication of a blog could qualify. I’ve tried this only once, with my TV reviews blog.  Could I be contacted?
Tech Dirt has the story here.
In defending the suit, Electronic Frontier Foundation raised some money and now, as Joe Mullin of Ars Technica explains, Personal Auto is trying to get a pre-discovery list of the donors subpoenaed, which has very chilling implications for civil procedure, at least in patent cases, maybe in all civil litigation (at least in Texas).  The link to the story is here

Daniel Nazer posted EFF’s response on Jan. 29, 2014, here.
This is surely one of the most shocking cases of patent trolling that I have heard of.

Update: March 5, 2014

Electronic Frontier Foundation reports that it succeeding in blocking Personal Auto's subpoena of the names of donors, link by Daniel Nazer  here.

Friday, February 07, 2014

The site :Trolling Effects" shows many patent troll demand letters

There is a site, “Trolling Effects”, that tracks patent troll reform and has PDF’s (redacted) of a lot of patent troll demand letters, link here. The site says that the Innovation Act has passed the House and is headed for the Senate.
A posting Feb. 6 at Electronic Frontier Foundation by Adi Kamdar asks for patent attorneys to help, pro bono if possible, because of the volume of these cases that keeps accumulating like snowflakes, link here
The article lists to another post where EFF discusses when it can take a particular case.  One important question is whether the case will set precedent and help many other potential defendants.  

Wednesday, January 29, 2014

Federal circuit's monopoly over patent cases obstructs reform

President Obama did mention the need for patent reform in his State of the Union speech, but one more suggestion that he did not mention is discussed in the Washington Post Switch Blog by Timothy B, Lee, link (website url) here.  That is, take away some of the monopoly (set up in 2006 by Congress) the Federal Circuit (the District of Columbia Court of Appeals) has on patent cases.  The circuit has tended to favor patent holders, and been willing to stretch logic in validating ideas like software patents. It has place the burden on defendants in showing that they didn't infringe on particular patents.
I've sat in the DC Circuit once, in May 1994, when the en banc court heard former Naval Academy midshipman Joseph Steffan's case.


Monday, January 13, 2014

Hells Angels rigorously enforce their trademarks, against Tinseltown

Browsing the New York Times for reporter Serge F. Kovaleski, I found an article, dated Sept. 28, 2013, that sounds significant in the trademark dilution debate.  The story is titled “Despite Outlaw Image, Hells Angels Sue Often”, link here. .That refers to the Hells Angels Motorcycle Club.  It has registered trademarks largely for use in clothing and memorabilia, and has sued a number of companies, mostly associated with Hollywood and comic books.  The story also discusses the intellectual property attorney Fritz Clapp, in Phoenix, AZ. 
The article is quite detailed as to the use of the trademarks, especially in charity drives. 
The Arizona connection reminds me of a period in my own life, in the late 1970s, when I sometimes frequented the Understanding community, the old flying saucer community set up by Dan and Florence Fry on a service road off I-10 in Tonotpah, 40 miles west of Phoeniz, in desert irrigated for cotton. 
Why aren’t defendants protected by the idea that they are using the names (especially domain names) in different lines of business?  Maybe it’s because back in the 1960’s, American International marketed a notorious biker movie called “Born Losers”, very well known when I was in the Army myself.

Wikipedia attribution link of Scottsdale.  My last visit to the area was in May 2000.   

Wednesday, January 01, 2014

Starbucks cries wolf over a bar owner's "misspelling" of one of its products

Starbucks Coffee, ever popular and seen as a good corporate citizen (particularly on the health insurance issue), sent a cease-and-desist owner to the owner of the “Exit 6 Pub and Brewery” near I-64 and I-70 in Cottlesville, MO, an  exurb of St. Louis, demanding that it stop calling one of its beers “Frappicino” as a deceptive “Anglicized” misspelling of Starbuck’s own Frappuccino, a frozen coffee drink.  Is a beer the same kind of product as a coffee?

The owner, Jeff Britton, sent back a sarcastic reply and a $6 check, which was never cashed.

Elliot Hannon has a typical story on Slate here
It strikes me that Starbucks’s claim is a bit abusive.  It reminds me of a complaint over the name “Lost Dog” and a dispute between an Arlington restaurant and a West Virginia coffee store in 2012. 
Would consumers be confused?  I certainly wouldn’t, but I am reasonably well educated in how branding works, and I can easily recognize and distinguish similar but distinct names of products.  If I got off I-70 near St. Louis for lunch (don’t know when I’ll do that) I would not be “fooled”. 
Okay, the St. Louis cardinals and pitcher Michael Wacha got some more indirect PR from this. 
If you enter “Frappicno” into YouTube you get only the Starbucks product.