Monday, May 25, 2015

Self-publishing companies and Internet platforms now act more concerned that "amateurism" by speakers affects their brands

Companies that enable users to self-publish and promulgate their own content may gradually become more sensitive to how “speaker” performance and behavior affects their commercial brands.  That’s because these companies have a lot of different stakeholders at some tension with one another.  Self-publishing service companies for books have to deal with authors, end consumers, stores and distributors.  Internet service companies, especially blogging and video platforms, deal with “speakers”, end consumers, and advertisers.  Social media companies are a little less concerned with the effect of broadcast because they are based on a whitelisting concept – the idea that most content is consumed by known visitors (followers or friends).  But advertisers are a big stakeholder.
I’ve noted these concerns before. On the Books blog, Oct. 16, 2013, I reviewed a couple of books on self-publishing and noted that at least one such company requires a minimum of five actual sales per month (don’t know if Kindle and Nook count) for a book to stay listed.  There are numerous writers who publish more to make and argument that they believe needs to be “on record” and “out there all the time” than to make money.  Some service companies more recently have behaved as if they believe this practice could damage their own brand reputation, as a platform for “amateurs”, or as undermining the position of authors (also “customers”) who really do need to make money by a kind of lowballing (which is related to piracy but not the same thing at all).
Likewise, in very recent months there seems to be a lot of talk that bloggers should be much more focused and much more committed to getting and keeping numbers and quality visits, than in the past.
Harvard Business Review has a valuable (ironically, under a paywall!) article (David Bryce et al) on “competing against free” here. The growing practice of paywalls is one way some established journals and newspapers are trying to brand themselves away from “amateurism”, but it far from clear that this will work on the long run.
Another related post is, on my main blog today.

Tuesday, May 19, 2015

Should a book author trademark his own series? Does the writer need to?

It’s time to go back and review the entire trademark application process, and pose the question, for myself and for others, do “I” (or “You”) need to file for a trademark for a book or film series title, or any particular niche of products or services.  
Let’s go through a few ideas.  A trademark applies to branding for “commerce”, not to the content of intellectual property itself (which is what copyright protects).   
Something can be “non-profit” and still be “commercial” and protected by trademark.  The “Blue Cross and Blue Shield” trademark for health insurance companies will be aggressively defended even though these are non-profit (I’ve worked for them before).  
However, the goods and services must be available to the public through normal channels of interstate (and international, in most cases) commerce. 
Domain names are initially assigned on exact matches, but trademarks consider close or confusing or misleading marks in the same line of business.  Domain names set up intentionally to draw traffic away from an existing business (as to distribute malware or adware, or even some “parked domains”) often can face trademark infringement litigation.  
It appears that a series of books or films starting with the same title gets automatic trademark recognition once regularly used in commerce.  That may be true of my own series (“Do Ask, Do Tell”) and is certainly true of popular series like the “Harry Potter” novels, or many movie and comics franchises.   Marvel and DC Comics have certainly mastered trademark law.  If you simply let the publisher (even a self-publishing POD company) sell it, you may not need the mark. 
That is explained here on “Copylaw” at this link.  
In fact, if you try to register a “book series” mark with USPTO, it would appear, from my reading, that you actually may have to have a company which sells the books.  It’s OK to use Amazon, Barnes and Noble, and regular or independent bookstores, but it would appear that you need your own commercial operation – which would normally comprise an e-commerce website, able to take credit cards and Paypal with encrypted traffic (https), and managing some inventory.  As a small business, you would be need to be mindful of local zoning and tax rules if you keep the inventory at home (which admittedly wouldn’t need much space or create much traffic).   
If you look at the site “Tmweb” and enter “books” into the search argument, you see that USPTO tends to look at books as a genre-related product, with many specific categories by genre and by physical assembly. That’s a problem because you have to pay a separate category fee for each genre.  Also, “non fiction books on a variety of topics” is acceptable only as also a publishing-house mark, so you have to create your own imprint and sell it directly.  It would probably be OK to put your own imprint over a POD book.  You could probably market them that way on Amazon and BN, even if they are already marketed under the brand of a self-publishing company, but that would be expensive (you’d have to buy the inventory from them in bulk first – and maybe they would see this as infringing, but perhaps OK if you give them enough business, hard to say).  
It would be an interesting question if you also make the book available “free” online in PDF’s or HTML (even under CSS or XSL)(that seems to be a subtle point underneath Reid Ewing’s “It’s Free” short film about public libraries).  Are you competing with your own commerce and undermining the meaning of a trademark?   On the other hand, does Google Book search undermine commerce?  One could possibly argue that it does.  
At this point, it’s well to note that USPTO seems to have added a lot of material online as to the whole application process.  There are three pricing levels (depending on degree of automation), the cheapest being $225 per business.  The Fee schedule is here and the basic application link is here

USPTO has a lot of training videos, all of which should be watched.  Critical items include the “goods and services” (or business categories), as well as the “Intent to Use” forms.  These are the way USPTO ensures that a mark has legitimate meaning in commerce and would discourage companies or individuals from deliberately monopolizing common English words or phrases.  All data is public. There is no “right to privacy” about a trademark application. 

Monday, May 11, 2015

Social unrest can lead to some creative names for products for possible trademarks

This may sound like a frivolous idea for a trademark, but I noticed a neat name for an ice cream product at a vendor stand in Baltimore, on North Ave, near the MICA Art Center where the Maryland Film Festival this weekend was held.
Donald Trump (“The Apprentice”) would probably regard selling ice cream as noble as selling lemonade (the very first assignment in that series).  There was one flavor called “Chocolate Lives Matter”, most applicable given the recent unrest in that city.
I wondered if it was trademarked, or will be.  It does sound like a creative word mark.  On the other hand, I would not think that the aphorism “Black Lives Matter” should be trademarked, because it is a social and political slogan fundamental to human rights. 
I haven’t checked USPTO yet.


Wednesday, May 06, 2015

GOP House and Senate bills appear to make progress against patent trolls

Recent both the Senate and House in a GOP controlled Congress have taken up the problem of patent trolls. Electronic Frontier Foundation has an article by Adi Kadmar here. 
The Senate has the Patent Act (S 1137) and the House has the Innovation Act (HR 9).  Both would be helpful in requiring much more detailed disclosures and transparencies from plaintiffs about the details of patent claims.  The Senate would go further in protecting end users (or products like wifi routers, for example), when a manufacturer is also named as a defendant first.
S 1137 was introduced by Charles Grassley of Iowa, and is here here on govtrack.  The short title is “Protect American Talent and Entrepreneurship Act of 2015”. The full title is “A bill to amend Title 35, United States Code, to amend the Leahy-Smith America Invents Act to make improvements and technical corrections, and for other purposes.” Govtrack rates it as having a 19% chance to pass.
Hr. 9 was introduced by Bob Goodlatte (R-Va) and is here on Govtrack and is rated to have a 36% chance of passage. 

The text for the Senate bill is here  but has not been recorded by Thomas.
The text for the House bill is here

A site called Unified Patents keeps track of the trolling problem. 

Friday, May 01, 2015

Patent trolls and the concept of "laches"

There is another important concept that applies to controlling patent trolls, and idea called “laches”, as explained in this article by Vera Ranieri at Electronic Frontier Foundation, here.  A patent owner may not reasonably sit on a potential claim for years so that potential targets lose the ability to defend themselves.
Wikipedia describes "laches" as a synonym for "equity", here
EFF wrote a brief for the Federal Circuit for SCA Hygiene v. First Baby Products.  In a copyright (rather than patent) case last year, Petrella v. MGM, the Supreme Court had decided that laches does not apply in copyright cases.  
Note that in the video above, John Oliver speaks about patent trolls (from UNC, on TV blog April 23).