Thursday, May 10, 2018

If you drive around to nearby states, you notice a lot of potential trademark disputes waiting to happen



No “stupid patent” today, or even stupid trademark.

But I’ll mention a few brands I’ve seen “on the road”.

One is a boutique called “Tuesday Morning” in Centerville VA.  I guess a day of the week could make an attractive brand, but common words could get more scrutiny. (Of course, I’ve long eaten at “Friday’s”, at Tyson’s (near the AMC), or near Bailey’s Crossroads (just barely in Alexandria.)  And there the well known chain “Ruby Tuesday” which is also nearby. Often well-known words do get grabbed by franchise owners (but Trump is also franchised – it would be bad if you couldn’t use your own name for a domain because a company had franchised it).  

The (new?) brand seems to recognize Monday holidays. 
  

A couple startups got into a trademark dispute with the Washington Nationals baseball team in MLB. Post story.

  
But doesn’t the Walgreens logo match that of the Nats?  (The curl at the tip is slightly different.) They are in different line of business.  But trade dress is probably more sensitive than wordmark alone. (The Nats' W is usually white on red background; Walgreen's the opposite.) 
   
Driving Rt 9 into Berkeley Springs W Va I noticed a “Black Dog” shop.  Remember July 28, 2012 I talked about the “Lost Dog” controversy. 

Tuesday, April 24, 2018

Supreme Court upholds internal patent reviews, making it less costly to challenge trolls



Timothy B. Lee of Ars Technica reports that the Supreme Court has struck a blow on patent trolls by upholding part of the 2011 “American Invents Act”, the “Inter partes” review or IPR.  Here’s the Opinion. The decision was 7-2.  The case was Oil States’ Energy v. Greene’s Energy Group.

  
There is a philosophical question as to whether patents are private “property rights” or part of a government’s property.

Sunday, April 22, 2018

SSL's seem to be involved in the concept of "branding" v domain names



There seems to be a remote connection between the issuance of SSL certificates and the concept of brand validation, as noted near the end of this explanation of how Positive SSL works on a site by Namecheap / Comodo.  The concept of a CSR, or certificate signing request, is also relevant.
  
Apparently an industry-sponsored entity called the “certificate authority” can question the authenticity of the SSL request if there is a “brand validation” step expected by the CA.  This sounds like the idea of trademark.  But in the domain name world, domain name disputes are resolved by procedures within ICANN, which sometimes might consider trademark issues along lines similar to US law but not necessarily identical.  In general, entities within different businesses can use the same root name but a different tld.  But, given the complexity of some businesses, the importance of brand name licensing in franchised businesses (like Trump’s!), and various growing political and social tensions, it sounds plausible that new issues can be brought to bear on CA’s.
  
SSL’s used to be sold as a way to protect consumers making purchases from a site or logging in to a site and sharing some components of PII which could otherwise by intercepted by hackers.  That has receded in importance since purchases are most often sent to very large third-party e-commerce sites anyway (although that practice has become controversial to some interests in the on-demand book publishing business and even in music distribution and some independent film).  Now the concern is more about the possibility of determined foreign attacks even on ordinary Internet browsing, “man in the middle attacks” (scareware), browser hijack and firewall compromise. SSL’s should emphasize just the mechanics of secure encryption and not become involved with the political problems surrounding branding and trademark, within the US and internationally.

Wednesday, April 18, 2018

The "do it on a computer" process pieces -- supposedly not patentable, but defendants are still struggling with discovery expenses


Electronic Frontier Foundation has an essay in its “stupid patent of the month” series, on the Alice v. CLS  Bank case, decided in June 2014, when the Supreme Court ruled that you can’t patent an abstract “do it on a computer” process.  (Or maybe, do it on a mobile phone?)   
  
Is this the “Alice the Toothpick” case for plumbers?  It had to do with trolls attacking electronic tokens (the “838 patent”)  or e-money circulating in e-commerce (not to be confused with true digital currencies). 
  
   
But Joe Mullin points out that a new case “Berkheimer v. HP” may slow down the easy defense claimed by defendants in these cases and require more money spent on discovery, in cases which the defendants will eventually win.

Thursday, March 29, 2018

Why my own news "brand" is important to me



Although maybe not a legal question regarding trademark strictly speaking, my own insistence on maintaining my own personal “brand” of news reporting and commentary in my books and blogs can raise troubling questions.

My “brand” has consisted of using the “doaskdotell.com” site name and workmark for the books, as well as my own legal name (John W. Boushka) and parental-given nickname (Bill Boushka).  I suppose the nickname could complicate things further, but I have never heard a complaint from extended family members.

There is some controversy because my operations don’t pay their own way or make much money, so they seem gratuitous, attention-getting, and intended to distract readers from more conventional group-centered (even “intersectional”) activism.  That can raise a variety of crisscrossing questions on matters like business licenses and home-based businesses, all the way to election law (the 2005 controversy about free political “blogging” presented on these pages before).
  
What I want to reinforce today is the importance to me of my own “brand”, and that I not be a conduit for somebody else’s speech.  It may sound problematical to say that shouting in a demonstration is “beneath me”;  but in any sense doing so is not my own “game”. 

Sunday, March 18, 2018

Trademarked franchise brands get protected aggressively, and this affects decisions of a lot of small business owners



Will businesses that use names similar to those of established franchises (like the same first word or number) face trademark infringement suits?
  
It’s interesting that so many of the major retail marks are indeed franchises owned by public companies, which have a fiduciary responsibility toward shareholders.  So they must protect their marks even in situations that may sound silly. 
    
The use of franchise brands has a major impact on decisions that small business owners make.  Often they feel pressured to work with a major brand franchise than work on their own.  It strikes me that immigrants are often very good at managing franchises as they have learned these skills in their home countries through their families.

The brands can even matter in the media, with televisions shows (which are usually "series" and qualify as franchises) and movie sequels. 

Wednesday, March 07, 2018

Blackberry sues Facebook over patents underlying Messenger



BlackBerry, which we haven’t heard as much about (Research in Motion) recently, since Obama gave up his in 2009 (I switched over to Droid in 2010 and eventually iPhone), is suing Facebook for patent infringement over several features in Facebook messenger.  Timothy B. Lee explains the cross litigation in Ars Technica.  Lee describes this as “weaponizing instant messaging patents”.


These patents sound more "valid" than some others that get trolled. but some of them still sound largely conceptual, like the "icons with numeric badges". 
  
My own iPhone has a button for Messages and for Facebook Messenger, two separate apps.