Monday, October 27, 2008
The Electronic Frontier Foundation has a “patent busting project” aimed at preventing illegitimate patents from stifling innovation.
A case of recent importance involves Seer Systems, which had been awarded a patent (by USPTO) for combining files of different types to be played on the Internet. Seer had already collected some money in litigation against Beatnik, which develops software for mobile devices (and might even be used for “Gossip Girl” style mobile blogging). Some of Seer’s technology had already been published in a book by the patent inventor, Stanley Jungleib. An Amazon search shows that Mr. Jungleib has published several works on electronic or computer-generated music and even on the theory of tonality, a topic important to modern composers (who today often write “atonal” or “twelve-tone” music).
The story on “Outlook Series” is called “EFF Challenges Bogus Patent on Internet Music Files” here.
EFF’s own blog reference (Oct. 8, 2008) is similar and gives some detailed technical links. The URL is here.
This case would be important to modern music composers, both classical and rock or disco, and I am familiar with some of their work.
Saturday, October 25, 2008
A United States attorney has said that the government will take control of a biker gang’s trademarked name, while filing an indictment against members of a gang called the Mongols. The attorney said he would seek a restraining order preventing the gang from using or wearing its symbol.
Indeed the USPTO database for registrant number 76532713 filed in 2003 says that the mark is for G & D: Association Services, “promoting the interest of persons interested in the recreation of riding motorcycles,” and classifies it as a “typed drawing.”
The Los Angeles Times story by Scott Glover, Oct. 22, 2008, is titled “Raid targets Mongols motorcycle gang” with link here. Electronic Frontier Foundation provided a link to it on its “deep links blog” list.
The case calls to mind the motorcycles movies from the 60s and 70s, especially those from American International Pictures (like “Born Losers”).
Monday, October 20, 2008
Fake networking profiles could create trademark infringement, and even school districts could file complaints
There has been a lot of discussion of phishing emails on the Internet, where spammers use the names and even trade dress of well known corporations and banks (or even ISPs) to get personal information. I’ve noted before that, among other remedies, it would sound as though corporations could claim that this is trademark infringement, because such activity obviously dilutes and tarnishes an organizations mark (even prospectively, as in the 2006 law).
I’ve also noticed occasionally that social networking and even professional networking sites are misused for this purpose. Occasionally, spammers set up accounts in the names of well known organizations to attract traffic for fraud, pornography, or other patently unlawful content and activity. The targeted organization may be a non-profit or a government entity. Last week, I found a comment (in monitoring status – I monitor all comments) on one of my other blogs which pointed to a URL that claimed to be a profile on “members.work.com” from the Muscogee County School District, which would be the area around Columbus GA and Fort Benning (which I actually visited in 1994). A school district has “customers” (parents and children) and in the broadest sense of the concept of trademark law, this would sound like an attempt to tarnish the reputation of the school district as a quasi-commercial entity doing business (by falsely suggesting that its teachers or employees are involved in “adult” commerce). If the school district learns of this, it would seem to be it could bring trademark action against whoever posted that profile. Of course, there could be other questions (libel).
Here is an example of using the law to stop obviously objectionable behavior by others. The problem is that it is hard, then, to know how to draw the line.
Saturday, October 18, 2008
Many companies in different business lines have similar names and should be careful about trademarks
I have recently noticed more examples of companies in different lines of business with the same name and with domain names spelled almost the same (sometimes the TLD is different, sometimes there is a hyphen). Sometimes one company has a USPTO trademark and the other does not.
I am under the impression that generally it is all right for companies in different (and non-competing) business lines to have the same name, as long as there is no reasonable chance of customer confusion or some act of bad faith (an attempt to connect another company with pornography, for example). However, when an entity or new company wants to use a trademarked name in a different line of business, it should check with a trademark attorney first. It is likely to be a good idea to go ahead and apply for a trademark with the USPTO and make sure that the USPTO will accept it. Look here at ip-brands discussion (look at the POLO example).
An important concept is the Trademark Acceptable Identification of Goods and Services system, link here. The 45 basic classes are identified here but the USPTO requires more specificity in identification than these categories with an application.
Remember that ICANN has inexpensive administrative procedures to resolve domain name disputes where “good faith” is claimed.
Attempting to claim parody of another’s trademark can be dangerous. Trademark is more resistant to parody than copyright in the “fair use” area. For example, see this discussion at World Patent & Trademark News.
Tuesday, October 07, 2008
Recently (Aug. 31, 2008) Steve Lohr of The New York Times ran a thoughtful discussion and recapitulation of new issues regarding “branding” on the World Wide Web. The story is called “A New Battle is Brewing for Branding on the Web,” link here.
One issue is that companies want to trademark computing service concepts that go beyond the idea of what usually is expressed in a domain name. Dell wanted to wordmark “Cloud Computing” and was turned down by the USPTO. Microsoft wants to trademark a concept that it calls “Live Mesh” regarding coordinating the activities of people in a cohort. (It sounds more like something a social networking site would try to trademark.) The jury is out on that one.
The article notes that ICANN has been active in managing domain name v. trademark disputes since 1999, and that a recent area of controversy is domain names set up to criticize or parody a commercial product or service already established as a brand. Does such activity cause dilution in the meaning of trademark law? Another controversy is the practice of buying “keywords” of business competitors from search engines in order to display “your” ads from a search on that keyword. This seems to be more acceptable in trademark law in the United States than in Britain or Europe.
USPTO official Lynne G. Beresford is mentioned in the story, and she indicates that some attempts to establish trademarks in cyberspace seem to stretch the intention of the legal concept.