Wednesday, May 20, 2009

EFF provides a guide for "parody" websites mocking brands

Corynne McSherry of Electronic Frontier Foundation has an important PDF whitepaper guideline for webmasters who develop parody sites to protest the activities of specific companies. The paper is called “Avoiding Gripes about your Gripe (or Parody) Site”, dated May 2009, with this link.

The basic scenario is that somebody creates a parody of “CompanyXYZ” (maybe something like “CompanyXYZs__ks”), registers a domain name, and two weeks later finds that the ISP has shut it down after an intellectual property complaint, which is likely to be trademark dilution.

McSherry goes on to discuss “nominative fair use,” and the process of determining judicially whether the speech value of the site outweighs prospective claims of consumer confusion as to brand.

One big plus is to keep the site totally non-commercial – with no ads. Another is to use an ISP with some backbone and resources.

She also goes on to discuss copyright and DMCA safe harbor issues.

Friday, May 08, 2009

More on my own "do ask do tell" domain and book names

Yesterday (May 7) I got a question from a domain registration company about whether I had an issue if a businessman in China wanted to use the domain name “doaskdotell” for some of his domains overseas since I own

I’ve discussed domain names along with company names, trademarks, and book and movie titles before.

ICANN sets up a variety of high level tld’s and permits different entities to use the same root with a different tld, as long as the names are registered in “good faith.” Well known examples are (Waste Management) vs. (the College of William and Mary), and (the History Channel) v. (Colonial Williamsburg). With literate Internet or Web visitors, this does not create a problem.

Trademark law in the United States is based on the idea that instant brand recognition by consumers is important in a company’s ability to sell its products or services, provide employment, and meet the fiduciary demands of its investors. In one sense, trademark law is “anti-literate”. There has always been some tension between the subject of domain names and trademarks ever since the Web went “public” and individuals were allowed to register “untaken’ domain names, often without a lot of legal acumen. On the international stage, this idea also holds, although the specifics of laws vary from one country to the next and are a political issue, as in the EU.

Individuals, in a free entry system, often create domains for non-financial reasons, such as political participation. The suffix “.com” came into common use in the 1990s before there was much understanding of this, and that it might confuse consumers or interfere with some kinds of businesses. Subsequently, .biz was created with the idea that an individual needed capital and revenue before using an associate name.

In fact, in the bricks and mortar world, the idea of a “tld” does exist. Consider “Coca Cola” and “Pepsi Cola”. They both use the word “cola” as if it were like a tld, because cola is a common product and the general public is familiar with what it means, without any requirement for special literacy. There has never been a controversy over these two company’s names or trademarks. The problem on the Internet is that the range of products, services and ideas (and business models) is so great that typically consumers do not grasp what is happening, and often businessmen choosing domain names do not grasp it either.

The root “doaskdotell” occurs today with several tld’s. I use only “.com”. I set it up in 1999 and have it paid for and reserved (with Network Solutions, where you can look it up on WHOIS) until 2012. I intend to use it until at least that time, perhaps beyond that and perhaps indefinitely. A couple of the others appear to be “parked” domains for ads and links (probably hoping to profit from my own “notoriety” which I will get to in a moment) and still another offers a different kind of service. The phrase “Do Ask Do Tell” forms the higher level title of two of my books published by iUniverse in 2000 and 2002 (the first was originally self-published with a book manufactuer’s printing and self-registration of the ISBN in 1997). I think it is possible that the phrase would make a good title of a movie, and that it will be used as such. I cannot be more specific right now on the idea of a film called "Do Ask Do Tell...", but I think it is possible that I might even be able to bootstrap interest in such a project and have some ownership or participation in it.

Personally, I also think that the phrase would make a good name for a motion picture production company committed to making “political” or “social” or “historical” films. I think that the name would be appropriate for a news reporting service following the new “Internet age” model for journalism, recognizing that something new has to come after the “creative destruction” of the old newspaper industry.

What I hope does not happen is that it winds up as a trademark for something “silly”.

“Do Ask Do Tell” is a phrase of common words that in the United States has a social and political meaning derived out of the political debate over “openness” about sexual orientation and personal identity, which occurred when President Clinton tried to lift the ban on gays in the military in 1993, and we wound up with the flawed compromise of “Don’t Ask Don’t Tell”, which is likely to be eventually repealed. Perhaps I helped give it that meaning with my books and website. Perhaps it would have that meaning anyway. The media, both “establishment” and “newbie”, quickly give meaning to common words and phrases, often outside of normal commercial or branding usage. One should note that the poster for the new film (from Magnolia Pictures) about closeted gay politicians “Outrage” has the phrase on its poster, but it is not part of the movie title.

There is nothing legally wrong with companies wanting to use it for other purposes (for example. “Do Tell” has been used in the telecommunications business in the US). But I wonder if it is a good idea for businessmen, particularly overseas, to try to use it that way. They may find that use of a “common English idiomatic phrase” that has taken on a political meaning could hinder sales and financial success of a business. Overseas especially, they may not fully understand the meaning that the phrase has in the United States. So I think that other businesses should use caution when considering using the phrase with other tld’s.

I certainly intend to keep using it as I have outlined.

I can imagine how other words could quickly get a new meaning in the future, such as Joshua Cooper Ramo’s use of the word “sandpile” as a part-title in his book ("The Age of the Unthinkable", already noted by our president indiectly in at least one speech.

Sunday, May 03, 2009

More on movies with duplicate titles (this time it's "Outrage") -- but still no problem

As I noted on my movies blog (entry May 2, toward the end of the entry) there are two independent movies coming out soon with the name of “Outrage” and they are totally different. The one getting all the attention right now (starting March 8) is about closeted gays in politics, directed by Kirby Dick. But there is a totally unrelated thriller by Ace Cruz with the same name coming out (pun unintended) soon.

Any casual look at imdb shows that this happens a lot. Often there is a feature film, and various obscure short films by the same name. Sometimes a TV film will duplicate the name of a theatrical release distantly related in subject matter. For example the TV “Swing Vote” is about a jury trying an abortion-related case, whereas the Touchstone feature is about a presidential election. There is a site that catalogues all duplicate movie titles on Netflix and here is that applicable link.

As far as I know, there is nothing instrinsically wrong with two films having the same name, or two books having the same name. With books, usually there is a secondary subtitle to distinguish them. (There’s plenty of duplication on Amazon; look at “Honor Bound”).

Where you get into issues usually is with a franchise of multiple movies (or books) around a name or a character (like “Superman” or “Harry Potter”). Usually the name becomes a trademark for associated toys or clothes, or (often) has an existing mark for comic books; often the franchise is set up as a “brand” (of stylized movies in a series) so that it becomes a trademark.

Duplication of names in movies is much more likely with independent films, which tend to be made for niche audiences. The English language, with its multiple sources, and heavy use of idioms and irony on words, invites the likelihood of the multiple use of the same word or phrase. Niche audiences are not likely to become confused since most independent film buffs know what they want to see in advance, although a theater chain like Landmark would have an issue if it happened to show both “Outrage” movies at the same time in the same theater in different auditoriums.

Suburban mall blockbusters intended to satisfy the bean counters of major studios might be a different matter, however. I have a feeling you might run into trouble it you called another movie “Kung Fu Panda” (which probably became a “brand” when AMC used it for its cell phone silence pre-feature video).

I notice that the (Kirby Dick) “Outrage” movie poster has the phrase “Do Ask Do Tell” underneath the title – of course, that’s the primary title of two of my books and my main website. But the “common English” phrase obviously has a political or moral meaning that applies in all cases. It may become the idiom that survives “don’t ask don’t tell”.

Friday, May 01, 2009

"Android Data" goes after many companies for infringing on its brand: a bizarre "Star Trek" story

Erich Specht has sued a large number of companies over prospective trademark dilution or infringement for the brand “Android” related to his trademark for “Android Data” which he says was set up “to communicate the seamless, almost robotic-like, bi-directional communication of data between a client and a data center in a remote location,” in 2000. The USPTO granted the mark in 2002. It would appear that the changes in the 2006 law (regarding prospective dilution) could matter.

The complete list of companies is in a story by Mike MaGee in TGDaily, here. The registration number is 2639556 and reads “G & S: Computer e-commerce software to allow users to perform electronic business transactions via a global computer network.” The USPTO record also says “no claim is made for the exclusive right to use “data” apart from the mark as shown.”

Forbes has a story here and maintains that Specht might have lost his claim because of “inactivity.”

I could not find a website for “Android Data” but I did find an “android phones blog” with an entry about this matter here.

This all sounds like something out of a History Channel episode about UFO’s and grays. It’s a bizarre case. I guess I won’t use “android” for a domain name right now.