Monday, December 05, 2011

Kellogg's uses same brand for more than one cereal -- look at your Special K

Did I see this right?  Kellogg’s Special K has two different cereals, the “original” is much more bubbly, almost like the original Rice Krispies of the Howdy Doody show of the 50s.  

That’s what I noticed this morning.

If a company uses the same mark for two different products, doesn’t it “dilute” its own mark?  Yes, it has a right to, but ….

One of the worst cereal TV ads in the 50s was for something called “Alphabits”, a sugar-coated, pastel-colored cereal whose advertising was based on showing little kids misspelling words, exploiting the viewer’s “nicer weakness”.

Yes, some uses of trademark are “legal” but culturally offensive.

Thursday, December 01, 2011

Do airports trademark their destinate codes?

On a day that the Los Angeles International Airport lost power suddenly during violent Santa Ana winds, I noticed that the airport doesn’t own its own acronym as a domain. LAX belongs to the Lacrosse Superstore;  the airport is Laxa.

I suppose most airports would claim trademarks on the standard identification codes (DCA for Reagan, DFW for Dallas-Fort Worth, IAD for Dulles, BWI for Baltimore).  But would that guarantee them domain names?

Today I accidentally typed googla instead of google and got a warning from Webroot.  It seems to me that it shouldn’t be such a big deal to get fake sites shut down under a SOPA worded narrowly and properly.

Wikipedia attribution link, Santa Ana winds.

P.S.: later reports say that the strongest winds were around Mammoth Lake CA. I've driven US 395, the Owens Valley road, many times.  It's scary. 

Tuesday, November 08, 2011

Would SOPA be effective against "parasite" domains (based on misspellings or different tld's)?

There’s a bill in Congress, called SOPA (Stop Online Piracy Act) in the House and Protect-IP in the Senate, discussed on the “BillBoushka” blog particularly on Oct. 27.

Yesterday, I ran into another “social survey” when I tried to access “” and misstyped it as “kahnacademy”.  It’s a very natural error.  It strikes me that the owners of legitimate sites (Khan Academy is well known for online tutorials in many subjects) would want to pursue trademark dilution claims against deliberate imitators. Perhaps SOPA makes it easier for them to shut down clones, either for parked domains (as in the past) or to send spam or malware.

The problem will be due process – whether there are areas of gray where sites that are actually legitimate could get caught in the middle.

In the meantime, larger sites ought to reserve (as equivalent domains) plausible misspellings of their domain names.  I don’t know why neither Webroot nor MyWOT caught this misspelling as an obvious “parasite”.

You can check the original and parasite names on “domain tools” (WHOIS) and see different registrants.  That could help provide some “evidence” for “due process” in a takedown.

I do see a “” (mine is at Godaddy, and I don’t recommend going to the .org, don’t know what you might get.   (Something else I noticed: MyWOT doesn’t like “Keywordspy” which looks up domain names.)

Tuesday, November 01, 2011

"Occupy" could become a trademark associated with the new protest movement; more on my "do ask do tell"

Protester-entrepreneur (an oxymoron?) Robert Maresca (with spouse) wants to trademark the various “Occupy” movement names (“Occupy Wall Street”, “Occupy D.C.”, etc.). The trademarks would apply to various promotional items like T-shirts and silk screens.  The news story is here.  CNN has a similar story by Kristina Sgeuglia, mentioned yesterday during the morning on the network, here.

Maresca says he will turn over all money made from selling items to fund the Occupy movement.

It’s perfectly legitimate for “non-profits” to own trademarks.  (Consider “Blue Cross, Blue Shield”).   The important concept is that the entity uses the mark in commerce (even for non-profit purposes), such as goods or services.
As a phrase that identifies a political protest movement of concept, “Occupy Wall Street” is not trademarkable.  But if it sells goods to help its cause, it can set up a brand name for the goods, which could well be “Occupy”.  There is some legitimate question as to whether common English words should be monopolized as trademarks (or wordmarks).  But typically a trademark is supposed to apply to only one line of business at a time.

Once registered, Maresca or any similar holder of a trademark for “Occupy” could file against other entities for prospective dilution, according to the 2006 law.

There could be questions as to how “commercial” a usage really is.  If a proposed trademark holder can process his or her own orders and credit card operations (under stricter security guidelines) on its own server, rather than outsourcing to Amazon, for example, does it have a stronger claim? (either with the USPTO or later in court).  I wonder.  The ability to do so could be evidence of economic scale commensurate with a trademark claim.

The main entities that could be affected could be domain name holders who don’t claim trademarks, for other purposes than commercial (political speech).  But ICANN generally supports domain name holders who registered in “good faith”, commercial or not.

As for me: I’ve used “do ask dot tell” for the title of two (now three) of my books since 1997, and as a domain name since 1999.  To date, USPTO shows only one attempt to trademark the phrase, serial 74700025, dead, abandoned June 13, 1996, originally filed by Robert J. Powers (author of two books “A Manager’s Guide” and “A Family and Friend’s Guide” to sexual orientation, in the mid 1990s). The marks would have been used for “buttons, paper weights, stickers, writing instruments, notepads, banners, promotional materials for books and workshops”.

I have thought about the possible use of “Do Ask Do Tell” as a movie distribution company for independent film, especially films have to do with LGBT issues, most notably the historic fight over the military gay ban, or “don’t ask don’t tell” policy, and concentric issues. I have had at least one brief business discussion on the idea (yesterday).

Monday, October 31, 2011

Taylor Swift threatens "trademark" lawsuit against Celeb Jihad

Singer Taylor Swift is threatening a trademark infringement lawsuit against a website “Celebrity jihad” for presenting (nude) pictures that it claims are of her but are not.  How is this a “trademark” issue?

The story broke on CNN Monday morning.  Here’s a story from International Business Times, link

“Celeb Jihad” has its own account here. Note: the site is very slow this morning.

My favoite song of Swift is "Mine", on YouTube here.  In January, it was the most common song on Sirius XM on a car business trip to Charlotte. 

Tuesday, October 25, 2011

"Life Is Good" is a trademarked name

While driving in Arlington yesterday, I was behind a pickup truck with a “Life Is Good” image (embedded on a picture of a tire) on the back bumper, and I could even see the trademark “r”.  I thought it was interesting that a phrase of such common words could be trademarked, so I looked it up, here. It is both charitable and commercial.

I looked it up at USPTO and found it pretty recent (2011), with a description “Entertainment in the nature of festivals featuring live musical performances, games, speeches and food”.

The phrase for my own domain “Do Ask Do Tell” still has only the one abandoned attempt from 1995. 

Friday, October 07, 2011

"Decca" v. "London" in music provides a trademark story; Amazon changed everything

If you want to read a good trademark story, look up the history of Decca Records in Wikipedia, as well as London Records (both labels are easy to find with searches). 

In the United States, the Decca name was sold off as a separate company, so for years British Decca sold classical music in the US on the London Label, which usually had a “red seal”.  In the 1960s, many audiophiles considered London the most consistent label as to high quality of manufacturing in the US (the best competition was Columbia, then belonging to CBS).  Decca was sometimes used to press Deutsch Grammophone recordings, but sometimes had inferior pressing quality (as I found out with a Furtwangler Schubert 9th, and a Decca Bruckner Fifth).  That was not good for the Decca “brand” but in the 1960s news spread more slowly. Audiophiles then paid more for imported “DGG’s”.

When CD’s came into vogue in the 1980s, Polygram pressed CD’s for DG, London and Philips with the same facility.

Now, it seems, British Decca is sold directly through Amazon as if it were equivalent to "London", was with a recent recording of music of Nico Muhly (my "drama" blog Oct. 4).  Both London and Decca use the same-look "trade dress".  The presence of e-commerce (especially Amazon) has made old arrangements to use brands differently across the Pond infeasable. 

Branding was important in the 1960s in another sense in the way classical records were sold. Stores had “reputations” based on the discounts they offered, which were considerable in places like Record Sales in downtown DC (in days when mono records listed at $4.98).  Other stores (like the Disc Shop on Dupont Circle)  branded themselves around quality, offering pre-listening in the store but few discounts.  In those days, collectors took manufacturing and retail care seriously.

Sunday, September 18, 2011

President Obama signs "America Invents Act"

President Obama has signed a new patent bill (“The Leahy-Smith America Invents Act”) into law, but analysts are questioning whether it wil really create more jobs, or invite turf-protection keeping out other innovation, as we’ve noted here before with patent abuse.

CNN Money has a story on it here. The story gives the chronicle of i4i and Microsoft.

The White House has a press release on the bill, signed at a local high school, here

The White House claims that the law will reduce litigation.

The bill was HR 1249 and became Public Law 112-29. The govtrack reference is here. Sponsored in the Senate by Patrick Leahy and by Lamar Smith (R) in the House. 

Saturday, September 03, 2011

Would gay bars want to trademark their names? A road adventure (and a warning about red light cameras)

Driving down Philadelphia Street in Ocean City (coming down from Rehoboth) I noticed a “JR’s” steak house. Actually, from the quick picture while stopped at a light, I see "JR's Ribs".  

I wondered, mischievously, could the use of that name produce a trademark problem since the chain of gay bars with that name is so well known (in several cities, at least Washington, Dallas, Houston and Denver). 

But the name has been used in suburbs and other cities for family restaurants, apparently.  And in Dallas, other characters from the show generate names of gay bars, like SueEllen’s. 

Trademark law generally allows the same name to be used for different kinds of businesses, because they won’t cause “confusion”, although that idea hasn’t always been followed well.  Certainly, a character in a show is a different entity from an eating or dancing establishment. 

But as the gay community becomes more seamless, at least in many parts of the country (with the acceptance of gay marriage in some states), would the idea that a brand needs to convey whether a place is gay or straight hold water?  I wonder. 

One other thing about Philadelphia Street (southbound).  I noticed red light cameras at every intersection, but no signs warning about photo enforcement of traffic laws (becoming common in some areas in Maryland). 

What gives there?  (A photo enforcement camera should cause consumer confusion.)

Saturday, August 27, 2011

EFF sponsor boot camp for app developers to handle patent trolls; the Lodsys litigation; Perry's "tort reform"

Electronic Frontier Foundation (EFF) is settling up a “Virtual Boot Camp for App Developers” called “Patent Trolls and You”, link (website url) here (post by Julie Samuels).  It gives  a link to a complicated series of litigation against Apple developers by a company called Lodsys, which has somewhat become the Righthaven of the patent world, with a similar “business model”.

It’s interesting that a lot of the litigation is in plaintiff-friendly Texas, when Gov. Rick Perry, a likely front runner for the GOP nomination for president in 2012, brags about his efforts in tort reform in his state. This matter does not support his claims. 

Update: Aug. 29

On Piers Morgan, guest Mark Cuban recommended doing away with software patents. 

Monday, August 15, 2011

New patent litigation challenges "one party rule", could affect ordinary web hosts

Julie Samuels of Electronic Frontier Foundation has an important story Aug. 10 about patent reform, specifically, challenges to the traditional “one party” rule in patent law, link here. The rule has been that only one party could be sued for infringement in a multi-step process.  But in Akamai Tech. v. Limelight, there is an attempt by a plaintiff to claim separate infringements for (1) storing content on a server and (2) tagging remote content.  The case is before the Washington DC Circuit.  The case could conceivably affect “consumers” or ordinary web users who purchase shared hosting services.  The author also gives examples from Medicine. 

Thursday, August 04, 2011

Obama mentions patent reform in relation to debt ceiling

In his speech about signing the debt ceiling bill Tuesday, President Obama mentioned the need for patent reform, a remark that sounded curiously off-topic.

He may have been referring to excessive patent right “abuse” that drives up the cost of prescription drugs, especially for seniors and therefore for Medicare Part D.

However, as noted here before, some advocacy groups like Electronic Frontier Foundation, have criticized current patent law as potentially anti-competitive, making it too easy to get questionable patents to discourage others to try innovation.  

Monday, August 01, 2011

Social media requirements to use "real names" need to recognized trademark significance of names to some artists

Recently (July 28), I reported on my “BillBoushka” blog requirements by Facebook and Google-Plus that user accounts be set up with “real names”, whether legally given or commonly known.

I think that service providers should realize that some artists and others use “nicknames” as legally recognized trademarks for business activity. Service providers who want members to work only in identified (not anonymous) environments should provide, on profile panels, places to enter legal names, nicknames, and trademark and pen names, so that visitors can check and not become confused.  But some providers do not provide enough buckets for all of this information. 

Thursday, July 14, 2011

Public transportation/highway trademarks such as E-ZPass and perhaps SmartCard work; MN shutdown affects Coors

On a recent trip from northern Virginia to New England, I used E-ZPass (link) for the first time, and found that it worked perfectly.  (No matter, Friday’s deluge made the southern section of the NJ Turnpike a parking lot for a while.)  It does seem that “E-ZPass” works the way a trademark should. I bought it from a website in Maryland for the Cross-County connector, got a Virginia-labeled device, and found that it works in all states that I tried, including New York and New Hampshire.

But, in fact, E-ZPass isn’t used in all states, mainly in the east. Here is a FHA chart

According to USPTO, the trademark (and associated “property rights”) belongs to the (non-profit) Port Authority of New York and New Jersey, for use in any state.

It seems to me that the same concept should be tried with SmartCard for transit systems. One electronic card could work in all subway systems. Right now, Washington DC uses SmartCard, and New York City uses MetroCard. Why not have a system with just one card, and a trademark that means “use in any mass transit system”, including the parking lots.  Legally, the ownership claim to a national mark for this name could be complicated.  (Here’s a basic website)  USPTO shows many marks now.

The idea could give IT companies like EDS some business.  A entity does not need to be “for profit” to have a trademark.

Here’s another tidbit: Miller Coors had to stop selling beer in Minnesota because the state government shut down over a budget battle and the state could not process its brand application. 

Saturday, June 25, 2011

Righthaven trying to copy the "patent trolling" model now, which may be more "lenient" for the plaintiff

The latest twist in the Righthaven copyright troll saga is that Righthaven now wants to metaphorize itself to “patent trolls” as if that were a virtue. Apparently patent law does not require as exclusive a right of ownership as does copyright, the way statutes are written. Steve Green of “Las Vegas Inc” has a story about it here

Green quotes the Electronic Frontier Foundation as having written “Yet because patents can be anywhere and everywhere in these technologies, the average user has no way of knowing whether his or her tools are subject to legal threats. Patent owners who claim control over these means of community discourse can threaten anyone who uses them, even for personal noncommercial purposes.”  Does this mean that the content posted by a blogger or website owner could be forced to be taken down if the company hosting it had violated a patent?  I haven’t personally heard of this happening.

EFF has its link for its “patent busting project” here.

The Righthaven situation is covered on the “BillBoushka” blog under the “mass litigation” Blogger label.

Monday, June 20, 2011

Best Buy protects the "Geek" in "Geek Squad" -- even from "Chuck"

Nathan Kopper has a brief article “Geeks become popular in trademark disputes”  (link) and Miguel Bustillo has a more detailed story on the front page of the Monday June 21 Wall Street Journal about legal action taken by Best Buy (of Richfield, MN) against other companies for trademark infringement with the word “Geek”, since Best Buy owns Geek Squad (link). 
Best Buy says that it only acts when the trade dress (the orange and black or formerly black and white emblems and uniforms) or other practices, like calling techies agents, are involved. 
There have been other companies that use the “geek” word, apparently without problems, like Geeks on Call (link).

Best Buy objected when NBC wanted to use the Geek Squad and the Best Buy chain in the comedy spy series “Chuck”, which wound up inventing the “Nerd Herd” and “Buy More” pseudo-trademarks for the show (with different colors).  Publicly traded companies worry that if they are not aggressive in defending trademarks against small infringements, larger battles will ensue. Remember the battle back in 1999 between and a small Minneapolis bookstore?

Commercial films and television series often do use fictitious variations of major corporate names, apparently because of trademark dilution law. 

Anyway, your favorite younger musician (even classical) is now a geek, and your future boss will be a geek. Remember what the Erika character tells a fictitious Mark Zuckerberg at the end of the opening scene of "The Social Network"?  

Picture: no, there's no connection between Best Buy and LDS.  I just wanted to use this old family trip picture. 

Sunday, June 05, 2011

More on "patent trolling": Tech Dirt artcile links Myhrvold to practice

Tech Dirt has a provocative story linking the business operations of Nathan Myhrvold to “patent trolling”: setting up small companies, “selling” them patents, and then using these companies to sue legitimate inventors. The model sounds vaguely like Righthaven and copyright trolling.

The Tech Dirt link is here.

The terms “bait and switch” and “patent shakedown” get used here. It’s pretty easy to imagine the same kind of operation with trademarks against amateur domain name holders, claiming prospective infringement under the 2006 law.

Friday, May 27, 2011

Misspelled domain names: pure trademark dilution: "don't do it"

If anyone thinks it’s cute to register a domain name that is a misspelling of a well known company, and then either park it to offer links that companies pay for, or come up with scams and “surveys”, leading to wake-up cell phone texts, I’d say, don’t do it. It’s trademark infringement.  The trademark holder have every right to go after “you” for trademark dilution.  I suppose most of these “sites” are hosted offshore and are harder to go after, maybe.  Yesterday, I got a good comment on my Internet Safety blog about a Feb. 27 posting on a “social survey” scam based on misspelling “Facebook”. 

Thursday, May 19, 2011

What about trade names, pen names, Twitter ID;s, T pseudonymns,

My legal name is “John William Boushka” and my nickname has always been “Bill Boushka” which I used as a pen name for my “Do Ask Do Tell” books.

I looked up the question as to whether a pen name can become a trademark, and found a site called “PublishLawyer” with a general page on trademarks. Generally, yes, if it’s not someone else’s name, too, and doesn’t infringe on anyone. The link is here. Note that a “trade name” is not the same as a trademark, the latter of which needs to become associated with a specific product or service (as a brand).

How many people know romance novels by author name in a grocery store?  It seems to me that “Nora Roberts” sounds like a real trademark, for a particular “brand” of fiction.

There is talk that Twitter ID’s will become the subject of trademark controversy.  Some artists have become clever with their Twitter names, to the point that they become to sell the artists as if they were brands.  Will corporations start cracking down on “twitter squatters?”  Here’s a post on that (link). 

Monday, April 11, 2011

Group tries to trademark "urban homestead" and monopolize its use

The use of generic terms as registered trademarks is again creating an issue, according to an April 5 story by the Electronic Frontier Foundation, link here.  

This time, the generic term is a phrase “urban homesteading”, or something similar, registered by the Dervaes Institute (link)   Now there is a book by Kelly Coyne and Erik Knutzen, “ titled “The Urban Homestead: Your Guide to Self-Sufficient Living in the Heart of the City” (amazon link).  According to the EFF story, the Institute got Facebook to take down pages promoting this book and the activities of some other groups, such as a Denver farmer’s market, over a “bogus” trademark.

I looked up Dervaes at USPTO and found it had used mark 3855377 for "Urban Homestead" and 77326565 for "Urban Homesteading".

Generally, USPTO has said that different industries can use similar wordmarks as long as there is no chance of confusion, and it has also said that it is not  likely to register common phrases or English idioms as trademarks.

A brand is supposed to be distinctive within an industry, not shut others out of the industry.  

Below: a company uses the word "trademark" as part of its corporate name (the blue sign):

Saturday, April 09, 2011

Charlie Sheen moves to trademark many of his "catch phrases", stirring debate on "common words" as trademarks

Bad-boy comedy TV actor Charlie Sheen is going to trademark at least 22 of his “catch phrases” , according to media stories, such AP’s Anthony McCartney (reported by WPTV) link here

There could be real issues if he moves to trademark common idioms and words.   I found a list of the catchprhases at a site called “IPBrief” (website url) here and they include the word “winning”.  Can you really trademark "I am not bi-polar"? 

Others have joined in the fray, with attempts to trademark phrases involving various uses the word “winning”, as in this Hollywood Reporter story

It’s not certain that the USPTO will approve all of these marks (even with the government not shut down!)  Usually approved marks appear at the USPTO website in about 90 days. 

Wednesday, March 09, 2011

Senate introduces Patent Reform Act, making challenges to anti-competitive patents easier

It would be well to note that the Senate is pondering a “Patent Reform Act of 2011”, S. 23, introduced by Patrick Leahy (D-VT) with govtrack link (website url) here.
Electronic Frontier Foundation has a major writeup, by Julie Samuels,  here. The reforms include raising the bar for “willfulness”, and at the same time a make the provisions for potential challeges to patentability more useful, particularly various kinds that center around a nine-month waiting period.  (It’s rather like an “anti-prospective-dilution” provision.) There is also a limitation on “business method” patents in procedures that don’t involve technological innovation, which hurts competition from small business. 

Monday, February 07, 2011

New professional or theme-oriented TLD suffix will raise trademark issues

The looming opportunity for profession-dependent high level TLD’s from ICANN will raise trademark question

The general idea is that only “professionals” would use their own generic TLD, which is supposed to help with branding. For example, the music group “Queen” would have a domain called, which will help it get more revenue-generating traffic  because “queen” is too generic a word to be used alone with “dot com”.  (The official website is “queen online” here )

But how would something like “.authors” work? Would self-published writers be excluded? Would only those able to generate advances be allowed in the club?

Trade interest groups will pay ICANN about $185000 plus membership for the right to control the TLD, from which they can sell domain names.

Ian Shapira has the story (“Rush is on for custom domain name suffixes”) in the Monday Feb. 7 Washington Post here.   The new suffixes will become available in early 2012. 

Saturday, January 15, 2011

Now, we have "patent trolling", too (FlightPrep v. Runway Finder)

Julie Samuels has an important story at Electronic Frontier Foundation today about “patent trolling.” A company called FlightPrep (link ) has been using a patent registered in 2001 to go after other small businesses that generate flight plans or give information about runways.  (I can imagine that the TSA would be concerned about this.)   In fact, Runway Finder was forced off line, according to its own blog, here.

The EFF article is here.

The FlightPrep at USPTO is here.

There is also a “Boycott Flight Prep” site here   (not yet checked by McAfee). 

Saturday, January 01, 2011

Trademark claims made against parody sites, or sites using common words for domain names ("Lamebook"?)

An article by Corynne McSherry on trademark law abuse is worth noting at EFF, “2010 Trend Watch Update: Fair Use of Trademark”, link here.
The main concerns are frivolous lawsuits claiming (prospective) “trademark dilution” on sites involving parody (such as action against “Lamebook” (site ) from Facebook”) and suits blocking the use of common English words in domain or business names, such as “Entrepreneur” or “Face”.   Lamebook does “look” like a parody of Facebook and contains a plea for funds for salvation.