Monday, December 17, 2012

Does downstream liability exist for trademark infringement? On domain names or content? The Victoria Secret incident raises questions


Electronic Frontier Foundation has a piece explaining in detail a recent controversy about a “social” parody website by “Pink Loves Consent”  (link)  of Victoria Secret (link), story here by Alson Dame-Boyle.  

Victoria’s Secret claimed both copyright and trademark infringement.  We’ve covered the controversy over the way DMCA Safe Harbor works before.  But EFF makes the important point that service providers have less expertise in handling trademark complaints, and the law seems to do less to protect them from downstream liability.  In fact, I’m not sure that there is any protection.  No wonder service providers jump and take down sites on trademark complaints quickly.  The risk, however, might seem to be with the domain name registry itself rather than the domain content (although here VS could claim that the content implied trademark infringement.)

The trademark part of this issue needs much more attention.

Tuesday, December 04, 2012

AARP trademark use in Medigap may be a Medicare cost control issue, and present a conflict of interest


Can trademarks affect the health care and even Fiscal Cliff debates (especially with respect to Medicare spending)?

Apparently so, as AARP gets a royalty of almost 5% in Medigap policies sold by its business partner, United Health Care, for the use of its "brand".  Medicare changes could include requiring more deductibles, leading seniors to use Part B less and lower premiums and lower royalties for AARP. 

AARP says it lobbies against privatization of Medicare and Social Security, even though it could benefit from using its trademark in selling private products to seniors.  If premiums for Part B to wealthier seniors are increased even more, it could also benefit from using its trademark on replacement Medicare Advantage policies, which might be cheaper.

The story by Jeffrey Markon in the Washington Post Tuesday December 4 is here

AARP has registered a large number of marks on the USPTO site.  

The best known trademark (brand) in the health insurance world are, of course, the Blue Cross and Blue Shield marks, which are licensed to mutual non-profit companies that meet certain requirements as “plans”. 

Should consumers (and governments) pay for the costs of health care corporate "brand recognition"? Can we afford this now? 

Wednesday, November 14, 2012

EFF offers YouTube webcam on patent trolls (especially Lodsys)


Electronic Frontier Foundation offers an extended  YouTube video (1 hour, 45 minutes, largely with audio only) webcam called “Patent Trolls and You: EFF Virtual Bootcamp for APP Developers”, from September 2011.


Much of the discussion concerns a particular “troll”, Lodsys (link). 

There are several panelists: Helene Chin (Santa Clara Law School), Tony (Co chair of ABA subcommittee on patent litigation), Andre (private practice in patent), Ben (private practice and district attorney’s office). 
EFF has a link on “bad patents” for frivolous claims, like patents on streaming video, VoiP, real time games (maybe even chess?) and looking up barcodes on a network (or with smartphones), link here). 

Tuesday, November 13, 2012

Cisco goes after patent trolls, which it says targets customers (not just other inventors)


Ashby Jones has a major story in the Monday November 12, 2012 Wall Street Journal in the Marketplace section, “Cisco calls patent trolls racketeers,”.  The WSJ online blog (paywall access) entry is “On Cisco’s novel, aggressive approach to patent trolls”, link here

Cisco is suing  Innovatio IP Ventures, claiming that Innovatio buys up patents and then (in a manner reminiscent of Righthaven suing bloggers over frivolous copyright claims for newspaper articles it had bought) sends threatening letters to customers of patented technology (often coffee shops, restaurants, and hotels, especially smaller independent ones that may not have the pockets to defend themselves). I was not aware that customers could be held liable under patent law. It does seem that most of these customers are franchise-operated retail companies.  
   
Cisco is also suing Canadian company Mosaid Technologies for paying witnesses for testimony and documents.

Cisco has two co-plaintiffs, Betgear and Motorola.

The UK Telegraph has a story (by Richard Chirgwin) emphasizing that Innovatio is targeting WifFi users, link here

The University of California Patent Examiner has a story about the spread of suits against larger hotel chains, here

However, IP Watchdog has an article (March 21, 2012) in which Ray Niro is interviewed, and provides a somewhat convoluted explanation of Innovatio’s rights, link here

There seems to be an issue in the way hotel and restaurant chains license WiFi technology to individual franchise owners. The outcome of this battle could conceivably affect the availability of cost-effective or secure WiFi to personal and business travelers, and that becomes important to traveling consumers. 
The TED channel on YouTube has a story by Drew Curtis on “How I Beat a Patent Troll”.

Monday, November 05, 2012

Another restaurant on the pet-name theme (Bethesda MD)


I’ve found another bar-restaurant named after a pet, maybe inviting trademark controversy later.  This time, it’s the Barking Dog, a small sports bar in Bethesda MD, between the Metro Station and the Landmark Theater.  There’s even a water saucer outside.  Inside, there is a 19th Century poster ad from the DC Fire Department for “able bodied men” to become firefughters.

Some of the menu items (many of them hot dog dishes) were based on other permutations of pet names.  I ate a burger called the “Smart Dog” as I remember.  My father used to refer to “human dogs”.

Regarding Landmark, there is actually a Landmark Mall (shopping) on  I-395 in northern Virginia, on the border of Alexandria.

I don’t think businesses should try to claim trademarks on pet nicknames.  

Monday, October 29, 2012

Trademark controversy over Frank Kameny's "Gay Is Good"


The estate of the late Frank Kameny is claiming that Frank’s “Gay Is Good” slogan has trademark protection, and the estate sent a cease-and-desist letter concerning the use of the phrase in the name of an LGBT website launched recently by Christopher Dyer.   The full name was “Gay is good, make LGBT great”.  But apparently the total name applied just to the name of a Facebook page (link) .

The Facebook page was set up for expressive, and non-commercial purposes (although Facebook probably can make advertising revenue from it). 
The Washington Blade story by Lou Chibbaro, Jr. is here

Christopher Dyer has his own account of the matter, for “National Coming Out Day” here

The “Make It Better” project video is here. 

The USPTO has the trademark registered as serial 85676494

Wednesday, October 24, 2012

"Ole" and "Old" country stores


More mischief on my part.  Today, as I drove north on US 29 south of Culpeper, VA, I noticed a billboard sign, “Ole Country Store and Bakery” for Culpeper. VA (near Madison).  The closest link seems to be here

Now, Cracker Barrel Restaurants has the sub-brand name “Old Country Store” (the actual word “Old”).  See GLBT blog, Aug. 27, 2012. 

How many small businesses are there around the country with names like this based on common phrases.  Will these present more trademark problems as franchises get bigger and hungrier for profits?  

Sunday, October 21, 2012

By happenstance, I notice two "Stray Cat" cafes, when "on the road"; Does "Romney" really favor small business?


On Friday Oct. 19, 2012, as I was leaving the Potomac Eagle scenic railroad attraction near Romney, W Va, I noticed a sign for a “Stray Cat Café”.  I drove three miles east of Romney on US 50, and found the establishment in a large strip mall on a hill above the highway (it’s hard to see from the car on Rt 50).  It appeared to feature Mexican fare.  Since I had recently eaten lunch on the excursion train, I didn’t stop for dinner.

This restaurant caught my eye because in Arlington VA, in the Westover shopping center along Washington Blvd, there is a “Stray VCat Café” a few doors down from a “Lost Dog Café” , which I reported (here on July 28) as involved in a trademark dispute with a “Lost Dog Coffee” business in Shepherdstown, W Va, perhaps 50 miles NE of Romney, still in the Potomac Highlands area of the state.

The website for the Arlington business has the original URL name, here

I have eaten there before, and recall mainly American fare.

The website for the Romney business has a different URL with the word “Romney”, here

Curiously, the only trademark that I found on the USPTO website is for a business in Keyser, W VA (30 miles from Romney), more logically related probably to the Romney business, serial 74451611, registration number 1866076.  

I honestly don’t know if the businesses are separate or share a trademark license for the name from a common owner, or whether the USPTO recognizes the name as not unique enough to be restrictive, even within on industry. (Note the comments on the USPTO record.)  But if these businesses can operate separately in different states with the same name, why wouldn’t the same be true of “lost dog”?  It’s easy to sit around and imagine other reproducible names for restaurants and bars; how about “Stupid Kid”?   It would seem that the Trademark Dilution Act of 2006, however, might make businesses repeating names in other states more vulnerable (perhaps not an intended consequence).

Wall Street likes franchises, and American law tends to encourage them, with restrictive use of brand names for retail and food/beverage businesses especially.  That state of affairs tends to encourage individuals and families to consider franchise business ownership rather than trying to set up their own brands.  That means that someone “owns” a business but must follow the practices of the branding or franchising company closely.  This could never be my own cup of tea.
    
It seems that the trademark question invokes a deep philosophical question about the balance between small and big business in the economy. Neither major political party (they both talk about small business) has come clean in talking about this issue, as both are beholden to political contributions from large corporations.  It’s ironic that this little field observation occurred in a small city with the same name (Romney) as the GOP presidential candidate.  What would he say about trademarks, franchises, and small businesses?

This problem is a “bricks and mortar world” issue.  It could have occurred before we had the Internet.  But in older times, people were less likely to remember businesses in other cities.  I discovered this “stray cat” by happenstance.

I recall a dispute between Amazon.com and an “Amazon Book Store” in Minneapolis back in the late 1990s. 

Monday, October 15, 2012

Patent trolls go after e-commerce sites with "look and feel" of patented programmed scripts


Here’s the latest wrinkle in trolling:  A Texas company DDR Holdings, has won judgments (in federal court?) against other companies for infringing on its way of creating an online store, in this case, Digital River and World Travel Holdings, and sued at least seven others.

It’s a little hard to see that a retail e-commerce site that has the “look and feel” of a patented e-commerce technique (dating back to the days of the Web 1.0 dot-com bubble) could really be so vulnerable to trolls.

The Ars Technica story by Joe Mullin, dated Oct. 12, 2012, is here

Thursday, October 04, 2012

Companies often use the same marks without the public noticing


Just casual autumn walks in different towns shows that related businesses, especially bars and restaurants, sometimes use the same name.  Getting a domain name can be complicated for the second-comer (not exactly “second-hander”).

In Washington DC, in the Logan Circle area of 14th St., I pass a “Blue Moon”  sign on a restaurant.  I've also seen another similar circular sign farther up 14th that looks like the name of a drink. (I don't know my drinks because I'm not ready for "clown questions.")  In Rehoboth Beach, DE, there is a gay club (pretty well known nationally) by the same name.

I pass a tour bus with a white letters on red “ING” symbol (for "ING Tour").  I have no idea if this has any relationship to the global Dutch-owned finance company ING (my last “main” employer), which usually uses its trade dress with a lion as part of the image, and usually uses the slightly less garish color of orange (remember how grade school readers were color-coded?).  ING is active as a life insurer and bank in the US, and there are even some upscale apartment buildings in Washington DC managed by a real estate venture with the same mark. (As for the ING Lion, take note the next time you're in Amsterdam's Schiphol airport.) 

I don't know how much bearing all this would have on the "Lost Dog" controversy.


Update:  "Blue Moon" does seem to be the name of an ale.  I saw it the other day in a Safeway.  Again, I don't hang out around happy hours as much as Nolan Ross in "Revenge".   

Saturday, September 22, 2012

Elephants, Donkeys to pursue trademark claims against political campaign contribution scam artists

News media have reported that scam artists have mimicked both Republican and Democratic national committees to set up donations sites.

The fake GOP site is operated from a town in Massachusetts.

The operators could face civil lawsuits for trademark infringement and media reports criminal prosecution is possible, although I have never heard of this in trademark cases.

Also, a man was arrested for selling counterfeit iPhones in Maryland.  They did work with a SIM card.  This could generate trademark civil suits as well as criminal prosecution for counterfeit.  

Tuesday, September 18, 2012

Patent Office telecommuting possible because of electronic automation that helps writers, webmasters, inventors too


An article in the Washington Post by Lisa Rein on Sept. 11, Metro section, “At patent office, phoning it in proves productive”, discussing telecommuting by patent and trademark workers from the Alexandria VA office, link here

The story is actually important for people who need to check patents and trademark names (and particularly domain names) online, because it shows that much more effort has been made to make all the electronic records on the Web current.

I can remember a visit to the office in 2000 to check on my own domain names “manually” and there was no way to even begin. 

Sunday, September 02, 2012

VA sperm test company shows how to get patent process to be more flexible; USPTO announces new e-filing patent review system


The Washington Post, in a “Case in Point” column on p. G2 Sunday, September 02, 2012, has column by Gosia Glinska (University of Virginia) explaining the value of an inventor’s meeting with a patent examiner.
    
The “case in point” was a company called ContraVac, which has developed a home test kit that may help detect male infertility early, and maybe effective for certain couples.

The patent examiner, until a meeting, had objected on the grounds that a “testis-specific protein” test already existed in the literature (in patent law circles, the objection is called “prior art”).  However no test had ever used such a protein to count viable sperm, which changed how the law could be interpreted.

The link for the column is here

The article suggests that it is desirable to be able to ward off competition, which may not be the best thing for consumers or for innovation in the long run.

UVa has a story about ContraVac in 2009, here

ContraVac uses “Sperm Check” for its own domain name here

Relevant, too, is that the USPTO is implementing an electronic Patent Review Processing System (PRPS), with the “First-to-File Roundtable” on Sept. 6, story by Robyn Hogan Cain in Findlaw here (or  here)
  
It’s a little surprising that such a system would have taken as long to implement as apparently it did. 

Tuesday, August 28, 2012

Apple v. Samsung patent case has real implications for venture funding of future innovation


The recent jury-driven judgment against Samsung in a lawsuit by Apple is certainly going to raise questions about whether a “monopolistic” approach to patents will lead to reduction in innovation, as Electronic Frontier Foundation has often warned.

The center of the controversy seems to be the “push to zoom” finger-driven technology, very popular with users (and it amazes me how good young adults are with dexterity in texting while dancing in bars, as if companies could have predicted this – not good when driving, though). 

Craig Timberg and Hayley Tsukayama summarize all of this pretty well in a detailed story on the Aug. 28 Washington Post, “Post-pinch: what’s next for digital age?”, link here

The point is well taken. There are hundreds of hardware patents registered for smartphone technology.  But should an invention that changes a basic paradigm of use monopolize the field?  It would seem that if another company came up with another chip that could emulate the push-zoom experience, then it could get a separate patent.

The writers for Post note that Apple was the first company use encourage users to interact with a computer operating system graphically.  Microsoft more or less emulated the idea with Windows (the 3.1 version in the early 90s, followed by Windows 95), but did not run into insurmountable patent problems.
USA Today has reported that a South Korean court found that Samsung did not “copy” the iPhone (Thunderfeed here).

Apple is reported to be seeking to enjoin the sale of eight Samsung phones in the United States (Times of India story )

Consumers owning Sansungs now should not be affected (nor should warranties), but future orders might be, as could contracts for future purchase discounts.

A Business Day story by Claire Cain Miller and Brian X. Chen Aug. 28 in the New York Times discusses the possible affect on Google, and whether it could become a “target” of Apple litigation. Maybe not, because Google uses arrangements with  other companies for the hardware, and as a business strategy, litigation could backfire for Apple (link).

Litigiousness about patents could certainly affect the ability of future start-ups to attract venture capital (see movies blog today).  Let the politicians debate this at their conventions.   




Thursday, August 23, 2012

Sharing a trademark can cost you state funds (in Texas, at least)


Well, it can work to “your” disadvantage to have or use a particular trademark.

According to a New York Times editorial published today, Texas administrative law now bars state funds funneled through its Women’s Health Program to go to any entity that shares a “trademark” or business name with any organization that performs abortions.  This prevented funds from going to certain legally separate affiliates of Planned Parenthood.  The NYT says that “just talking about abortion counts as promoting it”.

The fight is in federal courts, and the Fifth Circuit unfortunately undid a lower court injunction to inhibit the Texas rule.

The idea that “talking about abortion” could be illegal has occurred before, in the part of the 1996 Communications Decency Act that got struck down by the Supreme Court.

The New York Times editorial is here.  

Wednesday, August 22, 2012

Trademarks is about branding for consumers, not business name itself


There’s a simple file on trademark basics on “answers” on Yahoo!.  It appears from this blurb that you can register a name before you actually have used it in commerce, if you establish a notice of intent to do so. But that possibility could complicate life for other businesses, or other domains that are active but don’t actually do transactions with the public.

The best link that I could find on business categories is here.

Normally, the same name, from different parties, can be used in different areas. 

It’s important to notice that what gets trademarked is a “brand” known to the consumer, not the name of a holding company or business “behind the scenes”.  For a franchise ownership, the brand that has the mark is the brand being franchised (like McDonalds), not the name of the property owner of the individual franchise.

A domain name for an entity that doe not do commercial transactions in its implied area (or at least intend to do them in the future) cannot be trademarked. 

Here is the Yahoo! link

Saturday, August 11, 2012

Upcoming domain name renewal for "doaskdotell"


I got a mailing for the renewal of my domain name “doaskdotell.com” from a company called “Domain Registry of America”, in late July.

The domain is registered with Network Solutions (it was done so in 1999) and runs through Dec. 2, 2012.  I just verified that on WHOIS.  The actual domain is hosted on Verio.  The domain was registered in an era when fewer companies could register names.

The mail offer included deals for more years.

I would expect the same deals from Network Solutions and will call them soon. Renewal is still more than 90 days away.
  
It is true that it is not a good idea to let domain name renewal slip until the last minute, because domain names have been “stolen” before.   

Update: Aug. 16

I did renew "doaskdotell.com" for nine years (until 2021, when I would be 78) with Network Solutions tonight, for a little over $300.

Network Solutions has various account numbers for one customer in a complicated system.  One of the accounts was linked to "Highproductivitypublishing.com" which has been allowed to expire.  That was the long name of "hppub.com", under which I published my 1997 book "Do Ask Do Tell: A Gay Conservative Lashes Back". I stopped using hppub.com om August 2005 and moved everything to doaskdotell.com, which I believe is stronger.

By the way, I have randomly seen Amazon.com use my "doaskdotell" mark and my last name (both) in delivering to me contextual ads.  So this idea of a domain name as a brand name and even a person's name as a brand is real in a business sense.



Saturday, July 28, 2012

"Lost Dog Cafe" in Arlington VA goes after smaller coffee shop with similar name in West Virginia; important case for locally-owned small businesses nationwide?

An Arlington VA restaurant has fired off a salvo in a trademark battle that could have far reaching implications for small businesses, especially retail and food service, all over the country.

The Lost Dog Coffee shop in Sheperdstown, W VA (in the Potomac Highlands area, about 75 miles from Washington DC) has received a “cease and desist” letter from attorneys representing the Lost Dog Café in Arlington VA (an immediate suburb of Washington DC), to stop using the “Lost Dog” wordmark.  The Sheperdstown business has used the name without incident for about sixteen years.  The shop is owned by Garth Jannsen.

The Martinsburg, W VA Journal-News (owned by Ogden Newspapers) has a detailed story by Tpni Milbourne,  July 27, 2012, link here.  

There is another story in “Daily Coffee News” here
  
Arlington VA ABC affiliate WJLA has a story on the matter here

The West Virginia store has a petition site here.

The store is located at 134 E German St, right in the center of town, and has a main website here

The Arlington Lost Dog Café is located on Washington Boulevard, in the Westover neighborhood of North Arlington.  In the immediate area there are many medium income garden apartments, but not far away, there are many blocks of upper income homes, mostly valued over $500000 or so.  (I grew up near this area and know it inside out.)   Across the street from it, the Westover Market has recently expanded, adding a restaurant/sports bar and outdoor jazz music venue of its own which has become quite popular in the neighborhood.  But the Lost Dog business itself is quite expansive, with two marked entrances wrapping around a Lost Dog Pizza Deli.  And a couple doors down, the same company owns a similar “Stray Cat” café.  I have eaten at both places and found the basic American fare quite tasty.  There is an issue with sufficient legal parking on the same side of the street.

The Arlington Business has an Internet domain with a similar but still differently-ending root name, here

Today, I drove to Sheperdstown and visited the Lost Dog Coffee, and talked to one customer outside and to the owner.  The controversy is well known on the street in Sheperdstown.  I bought coffee and dessert there, but had to go to a nearby establishment, Betty's (below) , for a full hot lunch.




Is the Arlington business planning to expand in other cities, at least inside Virginia (like to Richmond, Williamsburg, etc.), or other states?  Is it planning a franchise operation?

Had the Arlington business registered its mark with the USTPO?   I did find a LIVE “TESS” record there for “LOST DOG CAFÉ”, filed Sept. 12, 2000, with registration number 2963574, serial 76131160, giving an address of 5876 Washington Blvd, Arlington VA 22205, first use in 1994. I was unable to find a TESS record for “LOST DOG COFFEE”.

Generally, the USPTO will allow entities in different business areas to register the same or similar names, as long as the USPTO does not believe consumers would become confused. 

On the surface, this would sound as though a locally successful restaurant (or retail establishment, boutique, etc.) could decide to expand to other cities, and take legal action against all other similarly named businesses in the nation.  It could even try to set up a McDonalds-style franchise.  There are many popular upscale restaurant chains with franchise names, like Friday’s, Ruby Tuesday, Applebees, Outback, Chili, etc.  

So could this litigation portend the Arlington business going after other “LD”-named businesses across the country.  A look at USPTO shows that there are many.  And I didn’t even look up “Stray Cat”.  (By the way, I’m a cat person.)

On the other hand, in the small business end of the food business, it has been common for there to be many shops with similar names, like various “Tony’s Pizza” shops around NYC that are unrelated.

A judge (state or federal) looking at this case will have to go by the existing statutes and case law. They might have to decide whether elements of the Trademark Dilution Revision Act of 2005 applies.

As someone who subscribes generally to conservative-to-libertarian economic beliefs, I find this case a tough one on the policy level.  The GOP has constantly ranted that any tax increases would hurt small business; but it’s obvious that in many circumstances, the legal environment (often supported by the GOP), as written, would encourage bigger businesses, with economies of scale, to bully the smaller ones out of business (or else to selling out and being run as franchisees rather than locally owned businesses).

And now the Internet complicates the issue, because people generally will expect domain names to match trademarked names, and recent ICANN activity regarding new TLD’s (which the “bullies” could monopolize) complicates things further.

Of course, with this dispute, “I” am not confused by the similar names, but I am an I.T. person with some background in business and law.  I think an “average person” living near one of these businesses would not be confused.  On the Internet, it seems as though the possibility of confusion is greater, as people generally don’t know how to apply context to things the look up by search engines.

I’m afraid that Congress will have to revisit the whole trademark dilution issue again at a policy level, prove to us that it is really serious about protecting small business.


I recall, when living in Minneapolis (1997-2003), there was a trademark fight between Amazon.com and a local bookstore called Amazon. I don't recall how it turned out. 


By the way, a bulletin board inside the Lost Dog Coffee store has some cute sayings, like "Compassion is revolution" and "Politicians and babies both need to change diapers". 


Should "common words" be available for new national trademarks under these circumstances?  Can common words become a legitimate source of brand identity for a previously local business?
    
Outside the Lost Dog Coffee business today, someone from the West Virginia Libertarian Party was performing ballot access petitioning, another process familiar to me from my days in Minnesota.  How ironic!


In the gay community, bars have sometimes used workmarks for national identity, like "JR's", which started in Dallas and spread to many cities.  But other names (like "Saloon") have tended to remain just local. 






Monday, July 09, 2012

Should Anderson Cooper trademark his "keeping them honest" catch phrase


I did a little checking on USPTO of Anderson Cooper’s catch phrase, “Keeping Them Honest”, with which he introduces his nightly AC360 show on CNN.  I haven’t seen him use it on his daytime show on ABC.  I couldn’t find any registration of the potential wordmark at the trademark office.

The phrase has roughly the same meaning as my “do ask do tell” (which I haven’t tried to register either).

Should catch phrases of common English “figures of speech” be eligible for trademark registration?

I did find a commercial registration of “You’re fired” for kitchenware, not based on Donald Trump’s “Apprentice”.  Generally USPTO will allow the same phrase in clearly different business categories.

I’m a little surprised I didn’t find Anderson’s favorite slogan there.  The phrase is being used in a commercial setting, to help identify and "brand" a well-known television interview show.   Maybe it should be “Keep ‘em Honest”.  That would rather remind me of the Internet service processing firm “serve-em.com”.


Tuesday, June 26, 2012

ICANN's gTLD scheme could change the domain name game for companies and inviduals


ICANN has created a stir by selling new gTLD’s, closely connected to specific kinds of services or products.  The application phase (it  costs $185000 to apply) ends now, and here is ICANN’s plan for what comes next, link.

The Washington Post has a constructive editorial Tuesday critical of the idea.  One main fear is that companies will feel  “defensively” compelled to create TLD’s to strengthen their own trademarks, but not accomplishing anything of value for consumers.  Another objection is that some TLD’s could bemuse competition.  (Who will get “.grocery”?)

Still another is that corporate owners (for example, should Amazon get “.book”) could have undue influence on smaller businesses or individuals who purchase domain names with the TLD’s from them.

Back in the late 1990s, there were emerging debates on whether “.com” is overused, and could represent individuals with no commercial mass on an equal playing field with whole companies.  Search engines didn’t care.  And the use of “.org” and “.net” was certainly loose. 

The Washington Post editorial (“New Internet domain names may make for a more tangled Web”) is here

Sunday, June 17, 2012

Could casino slot machine or game names raise trademark questions?

Today, on the way back from Baltimore Gay Pride, I stopped at the new Maryland Live! casino, south of BWI airport at the Arundel Mills Mall, about 12 miles SE of Baltimore, off the old Baltimore-Washington Parkway.

It looked like small stuff compared to Las Vegas (where I was four weeks ago), and even the one floor operation looks smaller than Mystic Lake, SW of Minneapolis, which the Libertarian Party often used as a site for conventions 15 years ago.

I noticed, when walking around and looking at slot machines, that many of them have game names based on movies (such as "The Lord of the Rings: The Two Towers"), or other board games, or TV game shows, books, or famous fictional characters (like Tarzan).  Do casino games raise trademark and licensing issues?  From games (like Monopoly) they certainly would, but would movies be viewed as separate businesses?  What about the reverse, if a movie happened to mimic a casino game in a title?

I haven't seen any slot machines with the name of my book "Do Ask Do Tell".  Would the name make sense?  But in Las Vegas, there is a casino called "Bill's Gamblin' Hall", which I not have time to visit.

(If you do go there, look at the weird monorail at Whiskey Pete's in Primm, on the Cal. border; missed getting a picture.)

Notice also the entrance ceiling lights at Live!, based on a visual concept that opens the sci-fi movie "Skyline" -- the falling UFO flares.

Maryland will probably have a larger casino (MGM Grande) at National Harbor  in PG county, on the Potomac, in a couple years. The GOP can hardly object.


Friday, June 08, 2012

Cycling, anti-auto group fights off trademark claims for parody site


With friends heavily into urban cycling (that includes Manhattan), I was amused to find that in 2007 there had been a bogus trademark dispute involving the site “Auto Show Shutdown” (link) involving the Chicago Auto Show back in 2007.

That show tried to claim that the “auto show shutdown” infringed on a “trademark” for the auto show, which was impossible to sustain because the parody was non-commercial in nature.  (If the site accepts any advertising at all, that could raise questions about commercial use.)  And the Auto Show didn’t even own its own mark, according to gumshoeing done by EFF in this article

Monday, May 21, 2012

Cibola: Notes on the names of "gambling halls"

In Vegas ("Cibola"), I noticed a new casino, "Bill's Gamblin' Hall and Saloon" at about the middle of the strip.  I thought about my own blog names, "Bill's".   It did occur to me quickly that maybe there's another counter argument as to why these blog names ought not to become full domain names (previous post).

Although my libertarian leanings would raise no objections, I don't expect a blog to be called anything like "Bill's Gambling Tips" anytime soon.

Could subdomains ever raise a trademark question the way domain names have?  I haven't heard of it happening, but in theory anything that interferes with another entity's branding in the same business category (as USPTO defines it) could raise questions.

Another tip: If you have a sci-fi script set on another world, make the world seem like something that could be modeled into a Las Vegas resort.  (For instance, in my case, a railroad track built as a mobius strip.)   I'm surprised no casino has been based on Clive Barker's "Imajica".  Imagine a resort based on the Five Dominions (and pretty heathen, as in the First Dominion, man beats God).  Or imagine one called "The Cibola", based on the name Stephen King gives Las Vegas in his novel/TV movie "The Stand". 

Wednesday, May 09, 2012

Should blogs always have separate domain names?


Nitecruzr, who runs the website, “The Real Blogger Status”, has a recent (May 6) perspective on Custom Domains for blogs, a discussion the general principles of which would apply to both Wordpress and Blogger.

This refers to the practice of purchasing domain names and connecting them to blogs (through “Zone files” on sites) for DNS resolution, or sometimes to subdomains (that is, several blogs attached to the same domain with a prefix). 

His link is here  (and his own blog has a separate DNS URL). 

It appears (to me, at least) that there are two possible scenarios.  One is that one some purchases a domain name (which could be from Google, or from any registrar such as GoDaddy or Network Solutions) and connects it to a blog which is still hosted “for free” on the Blogger or Wordpress space.  Or, the second scenario, at least with Wordpress (I can’t tell if this happens for Blogger from the literature) is this: you purchase shared or dedicated hosting service from a major provider (like Verio), get your own licensed copy of the blogging software on your domain space and put all of the content (in blogs or anything else) on the hosted space that you pay for. 

In the latter case, you’re freer from disruption (by the spam blog false positive problem) because you’re not using “somebody else’s free service”, an idea that was floated a lot around the summer of 2008 (as Nitecruzr documents there).  But you have a more complicated software environment, must maintain the blogging software upgrades (or the hosting provider must), and could well have interface problems.  And you may well not have as much space or be able to host multiple blogs. 

Right now, my blogs are simply subdomains of Blogspot (with one addition Wordpress blog hosted as I described in the paragraph above), which means they get indexed and found by visitors immediately when posted.  I point to them with a simple index from my home page of “doaskdotell.com”. From the viewpoint of user ease, there is almost no point in assigning new URL’s (to eliminate the “blogspot” node).  The user needs to navigate only from a simple hyperlink on a very fast-loading home page.  I also have a cross-reference file to help users find the more unusually placed blog entries (mostly movie and book reviews).

Why could there be a trademark question?  New URL’s are allowed on a FCFS (“first come, first served”) or FIFO basis.  I’m not sure that it’s prudent to take on new domain names, which indeed are very inexpensive, and invite unnecessary trademark complaints, which could arise (when they would not with a “blogspot” or “wordpress” in the middle, I suspect). 

But it’s still an open question.  I could look at this differently in the future.  “The best practices” keep changing.  I welcome comments on this question, because it seems like the perspective is changing. 

Sunday, April 22, 2012

Software patents create a problem of scalability


There’s a debate going on about software patents.  An “ars technical” paper by Timothy B. Lee and Christina Mulligan states the dilemma. The article (March 2012) is titled “The trouble with software patents: they don’t scale”, link here

The paper is critical of the attitude of Nathan Myhrvold, “Microsoft veteran”, about intentional patent infringement.  The problem, says Lee, is that there’s no economically (or scalable, mathematically speaking) viable way who owns the (often java) code (class and methods) that accomplish something specific on the Internet (or, now, in the mobile universe), like suppressing popups.

Business Week has an older (July 2006)  detailed article about Myhrvold’s Intellectual Ventures and the prospect that it can become a “patent troll”, link here

Christina Mulligan has a summary of the Ars article on the Washington Post’s brainstorming page in the Outlook Section today, April 22, 2012, here

Justin Frankel talks about the problem with software patents on YouTube here.

He says most patent defenders are “IT holding companies”.  His site on Big Think (requires up-to-date Shockwave) is here

Wednesday, April 18, 2012

Twitter announced "Innovative Patent Agreement" to discourage patent trolling



Twitter has announced an “Innovator’s Patent Agreement”, or IPA, as explained here.   If you (as a software application developer) “assign” a patent to Twitter, then Twitter won’t use the patent for litigation except for defensive purposes.  This keeps the patent out of the purview of “trolls”.

Electronic Frontier Foundation has a discussion of how IPA works, by Julie Samuels, here

Here’s the link for the text of the IPA.

Sunday, April 01, 2012

Revisiting anti-phishing bill and trademark; it can be a problem to include a parodied company in a domain name


I’ve often noted that phishing emails that use hypertext links of actual corporate trademarks sound like obvious violations of trademark law.

I notice that Electronic Frontier Foundation published a criticism in 2008 of a proposed “Anti-Phishing Consumer Protection Act” (APCPA) which could, as worded, have weakened “non-commercial” criticisms of companies by mention or depiction of their trademarks, apparently apart from sending emails.  The EFF story was here

 There seem to have been problems when website owners have included the names of the wordmarks they wanted to parody in their domain names, as with Acomplia and the site “Acomplia Report”, link (website url) here

Friday, March 23, 2012

Someone tried to patent a common method of giving users their own subdomains


I noticed a story on EFF about patenting a method to assign subdomains, dating back to 2009, here    I company called IdeaFlood had tried to maintain a patent on this process.  

Subdomains are common in personal publishing services, such as blogspot, where a user-id is prefixed before the “dot” in the URL.  They were really common in the early days of Web 1.0, as AOL had used them in its (now disbanded) Hometown AOL personal publisher.

Wednesday, March 14, 2012

Can a pub taken on the name of a movie or book character safely?


Can a bar or restaurant be named after a movie or book character without trademark infringement?  In England, there is litigation over a pub named “The Hobbit”. 

I thought that in the US different lines of business could use the same name.  But entertainment companies often register workmarks in multiple lines of business for turf protection.

Here’s the story on AOL this morning (link).

Thursday, March 01, 2012

Patent trolls go after municipal governments


Now local governments are facing patent trolls, according to Electronic Frontier Foundation. A company named Arrival Star, owning the patent to a vehicle Notification System invented by Martin Kelly Jones, is suing a lot of local governments and the USPS for misuse (that’s hard to see since they must have paid someone for the service; they don’t try to sell it.

EFF’s story by Julie Samuels is here.

The USPTO record is here.