Thursday, August 22, 2013

Blogger's "gaymer" trademark claim, now closed, was indeed troubling

Bloggers may not always be the good guys. Electronic Frontier Foundation is reporting that a blogger, Chris Vizzini, has “surrendered” a trademark for the term “gaymer” (or the plural gaymers), which he had tried to use against a Reddit forum by that name.  EFF has a story here

Chris gives his rather long and detailed account of the matter at his site “” (singular), here.    It would be hard to judge “who is right” on all this without spending a lot of time. The site says that, apart from this explanation, it is "closed" and even demonstrates such with an image. 
But normally, a common word in the English language should not be monopolized by one entity, company, or person.  Trademark has more validity when a site is a commercial operation that sells services or products, and has some sort of substantial volume with consumers, perhaps to the point of taking credit cards, setting up accounts, running e-commerce, etc.  I don’t know if this was happening with this site. It might be valid when there are clear business plans for future commercial use (for example, producing and distributing films).  To some extent, trademark is ultimately about money, Trump-style, like it or not.  

Trademark is largely about putting brands on products and services in commerce – even when “not for profit” (as with Blue Cross and Blue Shield, for example).  Copyright is about content.  Patent is about inventions – things that work, do stuff.    

Monday, August 19, 2013

"Reverse" domain name use appears OK, despite recent litigation; more on "running around" and noticing businesses with duplicate names

A recent lawsuit (Baker v. Deshong) filed against a Texas blogger by someone supposedly promoting “AIDS denialism” is predicated in part on the blogger’s legally registering a “reverse domain name” to parody the activities of the “denialist”.   I wrote a posting about this matter on the “BillBoushka” blog Friday Aug. 16.  I won’t get into the merits of this specific case here, but I did want to note that it appears, from going through some past history, that in general courts will accept the idea of a non-commercial domain (one with no advertising, for example) being named in a way to parody or draw negative public attention to an established trademark.  It looks like I have a major posting on this on April 1, 2012.
That post had noted a criticism of an anti-phishing bill, the 2008 Anti-Phishing Consumer Protection Act (CNET story ) which might have jeopardized non-commercial parody.  Apparently the 2006 Trademark Dilution law, signed rather quietly by President Bush late that year, did make exceptions for parody.
I personally am not particularly a fan of the practice.  I name my domains and blogs after some combination of myself (my own name and “pseudonym”) and a collection of issues, but never after just one particular entity.  Obviously, though, my domain name “do ask do tell” sounds like a parody of the old military “don’t ask don’t tell” policy regarding gays in the military, and indeed it was.   But it wasn’t a parody of another company name or its workmark.

I did a little “running around” Saturday, and noticed some more new restaurants in Northern Virginia with previously used names. (It’s dangerous for bloggers to “run around” with cameras.)   In Merrifield VA (near the Beltway and Lee Highway) there are two grilles, the “Trio” and “Open Road”.  There is a popular, low-cost “Trio” restaurant in the Dupont area of Washington DC, don’t know if there is any connection.  “Open Road” is also the name of a movie distribution studio that releases independent film (it’s “JOBS” was playing across Lee Highway in the new Angelika theater – that’s why I was in the area.  Well, movies are a different line of business from restaurants – except that movie theater chains are starting to open restaurants.  And does “Open Road” having anything to do with “Roadside Attractions”, another indie distributor that works with Lionsgate? Probably not.  (The trade dress and music use is totally different.)   And in the Ballston (heavily commercial) area of Arlington VA, there is a new “Ted’s Montana Grill”.  I don’t know if this has any relation to “Ted’s Bulletin” on 8thh St SE in DC, a place I sometimes eat when I’m in SE or near Capitol Hill or Nationals Park.  “Ted’s Bulletin”, a family restaurant with 50’s décor inside, made the papers when Bryce Harper of the Washington Nationals was reported as often having breakfast there before going to the Park to prep to home night games.   Maybe the Nats (a few of them do have homes in Arlington) will try the Montana Grill next/ 

Don’t worry, the Nats are on the “open road” right now (heading for Chicago to play the Cubs).  (In baseball, when you're on the road, the other team bats last and has the capacity for a walkoff win.)   And I do think one of my screenplays looks like a perfect “roadside attraction.”  

Thursday, August 15, 2013

Pets and restaurant chain names: Virginia did split into two states because of the Civil War, remember

I guess it’s “dangerous” to businesses for bloggers to travel around and write about them.

Today, on the way to Dolly Sods in West Virginia, I encountered another Stray Cat Café in Moorefield, WVa (there’s a sign for it on the nearby SR 55 superhighway), again, featuring Mexican food, like the one in Romney.  The food was quite good and inexpensive – I had Chile and a salad bar.  For a weekday, business looked pretty good.  But I was told that the one near Romney had closed for lack of business. I had reported on the Romney one on Oct. 21, 2012.  The company seems headquartered in Keyser, deeper into the mountains. 
I drove past the Route 50 Romney shopping center on the way back, but stopped at the CVS store, a long distance (two football fields, at least) from that other former restaurant.  I thought I saw Spanish words on it, but didn’t see what it really was. 
What’s this all mean?  In the past, people were aware mostly of “brands” in their own neighborhoods.  There could live plenty of “Tony’s Pizza” places, unrelated, in NYC.  In the age of personal mobility (that's been expected of people who go to nearby rural states for summer hiking and camping)and now the Internet, companies started getting more aggressive with trademark claims.  The net effect is to force would-be entrepreneurs into franchise ownership, where they have to do what they are told with their own money.  That’s not good.

Oh, as far as "running around" is concerned, there's a wonderful watering hole in Warrenton VA (not too far from Shenandoah National Park) called the Frost Diner, where there's always a lively political debate.  But how many more Frost diners are there scattered around the country to be found?  
I haven’t eaten at either the “Lost Dog” or “Stray Cat” restaurant in Arlington for a while, because there’s not enough parking in their small lot, and I don’t think you can park across the street in the Westover shopping center lot.  The Westover Market gets all the social action with its new bar and performing musicians and artists.  Even a couple of Nationals have shown up.  The Arlington restaurants, as I remember, are “American”, in a totally different style from the aforementioned places in WVa.  (The Arlington Lost Dog Café also has a “Gourmet Pizza Deli”.)
Sports teams care about their brand names, of course.  The “Nationals” are not the “Senators”, known for their losing ways in the 1950s, the original DC baseball team.  And in modern times, there is now a fight over the political correctness of the name “Washington Redskins”.

MLB and the NFL are quite jealous of their trademarks.  Just notice how fastidious commercial films are when using any teams in any film. 
While I was “on the road”,  the Nationals blew their chance for a sixth win in a row in the ninth inning, blowing a two-run lead at home. 

Also, on the day trip, past an "Eagle's Nest:" store of camping outfitters in W Va.  But that name is alos a common name for gay bars.  Different line of business, to be sure.

Sunday, August 04, 2013

States wake up to patent troll problem (especially Vermont and Nebraska, and now Minnesota)

Timothy B. Lee has a very important story in the Business Section of the Sunday Washington Post, “How to beat patent trolls?  States step up with a plan”, link here, from his new "Switch Blog". 

Two of the most active states are Nebraska and Vermont.  The general idea is to pass consumer protection laws and structure them so as to penalize companies that file frivolous lawsuits, or suits in bad faith, against secondary customers (effectively consumers) who have already paid for licenses to some primary provider.

There will be legal complications with the idea that a state law could trump over federal patent law, which is normally administered by USPTO.

But an underlying problem is this.  If a company purchases a license to use some service or product (particularly software) from a major vendor, why should it be responsible for “embedded” patents?  Why isn’t it possible for the “top vendor” to account for all embedded patents and include these imputed licenses in its total fee?  Congress needs to change the system to fix the “embed” problem which attracts trolls.  Will Schumer’s Shield Act (May 3, 2013 here) address this problem?  It’s not clear that it would. 

Lee’s article reports that a major tech company in Vermont had lost business because at least two clients of the company said they were being harassed by trolls.  Defending against invalid claims can be very expensive for small companies.  It is true that a “loser pays” system (Shield) would help.  

It strikes me that the most important practical effect of patent trolling could apply to independent software developers, who may not know about "embedded" patents "downstream", and maybe other artists such as filmmakers or, in more extreme cases, musicians or bands.

Update: Aug. 22

EFF is reporting that Minnesota has also taken action to intervene against "scanner troll", MPHJ, regarding use of scanning for email content, by small businesses, story link here

Thursday, August 01, 2013

Maybe software shouldn't be subject to conventional patent law

Timothy B. Lee, on his new “Switch” blog (“where technology and policy meet”) for The Washington Post, has a leadoff story, “Here’s why economists hate software patents,” July 31, link here

It is true that software always consists of little pieces of code – often “methods” in “object-oriented” parlance”.   Give the patent troll problem, it’s easy to imagine that a whole product or innovation could be compromised by trolled “method” or coding technique.

Employers have always been strict in asserting that they own the code written by associates or contractors in their employ, and quickly lock out people from it once they leave.  In a few cases (as in the case of a Blue Cross project in Dallas that failed in 1981, shortly after I left) they have gone to absurd lengths to safeguard content that may never go into production.  
Lee has some discussion Aug. 1 of efforts in Vermont and Nebraska to curb patent trolls.  More detailsare forthcomng.