blood – Techdirt (original) (raw)

Nike Sues MSCHF Over Its High Profile Satan Shoes, Claiming Unsafe Blood May Dilute The Exalted Nike Swoosh

from the 1st-sale-and-dilution dept

Well, here’s a fun one. Over the weekend, the musician Lil Nas X announced that, along with MSCHF, he was selling “Satan Shoes.” From the beginning this was all just a silly publicity stunt that more or less played out probably exactly as those involved expected. If you don’t know what MSCHF is then it’s worth reading up on the organization that claims it’s based on “structured chaos” and only ever so often randomly drops some kind of offering for sale, usually in limited quantities that get lots of attention and sell out quickly. As was summarized in a Business Insider article about MSCHF last year:

There’s no apparent thread connecting MSCHF’s slew of projects: The team has built a browser add-on that disguises your Netflix watching as a conference call, designed a squeaking rubber chicken bong for smoking weed, and created a YouTube channel solely consisting of videos of a man eating everything from a tub of mayonnaise to a photo of Pete Davidson. But for Whaley, the lack of continuity is the point: As long as the team can figure out the resources to create and launch a product, “nothing is safe.”

“Our perspective is everything is funny in a nihilistic sort of way,” Whaley said. “We’re not here to make the world a better place. We’re making light of how much everything sucks.”

The company originally got the most attention for another pair of shoes — the “Jesus shoes.” That involved a modified Nike Air Max 97 with — they claimed — holy water injected into the soles of the shoe. The Satan shoe is a somewhat obvious follow up to the Jesus shoe. This time, 666 pairs of the shoe were made, also upcycled Nike Air Max 97s. Rather than having “holy water” injected into the soles, this one included red ink, with a promise of a single drop of blood (whose blood is never stated), and then some red stitching and embellishments on the shoes.

A whole bunch of people idiotically freaked out about this, like we were back in the Satanic Panic from the 1980s. Even worse, though the whole thing was (1) clearly a stunt and (2) obviously not endorsed by Nike, the usual brigade of pearl clutching culture warriors immediately insisted that Nike was behind the whole thing, and being a culture warrior seems to have more power when you can blame a company for it. Nike was quick to point out that it had nothing to do with all of this, but by Monday the company decided to sue MSCHF over the shoe, making a variety of trademark infringement claims. The lawsuit gives us excellent images such as this one:

Obviously, if you buy a pair of Nikes, you can resell them. And there is the concept of the first sale doctrine that allows you to resell goods that you bought that are protected by copyright or trademark laws. However, as law professor Alexandra Roberts notes in a detailed Twitter thread, 1st sale does not apply to “materially altered” products. Of course, that doesn’t mean that Nike will win either. You can argue over whether or not these shoes are actually “materially” altered, or just cosmetically so. Nike includes the ink/blood in the sole as evidence that the alterations are material:

The material alterations include at least referring to the shoe as the Satan Shoe, adding red ink and human blood to the midsole, adding red embroidered satanic-themed detailing, adding a bronze pentagram to the laces, and adding a new sock liner.

Frankly, this feels… pretty weak. There are examples of artists taking others’ products — even those protected by trademark — and altering them for artistic purposes.

Much of the trademark claims rely not so much on the likelihood of confusion regarding the origin of the shoes, but rather on dilution — including both blurring and tarnishment. We’ve argued in the past that it’s insane that dilution and tarnishment are a part of trademark law, as they appear to be complete bastardizations of the purpose and intent of trademark. Trademark law — unlike copyright and patent law — is really supposed to be about consumer protection. It’s supposed to be so that users aren’t buying a product they believe is made by this reputable entity, only to be tricked as it was actually built by that unreputable entity. It was only more recently — through a concerted effort by trademark lawyers who sought to cast trademarks as “property” and put them next to copyrights and patents — that the law morphed into something that included “tarnishment” and “dilution.”

But… those do exist, and will be a key part of the lawsuit if it moves forward and is not settled quickly (as may well happen).

MSCHF?s use of the Nike Asserted Marks and/or confusingly similar marks has caused, continues to cause, and/or is likely to cause irreparable injury to and dilution of the distinctive quality of the Nike Asserted Marks in violation of Nike?s rights under 15 U.S.C. ? 1125(c). MSCHF?s wrongful use of the Nike Asserted Marks is likely to cause dilution by blurring and the whittling away of the distinctiveness and fame of the Nike Asserted Marks. In addition, MSCHF?s wrongful use of the Nike Asserted Marks in connection with satanic imagery is likely to cause dilution by tarnishment.

I am hard pressed to see how this shoe would “whittle” away at the distinctiveness of Nike’s brand, but trademark law can be pretty silly sometimes. Nike also does claim that there is confusion and highlights a bunch of social media posts from very, very stupid people who actually believe the shoe comes from Nike itself.

Of course, there’s a decent likelihood that MSCHF is loving every minute of this. The company has said in the past that a lawsuit would “help increase the value” of the products it releases.

Meanwhile, the Fashion Law blog has a detailed analysis of the legal issues here (written before the lawsuit was filed) that also notes that 1st sale might not apply here, given the alterations. However, it also highlights that it could make a fair use claim in response:

On the other hand, given the lengths to which MSCHF routinely goes to build a narrative around its individual drops (all of which are relatively limited in quantity), there is a chance that a fair use claim ? satire, maybe? ? might serve to shield it from liability for making use of the Nike logo in the process.

Lots of interesting legal questions here — but on the whole, the entire thing just seems so… freaking… pointless. The shoes are clearly a publicity stunt. A bunch of people fell for it, and now Nike is playing into it with a lawsuit.

It’s just a silly pair of shoes, people.

Filed Under: blood, confusion, dilution, drop, lil nas x, publicity stunt, satan shoes, shoes, swoosh, tarnishment, trademark
Companies: mschf, nike

DailyDirt: What Kind Of Blood Do You Have?

from the urls-we-dig-up dept

Artificial human blood could make medicine a whole lot easier — with no more blood drives or inefficient blood matching and possible harmful immune responses to blood transfusions. But until we perfect a way to grow human blood instead of siphoning it out of other people’s veins, we’re stuck with a somewhat tricky supply chain of a vital fluid. Researchers and vampires are very interested in the field of blood, and if you’re not too queasy, check out these links.

After you’ve finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: biology, blood, blood type, dna, genomics, golden blood, health, klingon, medicine

DailyDirt: Phlebotomy 2.0

from the urls-we-dig-up dept

Getting a shot isn’t the worst thing in the world, but it’s not exactly enjoyable, either. Early phlebotomists used leeches to draw blood from patients, but doctors don’t generally recommend that anymore — and sterile hypodermic needles are far more commonly used. However, if you’ve ever had one of your veins pierced (sometimes multiple times due to human error), you may have wondered why needles can’t be as painless as a mosquito bite. Well, maybe they can in the near future — it might cost a little more, though.

After you’ve finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: blood, drugs, flu shot, hypodermic needles, hypospray, jet injectors, medicine, microhyala, needles, phlebotomy, robots, trypanophobes, vaccines

DailyDirt: Keeping Your Memories

from the urls-we-dig-up dept

If you’re only a couple decades old, you probably haven’t experienced too many problems with your memory. But if you’re more than a few decades old, you might have started to get “senior moments” as some call them — where you forget why you went upstairs to your bedroom as soon as you get there, or you can’t remember your ATM PIN, or the name of that guy is just on the tip of your tongue but you can’t seem to recall it. These could be early signs of more serious memory loss, but the medical science is only just about to start really understanding how memory and aging works. Here are some links you might want to check out (and bookmark so you don’t forget them).

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: aging, blood, blood type, brains, cognitive skills, health, medicine, memory, resveratrol, senior moments, superagers

NHTSA's Voluntary Roadside Blood-And-Saliva Survey Heads To Seattle With A Much Greater Emphasis On 'Voluntary'

from the it-can-be-taught dept

Although it’s already been burned twice for its intrusive, not-mandatory-but-it-sure-looks-that-way “roadside surveys,” the NHTSA (National Highway Traffic Safety Administration) isn’t letting a lot of bad press, a lawsuit and a Congressional investigation slow down its blood-and-saliva collections. After two straight debacles (Texas and Pennsylvania), the NHTSA is headed to Seattle in hopes of gauging the effects of newly-legal weed on the driving population. (h/t to Techdirt reader DeComposer)

Government-hired survey teams will soon ask hundreds of Washington state motorists to answer questions and provide samples of breath, saliva and blood — all to give safety and police agencies a clearer sense of how many people drive impaired.

The roadside surveys are voluntary, and participants will be paid up to $60, under the federally funded project this summer.

The only remaining question is how these will be handled. On its two previous attempts, the NHTSA sent an independent contractor to handle the blood draws and saliva collection. And both times, local law enforcement provided officers, vehicles and barricades — all of which suggested to several motorists that these voluntary collections were far from voluntary. From what’s being reported here, it appears that more effort is being made to ensure drivers know these surveys are indeed entirely optional.

Crews will not block or slow traffic, officials say. Drivers at a stoplight would encounter civilians wearing orange vests, with signs saying “Paid Voluntary Survey,” then be asked if they wish to participate.

The article also states that collected data will be destroyed when the report is published and that names and license numbers won’t be recorded. The latter sounds ideal, but the reality of the situation is that, unless things have changed, consenting to a blood draw still requires the signature of the volunteer, which means there will be some sort of recording going on. And surveyors will still be collecting non-consensual “samples” using passive alcohol detectors. The defenders of this practice argue that these detectors are actually consensual (due to consent given by volunteering to be surveyed), even though people aren’t notified about their existence until after they’ve already had their breath sampled.

The ACLU is keeping an eye on the NHTSA’s newest survey, which, so far at least, seems to be headed towards a more obviously voluntary presentation. That’s a huge improvement over its previous efforts and is likely a good indicator of how these will be handled in the future. Law enforcement officers will again be on hand to protect the cash payout and offer options to impaired drivers, but their presence will be far more muted than past instances.

If the NHTSA can learn from its mistakes and move on in a more honest and transparent fashion, it should be able to entice enough volunteers with its cash payments to present credible data at the end of its collection period. If it decides to go back to the old way, however, it will find it increasingly difficult to secure any participation at all.

Filed Under: blood, nhtsa, police, saliva, seattle, survey

DailyDirt: There Will Be Blood… And DNA And Stem Cells

from the urls-we-dig-up dept

Biotechnology takes time to grow and develop new stuff, but every so often, there’s a big leap. And then it still takes time to verify results and perform rigorous double blind medical studies. Science fiction and CSI TV shows make it seem like we’ll be re-growing body parts and curing every disease before the next commercial break. Unfortunately, biology rarely moves that fast. Here are just a few cool biotech projects that won’t be available at your local drug store anytime soon, but these sci-fi-sounding projects are closer to reality now.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: biology, biotech, blood, dna, health, medicine, stem cells, synthetic biology

Man Stopped By Cops For Supposedly Voluntary NHTSA 'Survey' Sues City And Police Dept. For Violating His 4th Amendment Rights

from the completely-preventable-misunderstanding,-but-no-one-wanted-to-prevent-it dept

As has been noted earlier here at Techdirt, the NHTSA (National Highway Traffic Safety Administration) has been collaborating with law enforcement agencies around the nation to collect blood and saliva samples from drivers. This collection is part of a NHTSA “survey” which is looking to determine how often drivers drive while possibly impaired by drugs or alcohol. Providing the NHTSA with either of these fluids is completely optional (citizens are rewarded monetarily for their contribution), but the use of uniformed officers (supposedly solely for crowd control and security of the payment funds) and patrol cars has given many drivers the impression that these stops (and collections) are actually mandatory — or at the very least, highly recommended.

The Fort Worth, TX police department found itself on the receiving end of a considerable amount of criticism for its participation in the blood/saliva collections. The PD first attempted to deflect the criticism by offering standard excuses. When that failed to work, the police chief offered a very contrite apology for participating in the survey and “jeopardizing the public trust.”

This backlash hasn’t slowed the NHTSA which has taken its blood and saliva survey to Reading, Pennsylvania. While the outrage wasn’t nearly as pronounced as it was in Ft. Worth, it was still notable. However, Police Chief William Heim hasn’t seemed too concerned by citizen complaints. He called the whole thing “innocuous” and made this laughable assertion:

“People are not pressured by police presence to do something they don’t want to.”

Au contraire, Chief Heim. Police presence is often all it takes to make voluntary experiences seem mandatory. Ricardo Nieves, one of those flagged down by Reading police officers, felt the experience was anything but voluntary, and that attempting to leave would have been greeted by a possible arrest.

The Reading city council and the mayor himself also expressed concern about the use of police officers to acquire “voluntary” blood and saliva samples. For his part, Chief Heim appears to be ready to just ride out this outrage without offering any concession towards the offended public.

But if that’s what Heim had planned, Nieves just threw a legal wrench into the works. Nieves has sued the city of Reading, Chief Heim, Mayor Vaughn Spencer, two unnamed employees of the private contractor (Pacific Institute for Research & Evaluation [PIRE]) performing the fluid collections, as well as PIRE itself

Nieves claims his Fourth Amendment rights were violated by the supposedly voluntary collection, which felt much more mandatory thanks to the police presence. Here’s his description of the incident.

On Friday, December 13, 2013, plaintiff was traveling on the Bingham Street Bridge into the City of Reading, Pennsylvania, a public roadway. A cruiser owned and operated by the City of Reading Police Department was parked by the side of the street with its lights flashing where plaintiff was. Bright orange security cones lined the lane where plaintiff was driving. Plaintiff was in the right hand lane and the lane to plaintiff’s left was full of traffic such that he could not pull over to change lanes.

Defendant Doe stepped out into plaintiff’s lane of traffic, blocked his further advance, and flagged him to pull off the public road into a parking lot on Laurel Street. Having no ability to advance further on the road, and with no ability to move into the left-hand lane because of traffic, plaintiff drove into the parking lot. In the parking lot were five to seven improvised parking spaces outlined on three sides with orange security cones. Nieves pulled into one of these security cones.

Nieves reasonably believed under the totality of the circumstances that he was being stopped by the Reading Police Department because of the flashing lights of the police car on the street, the fluorescent orange cones on the street and in the parking lot, and the presence of a police car in the parking lot that was occupied by a police officer.

Jane Doe, a woman with a clipboard came up to plaintiff’s car and began to speak to him.

Jane Doe spoke quickly and said several things, including that plaintiff was not being cited, that plaintiff had done nothing wrong and that plaintiff was not being “pulled over.”

The last statement was clearly false, because plaintiff had only pulled over after John Doe had stepped into the middle of plaintiff’s lane of traffic on the public street and flagged plaintiff into the parking lot, all while lights were flashing on the police car parked at the location.

Defendant Doe stated that the purpose of the stop was a survey of drivers’ behavior and that she wanted to take a cheek swab to check for the presence of prescription drugs. She also stated that plaintiff would be paid if plaintiff agreed to the same.

Plaintiff refused to provide the cheek swab she requested.

Jane Doe then tried a second time to convince plaintiff into providing a cheek swab. Plaintiff again refused to provide a swab.

A third time Jane Doe again tried to coerce plaintiff into giving a cheek swab. At this point plaintiff stated to her very firmly, “No. Thank. You.”

Jane Doe then tried to hand plaintiff a pamphlet, which plaintiff did not accept. Jane Doe then walked away from plaintiff’s car. Plaintiff then tried to exit the parking lot but found no means of egress. Other cars had by then also apparently been pulled off the road.

Finally, a Reading police officer waved Nieves towards where he had been originally flagged down and indicated he should re-enter traffic there.

Nieves is asking for a permanent injunction preventing the Reading PD (and others) from utilizing “suspicionless seizures” like the NHTSA’s fluid collection survey. He’s also seeking unspecified damages for Fourth Amendment violations and false imprisonment.

As he points out in the filing, at no time did Nieves feel he could leave without being subjected to arrest and prosecution. Such is the power of law enforcement officers and their vehicles, even if they are supposedly off-duty and serving only as “security.”

That’s one way the Reading PD’s compliance with the NHTSA may come back to haunt them. As Scott Greenfield points out, this voluntary checkpoint being staffed with police officers and their flashing lights also hurts the chances of future police checkpoints running unchallenged.

The use of police to conduct this NHTSA survey has fundamentally altered the equation of a car stop, and the cops have done this to themselves. Aside from the absurd Georgia decision, there was never a suggestion that a driver had authority to ignore the “command” to pull over from a cop with lights blazing. That can no longer be said as a matter of law now that the police have squandered their authority to assist in a “voluntary survey.”

Flashing lights look no different when it’s a lawful sobriety checkpoint than when it’s a voluntary survey conducted by private contractors for a government agency. While the former requires compliance, the latter is of no consequence whatsoever. To borrow from Prouse’s rationale, just as there is no law preventing police from chatting you up like anyone else on the street, there is no law requiring you to chat ‘em back. Not in the mood to chat? Keep walking.

Not in the mood to take a survey? Keep driving. Forget those flashing lights. This is the message that comes of the extension of authority without any lawful basis or judicial approval.

Of course, this is hardly a victory for citizens. Greenfield notes that bypassing a set of flashing lights that could be taken either way (voluntary/mandatory) may just net citizens brand new sets of bullet holes.

Chief Heim claims it’s all voluntary and not a big deal, but anyone arriving at these not-mandatory checkpoints won’t know that until he or she has repeatedly refused to surrender blood or saliva. This whole situation could have been avoided by either a) not allowing law enforcement officers to participate (off-duty or not) or b) posting signage well in advance of the stop that participation was completely voluntary and indicating clearly where those wishing to bypass the stop could route themselves. Instead, these agencies lent their reputations and implied “color of law” to private contractors fronting for a regulatory agency and now, everyone involved — cops and citizens — is worse off for it.

Filed Under: blood, dna, law enforcement, nhtsa, pennsylvania, police, samples

Texas Police Set Up Checkpoints To Collect Blood And Saliva From 'Volunteers'

from the all-completely-voluntary,-if-you-don't-mind-playing-20-questions-with-a-cop dept

Remember that American ideal of being able to travel freely within the country without being detained or questioned by government officials? Well, the inland creep of CBP (a.k.a. border patrol) checkpoints has made traveling within certain US states without being asked about your citizenship a thing of the past. The installation of TSA agents in every airport means producing identification repeatedly and possibly enduring an awkward conversation with a Behavioral Detection Officer as he or she performs a mental coin flip.

Now, thanks to the National Highway Traffic Safety Administration, citizens can’t even travel across a single city without being routed off the road and asked (nicely) to cough up a little DNA.

The Fort Worth Police Department (FWPD) installed the roadblock north of the city during daytime traffic. They flagged down some motorists at random and asked them to give breath, saliva, and blood samples. The FWPD claims the effort was “100 percent voluntary” and anonymous.

It acknowledges that most of the drivers had broken no law, but it said the effort was valuable to federal contractors working to complete a 3 year, $7.9M USD survey on behalf of the The National Highway Traffic Safety Administration (NHTSA) aimed at collecting medical data for use in combating drunk driving.

The problem is, some drivers didn’t get the impression this DNA sampling was voluntary.

Kim Cope contacted KXAS after she was pulled over because she said it “just doesn’t seem right that you can be forced off the road when you’re not doing anything wrong.”

But Cope questioned how it could be voluntary if uniformed officers forced her off the road.

“I gestured to the guy in front that I just wanted to go straight, but he wouldn’t let me and forced me into a parking spot,” she recalled. “They were asking for cheek swabs… They would give 10forthat.Also,ifyouletthemtakeyourblood,theywouldpayyou10 for that. Also, if you let them take your blood, they would pay you 10forthat.Also,ifyouletthemtakeyourblood,theywouldpayyou50 for that.”

The contractors also wanted to test her breath for the presence of alcohol, but weren’t willing to pay anything for it.

“I finally did the Breathalyzer test just because I thought that would be the easiest way to leave,” she explained.

When cops flag you down and route you toward a detainment area (like a parking spot), while using smiles and using words like “please,” it still often seems to citizens like they have no choice but to comply. They do have a choice, but the cops aren’t going to let them know that.

Obviously, if officers are going to pay you for a blood sample or cheek swab, then the “detainment” is obviously voluntary. Cops normally don’t pay citizens for DNA they collect. But Cope’s experience shows that even voluntary “surveys” seem mandatory when officers make every effort to conceal the voluntary aspects of the stop until after the citizen has already complied. These officers could have placed a sign up front stating it was a NHTSA survey and that volunteers would be paid, but that probably would have resulted in a whole lot of citizens deciding 10or10 or 10or50 just wasn’t worth the hassle.

Worse yet is the fact that even if you opted out of everything including the unpaid breathalyzer test, the Ft. Worth police department was still performing one check without securing permission from any drivers.

Apparently on the consent form that officers gave “voluntary” participants, fine print informed the driver that [the police had taken] “passive alcohol sensor readings before the consent process has been completed.”

It’s unclear whether drivers could ask for that data to be deleted if they didn’t want it to be collected, but what is clear is that most drivers did not notice the fine print or were unable to read it. As a result what the FWPD claimed was a “voluntary” scientific study became what appears to be an involuntary search of citizens who were breaking no law.

The NHTSA defended these non-stops by stating everything was “voluntary” and that law enforcement officers were only on hand for “safety” reasons. But the passive alcohol test wasn’t voluntary. And the officers never bothered to point out stopping was voluntary until after the test subjects had actually stopped.

DailyTech points out the NHTSA has done this sort of testing four other times since 1973, with the last one being in 2007. But none of those utilized passive alcohol sensors to gather additional “data” without the volunteers’ approval.

The Ft. Worth Police Department issued this non-apology to irritated Texans.

We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey.

Sorry, but that’s all wrong. The correct phrasing is:

We apologize for the offensive and inconvenient “survey” we participated in.

Something addressing the passive alcohol testing would have been nice to see as well.

Beyond the problematic tactics deployed and the intrusiveness of the “survey” (which is in no way mitigated by the NHTSA’s offer to pay people for their bodily fluids) is the fact that voluntary stops are frequently portrayed by law enforcement officers as obligatory.

Even if you ignore all the cop talk that’s deployed (“please,” “could you do me a favor?” “would you mind…”) to steer people towards compliance while still giving LEOs an out when it comes to accusations of wrongful detainment (“they were always free to go”), you still have a power imbalance that instantly creates a deferential attitude in most citizens. Even if one believes they are well within their rights to drive through a “voluntary” checkpoint, they often realize compliance is the path of least resistance. Why put yourself on a cop’s “radar” when you can simply blow into a tube and be on your way?

This is how rights disappear. It doesn’t take audacious actions to destroy civil liberties. All it takes is a small amount of force, applied frequently and repeatedly.

Filed Under: blood, checkpoints, dna, police, saliva, texas

DailyDirt: Medical Science To The Rescue

from the urls-we-dig-up dept

Techniques for extending people’s lives have come from a vast number of somewhat unexpected research projects. Transplanting organs from other people (or animals) and isolating various natural products weren’t always as commonplace as they are now. Hopefully, life-saving research won’t be locked away in patent monopolies, and naturally-occurring materials will remain free for anyone to use. Here are just a few fascinating advances in medical science.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: blood, crabs, hsa, human serum albumin, kidney, lal, limulus amoebocyte lysate, medicine, rice, science

Reason To Buy? A Sports Star Will Sell You His Book With A Page Made Out Of His Blood

from the hmm dept

Shirshendu Mandal was the first of a few of you to pass along this story of a superstar Indian cricket player, Sachin Tendulkar, who has written a book. And, in figuring out how to sell the book, he’s doing an… odd sort of “tiering” option. You see there will be a special edition of the book, which costs merely $75,000… and for that price one of the pages will be made, in part, from his blood. And here’s the thing: apparently ten people have already signed up for it. As we’ve noted when talking about various business models that content creators can use, often it really depends on the person themselves, and the relationship they have with their fans. In this case, it seems pretty clear that this is a rather… unique offering, that works for this guy’s fans.

Filed Under: blood, books, reasons to buy, sachin tendulkar