bullying – Techdirt (original) (raw)

L’oreal Disputes Late Trademark Renewal Over ‘NKD’ Brand, With Which They’ve Coexisted For Years

from the late-to-the-party dept

One of the common excuses companies give when enforcing their trademarks in a way that is far more ham-fisted than is actually required is: “Hey, we have to police our marks or else we risk losing them.” This excuse often exaggerates that requirement, of course, as there is no need to police marks when there is no threat of public confusion or if the products operate in different markets. But what is notable about when this excuse gets trotted out is that it almost always happens when there is a brand new mark that has been applied for, or if a mark that is of concern gets approved by the USPTO without a dispute having occurred in the first place.

Which is what makes this attempt by fashion brand L’Oreal to block a small fashion brand so strange. We’ll start off with the basics, but you really need to hold off judgement until we get into the specifics.

A salon owner says she has been left exhausted by a long-running legal battle with global cosmetics giant L’Oréal. The French firm is opposing Rebecca Dowdeswell’s attempt to renew the trademark on the name of her business – nkd – in Leicester city centre.

L’Oréal has its own trademark on a series of beauty products called NAKED and has told the 48-year-old her use of the name nkd would cause “consumer confusion”.

So a couple of things to note here. First, nkd is a brand that isn’t meant to be a short version of “naked.” Instead, it’s meant to be read as each letter aloud, “N-K-D.” Also, the overall branding of the two brands are very different. However, as these products are both within the fashion market, you might be able to squint at all of this and see how there might be public confusion that L’Oreal might rightly be worried about.

But if that’s the stance that L’Oreal wants to take, it would be an exceptionally weird one. See, the nkd brand has existed since 2009 and was trademarked by Dowdeswell at that time. The problem is that she let the mark lapse and is now attempting to get it trademarked again, essentially from scratch.

“I should have renewed it straight away. I didn’t. That was a big mistake,” she said. “That six-month window ran into the start of Covid and chaos ensued for all businesses – including beauty salons -and I missed the expiry. When I came to re-register the trademark, I was essentially starting from scratch, not renewing an existing one. L’Oréal objected on the basis they owned the Urban Decay make-up brand which has a range of eye shadow palettes called Naked. I was very surprised because we have never been Naked. We’re spelled NKD, we are pronounced N, K, D.”

Ms Dowdeswell added: “There has never been any evidence of consumer confusion. In 15 years of trading, no-one has ever said ‘are you the same brand as Naked by Urban Decay?'”

The obvious point here is that one of two things ought to happen. Either L’Oreal should produce any counter-evidence it might have that there really was actual customer confusion that it can document from the previous decade, or else it should drop its dispute entirely. After all, it’s not often we get to run a real-world experiment as to whether customer confusion will actually occur, but in this case we have one. If these two brands coexisted peacefully for a damned decade, what justification for disputing the trademark could there now be?

And, even worse, nkd notes that it has even offered up to L’Oreal as part of a potential “co-existance agreement” that it would remove the trademark classifications for “non-medicated cosmetics” or “make up” as that’s where it might compete with L’Oreal. But L’Oreal’s response was to demand that it also not hold the “nkd” trademark on the “toiletry preparations” category, which is a category where nkd’s products do sit (while L’Oreal’s do not).

Meanwhile, Dowdeswell has spent a bucket of money dealing with all of this. That’s how trademark bullying tends to work, with a larger entity that enjoys a large legal war chest beating a smaller company into submission. Hopefully, that is not what occurs here.

Filed Under: bullying, likelihood of confusion, naked, nkd, trademark
Companies: l'oreal, nkd

Starbucks Joins The List Of Companies Using Trademark Law To Bully Its Own Union

from the not-how-that-works dept

The trend continues. One of the things we’ve noticed more frequently as of late has been larger companies attempting to use trademark law as some kind of cudgel against employee unions. This has taken several forms, from Wal-Mart attempting to shut down a union website for accurately calling itself a union of Wal-Mart employees, Medieval Times trying to shutter a website and merch for its performers’ union for the same reason, and Trader Joes attacking its employees’ union ostensibly for similar reasons, but really it just wanted to cause as much trouble and pain for the union as possible.

This case is admittedly different and, arguably, worse. In this case, Starbucks has threatened Starbucks Workers United with a trademark lawsuit principally, it appears, because the union started tweeting things the company doesn’t like about Gaza.

Starbucks is threatening to sue Starbucks Workers United, the union that represents employees of the coffee conglomerate, for trademark infringement following the union’s ‘Solidarity with Palestine!’ tweet.

Last week, a letter was sent to the president of the union demanding that the union ‘immediately cease and desist’ from using the company’s name and logo or the company will pursue legal action ‘including without limitation monetary damages.’

The tweet has since been deleted, but it read “Solidarity with Palestine!” and was sent in the midst of Israel’s response to a horrific terror attack launched by Hamas out of the Gaza Strip. Now, there is a lot to discuss about the history leading up to this conflict, actions that have been taken on both sides of the equation here, and all the rest. But this is not the forum for that discussion. Nor is the union’s opinion on matters of geo-politics in any way trespassing into the realm of trademark law. In other words, the union’s activities don’t suddenly become trademark infringement simply because it tweeted out something Starbucks doesn’t like, even if you don’t like it either.

It appears the lawyers for Starbucks don’t understand that.

The lawyers wrote that because the union had made ‘statements advocating for violence in the Middle East,’ they must change their name, website address, social media accounts, merchandise, and anything else the features their logo.

The union president Lynne Fox wrote in a response that the company had not managed to ‘identify any such statement.’ She added that Starbucks Workers United is affiliated with SEIU, the president of which issued a statement that read:

‘The violence in Israel and Palestine is unconscionable. @SEIU stands with all who are suffering, while strongly condemning anti-Semitism, Islamophobia & hate in all forms.’

This is a complete non-starter and I’ll be surprised if any lawsuit is actually filed. That being said, executives at the company are insisting a lawsuit will be filed in federal court over all of this. If it does, it will clearly be a lawsuit designed to stop the speech rights of the union through punitive action.

And all the same arguments as to why the union is not infringing simply by calling itself a union for laborers of the company, nor is the branding it chose for itself that has some similarity to the corporate branding, because nobody will be mislead or confused as to the affiliation of a big company and the union it desperately wishes didn’t exist.

Filed Under: bullying, free speech, gaza, hamas, israel, palestine, trademark, unions
Companies: starbucks, starbucks workers united

Appeals Court Judge Suggests Hate Speech Shouldn’t Be Protected In Decision Against Students Expelled For Bigoted Social Media Posts

from the narrow-losses-are-the-flipside-to-narrow-SCOTUS-wins dept

Last year, the Supreme Court handed down a ruling in a school free speech case that came down squarely, if very narrowly, on the side of the student. The student suing over being kicked off the cheerleading squad for sending a snapchat message saying “fuck school fuck softball fuck cheer fuck everything” prevailed, with the nation’s top court finding her speech, however crude, was protected by the First Amendment.

But it wasn’t a blanket ruling on off-campus speech by students. Schools can still engage in discipline over off-campus speech, but the court suggested they were better off erring on the side of caution than assuming they’re permitted to replace parental supervision in all cases involving off-campus speech. Of particular importance to this case was the government’s interest in providing disruption-free education to other students. The “disruption” claimed by the school in this case was nothing more than a “5-10 minute” disruption of a single class over a period of a couple of days.

The lower courts are now offering their interpretations of this ruling, which created no bright line standard for dealing with off-campus speech. Erring on the side of restraint may be the guideline SCOTUS suggested, but it’s not really a good baseline.

So, we’re getting rulings like this one [PDF] recently issued by the Ninth Circuit Court of Appeals. (h/t Eric Goldman)

In this case, the speech central to the case was objectively far more objectionable than the f-bomb-laden mini-rant delivered by the irritated cheerleader.

For example, in early February 2017, Epple uploaded a photograph in which a Black member of the AHS girls’ basketball team was standing next to the team coach, who was also Black, and Epple drew nooses around both their necks and added the caption “twinning is winning.” In another post, he combined (1) a screen shot of a particular Black student’s Instagram post in which she stated “I wanna go back to the old way” with (2) the statement “Do you really tho?”, accompanied by a historical drawing that appears to depict a slave master paddling a naked Black man who is strung up by rope around his hands. On February 11, 2017, he posted a screenshot of texts in which he and a Black classmate were arguing, and he added the caption “Holy shit I’m on the edge of bringing my rope to school on Monday.” Other posts, although not referencing specific students, contained images either depicting, or making light of, Ku Klux Klan violence against Black people. One post included what appears to be a historical photograph of a lynched man still hanging from a tree; another depicts a Klan member in a white hood; and a third combines the caption “Ku klux starter pack” with pictures of a noose, a white hood, a burning torch, and a Black doll.

So, truly terrible stuff from a bunch of minors who had decided to spend their time engaging with each other’s basest instincts. And that’s not even the worst of it. Other posts used derogatory, racist terms like “gorilla,” nappy ass” and “nigger.”

On the other hand, there was more at stake in this lawsuit. The Supreme Court’s Mahanoy decision involved someone being banned from participating in an extracurricular activity. The plaintiffs here were first suspended, then expelled, prevented from attending school altogether.

Also of interest to this case was the nature of the account. It was not publicly accessible. It was an invitation-only Instagram group composed of Cedric Epple’s closest confidants. Of course, thirteen can keep a secret if twelve of them are dead, as the saying goes. Eventually, the contents of this invitation-only group were made public, resulting in some actual (at least in comparison to the cheerleading case) disruption.

During the weekend of March 18–19, 2017, one of the account’s followers showed multiple photos from that account to the girls’ basketball player who had been depicted with a noose. On Monday, March 20, that student, in turn, shared what she had learned with several other students who had been targeted by the account’s posts. That same day, one of the followers of the account was asked to lend his phone to a student who claimed to need to call her mother, and while this student had the phone, she took it into the restroom, where she and another student took pictures of some of the contents of the yungcavage account. Those photographs were then shared with other students.

As knowledge of the account rapidly spread, a group of about 10 students gathered at the school, several of whom were upset, yelling, or crying. Although the next class period had started, the students “were all too upset to go to class.” The school’s Principal, Jeff Anderson, asked them to come to the conference room adjacent to his office, where they were joined by two of the school’s Assistant Principals, Melisa Pfohl and Tami Benau. Benau stated that she had “never seen a group of students as upset as these girls were.” The school administrators summoned the school’s counselors and mental health staff to join them, and around the same time, some of the students’ parents (who had presumably been contacted by their children) began to arrive.

In the following days, both students behind the account were suspended before being expelled. Students who had knowledge of the posts wished to speak to their instructors about what they had seen, further disrupting already disrupted classes. Some students expressed their unwillingness to attend classes with these students and others reported feeling scared, bullied, or otherwise unable to resume their studies. A rally and an on-campus demonstration also followed these disclosures, with the demonstration culminating with two of the students who were members of the private Instagram group being punched by other students.

The Ninth Circuit says the facts of this case are distinguishable from the Supreme Court’s 2021 decision. Substantial disruption occurred. And that disruption was (apparently) foreseeable, even if the students did take the precaution of limiting access to their racist comments by operating within the confines of a private social media group.

[O]nce Epple’s posts hit their targets, the school was confronted with a situation in which a number of its students thereby became the subjects of “serious or severe bullying or harassment targeting particular individuals”— which Mahanoy specifically identifies as an “off-campus circumstance[]” in which “[t]he school’s regulatory interests remain significant.” As Epple acknowledges, he was expelled on the ground that he had engaged in “bullying” within the meaning of the generally applicable and speech-neutral prohibitions contained California Education Code section 48900.4. Although Epple may be correct that his parents have the primary responsibility for policing his off-campus use of social media, the school’s authority and responsibility to act in loco parentis also includes the role of protecting other students from being maltreated by their classmates. Epple’s conduct here strongly implicated that “significant” interest of the school.

While the Appeals Court is obviously correct it was foreseeable the posts would cause disruption after their targets viewed them, that’s not the same thing as being a foreseeable outcome when the messages were still contained by the boundaries of the thirteen-member Instagram group. So, that seems to be a bit of cart-ahead-of-horse reasoning that suggests the plaintiffs should have known it was inevitable their atrocious Instagram posts would be exposed. If it was so obviously foreseeable, you’d think even a bunch of bigoted minors would know better than to create the content in the first place. Then again, stupid people do stupid things all the time, even when the negative outcomes are blatantly obvious. The court explains it this way:

Epple again emphasizes that he did not ever intend for the targets of his posts to ever see them. But having constructed, so to speak, a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school. And, as we have explained, recognizing an authority in school administrators to respond to the sort of harassment at issue here presents no risk that they will thereby be able to “punish[] students engaged in protected political speech in the comfort of their own homes.” Epple’s actions had a sufficient nexus to AHS, and his discipline fits comfortably within Tinker’s framework and does not threaten the “marketplace of ideas” at AHS.

In the context of this case, Epple’s speech is not protected. He was not making any larger statement about his allegiance to racist factions or expressing displeasure with societal changes. He freely admitted he made these posts for no other reason than to entertain himself and other members of his group — a recognizably juvenile justification for being ignorant and hateful.

Not protected in this context — which involves the recognition of educational institutions having an obligation to protect students from discrimination and maintain disruption-free learning environments. That makes sense. But the concurrence, written by Judge Ronald Gould, suggests this speech should not be protected in any cases involving students and public schools.

Hate speech has no role in our society and contributes little or nothing to the free-flowing marketplace of ideas that is essential to protect in a school environment. Just as a school cannot be forced to teach hate speech, neither should it be forced to entertain and tolerate within its walls hate speech promulgated by arrantly misguided students. When school authorities take action to root out the persistent echoes of racism that arise from time to time in American society, courts should not stop them, instead allowing racist comments to be rooted out and not deemed protected by the First Amendment. These principles apply with cogent force to hate speech that threatens to dehumanize ethnic or racial groups within our multiracial society.

[…]

In my view, civilized society should not tolerate imagery encouraging hate; government bodies, consistent with the Constitution, can and should be able to take steps to stop it.

Judge Gould may briefly refer to “case-by-case basis,” but his proposal suggests governments replace parents in cases involving off-campus speech, even when the speech does not cause significant disruption of on-campus learning, supposedly for the good of the nation at whole.

His follow-up sentence that ends the next paragraph in his concurrence uses an even broader brush. While most of the paragraph refers to minority students being subjected to hate speech (itself a slippery term with no clear definition), his concluding sentence simply says “government bodies,” which could be read to include any government agency that comes across hate speech. The most charitable reading suggests the judge is still referring to schools. But even so, this would allow schools to directly regulate off-campus behavior — something that may be conducive to rooting out hate speech but is the sort of overreach that has never been considered as an acceptable compromise to accomplish this noble aim.

Filed Under: 9th circuit, bullying, cedric epple, free speech, hate speech

Medieval Times Tries To Bully Its Workers Out Of Unionizing With A Bullshit Trademark Lawsuit

from the more-like-mid-evil,-amirite? dept

Trademark bullying usually takes a pretty typical form. Someone with a trademark decides to interpret the need to enforce their mark in an extreme way and goes off threatening and/or suing everyone that even comes mildly close to using the registered trademark. It’s annoying, although perhaps mildly understandable if you squint your eyes just right.

But then there are bullies that wield trademark for purposes that are completely illegitimate. You may recall that Walmart, exemplar of virtuous corporate ideology to be sure, went after some of its Canadian workers for trademark infringement, even though the real aim was to try to tamp down those workers’ plans to unionize. The bullshit claim was that the union’s name and its websites name, Walmart Workers Canada, were going to cause the public to think that the union was endorsed by Walmart itself. This is hilariously unlikely for any number of reasons, but also flies in the face of the fact that it cannot be trademark infringement to accurately title the name of your organization based on its purpose.

Well, it looks like someone is trying this in the United States now. Medieval Times, the company that sets up fake castles where you go and eat, drink, and watch jousting matches, has sued its own employees that are attempting to unionize under the exact same trademark infringement scenario.

In its lawsuit filed Thursday in federal court, Medieval Times said the union, the American Guild of Variety Artists, had created “consumer confusion” by allowing workers to use the name “Medieval Times Performers United.” The company claims the union is “threatening the established goodwill of Medieval Times” by including the chain’s name and medieval-themed imagery in its name and logo.

“The elements featured in the Medieval Times Performers Logo (i.e., castle, swords, old script style text) all resemble elements of Medieval Times’s branding and middle ages-themed décor, which are clearly meant to evoke Medieval Times’ unique image,” the company said in its lawsuit.

Yes, of course they are. These workers work for Medieval Times. As for the claims that the branding is similar, you can see everything the company lays out in the embedded filing below. That being said, here is one example the company provides.

Uh, no, not similar font styles. Like… at all. They’re completely different fonts and in different coloration. The other examples are just as bad. For example, the union logo has two swords crossing behind the emblem. The company claims this is trademark infringement because in the gift shops at the “castles” the company often has a display where multiple swords are pointed inward. Think I’m exaggerating? Well…

Add to all of that the fact that the union’s proposed name is an accurate description of the organization and you’re left with the notion that this is all clearly protected speech and/or fair use of the company’s trademarked name.

So, what’s going on here? Like we said from the top: bullying. The company is looking to make the process of unionizing as painful as possible for its workers. For its part, the union is discussing whether to get the National Labor Relations Board involved, which it damned well should. Especially considering that there are similar unions that have sprung up in other companies where this so-called trademark infringement has never been at issue.

Many workers have been organizing new unions lately under a variation of the “united” theme. Some examples are Starbucks Workers United, Trader Joe’s United and Home Depot Workers United. To HuffPost’s knowledge, none of those companies have sued the worker organizations for alleged trademark infringement.

Same. Maybe it’s time for Medievel Times to get with the modern times and stop trying to keep the union from forming by abusing trademark law.

Filed Under: bullying, medieval times performers united, trademark, unions
Companies: american guild of variety artists, medieval times

California Bakery Bullying/Suing Others Over Descriptive ‘Mochi Muffin’ Trademark It Somehow Got

from the muffin-to-see-here dept

While trademark disputes regularly annoy me for a variety of reasons which I cover on this site, the most annoying ones of all are usually over trademarks that the USPTO never should have granted in the first place. Remember the Square Donuts thing? That mark was descriptive. ESPN’s “Saturday Night Football” mark? Also descriptive. Or the time a company managed to trademark the term “Legal Hackers” as it was the company’s name? Yeah, you guessed it: descriptive.

Now, you’re not supposed to be able to trademark purely descriptive terms for what should be obvious reasons. If the mark doesn’t inform the consumer of a product or service’s origin, and instead describes a generic product, that’s supposed to be a no-no. And, yet, the USPTO seems to regularly grant them.

Which brings us to mochi muffins. Mochi muffins are popular bakery goods, perhaps invented by the owner of a trademark on “mochi muffins”, Third Culture Bakery in California. Third Culture has recently been sending threat notices to, and in at least one case has sued, other small bakeries for the crime of making and selling their own mochi muffins.

Since Third Culture secured the federal trademark to its signature item, the bakery has been quietly working to stop restaurants, bakers and food bloggers across the country from using the words mochi muffins. Oakland’s Ramen Shop received a cease-and-desist letter from Third Culture several years ago, co-owner Sam White said. In April, a wave of businesses also received letters from Third Culture, including a tiny home-baking operation in Worcester, Mass.

Almost all those contacted quickly complied and renamed their products — CA Bakehouse now sells “mochi cakes,” for example — afraid of getting into a label battle with a relatively large, well-resourced business that ships its mochi muffins nationwide.

By now, you may be wondering what the problem is here. And that may be because you don’t know what a mochi muffin is. It’s a muffin made of — wait for it — mochi! And what is mochi? It’s a kind of rice paste that is used typically in Japan to make little cakes and other foods, often time during seasonal holidays. So, rewinding, what is a mochi muffin? It’s a muffin made of this rice paste ingredient.

And that is, as you will have already guessed, a descriptive phrase that describes the product and is non-distinctive. And yet the USPTO granted the trademark, albeit as a supplemental mark, and Third Culture is out here threatening everyone it can find.

Third Culture co-owner Wenter Shyu said he recognized early on that the bakery should protect its first and most popular product. Third Culture now keeps attorneys on retainer to monitor the trademark.

“We’re not trying to claim any ownership (of) the word mochi or mochiko or muffin,” he said. “It relates back to the one singular product that started our bakery and put us on the map. It’s how we pay our bills and how we pay our employees. If anyone else makes a mochi muffin that looks like ours and (is) selling it, that’s who we go after.”

That makes it sound like what Shyu was actually after was a secret recipe and/or trade secret, a la Coca-Cola’s recipe. Instead, he got a trademark on a descriptive phrase. And, while everyone appears to be too scared to challenge Third Culture in court, it’s doubtful the bully could win if that were to happen.

Legal experts contacted by The Chronicle questioned whether Third Culture’s mochi muffin trademark would survive a court challenge. The trademark is listed on the United States Patent and Trademark Office’s supplemental rather than principal register, meaning it’s not eligible for exclusive protection, said Robin Gross, a San Francisco intellectual property lawyer. The principal register is reserved for trademarks that are considered distinctive and are afforded more legal protections as a result.

“It looks to me that Third Culture Bakery is not going to succeed on its claim because its mark is merely descriptive, not something that can attain exclusive rights,” Gross said. “If companies are not allowed to use the descriptive words that describe their products, then trademark law has gone too far and is infringing on freedom-of-expression rights.”

Ding ding ding! And speaking of expression rights, Third Culture has also started getting some public backlash for its bullying efforts. Facebook groups are sharing stories of the bullying, and outrage is building.

I think it is inevitable that someone will challenge Third Culture’s mark eventually. And if/when that happens, it should be invalidated. Otherwise, someone out there is going to trademark “banana bread”.

Filed Under: bullying, descriptive, mochi, muffins, trademark
Companies: third culture bakery

Hawaii School, Police Department On The Verge Of Being Sued For Arresting A Ten-Year-Old Girl Over A Drawing

from the getting-the-most-oppression-bang-for-your-tax-buck dept

Putting cops in schools is never a good idea. It only encourages school administrators to hand over discipline problems to the “proper authorities,” which is what administrators used to be until the addition of law enforcement on campus.

Having cops on tap also appears to encourage parents to demand a law enforcement response to disciplinary problems. That’s what happened at a school in Hawaii, where a 10-year-old student was arrested over a drawing another student’s parent didn’t like. The school — and the police department that performed the arrest — are on the verge of being sued by the student and the ACLU.

Here’s a brief summary of the incident from the ACLU:

On the morning of January 10, 2020, a parent complained to school officials about a sketch N.B. and other students had drawn in response to another student bullying N.B. The parent unreasonably insisted that school officials call the police.

After arriving on school grounds, police interrogated 10-year-old N.B., handcuffed her with excessive force, arrested her without probable cause, and transported her to the police station—all without letting N.B. see or speak with her mother. The police and school officials took these traumatizing actions despite the fact that N.B. was cooperative and did not pose any danger to any person or herself—and without accommodating N.B.’s disability, which was documented with the school.

The demand letter [PDF] from the ACLU goes into greater detail about the incident, including police officers keeping N.B.’s mother, Tamara Taylor, from speaking to her daughter until after the 10-year-old had been cuffed and transported to the police station. The school did not notify Ms. Taylor that her daughter was being questioned by police and made no effort to ensure the student had any counsel (legal or otherwise) advocating for her or ensuring her rights weren’t violated.

Everyone involved in this acted like it was out of their hands, an inevitable series of events stemming from one parent’s complaint.

On January 10, 2020, Ms. Taylor received a phone call from Honowai Elementary Vice Principal, Ms. Terri Runge, at 8:42 am about N.B. being in a dispute with another student. N.B. had allegedly participated in drawing an offensive sketch of a student in response to that student bullying her. Ms. Runge asked Ms. Taylor to come to the school, because “they are thinking about calling the police.” Ms. Taylor implored Ms. Runge to not do so and told her she would be shortly on her way.

A Honowai staff member and Honolulu Police Officer Ford greeted Ms. Taylor when she arrived at Honowai Elementary and took her to the school office. Officer Ford then began explaining his presence at school by saying that “some parents take things out of proportion and make things bigger than what they are,” apparently referring to the parent who had insisted that the police be called that day.

Here’s an inadvertent demonstration of how terrible law enforcement officers are at de-escalation. Rather than seek a resolution that didn’t involve use of force, the officers acted like it was beyond their power to placate an angry parent without arresting a pre-teen over a drawing.

And we are still talking about a drawing — one that targeted a student who had been bullying N.B. The drawing was apparently a collaborative effort with other students. N.B. did not want the drawing shown to the alleged bully, but another student decided to bring it to their attention. The “target” of the drawing was apparently unmoved by it. Neither were their parents. It was the parent of another child that had seen the drawing that had contacted the school and “asked the school to call 911 on N.B.”

Meanwhile, as N.B. continued to be separated from her mother by police officers, everyone with the power to shut this down shrugged around the place bemoaning the apparent impossibility of the situation.

A female officer then entered the room and stated that the parent was going to press charges. Ms. Taylor then asked what the charges were for, explained that she would also stand behind her daughter, and that she did not understand what was going on. Instead of answering these questions, Officer Ford stated that he is a father to an 11-year-old and he did not understand why the parent was acting the way she was acting about the situation. The female officer stated that she has a 7- year-old and did not understand either. Vice Principal Runge appeared and described the complainant parent as being “difficult” and that she had never seen a parent act in such way.

No one could understand why a parent could act this way. Well, maybe the parent acted this way because they knew school administrators and police officers could be weaponized this way. So, instead of anyone stepping up to shut this down, N.B. and her mother found themselves surrounded by a bunch of people with a lot of power claiming they were powerless to do anything but what one parent demanded.

When Ms. Taylor asked why they had called the police when she had specifically asked that they not do so, Ms. Runge responded: “Well, it’s the parent’s right if she wants us to call the police for her.” When Ms. Taylor pushed back, arguing that the school had the discretion not to call the police, Ms. Runge simply reiterated that it was the parent’s right to ask the school to do so.

Yes, the parents have that right. And Ms. Taylor is right, the school has the discretion to reject their requests. No one felt like exercising their discretion that day. So, Taylor’s daughter was cuffed, put in a police car, and taken to the PD for processing.

Then there’s the racial element. Statements were made by administrators and officers that suggest they would have handled this differently if N.B. wasn’t black.

Officer Ford confided to Ms. Taylor that they thought it was best for her not to see N.B. because they did not want Ms. Taylor to “beat [N.B.] at the school.”

[…]

Ms. Taylor also expressed dismay about being forced to stay in the room, to which Ms. Runge explained that they had to stop Ms. Taylor because they saw “fire in her eyes.”

[…]

Ms. Runge also explained that she had prevented Ms. Taylor from leaving the room that day because she was concerned that Ms. Taylor would get arrested for intervening and attacking the other parent or the police.

A bunch of powerful people violated rights because they were too powerless to deny a parent’s demand for police involvement and too afraid of what an Angry Black Woman might do if allowed to see her child or confront another parent, despite both Ms. Taylor and her child being fully cooperative during this string of rights violations.

The end result was this:

Even assuming the complaining parent wanted to press charges—and assuming there were valid charges that could be brought against N.B.—N.B. could have easily been surrendered to her mother who was at the school. No one else involved in the drawing incident was arrested or interrogated. No charges were ever brought against N.B., who as a ten year old did not intend to commit a crime with a drawing she did not draw alone and did not even want to deliver. N.B.’s detention and false arrest without probable cause violated her rights to be free from unreasonable seizures under the Hawai?i and U.S. Constitutions.

[…]

Ms. Taylor and N.B. were singled out because of their race, both perceived and treated as “more dangerous,” less rational, and less worthy of respect for their rights than the non-Black students and parents involved.

Right now, the ACLU and Taylor are only demanding a raft of changes to school and PD policy when it comes to detaining, questioning, and arresting minors. They’re also demanding 500,000indamages.ThatdemandwillpresumablyincreaseifthecityandPDdecidethey’dratherdefendthemselvesincourtratherthanmakesomecommonsensechangestopolicyandputanother500,000 in damages. That demand will presumably increase if the city and PD decide they’d rather defend themselves in court rather than make some common sense changes to policy and put another 500,000indamages.ThatdemandwillpresumablyincreaseifthecityandPDdecidethey’dratherdefendthemselvesincourtratherthanmakesomecommonsensechangestopolicyandputanother500k on the taxpayers’ tab.

This all could have been avoided if any one of these very powerful people had actually used their power wisely and deployed the discretion they so often claim is necessary to prevent outcomes like this. If this parent really felt police should be involved, they should have made that call themselves. Instead, they chose to weaponize two bureaucracies to achieve their ends: the punishment of a 10-year-old for offending them with a drawing.

Filed Under: arrests, bullying, hawaii, honolulu, honowai elementary, police, school resource officer, students, tamara taylor
Companies: aclu

Content Moderation Case Study: Suppressing Content To Try To Stop Bullying (2019)

from the not-a-good-solution dept

Summary: TikTok, like many social apps that are mainly used by a younger generation, has long faced issues around how to deal with bullying done via the platform. According to leaked documents revealed by the German site Netzpolitik, one way that the site chose to deal with the problem was through content suppression — but specifically by suppressing the content of those the company felt were more prone to being victims of bullying.

The internal documents showed different ways in which the short video content that TikTok is famous for would be rated for visibility. This could include content that was chosen to be ?featured? (i.e., seen by more people) but also content that was deemed ?Auto R? for a form of suppression. Content rated as such was excluded from the ?for you? feed on Tiktok after reaching a certain number of views. The ?for you? feed is how most people view TikTok videos, so this rating would effectively put a cap on views. The end result was the ?reach? of content categorized as Auto R was significantly limited, and completely prevented from going ?viral? and amassing a large audience or following.

What was somewhat surprising was that TikTok?s policies explicitly suggested putting those who might be bullied in the ?Auto R? category — even saying that those who were disabled, autistic, or with Down Syndrome, should be put in this category to minimize bullying.

According to Netzpolitik, employees at TikTok repeatedly pointed out the problematic nature of this decision, and how it was discriminatory itself and punishing people not for any bad behavior, but because of the belief that their differences might possibly lead to them being bullied. However, they claimed that they were prevented from changing the policies by TikTok?s corporate parent, ByteDance, which dictated the company?s content moderation policies.

Decisions to be made by TikTok:

Questions and policy implications to consider:

Resolution: TikTok admitted that these rules were a ?blunt instrument? that were put in place rapidly to try to minimize bullying on the platform — but that the company had realized it was the ?wrong? approach and had implemented more nuanced policies:

“Early on, in response to an increase in bullying on the app, we implemented a blunt and temporary policy,” he told the BBC.

“This was never designed to be a long-term solution, and while the intention was good, it became clear that the approach was wrong.

“We have long since removed the policy in favour of more nuanced anti-bullying policies.”

However, the Netzpolitik report suggested that this policy had been in place at least until September of 2019, just three months before its reporting came out in December of 2019. It is unclear exactly when the ?more nuanced? anti-bullying policies were put in place, but it is possible that they came about due to the public exposure and pressure from the reporting on this issue.

Filed Under: bullying, content moderation, suppression
Companies: tiktok

Content Moderation Case Study: Ask.fm Responds After A Teen's Suicide Is Linked To Bullying On The Site (August 2013)

from the difficult-content-moderation-questions dept

Summary: After a UK teen took her own life in response to bullying on social networking site, ask.fm, her father asked both the site and the UK government to take corrective measures to prevent further tragedies. This wasn’t an isolated incident. Reports linked multiple suicides to bullying on the teen-centered site.

Ask.fm’s problems with bullying and other abuse appeared to be far greater than those observed on other social media sites. Part of this appeared to be due to the site’s user base, which was much younger than more-established social media platforms. This — combined with the option to create anonymous accounts — seemed to have made ask.fm a destination for abusive users. What moderation existed before these problems became headline news was apparently ineffective, resulting in a steady stream of horrific stories until the site began to make serious efforts to curb a problem now too big to ignore.

Ask.fm’s immediate response to both the teen’s father and UK Prime Minister David Cameron’s criticism (Cameron called for a boycott of the site) was to point to existing moderation efforts put in place to deter bullying and other terms of service violations.

After major companies pulled their advertising, ask.fm pledged to assist police in investigating the circumstances behind the teen’s suicide, as well as consult with a law firm to see if moderation efforts could be improved. It also hired more moderators and a safety officer, and made its “Report” button more prominent.

More than a year after ask.fm became the target of criticism around the world, the site implemented its first Safety Advisory Board. The group of experts on teens and their internet use was tasked with reducing the amount of bullying on the platform and making it safer for its young users.

More significantly, ask.fm’s founders — who were viewed as unresponsive to criticism — were removed by the site’s new owners, InterActiveCorp (IAC). IAC pledged to work more closely with US law enforcement and safety experts to improve moderation efforts.

Decisions to be made by ask.fm:

Questions and policy implications to consider:

Resolution: When immediate steps did little to deter criticism, ask.fm formed a Safety Committee and, ultimately, dismissed founders that appeared to be unresponsive to users’ concerns. The site made changes to its moderation strategies, hired more moderators, and made users more aware of the features they could use to report users and avoid unwanted interactions.

Filed Under: bullying, case study, content moderation, suicide
Companies: ask.fm

Brew Dog, Aldi Get Into Brand Battle With Good Nature, Not Cease And Desists

from the yaldi dept

It’s been quite a brief but impactful journey for Brewdog, a self-styled “punk brewery.” The history starts with Brewdog first going after a pub in the UK over trademarks, getting a fair amount of backlash for it, and then having Brewdog ownership not only rescinding all the threats, but inviting the pub to collaborate on a gin together. As part of that whole episode, Brewdog promised to “do better” when it came to IP enforcement and even covered the pub’s legal costs. It was a nice story.

One which the brewery has by all accounts lived up to. Subsequent stories about them here dealt only with a strange attempt by the Estate of Elvis Presley trying to stop the brewery from trademarking a craft brew entitled Elvis Juice. Brewdog won that one, by the way.

And now again Brewdog is making news for itself by poking at a larger entity, but has once again managed to do it in such a human and awesome way that Aldi of all companies appears to be a willing participant in the fun. The whole thing started with Brewdog putting out an on-brand IPA beer entitled “Punk IPA.” From there, Brendan Palfreyman, an IP attorney that specifically focuses on the craft brew industry and is a fantastic follow on Twitter, picks up the back and forth when Aldi decided to poke the Brewdog.

Yeah, this is actually happening. Consider the back and forth here for a moment. Brewdog makes a Punk IPA in a blue can. Aldi decides to release a Establishment IPA in a blue can, one that harkens specifically to Brewdog’s. Rather than go full IP lawyer-rage, Brewdog takes the whole thing in stride and announces the release of an IPA called Yaldi, which mimicks Aldi’s branding. The whole thing is enough to make an IP maximilist keel over and die from an embolism.

And, yet, no trademark threats. The only mention of a cease and desist comes from a third party that has a Yaldi brand beer. Aldi never gets in on the threats. Instead, the game continues.

Take notice: this is a major brand basically showing a brewery a better way to create an homage to its own brand. IP maximilists they are not. And, because the folks at Brewdog are apparently made of that old craft brewing DNA, where you treat this business with equal amounts reverence and irreverence, all while maintaining a sense of humor… they did as Aldi requested.

Aldi’s response? It said it’s looking forward to getting a case of ALD IPA and might even clear some aisle space for it. In other words, there might actually end up being a lucrative business deal coming out of this whole thing.

And what’s really striking in all of this is just how easily this whole thing could have gone ass up if anyone on either side had decided to play IP fun-police rather than act so human and cool about this whole thing. Brewdog could have gotten pissed at an obvious knockoff beer at Aldi and tried to threaten the grocery chain. It didn’t. Aldi could have decided that Brewdog’s retort was a bridge too far and tried to threaten the brewery. It didn’t.

Instead, we might have a business deal in the works. One wonders if this will get the rest of the craft beer industry to pay the slightest bit of attention so it can go back to its old, better ways.

Filed Under: ald ipa, beer, bullying, establishment, non-bullying, punk, trademark, yaldi
Companies: aldi, brewdog

Can ProctorU Be Trusted With Students' Personal Data?

One of the hard lessons that I have learned over my years of practice is that, although some lawyers believe that they can increase the in terrorem effect of a complaint or a demand letter by piling on claims, the net effect of adding silly assertions can be to make things worse for your own client and not better. That may be true as well of the demand letter recently sent by David Vance Lucas of Bradley Arant Boult Cummings on behalf of their client, ProctorU.

Criticisms and Demand Letter

The saga begins with a faculty association at the University of California at Santa Barbara, which heard about a potential problem with the data-sharing policies of ProctorU, a business that provides internet-based test monitoring services. The group took a look at the ProctorU privacy policies and did not like what they saw ? in their view, it provided too little specificity about the limitations on data-sharing, and no protection for the data in the event that ProctorU were to go into bankruptcy or merge, possibly without restrictions on use of the data. And online discussions by students subject to ProctorU monitoring have shared a variety of concerns about the creepy nature of ProctorU?s interventions; the students were plainly worried about the attending possibility of data accumulation. The faculty association voiced its concerns in a letter to the leadership of the University of California at Santa Barbara, urging them to stop using ProctorU and to avoid using ?any other private service that either sells or makes students? data available to third parties.? The letter was discussed in a story in the school?s student newspaper.

It is apparently ProctorU?s position that the faculty association?s concerns are overwrought. I have no opinion about that dispute. But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU?s web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of willfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic. Without quite meeting the faculty criticisms, the letter provided a restatement of the ProctorU privacy policy from a sanitized perspective, and on that basis demanded that the faculty group stop its ?misrepresentation and misstatement? of the privacy policies; retract the complaints; and agree never to use ProctorU?s ?family of marks and copyrighted materials.? In subsequent correspondence, Lucas has demanded that each member of the faculty group?s board sign a groveling letter in which they would have to take personal responsibility for the group?s criticisms, admit that many of statements for which they would be taking personal responsibility were false, endorse Lucas? unproven assertions about his client?s privacy practices, and retract both the letter and the request that USCB stop using its services. It is my firm belief that Lucas's letter and followup emails, and especially the demanded retraction letter, had the intended effect of terrifying the faculty group, if only because they know how much it can cost to hire lawyers even when you have done nothing wrong — until they started hearing that pro bono representation could be a significant possibility.

The Federal Law Claims Are Completely Bogus

My immediate reaction to this letter was to feel uncertain about whether ProctorU had any valid defamation claims, but my attention was drawn quickly to the contentions about federal intellectual property law, all of which are nonsensical.

First, the copyright claims. Lucas argues that by repeating some of the language from the privacy policy in their letter, the faculty group infringed the copyright in the privacy policy. One thing that is decidedly odd about this copyright claim is that, at the same time that Lucas is claiming improper copying, he is claiming that the letter misstated the privacy policy. Either the letter contains exact quotes or it doesn?t. But beyond that, any language taken from the policy is plainly fair use ? when you are criticizing a written text, you often have to quote the text being criticized. And beyond that, my search of the copyright database did not identify any copyright registrations by ProctorU. So it would have to register before suing, and failure to register previously would be fatal to any monetary claims besides actual damages. Those would be copyright damages, not damage to reputation. Hard to believe there is any copyright injury here.

The demand letter invokes the ACPA but it is hard to see why, other than to give Lucas an excuse to put the phrase "bad faith" into the letter (he mentions that statute?s ?bad faith factors,? none of which point in the direction of bad faith so far as I can see), and to threaten statutory damages and attorney fees. But the ACPA could have provided a remedy only if the faculty group had the registered or used a domain name to place its communications online; it does not provide a remedy for mentioning the URL's of some pages within ProctorU?s own web site in the body of a text, or for linking to those pages. Moreover, quite a number of cases under the ACPA and the Lanham Act allow the use of trademarks in domain names for web sites that comment on the trademark holder, including Lamparello v. Falwell, Bosley Medical v. Kremer, and Taubman Company v. WebFeats (a wonderful account of that latter litigation, full of the quirky sense of humor that my client Hank Mishkoff maintained throughout the litigation, can be found at the Taubman Sucks web site). I should note that although the faculty group did not register a domain name for their letter about ProctorU, there are plenty of ProctorU domain names ready for the taking, each of which could be lawfully used for a campaign to criticize that company for hiring David Lucas to send this letter, or indeed for criticizing Lucas or his client's funders.

The trademark claims are equally faulty. First of all, under the doctrine of nominative fair use, trademarks can be used to identify the subject of a criticism, and injunctive relief imposed for the use of marks for criticism would run afoul of the First Amendment, as established in such cases as Nissan Motor Co. v. Nissan Computer Co., and CPC International v. Skippy, Inc. Moreover, a number of cases, including Bosley and Taubman, cited above, hold that trademark claims may only be brought over commercial uses of trademarks, thus avoiding unnecessary conflict with the First Amendment. In a case called Radiance Foundation v. NAACP, the Fourth Circuit came awfully close to agreeing with that limitation, but confined itself to holding that the statutory language of the trademark laws must be read as being limited to regulation of uses that could properly be treated as commercial speech.

The faculty association's letter was not commercial speech. The letter seems to suggest that the UCSB faculty are worried about facing economic competition from ProctorU for their proctoring services. But apart from the fact that the mere possibility of an economic interest at play does not make speech commercial (for which see Nike, Inc. v. Kasky), the argument reflects a certain air of unreality. All of the college faculty that I know hate proctoring and do not want to spend their time on that task; when possible, they slough off this work on graduate students. They might, at the same time, have genuine concerns about student privacy.

Lucas? bio page at the Bradley Arant web site indicates that ?intellectual property? is among his practice areas. My initial assumption was that, being an IP specialist, he must have known how frivolous his trademark and copyright claims are. But as I started reading the IP cases listed on his bio page, it struck me that his IP practice may have been confined to patent law; if so, then his letter only reflects bumbling, not malice.

Even the Libel Claims Seem Spurious

Although it was the silly intellectual property claims that spurred my interest in this matter, the more I have thought about the libel side of the case, the less potent the claims have seemed to me. On its face, the strongest point in the demand letter is the contention that ProctorU never sells the data that accumulates ? and if that were true, and if the faculty letter had accused ProctorU of selling the data, that might well qualify as material falsity. But in fact the letter only complains that ProctorU shares the data with others; the only reference in the faculty letter to ?selling? is in the phrase quoted above: after urging that UCSB drop ProctorU, it also urges a more general policy: not to use ?this service or any other private service that either sells or makes students' data available to third parties.? There is no charge in the letter that I can see saying that ProctorU sells data.

The rest of the libel discussion in the demand letter is a big nothing. Lucas says this in his letter: ?Contrary to your misrepresentations, ProctorU does not sell or share any information it collects to any third parties.? But would Lucas make that assertion under oath? After all, just two paragraphs before that, his letter says, ?ProctorU only collects, uses and shares student personal information to provide its proctoring services . . . and to ensure the integrity of the tests it proctors.? And one paragraph before the denial, he says, ?ProctorU . . . transparently discloses all information that could be collected, used or shared, and specifically identifies the types of third parties with whom it shares student information.? (all the emphasis is added). Now, this admitted sharing may or may not be justified ? that is a matter of opinion ? but it is simply not false to say that ProctorU shares information with third parties. Not false unless Lucas?s own admissions are erroneous.

Without a claim of substantial falsity, ProctorU?s threat to sue for defamation falls apart. Lucas also tosses in the names of two more torts: intentional interference with existing and prospective business relations into his hopper. But without a sustainable claim of falsity, those tort claims cannot survive.

ProctorU?s disproportionate response to the faculty group?s criticisms make me wonder just what there is to hide about the company?s data-sharing practices. Lucas?s letter contains a number of broad and conclusory assurances about his client, but no proof. I have to wonder what discovery, or an investigation by state authorities proceeding with enforceable subpoenas, might reveal about just what data gets shared with what third parties, and under what circumstances and with what protections against further dissemination.

I have asked Lucas to justify his claims under both state and federal law, and he refused to respond, claiming that I would surely appreciate that he ?cannot address issues pertaining to a client with you? unless I told him that I was representing the faculty group. (I have not yet decided about that). No, I do not appreciate that he ?cannot? – I took it as a dodge by a lawyer who would rather not explain his misstatements about the law. After all, he sent his demand letter not only to the faculty group but also to counsel for the University of California and for UCSB, as well as to the California Attorney General and to the U.S. Attorney for the Central District of California, the latter two with the pretense that the faculty?s letter is ?directly impacting emergency efforts to mitigate civil disruption across the United States.? Ah, yes, terrorism ? maybe he should ask them to invoke the PATRIOT Act against these faculty terrorists. (Some of the respondents to the Popehat Signal on this case raised the question whether this is an unlawful threat of criminal prosecution). But he has showed no compunction about providing his thoughts about the case to lawyers who do not represent the target of his threats.

Stop the Bullying of Critics

In sum, I see little merit to this demand letter, and the nasty character of the demand deserves a forceful response. My efforts to engage Lucas in explaining his claims, and to get him to listen to reason, have failed. So my suggestion to members of the public is that they communicate their views both to ProctorU itself and to Eastside Partners, a venture capital firm that has provided funding for this company. Three of the five members of the ProctorU board appear to work at Eastside Partners. So Eastside Partners could pull the plug on Lucas?s bullying, if it chose to do so.

Reposted (with permission) from the Public Citizen Consumer Law & Policy Blog

Filed Under: bullying, copyright, data sharing, david lucas, defamation, free speech, privacy, privacy policies, trademark
Companies: procturu, ucsb