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Taco Bell Teams Up With LeBron James To Bring ‘Taco Tuesday’ Fight To The Masses

from the it-tolls-for-thee dept

Well, well, the “Taco Tuesday” battle appears to be heating up quickly. After years of holding and policing its trademark for “Taco Tuesday,” chain Taco John’s has found itself in a battle with Taco Bell, which is petitioning the trademark office to rescind its rival’s mark due to it becoming generic. I noted in that last battle that NBA mega-star LeBron James, himself apparently a huge fan on social media of celebrating taco Tuesdays, attempted to get a trademark for the phrase for himself. When that was denied, part of the reason the USPTO gave was that the term was too generic to be trademarked. Had LeBron wanted to press the issue, he could have used that as a weapon to push the Trademark Office to rescind Taco John’s mark.

But he didn’t do that. And now Taco Bell has picked up the battle itself, petitioning the USPTO to remove the trademark. But that’s not all Taco Bell is doing. Instead, the company has teamed up with LeBron to take this fight to the public with a commercial that first aired during the Lakers/Nuggets playoff game on May 22nd.

“’Taco Tuesday’ is a tradition that everyone should be able to celebrate. All restaurants, all families, all businesses – everybody,” LeBron James said in a press release. “’Taco Tuesdays’ create opportunities that bring people together in so many ways, and it’s a celebration that nobody should own.”

According to the press release, James is also starring in a new ad titled “Taco Bleep” as part of the attempt to liberate “Taco Tuesday,” so be sure to look out for that campaign on your TV set beginning May 22.

And here is the commercial in all its goofy glory.

Is a Change.org petition going to push the USPTO over the edge when it comes to its decision? Probably not directly, no. But what Taco Bell is doing, which is quite savvy, is building a public campaign, which could result in pressure not so much on the USPTO, but on Taco John’s itself. Employing a big name like LeBron who ultimately just wants to have fun with taco Tuesdays and leading the public to understand that it’s Taco John’s that is the barrier to everyone being able to use the generic phrase could build enough public shaming to get Taco John’s to reverse course on its own.

Or it won’t and the Taco Tuesday wars will continue. But if there is enough public outcry over this trademark that shouldn’t be a trademark, well, I expect that would make a difference.

Filed Under: commercial, lebron james, taco tuesday, trademark
Companies: taco bell, taco johns

from the that's-not-how-this-works dept

Last year, we talked about an important copyright case in the EU regarding whether or not linking to infringing material was, in itself, infringing. The case involved a blogger in the Netherlands, Geen Stijl News (“GS Media”) linking to some pre-publication Playboy photos. There had been an earlier case, the Svensson case where the European Court of Justice got things right with regards to whether or not hyperlinks could be infringing, but there were some questions left open in that ruling. The court in the Svensson case found that linking to authorized content wasn’t infringing. But what about unauthorized content?

And now we have the ruling and it’s not very good. Some are trying to spin it as a good ruling, because it basically says that if the link is not for profit, then it’s not infringing, but the worrisome part is that if the link is considered “for profit” then it can be direct infringement. Basically, the court tries to split the baby here. It notes concerns that many people had about how posting a mere link to content could be infringement, in that many times those posting the link will have no idea if the original content is authorized. But rather than actually deal with that specific issue, it just basically said “well, if it’s a for profit effort, then they can afford to figure out if the content is authorized.”

when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ?communication to the public? within the meaning of Article 3(1) of Directive 2001/29.

Some are celebrating the flip side, which says that if the linking is not for profit and without knowledge that the work is infringing, then it’s not infringing, but even that is troubling. Here’s what the court says for the “not for profit” linking:

For the purposes of the individualised assessment of the existence of a ?communication to the public? within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.

Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C?466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.

But what the hell does all that mean in practice? Well, that’s a complete mess. First of all, as we’ve been discussing for many, many, many years, drawing the line between “commercial” and “non-commercial” is not nearly as easy as it seems — and it’s basically the same for “for profit” and “not for profit” in the EU’s new standard. Just last week we wrote about yet another legal dispute over that exact fuzzy boundary. In an age where anyone can put ads on their site, or use social media to promote their own work or business, how do you determine what’s for profit? It’s not hard to see how a copyright holder may, for example, point to someone linking to an unauthorized copy of their work and then point to a tweet promoting their work, and say that “well this person uses social media for profit, so this link is infringing.”

And, of course, it’s even worse for aggregators, search engines and the media. All of those will be considered for profit, so any link to infringing content may now be considered infringing itself. That’s… really bad for the internet in Europe. You can see why the Court of Justice tried to split the baby here, but you should remember that splitting the baby isn’t a good result. It’s designed to threaten to kill the baby to flush out a better result. In this case, one hopes that the end result of this dangerous ruling will flush out an improved copyright law in the EU that doesn’t make links infringing. Instead, we seem likely to be getting the exact opposite.

Filed Under: cjeu, commercial, copyright, court of justice, eu, eucj, for profit, linking, noncommercial, not for profit
Companies: geen stijl, gs media, playboy, sanoma

Kim Kardashian & Old Navy Settle Lawsuit Over Look-A-Like

from the aggressive-discovery dept

Almost exactly a year ago today, I had the displeasure of doing something I said I'd never do: discussing Kim Kardashian. At that time, this (snicker) celebrity, best known for being equal parts pin-cushion and friend-of-Paris-Hilton, sued Old Navy because a young lady named Melissa Molinaro happened to look a bit like her. For this, Kim decided she needed the reasonable sum of $20 Million for Old Navy's infringement of her publicity rights. You can see the supposedly offending video below.

I noted at the time that beyond looking somewhat similar to Kardashian, there didn't appear to be much else in common between the celebrity and the woman in the commercial.

How does just hiring someone that looks like someone else require a lawsuit? At no point when I braved my way through watching the commercial did I think to myself, “Oh, that's totally something Kim Kardashian would have done”. I mean, if the commercial showed the actress, oh I don't know, waving the Armenian flag, that would've been one thing. And perhaps if the commercial showed her videotaping herself being nailed by a mildly talented R&B singer, I would have inferred the reference. But the casting call for the commercial didn't even call for a Kim look-a-like! The actress, Melissa Molinaro, told E! Online that her casting call had been “for a true dance pop superstar.”

Well, those questions may go unanswered now, as we learn that the two parties have settled the case. It would be very easy to assume that, with a settlement, Old Navy didn't feel as though they were in the clear enough to fight this all the way through. However, a couple of things are to be noted in this settlement.

First, as with many settlements, the terms have not been publicized. No dollar amounts have been discussed at all. So, when it comes to monetary settlement figures, we know exactly nothing. Or, more precisely, we know that Old Navy paid Kardashian somewhere between zero and twenty million dollars. The linked article suggests that the commercial has been pulled from YouTube, which doesn't seem to be the case since the embedded example above works as of the time of this writing. It looks like a whole lot of nothing, as far as I can verify.

Second, while the article doesn't indicate which party engaged to reach a settlement first, there is some interesting information of the full-court press Old Navy was preparing to unleash on Kardashian in court.

After the lawsuit was filed, attorneys for Old Navy parent The Gap were aggressive in the discovery phase, launching an investigation to see whether Kardashian's reputation has been tarnished.

Around the time the Old Navy commercial was cast, Molinaro reportedly was dating one of Kardashian's ex-boyfriends, football star Reggie Bush, who was one of the people The Gap wanted to depose. The Gap also had sought information about why the clothing retailer Bebe decided to drop its Kardashian clothing line, financial records concerning Kardashian's clothing deals and further information about “Kim Kardashian's reputation as a singer and dancer.”

It sounds as though Old Navy (The Gap) was going to drag a bunch of Kardashian's personal life into the court room. This may strike some as vindictive, but I'd suggest that there was simply no getting around this. If The Gap wanted to investigate the impact of an alleged publicity rights violation had on someone who has made a name for themselves almost purely through exploiting their personal life (as is the case with Kardashian), that will inevitably drag that personal life into the courtroom.

So, while there are no details on the settlement terms at this point, the coupling of a weak case by Kardashian with what would have assuredly been an uncomfortable witness list put together by The Gap, makes it very easy to imagine Kardashian wanting the whole thing to go away quickly. And if that acts as a deterrent to future lawsuits over so-called publicity rights, that's a good thing.

Filed Under: commercial, kim kardashian, melissa molinaro, publicity rights
Companies: gap, old navy

Ridiculous: Court Says Mock Basketball Which Appears In Hyundia Commercial For 1 Second 'Dilutes' LV Trademark

from the are-they-insane? dept

A little over two years ago, we wrote about what we considered to be an absolutely insane lawsuit from Louis Vuitton, arguing that a mock basketball, which appeared in a Hyundai commercial for one second violated LV’s trademark. You can see the commercial below:

If you missed it (entirely possible), at the 3 second mark, this image flashes briefly:

The point of the commercial is to get people to imagine what life would be like if “luxury” items were everyday items, and thus the mock basketball with symbols designed to suggest a luxury bag, like a Louis Vuitton bag. As we (and many, many trademark experts) suggested when the lawsuit was filed, the claims here are simply crazy. There is simply no harm whatsoever done to Louis Vuitton by this ad. Most people wouldn’t even notice the markings and if they did, what possible “harm” would it do? The answer is none. There is no consumer confusion whatsoever. There are no LV basketballs that won’t be sold because of this (in fact, the judge in this case notes that, after seeing this commercial, some people wanted one — which would suggest a market opportunity, rather than litigation).

Of course, Louis Vuitton’s complaint didn’t rest on the bedrock of trademark law — the likelihood of confusion — but a more modern bastardization of trademark law called “dilution.” The concept of dilution in trademark law is an affront to the purpose of trademark law, which is supposed to be about protecting consumers from confusion. That is, it’s supposed to be about preventing someone from buying Bob’s Cola, thinking that it’s really Coca-Cola. But there’s no such risk here. Dilution, however, flips the very concept of trademark law on its head and pretends (falsely) that trademark law is about protecting a company’s trademarks from anyone doing anything at all with it that the company doesn’t like.

Unfortunately, the courts don’t always get things right — which is why we get such ridiculous lawsuits in the first place — and here, amazingly, the district court has sided with Louis Vuitton in its dilution argument, granting summary judgment on Hyundia’s liability for dilution, while it rejected Hyundai’s movement for summary judgment rejecting all of Louis Vuitton’s claims. This is, in many ways, horrifying.

Eric Goldman’s summary, linked above, highlights the many problems with the ruling — while cautioning that the details suggest this type of ruling is limited. Still, as he notes:

And then we have an opinion like this–where the court finds trademark dilution without finding infringement (not resolved yet) and in a situation where EVERYONE can immediately tell there was zero harm to the brand owner. Rulings like this make trademark academics shudder in fear that trademark dilution will swallow up all of trademark law and confer rights-in-gross to trademark owners. While I don’t share those fears for reasons I’ll explain in a bit, unquestionably this is a bad ruling.

Goldman goes on to highlight some of the more specific problems with the ruling, but the key point is simply that there is no harm here. None. Absolutely none. Perhaps less than none, given the reports of interest in LV basketballs. When the law doesn’t care about that, then the law is, unquestionably, broken. A ruling like this automatically lessens respect for trademark law, because it makes no sense at all. It makes a mockery of the judicial system by suggesting that lawsuits like this have any merit whatsoever.

Filed Under: basketball, commercial, dilution, eric goldman
Companies: hyundai, louis vuitton

Canadian PM Copies Campaign Commercial, Doesn't License Hockey Clips

While the latest attempt at putting forth new copyright laws in Canada didn’t survive, I always find it amusing when politicians pushing for stricter copyright laws get caught breaking copyright law. Canadian Prime Minister Stephen Harper was already being talked about after it came to light that he appeared to have done a pretty close copy of a campaign ad from US Presidential candidate Tim Pawlenty. You can see both ads below:

However, as Rob Hyndman alerts us, now some have discovered that Harper did not properly license the video clips he used of a hockey match between Canada and the Soviet Union in 1972.

Horst Ficel, a partner in the firm, says that Hockey Canada granted the players the rights to all the marketing of the series in the mid-1990s. Today, a committee with player representatives decides who can license the footage.

Ficel is busy fielding requests for permission to use the clips to mark the upcoming 40th anniversary of the historic series.

But decidedly not among those requesting permission was the Conservative Party of Canada, Ficel said..

“It’s definitely not approved by me. It’s not approved by the committee.”

He says the committee is careful to avoid anything that might be considered political.

Now, personally, I think this should be “fair use,” but Canada (notoriously) has no fair use. It does have a more limited concept of “fair dealing,” but (and I’m certainly not an expert in Canadian copyright law), it’s not clear if political commercials are covered by Canada’s fair dealing provisions. The fair dealing provisions focus on “research, private study, criticism, review, or news reporting,” and I don’t see how political ads match any of those.

Filed Under: canada, commercial, stephen harper, tim pawlenty

BSA Sends Ridiculously Bogus Letter To European Commission

from the the-lies-the-bsa-tells dept

Is it just me, or is the BSA becoming a bigger and bigger joke each time it does just about anything these days? For years, the organization has put out its yearly bogus stats on “piracy,” which have been debunked over and over and over again. They’re about the only trade group that still has the gall to equate a single unauthorized copy to a single lost sale (even the RIAA and MPAA have moved away from that claim). They’ve also been known to simply make up survey numbers, rather than actually ask people in certain countries. And then, even on news stories, they seem to make it clear that they have no clue what’s going on — such as last week’s announcement that ACTA was a treaty already signed by 37 countries, when it’s neither a treaty, nor has it been signed by anyone.

The latest is equally as ridiculous and makes the BSA look even more uninformed than usual. As a whole bunch of you have sent in, the BSA apparently sent the European Commission a letter, objecting to the proposed “European Interoperability Framework for European Public Services.” You can read the letter below:

The Free Software Foundation Europe has done an incredibly thorough debunking of the letter, which is a worthwhile read from top to bottom. One key snippet is in response to the BSA’s absolutely laughable assertion that “royalty free” means “non-commercial”:

The BSA argues that “[m]any of today’s most widely-deployed open specifications incorporate patented innovations that were invented by commercial firms…including WiFi, GSM , and MPEG.”

This is an attempt to create a false dichotomy between “commercial” companies inventing patented technology, in contrast to “non-commercial” inventions which are not patented. In reality a great wealth of unpatented modern technology originating in commercial companies constitute globally implemented standards (such as HTML5), whilst continuing to provide their creators with revenue. There is no such divide, either economical or ideological, between hardware and software technologies which are patented, and those which are not. Yet the BSA divisively implies there is a difference between conventional and accepted business methods, which they associate with patents, and un-businesslike non-commercial organisations, which they associate with patent-free technology. Given the increasing prevalence of Free Software in Europe’s IT service market, such a claim is plainly false.

It really does make you wonder why anyone takes the BSA seriously these days, as it’s even more ridiculous and unbelievable than your average protectionist industry trade association. What’s amazing is that the folks at the BSA actually think such buffoonery is a good idea, when all it’s really continued to do is sap the organization of pretty much any credibility.

Filed Under: commercial, free, intellectual property, software, standards
Companies: bsa

from the milkaholics-anonymous dept

A few weeks ago, we wrote about Lindsay Lohan’s bizarre lawsuit against E_Trade_ _over a commercial with a talking baby named Lindsay that Lohan insisted was actually supposed to be her… mainly due to a reference to her being a “milkaholic.” This resulted in a series of interesting points — including the fact that many, many, many people who saw the commercial made absolutely no association with Lohan at all, especially given that Lindsay is a decently popular name. But, many people also wondered if this was really some bizarre marketing scheme for both E_Trade and Lohan — and if that’s true, then it worked. m3mnoch points out that the commercial in question shot to the top of the “most viewed online commercial” list. I doubt that E*Trade will owe any money to Lohan for the lawsuit, but perhaps it should pay up for the “ad placement.”

Filed Under: ads, commercial, lawsuits, lindsay lohan, streisand effect
Companies: etrade

Louis Vuitton Sues Hyundai Over A Louis Vuitton Basketball

from the do-morons-in-a-hurry-play-basketball? dept

Yesterday, I saw that Marty Schwimmer had posted a link to a Hyundai commercial asking if anyone saw the “lawsuit” in the commercial:

It took me a second viewing before I spotted it. The commercial itself plays on the idea of “what if everyone could experience luxury items” showing various examples of “luxury” items being used in more everyday settings: yachts in driveways, cops eating caviar and… some guys shooting hoops with a “luxury” basketball using the typical Louis Vuitton markings that you see on LV purses/handbags/etc.

Louis Vuitton is notoriously (and ridiculously) aggressive when it comes to trademark infringement. A couple years back we wrote about LVMH (parent company of Louis Vuitton) suing a Darfur fundraiser for creating a t-shirt of a Darfur victim “pimped out” to look like Paris Hilton, including a designer handbag with symbols made to look like the LV symbols.

So, yes, that’s exactly what this lawsuit is about. DSchneider points us to the Consumerist’s article laying out the details and I’ve embedded the lawsuit filing below:

Frankly, this lawsuit is ridiculous. LVMH is claiming that people might be confused? In what world? Seriously. In what world is anyone going to view the Hyundai commercial and think that it implies any kind of LVMH endorsement of Hyundai. It’s a joke — and any moron in a hurry knows that the LV basketball isn’t a sign that LVMH is working with or endorsing Hyundai.

Filed Under: basketball, commercial, louis vuitton, luxury, trademark
Companies: hyundai, lvmh

from the not-convinced...-but... dept

One issue that comes up in discussions of copyright quite often is the idea of whether or not you could change copyright law to distinguish between commercial and non-commercial use. In some ways this is quite appealing, and Cory Doctorow’s latest column makes the case for at least exploring those distinctions. However, even he admits that there is a gray area, and I wonder if that gray area is really complex. I don’t think it would necessarily make copyright law any worse, and my guess is that, at least initially, it would make copyright function better. After all, copyright law itself was really intended for commercial use (though, there are some lobbyists who falsely claim otherwise). It’s only in this day and age when everyone has the tools of content creation, reproduction, performance and distribution in their pockets and on every desk that the old copyright laws have been shown to not function properly at all.

So perhaps separating out commercial and non-commercial use is a step in the right direction. But I’m still confused about how you determine what really is commercial use vs. non-commercial use. If I use your information to make an investment, is that commercial use? If I have a blog that uses a bit of your content, but has ads on it, is that commercial use? There are some RSS feeds that declare “not for commercial use!” But, if I put that RSS into my feed reader and read it for work, is that commercial use? It’s not really that clear. And given that many individuals and companies feel that any even (borderline) commercial use of their works deserves compensation, you could see an awful lot of lawsuits filed as we try to define the borders. Perhaps copyright law could be written to make the border clear (though, I doubt it). Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval and lawsuits. But I think that there will always be new situations that again test the fuzzy border between the two types of use, and drawing any sort of bright line distinction won’t really fix very much.

Filed Under: commercial, copyright, copyright reform, non-commercial

Is Vimeo Arbitrarily Taking Down Videos It Deems As 'Commercial'?

from the that-makes-no-sense dept

With Vimeo recently getting sued by EMI for supposedly encouraging infringement of their music in videos, it’s interesting to note that Vimeo is apparently arbitrarily and ridiculously aggressive in cutting off anyone who uses the service for any sort of “commercial” purpose (found via Shocklee). The story is quite bizarre, but apparently Vimeo has buried in its terms of service that you can’t use the service for commercial reasons — though almost no one knows this. Yet, Vimeo itself seems to decide rather arbitrarily if your videos are commercial or not and then gives you a 24-hour notice to remove your videos. This is rather disappointing. Vimeo’s player is actually quite nice (much nicer than YouTube’s), and I’ve recommended many others to use its service. I had my own odd problem with Vimeo last year when for some unknown reason the company completely deleted my account and locked me out of using the service. Eventually they restored the account, but no explanation for the deletion was ever given (and it made me look bad, because I had been discussing stuff with someone, who then accused me of deleting my posts).

The other oddity is the claim that Vimeo says you cannot embed Vimeo videos on sites that show ads, as that’s “commercial use.” Once again, we get into the difficulty of figuring out what is commercial use? If I embed a Vimeo video in a blog post is that commercial use? This is a blog, but it’s part of our business. Similarly, some of the speeches I’ve given in the past couple of years were put online using Vimeo. Are these “commercial use”? Are they then commercial use if I happen to embed the video in the blog? What if I embed someone else’s video in this “commercial” blog? Like — as we did with the Vimeo getting sued story — embedded a video from Vimeo itself? It’s nearly impossible to figure out what is and what’s not commercial. About the only thing you can say is that you probably shouldn’t use Vimeo for anything, because its policies appear to be totally arbitrary and prone to suddenly losing the videos you thought you had legitimately posted.

Filed Under: commercial, non-commercial, videos
Companies: vimeo