confusion – Techdirt (original) (raw)

Kinetic Green Changes ‘Zulu’ Bike Name Slightly In Settlement With Yulu In India

from the all-this-for-a-single-letter? dept

Earlier this year, we discussed a trademark infringement suit in India between two eBike companies. One was Yulu, which operates the kind of eBike rental stations you can find in all kinds of cities throughout the world. The other was Kinetic Green, which sells a line of eBikes that it branded the “Zulu” bike. As I mentioned at the time, while this doesn’t come across as the kind of absolutely crazy claim of potential customer confusion given the similarities in the names, I still didn’t think such confusion would really arise:

As you will see, the look and feel of the products themselves is quite disimilar. Add to that the fact that Yulus seem to be in the category of eBike rental stations scattered throughout cities, versus the Zulu product just being a thing you buy, and it’s hard to see how anyone is going to seriously get confused here.

And now let’s tack on the fact that “Zulu” is itself a very recognizable term, having been the name for a large ethnic group that exists in southern Africa. This isn’t two fanciful names that sound alike, but rather one original name and one that has solid footing in the global lexicon. Again, where is the confusion really going to occur here?

Between that analysis and the fact that Kinetic Green indicated that it was essentially itching for this to go to trial, even asking the courts to push up the trial dates so they could get started, I had thought this dispute might actually go all the way to a trial decision. That doesn’t appear to be the case.

Instead, the two companies have entered into a settlement agreement. And while the full details of the settlement are not available, we do know that Kinetic Green’s eBike will be coming back to market, albeit with a nearly insignificant change to its brand name.

ETAuto learns that after settling the matter out of court, a Compromise Petition was filed in the Commercial Courts last week. With this move both parties will withdraw their respective contests in the courts. Under the settlement terms, Kinetic Green will rechristen the Zulu e-scooter as e-Zulu ‘shortly’. It will have another naming layer of Kinetic Green or KG in front of the tweaked brand name.

The article then quotes Kinetic Green talking about how it is satisfied with this resolution.

Which… of course it is? All it has to do is add an “e-” to the Zulu brand name to make the lawsuits go away. The obvious question in all of this is why in the world this is enough to satisfy Yulu. It’s complaint was that the “Zulu” brand was too close in name and sound to Yulu. Slapping an “e-” in front of “Zulu” does little if anything to change that. In other words, if Yulu thought it had a valid concern before, why doesn’t it now?

Perhaps it’s because Yulu’s lawyers warned the company that the suit might be a stinker. Or perhaps the addition of the KG name to the brand was enough to calm Yulu down.

Either way, this sure seems like a lot of time, energy, and effort all for a single letter and a dash.

Filed Under: confusion, ebikes, trademark, zulu
Companies: kinetic green, yulu

Aldi Beats Thatchers In ‘Cloudy Cider’ Trademark Dispute In UK

from the with-a-chance-of-meatballs dept

The last time we saw German-based grocer Aldi get into a trademark tiff over an alcohol product, it was with Brew Dog in the UK and it was one of the most good-natured trademark “disputes” on the record. While that whole thing was refreshing to see, not every company chooses to approach things in a human and awesome way.

Which brings us to Thatchers, based in Somerset, England. Thatchers makes a lemon cider product which it has very creatively named “cloudy lemon cider.” Aldi released its own lemon cider product, calling it “Taurus Cloudy Cider,” noting that it is lemon flavored on the packaging as well. Because of those names, and because the packaging for both products has base colors of lemon and green — because, you know, lemons — Thatchers took Aldi to court for trademark infringement.

Martin Thatcher, a fourth-generation cider maker at the family firm, said it was “compelled” to bring the case “as we were concerned that the packaging of international retailer Aldi’s product was misleading shoppers due to the strong resemblance to Thatchers Cloudy Lemon Cider”.

As you’ll see from the source article below, the product packaging indeed has similarities. That is due to the nature of the product, though. Beyond that, the name of both products, other than the brand names for them, are almost purely descriptive. You ought no more be able to trademark the term “cloudy lemon cider” than you should be able to trademark “hazy IPA.” And, though Aldi has stipulated that it built this product on the standard of Thatchers’ product, that doesn’t suddenly make any of this trademark infringement.

The courts, thankfully, agreed.

Judge Clarke said she was “satisfied on the balance of probabilities” that seeing the Aldi product “would call to mind” the Thatchers trademark, causing “a link in the mind of the average consumer”. But she concluded that Aldi had not infringed and was not liable for “passing off”, adding that the German supermarket’s product did not take unfair advantage of nor was “detrimental” to the reputation of the Thatchers trademark.

Judge Clarke found that Aldi did not develop its product “with an intention to take advantage of the goodwill and reputation” of the Thatchers trademark, adding that she was satisfied “there is no misrepresentation that Aldi is connected in trade with Thatchers”.

That decision is as refreshing as a cloudy lemon cider on a hot summer day. I’m trying to imagine a ruling like this coming out of a United States court and it just doesn’t compute. It would be entirely too easy to note the similar product names, the color schemes in the packaging, and just start screaming infringement and call it a day.

Instead, the judge took the time to actually really think about whether customers were actually going to be confused here, given the larger context of the packaging, the products, and product names. Trademark law could use much more of this sort of thing.

Filed Under: cloudy cider, confusion, descriptive, passing off, trademark
Companies: aldi, thatchers

Another 'Wordle' App Mixup Occurs, Only This Time Recipient Of Undue Rewards Builds Good Will

from the word-up dept

This post was written before the news today that the NY Times was buying Wordle. It will be interesting to see if suddenly “IP issues” start becoming a bigger deal to the NY Times than they were to the original developer…

Just a week or so back, we discussed how one man ripped off Wordle, a browser-based Mastermind style game who’s creator insists be free and unmonetized. In that instance, Zach Shakked copied the game with only a few minor additional features and released it as an app going by the same name, Wordle, only to find that the entire internet decided this was a dick move and helped get the app delisted from Apple and Google stores. That was a story about how one bad actor got dealt with without anyone having to go down intellectual property or legal routes.

Well, here we are again with yet another unaffiliated Wordle app syphoning off money from people who think they’re getting the browser game in an app… only this time the recipient of that undue income is building up a ton of goodwill by not being a jerk about it.

As spotted by GR+, Josh Wardle’s Wordle has led to squillions of confused players (hello!) accidentally downloading a five-year-old app with the same name to their mobile devices. The result being, creator of the other Wordle ended up receiving close to 200,000 downloads in a couple of days. More than it had received in total in the previous five years. And in turn, generating him a whole bunch of advertising revenue.

Steven Cravotta created that app five years ago as a teenager almost strictly to practice his coding skills. When he woke up the other day to suddenly find advertising revenue pouring in from the since-forgotten app, he didn’t simply sit back and start counting all the dollar signs floating before his eyes. Instead, he started tweeting about how weird this all was and how much he wishes that the media did a better job of differentiating between Wordle the browser game and any Wordle mobile app.

If you follow that tweet-thread all the way through, you’ll notice a couple of things. Cravotta spends a lot of time pointing out how weird this all is. Then he mentions that he is reaching out to Wordle creator Josh Wardle to find out what his preferred charity is so he can donate all of this money to the cause of his choice. The two apparently did speak and landed on Boost! West Oakland, an organization that empowers youths in Oakland, California through school tutoring. And, while he was at it, he pointed out that his more recent and professional apps are available.

In other words, he acted reasonable and human, recognizing that this was all a bunch of confused people accidentally downloading his game. As a result, just as the internet went off on what a jerk the Wordle copycat guy seemed to be, so too is it and a bunch of mass media sites reporting on how human and awesome Cravotta is. This is leading more people to his current apps.

Sometimes a little public reaction is all you need, rather than worrying about IP.

Filed Under: charity, confusion, human, intellectual property, josh wardle, steven cravotta, wordle

Oatly Loses Trademark Suit Against Glebe Farm Foods' PureOaty Product

from the oat-brand dept

A couple of months back, we discussed something of a silly lawsuit overseas between Oatly, a large oat-milk manufacturer, and Glebe Farm Foods over its own PureOaty drink. At issue were Oatly’s own trademarks and its claims that PureOaty infringed on those marks. As we noted at the time, because the word “oat” is descriptive of the products in both cases, and with PureOaty using the “pure” as a differentiator among other things, this was a trademark claim that essentially came down to the letter “y”. And, yes, that is dumb. Especially when you consider that there are significant differences when it comes to PureOaty’s trade dress.

There is simply little reason to be concerned about public confusion between those two products when you take everything in sum total. The colors in the branding are different, and the trade dress and placement generally doesn’t lend itself towards public confusion.

And it turns out that the courts in the UK agree.

Judge Nicholas Caddick at London’s High Court dismissed claims by the Malmo-based group that Cambridgeshire-based Glebe Farm Foods, which specialises in gluten-free oats, of infringing trademarks including the Oatly brand name and pack design, and of “passing off” the beverage as Oatly.

In his ruling, the judge said the visual similarity of the names were “very modest” and that there was no evidence of actual confusion among consumers regarding the two products.

Both parties were reached for comment after the ruling. Glebe Farm Foods was understandably pleased with the result, noting that it isn’t always the case that smaller entities like its company can beat large enterprises like Oatly in court, even on the merits. Oatly, for its part, claims it will not appeal the ruling and accepts it, adding that it never actually wanted to harm Glebe Farm Foods in the first place.

Oatly added that it never brought the case to damage Glebe Farm and wanted them “to thrive and help bring products into the world that are good for the planet”. “We wish Glebe Farm total success in their plant-based journey moving forward,” it said.

Kind words, but somewhat tone-deaf given that even Oatly acknowledged that this entire lawsuit was initiated essentially over the letter “y”. That this single character resulted in a lawsuit of all things doesn’t lend a lot of credence to Oatly’s “I’m okay, you’re okay” posture.

Filed Under: confusion, oat milk, pureoaty, trademark, uk
Companies: glebe farm foods, oatly, pureoaty

MSCHF Settles Upgraded Shoe Dispute With Nike And Promises (Wink, Wink) To Buy Back Satan Shoes

from the good-luck-getting-those-shoes-back dept

There were actually a whole bunch of interesting legal questions raised by Nike’s trademark lawsuit against MSCHF the weird “structured chaos” organization that seems to basically sell publicity stunts as a business model. It had teamed up with the musician Lil Nas X to sell 666 pairs of upgrade Nike Air Max 97, complete with red ink (and, it claimed, a single drop of blood) inserted in the sole of the shoe. The lawsuit raised issues regarding first sale/resale rights, art, freedom of expression, trademark, ownership, property, dilution, confusion and more. And… all of it’s going nowhere, because a settlement has been reached.

This isn’t that much of a surprise. MSCHF execs have admitted in the past that lawsuits only raise their profile, which may be true, but they’re also crazy fucking expensive. MSCHF already got the benefit of the publicity bump from the lawsuit, and now probably sought to get things done and over with as quickly as possible — and that includes agreeing to issue a “voluntary recall” of the shoes — 665 pairs of which it had already shipped out. MSCHF also agreed to do the same thing for the much smaller number of Jesus shoes it had sold two years ago in a similar stunt.

Of course, the whole thing seems like a charade. It’s a voluntary recall, in which MSCHF is supposed to buy back the shoes at their original retail prices “in order to remove them from circulation.” But, uh, anyone who has those shoes in their possession now knows that these shoes are way more valuable because of this dispute. I’d be amazed if anyone actually agreed to sell the shoes back to MSCHF, because these shoes just went from already established rare collector’s items, to rare collector’s items with an even more insane story including the fact that Nike wants them to disappear.

In some ways, this form of settlement just shows how ridiculous the lawsuit was in the first place. Nike’s statement on the settlement is hilarious:

?As part of the settlement, Nike has asked MSCHF, and MSCHF has agreed, to initiate a voluntary recall to buy back any Satan Shoes and Jesus Shoes for their original retail prices, in order to remove them from circulation. If any purchasers were confused, or if they otherwise want to return their shoes, they may do so for a full refund. Purchasers who choose not to return their shoes and later encounter a product issue, defect, or health concern should contact MSCHF, not Nike.?

I mean, c’mon. No one who bought this shoe was “confused.” No one’s going to want to return it. And, no one’s going to contact Nike about any “defect” or “health concern.” The whole thing is silly. And yes, that’s even though there were some foolish pundits on certain infamous news channels who tried to make a culture war issue falsely claiming Nike was making these shoes. So, sure, Nike can point to the lawsuit as proof they had nothing to do with the shoes, but responding to the brigade of trumped up controversial people is lame. Pretty much everything about this story has been about posturing, rather than anything substantive.

Filed Under: art, confusion, dilution, first sale, free speech, jesus shoes, lil nas x, satan shoes, tarnishment, trademark
Companies: mschf, nike

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

Is The Digital Services Act Going To Make A Huge Mess Of Website Liability In The EU?

from the sounds-like-it dept

I’ve been so focused of late on issues related to Section 230 in the US, that I’ve had barely any time to devote to the Digital Services Act in the EU, which is the EU’s ongoing efforts to rewrite intermediary law in the EU. The reports I have followed have been a mix of concerns, with the admission that it at least appeared that EU politicians were trying to get a good grasp on the issues and trade-offs and not rush in with a totally horrible plan. That doesn’t mean the end result is good, but so far it does not appear to be totally disconnected from reality, as with many similar proposals we’ve seen around the globe.

Joan Barata has a good report looking at the the current state of intermediary liability in the latest DSA proposal and notes that it’s… kind of a mess. Basically, as is often the case with intermediary liability laws, very few policymakers have experience with the actual issues, and thus they can’t take into account how various provisions will actually work in practice. Frequently that means that proposals are worded vaguely, and no one will really know what they mean until after a series of lengthy, confusing, and expensive court decisions.

As Barata notes, the DSA appears to retain the basic liability protections that have existed for the last two decades in the EU in the form of the E-commerce Directive (which is weaker than Section 230’s protections in the US, but are roughly equivalent in saying that websites should not be held liable for 3rd party content). The big difference with the E-commerce Directive is that websites do need to remove content “upon obtaining actual knowledge or awareness” of “illegal activities.” Of course, what exactly is meant by “obtaining actual knowledge or awareness” becomes a tricky question at times and did involve some lawsuits.

The DSA, though, moves the liability situation further away from Section 230 and more to a DMCA style “safe harbor” situation, by establishing that knowledge can be obtained through “notices”:

Apart from the provisions included in Article 5, Article 14(3) establishes that notice and action mechanisms fulfilling certain criteria give rise to actual knowledge or awareness.

The DSA tries to avoid the classic “moderator’s dilemma” issue by saying that even though knowledge or awareness could make you liable, you don’t necessarily lose your liability protections if you carry out your own investigations:

Article 6 clarifies that intermediaries may not lose their liability protections ?solely because they carry out voluntary own initiative investigations or other activities aimed at detecting, identifying and removing, or disabling of access to, illegal content, or take the necessary measures to comply with the requirements of Union law, including those set out in this Regulation?.

But what does that mean in practice? You can lose the protections if you know about illegal stuff on your website, but you don’t lose them if you are doing your own investigation. But at what point does finding stuff during your own investigation magically morph into knowledge or awareness? Well, the answer seems… contradictory. Basically, it sounds like the current draft of the DSA hangs an awful lot of weight on the word “solely.” If illegal content is discovered “solely” via an investigation, then a site might retain its protections — but if that same content is discovered in any other way, then the site may have knowledge and face liability. This… is going to be confusing.

And, again, this tends to be the problem with all of these proposals. They want to encourage sites to moderate to clean up bad stuff, but if they mandate liability for having knowledge of bad stuff, you incentivize less searching. But now you are still left in a weird, twisted position, where you say “okay, you can search, but if you find stuff, you’re no longer liable for it… unless you also have separate knowledge of it.” And how do you manage that?

This is actually one of the many reasons why — despite all the criticism it receives — Section 230 gets the balance right. It gives websites a free hand in moderating content, but does so in a way that many, many other forces come into play in pressuring the company to be a good actor in the space. Public pressure, user concerns, media coverage, and advertiser pressure, all serve to push websites to improve their moderation practices. Too many people, however, think that without a law mandating such things, nothing happens. That’s wrong. We’re seeing every website continually work to create better policies not because of the risk of some confusing and potentially very costly law, but because they don’t want their site to be a dumpster fire of awful.

Filed Under: confusion, digital services act, dsa, e-commerce directive, eu, intermediary liability, knowledge, monitoring, notices, section 230

Twitter Opposes 'Tweet' Trademark Application For Bird Food Company

from the chirp dept

Way back in the simpler time of 2010, Mike wrote up an interesting piece on Twitter’s trademark enforcement policies and how it handles third parties that interact with Twitter using Twitter-related terms. In short, Twitter built a reputation for itself in freely licensing these terms for use by third parties, believing that tools that made Twitter more useful were good for the platform overall. It was a smart, productive way of looking at protecting trademarks so as not to lose them to genericide.

Which is part of what makes it sort of strange that Twitter seems to take the opposite tact when it comes to totally unrelated business entities attempting to trademark terms like “tweet.”

On Friday, Twitter filed a notice of opposition before the Trademark Trial and Appeal Board against applicant Puerto Rican company B. Fernandez & Hnos.’s application for the TWEET mark, asserting that it will be harmed if the applicant’s mark is registered.

Twitter pointed out that the messages on its platform are called tweets. The marks are used in connection with the aforementioned goods and services, along with other goods and services. Twitter argued that it has established extensive common law rights in the TWEET mark in connection with its goods and services and that the TWEET mark is distinctive.

There’s no doubt that “tweet” has taken on fame as a result of Twitter’s platform, trademarks, and marketing of itself. But there is still a matter of actual or potential customer confusion on specific uses to contend with and the problem with that is that B. Fernandez & Hnos. is a maker of bird food. In that context, the term “tweet” doesn’t call back to Twitter at all, because it fits naturally in with the nature of the product in question.

For some reason, Twitter’s opposition seems to think the opposite.

Twitter claimed that the applicant seeks to register the TWEET mark in International Class 31, covering bird food. However, Twitter alleged that “consumers will likely associate Applicant’s TWEET Mark with Twitter and the TWEET Goods and Service and will assume there is a relationship between Applicant and Twitter. Twitter asserted that the applicant’s TWEET mark is identical to its TWEET mark, would be “advertised and/or sold in identical or similar channels of trade as Twitter’s and Services”, and would “conflict with Twitter’s lawful and exclusive right to use the TWEET Mark nationwide in connection with Twitter’s Goods and Services.” Consequently, Twitter averred that this similarity is likely to cause consumer confusion, mistake or deception regarding the source, origin, or sponsorship of the respective goods and services.

In other words, Twitter’s “tweet” is so famous that a brand of bird food that includes “tweet” will be seen as associated more with Twitter than with bird food. And that’s plainly ridiculous.

And so, again, we’re left with a company that acts quite good on one set of trademark issues, but is, at least, a bit overly aggressive on others.

Filed Under: bird food, confusion, dilution, trademark, tweet
Companies: twitter

Content Moderation Case Study: Removing Nigerian Police Protest Content Due To Confusion With COVID Misinfo Rules (2020)

from the moderation-confusion dept

Summary: With the beginning of the COVID-19 pandemic, most of the large social media companies very quickly put in place policies to try to handle the flood of disinformation about the disease, responses, and treatments. How successful those new policies have been is subject to debate, but in at least one case, the effort to fact check and moderate COVID information ran into a conflict with people reporting on violent protests (totally unrelated to COVID) in Nigeria.

In Nigeria, there?s a notorious division called the Special Anti-Robbery Squad, known as SARS in the country. For years there have been widespread reports of corruption and violence in the police unit, including stories of how it often robs people itself (despite its name). There have been reports about SARS activities for many years, but in the Fall of 2020 things came to a head as a video was released of SARS officers dragging two men out of a hotel in Lago and shooting one of them in the street.

Protests erupted around Lagos in response to the video, and as the government and police sought to crack down on the protests, violence began, including reports of the police killing multiple protesters. The Nigerian government and military denied this, calling it ?fake news.?

Around this time, users on both Instagram and Facebook found that some of their own posts detailing the violence brought by law enforcement on the protesters were being labeled as ?False Information? by Facebook?s fact checking system. In particular an image of the Nigerian flag, covered in blood of shot protesters, which had become a symbolic representation of the violence at the protests, was flagged as ?false information? multiple times.

Given the government?s own claims of violence against protesters being ?fake news? many quickly assumed that the Nigerian government had convinced Facebook fact checkers that the reports of violence at the protests were, themselves, false information.

However, the actual story turned out to be that Facebook?s policies to combat COVID-19 misinformation were the actual problem. At issue: the name of the police division, SARS, is the same as the more technical name of COVID-19: SARS-CoV-2 (itself short for: ?severe acute respiratory syndrome coronavirus 2?). Many of the posts from protesters and their supporters in Lagos used the tag #EndSARS, talking about the police division, not the disease. And it appeared that the conflict between those two things, combined with some automated flagging, resulted in the Nigerian protest posts being mislabeled by Facebook?s fact checking system.

Decisions to be made by Facebook:

Questions and policy implications to consider:

Resolution: After the incorrectly labeled content began to get attention both Instagram and Facebook apologized and took down the ?false information? flag on the content.

Yesterday our systems were incorrectly flagging content in support of #EndSARS, and marking posts as false. We are deeply sorry for this. The issue has now been resolved, and we apologize for letting our community down in such a time of need.

Facebook?s head of communications for sub-Saharan Africa, Kezia Anim-Addo, gave Tomiwa Ilori, writing for Slate, some more details on the combination of errors that resulted in this unfortunate situation:

In our efforts to address misinformation, once a post is marked false by a third party face checker, we can use technology to ?fan out? and find duplicates of that post so if someone sees an exact match of the debunked post, there will also be a warning label on it that it?s been marked as false.

In this situation, there was a post with a doctored image about the SARS virus that was debunked by a Third-Party Fact Checking partner

The original false image was matched as debunked, and then our systems began fanning out to auto-match to other images

A technical system error occurred where the doctored images was connected to another different image, which then also incorrectly started to be matched as debunked. This created a chain of fan outs pulling in more images and continuing to match them as debunked.

This is why the system error accidentally matched some of the #EndSARS posts as misinformation.

Thus, it seems like a combination of factors was at work here, including a technical error and the similarities in the ?SARS? name.

Originally posted to the Trust & Safety Foundation website.

Filed Under: confusion, content moderation, covid, filters, nigeria, sars
Companies: facebook

Girl Scouts Continuing To Fight Boy Scouts Of America Over Trademarks, Branding

from the scout's-honor dept

While Techdirt generally and myself more specifically tend to fall on the side of a more permissive philosophy when it comes to policing trademarks, there are certainly times when one entity or another crosses the line. As it happens, it seems somewhat common that those lines get crossed by parties that have themselves been quite aggressive in policing their own IP. When the Girl Scouts of America (GSA) sued the Boy Scouts of America in 2018 over the rebranding BSA went through after finally allowing girls to join, it was not difficult to see the GSA’s side of things. Essentially, what was The Boy Scouts of America became simply Scouts BSA, which did away with the core gender distinction that drew a shiny line between the two organizations in the public sphere. GSA provided real world examples of confusion in the public, with stories of some families thinking or being told that BSA and GSA had merged, and others having intended on signing their daughters up for GSA and ending up in Scouts BSA.

In the end, this ultimately was caused by the cavalier attitude Scouts BSA took to its rebranding. A moment’s thought would immediately have brought these concerns to light, but Scouts BSA plowed ahead.

And now that cavalier attitude appears to have continued, with GSA issuing another filing against BSA over further rebranding efforts its undertaken.

In its filing, the Girl Scouts said the Boy Scouts’ marketing of expanded services for girls was “extraordinary and highly damaging to Girl Scouts” and had set off an “explosion of confusion.”

“As a result of Boy Scouts’ infringement, parents have mistakenly enrolled their daughters in Boy Scouts thinking it was Girl Scouts,” the lawyers said, adding that this never occurred before 2018.

At issue here are numerous instances of Scouts BSA groups either blurring the lines in recruitment advertisements, or outright creating confusion. In the cases that are less clear-cut, GSA alleges that Scouts BSA advertised recruitment referencing simply “scouting” or “scout me in” alongside images of young women. In the more clear instances of sowing confusion, Scouts BSA groups advertised “girl scouting”, which seems like a fairly flagrant infringement of GSA’s trademarks.

And then there are some allegations that are nearly too brazen to believe.

The lawyers said Boy Scouts councils in Illinois acknowledging improperly using the Girl Scouts’ slogan in Cub Scout recruiting materials and pictures of Girl Scouts to promote a Boy Scouts “Scouts Sign-Up Night!”

They said a western Massachusetts Boy Scouts council posted a recruiting flyer on Facebook including a photograph of a girl depicted in her Girl Scouts Brownie uniform.

Meanwhile, Ohio Boy Scouts used the Girl Scouts trademark to try to get a local newspaper to write an article, suggesting a storyline entitled “Boy and Girl Scouts Looking for Members” even though the recruitment involved only the Boy Scouts, the lawyers said.

This, again, from an organization that has a fairly clear track record as being quite aggressive in the enforcement of its own IP. Hell, back before the rebrand, the BSA lobbied Congress for its own special law to allow it to be an even bigger trademark bully.

All of which is to say that it’s very hard to be on Scouts BSA’s side of any of this.

Filed Under: boyscouts, confusion, girl scouts, scouts, trademark
Companies: boy scouts of america, girl scouts of america