EU Court Of Justice Says Selling Ads On Trademarked Keywords Is Not Trademark Infringement

from the good-news dept

It seems like it should be common sense that Google isn't violating any trademark laws because some of its customers buy ads using keywords from other's trademarks. Trademark is about consumer protection -- keeping people from getting confused and buying one product believing it's made by someone else. It's only a recent phenomenon that trademark holders have tried to stretch and extend trademark to mean they get to control all uses of it and shut down any use they don't like. But having ads for competing products show up when someone's looking for a brand seems like perfectly reasonable competition. Still, luxury brands, such as LVMH (Louis Vuitton Moet Hennessey), Tiffany, L'Oreal and others keep bringing lawsuits. LVMH won a case against Google in France, but that case moved up to the European Court of Justice, and senior judge there has now stepped in and said that selling ads shouldn't be trademark infringement, though a full decision is still a few months (at least) away. There's also an odd caveat: "Google could be held liable if brand owners could show that Google's ads had damaged their trademarks." What, exactly, does that mean? I'm guessing it's something similar to the already troubling "dilution" standard used in the US, but it seems impossibly vague and open to interpretation (and countless lawsuits).

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Network Solutions Decides To Obscure Common Words, Just To Get Some Trademarks?

from the this-is-no-longer-a-blog,-it's-an-nsSpaceLog dept

johnjac points us to a nice little rant from John Graham-Comming about how Network Solutions has obfuscated the common (and easily understood) names of a bunch of its basic services. So, "Domains" has become "nsWebAddress," "web site" has become "nsSpace" and "SSL Certificates" becomes "nsProtect." Why? Well, the speculation in the comments is that this is all for trademarking purposes -- as each of those new terms is accompanied by the old (TM) mark. But, of course, it just makes things that much more confusing for users. Once again, this idea that "more patents/copyrights/trademarks must be a good thing" is put to the test...

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Hotels.com Not Unique Enough To Get A Trademark

from the the-.com-isn't-unique? dept

Eric Goldman points us to the news that Hotels.com has had the trademark application on its own name rejected (warning: pdf) as being too generic. I have to admit I'm really, really surprised about this. I would think that the combination of "hotels" with a ".com" on the end switches it from being generic to distinct, since there's only one hotels.com. However, the trademark board and the court note that there are lots of other sites that use a combination of hotels and .com, such as www.all-hotels.com, www.web-hotels.com, www.my-discount-hotels.com. That could be true, but I think those are all different enough themselves from the straight hotels.com that even getting a trademark on hotels.com alone shouldn't prohibit those other sites from existing. But that's not what the court found, noting that hotels.com itself was perfectly generic and unprotectable by trademark. It's not clear how much this would actually matter, since anyone else using the phrase will ultimately end up helping to advertise hotels.com itself. However, it does raise significant questions about trademarks on other generic words plus a .com at the end.

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Yet Another Misguided Lawsuit Over Google's AdWords, This Time From Rosetta Stone

from the blame-the-real-party! dept

It's getting a bit tiresome to see these types of lawsuits, but Eric Goldman notes that this appears to be the ninth such lawsuit against Google, claiming trademark violations for allowing people to buy AdWords on trademarked terms (or suggesting them as keywords). This time the company suing is Rosetta Stone, but the complaint is basically the same. In fact, it uses the same lawyers and apparently the same boilerplate language as some previous lawsuits (wonder if they charge full price for reusing the same text?). The problem is the same, however. It's a general misunderstanding of the purpose of trademark law, which does not give the trademark holder full control over the trademark, but merely is designed as consumer protection to stop confusion among buyers or, possibly, dilution of the trademark. But that does not prevent the use in competitive advertisements. And, even if it did the liability would be on the advertising party, and not Google. But Google has the cash, so everyone sues Google.

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Husband Sues Google For Patent Infringement; Wife Sues Google For Trademark Infringement

from the money-money-money-money dept

On Friday, we mentioned in passing that a class action lawsuit had been filed against Google, claiming that its allowance of trademarked terms to be used in keyword advertising was an abuse of trademark law. Eric Goldman had an interesting analysis of the case, noting that it was the first such attempt to create a class action lawsuit around this issue. As we've discussed, such lawsuits don't make much sense. First, there's no violation of trademark in running an ad against a trademarked keyword (there's no confusion by the user and there's no dilution of the mark). Second, even if there is trademark infringement, the infringer would be the company taking out the ad, not Google. But why let that stop a chance to score millions from Google.

When I saw the NY Times coverage of the lawsuit, it caught my attention that the woman behind the lawsuit was named Audrey Spangenberg, because it reminded me of Erich Spangenberg, a rather notorious patent hoarder who has made millions producing nothing, but suing an awful lot. This is the same Erich Spangenberg who had to pay $4 million after he was caught shuffling patents around among his many different shell companies, so that he could sue Chrysler three times over the same patent, despite earlier settlements promising never to use the same patent against Chrysler again.

Still, I figured it must be a coincidence -- surely, there must be a fair number of Spangenbergs in the world. However, Joe Mullin, IP reporter extraordinaire, has a detailed post explaining that the two are, in fact, married, and also detailing how Erich Spangenberg has sued Google multiple times for patent infringement. Apparently, the family is branching out into questionable trademark lawsuits as well. Audrey Spangenberg claims (don't they always?) that the lawsuit is about "respect for intellectual property" rather than money. So, I'm sure that she'll gladly donate any money she and her husband make from all these lawsuits to groups that respect intellectual property, such as Creative Commons, EFF or the Free Software Foundation, right?

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Shocker: Monster Cable Still Up To Its Old Tricks

from the speaks-to-credibility-your-honor dept

Right after the first of the year, it looked like Monster Cable might be taking a new tack in its trademark "strategy", after it dropped a lawsuit against a company called Monster Mini-Golf. Monster Cable has a long history of suing lots of business -- no matter what line of work they're in -- that use the word monster in their name, but given the backlash against it and its subsequent apology in the mini-golf case, it seemed that maybe, just maybe it was changing its ways. That was false hope, apparently, as it's now going after a company called Monster Transmission (via Engadget). The cable company apparently claims it "has no issue" with the transmission company, but that's news to one of its owners. Monster Cable also claims the suit was filed before its backdown in the Monster Mini-Golf case, as if that's supposed to make it okay. But if the company really "has no issue" -- why not just withdraw the suit?

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Utah Allows Elected Official To Lobby... And Vote For Bill Her Company Is Pushing

from the utah-politics-at-work dept

Tim already covered some of the problems with Utah's repeated attempts to ban (or greatly limit) keyword advertising on trademarked terms. However, there were two separate disturbing issues related to this, both brought up by Eric Goldman, that seemed worth discussing. Both involve two of the legislators who voted on the bill. The first, Rep. S. Clark, voted against the bill, but for flabbergasting reasons. You see, it wasn't that he disliked the idea that companies would be blocked from advertising on competitive keywords, it was because he wanted to pin all the liability on Google:

"We should be going after the Googles that are creating this problem. They're the villains." .... "If we're going to use the strength and resources of the state to go after businesses, then we ought to go after the business that is causing the harm. ... We ought to go after the Googles with the state's resources and reputation."

Then, there's Rep. Jennifer "Jen" Seelig, who voted for the bill. But, that shouldn't be surprising. You see, even though she's an elected official in the state legislator, she's also still employed as a registered lobbyist for 1-800 Contacts, the company that has been pushing the bill. Apparently that sort of conflict of interest isn't seen as a problem in Utah.

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Who Says Users Don't Want Competitors' Ads in Search Results?

from the complex-markets dept

A couple of years back we noted that the Utah legislature was considering legislation that would have banned companies from buying search ads related to their competitors' brand names. EFF and others said the law was likely unconstitutional, but the legislature passed it anyway. The legislation was such a disaster that last year the Utah legislature repealed it. Incredibly, despite all the negative publicity the 2007 bill received, and despite assurances from legislators that they'd learned their lesson, the backers of the legislation haven't given up. This year they introduced yet another bill restricting keyword advertising that passed the Utah House but died in the Utah Senate a few days ago. Given the tenacity of the bill's sponsors—1-800-Contacts is reportedly the leading backer of the proposal—the proposal may very well come back in future years.

Proposals to regulate keyword advertising have come in for a lot of criticism, but one person who's willing to defend the Utah proposal is Harvard's Ben Edelman. He argues that the Utah bill is necessary to avoid consumer confusion. He suggests that when consumers search for a trademarked term (say, "Hertz"), they're expecting to see search results related to that company, not to the company's competitors. He argues that if a consumer really wanted results from a variety of different companies, she would have chosen a generic term like "car rental" rather than a specific brand name. But James Grimmelmann points out a couple of problems with this reasoning. First, it shows an awfully low opinion of the intelligence of the average consumer. More importantly, there are circumstances where a consumer wants to see ads for a firm's competitors. For example, a consumer may be considering buying a particular company's products, but might want to check out that company's competitors before making her decision. Searching for that company's name is a quick and easy way to find out which other companies consider themselves to be in the same market. In contrast, the customer may not know which generic terms precisely describe that company's market. In Grimmelmann's example, it might be easier to ask for all companies in the same market as "Godiva" or "Hershey's", rather than having to describe precisely which segment of the chocolate market we're interested in.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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How Nordstrom's And The USPTO Have Destroyed One Small Business

from the good-going dept

Jim Harper has the story of how the combination of a screwup at the US Patent & Trademark Office (USPTO) and a bunch of overly aggressive lawyers at Nordstrom's have made life incredibly difficult for a small business that has done everything right. That business, an "organic" lifestyle clothing company, filed for a trademark on those clothes using their company name: Beckons. After this small business filed for the trademark, but before that information was published, the big department store Nordstrom's filed for a trademark on the word "Beckon" for women's clothing. This happens at times, but the small company was there first, and the proper response from the USPTO is to reject the latter registration.

That didn't happen.

The USPTO flat-out screwed up and approved Nordstrom's application for publication (effectively moving the process forward). That meant that the small Beckons company had to spend thousands of dollars opposing Nordstrom's trademark registration. Thousands of dollars they shouldn't have had to spend if the USPTO had done its job right in the first place. Now, again, at this point, the facts are pretty straightforward, and even though the USPTO screwed up initially, the next step should be that the USPTO admits its mistake and everything moves on again.

But that's when Nordstrom's lawyers apparently got involved. Rather than recognizing the obvious truth (they have no claim on the mark Beckon and should give it up), they went into attack mode -- and tried to have the original Beckons trademark canceled, arguing that it really only was used for "yoga clothing" as opposed to a wider array of apparel. The case went to the appeals board -- meaning more legal costs for the small company. It was at this point, that the USPTO actually realized their original mistake, transferred Nordstrom's trademark app back to the original approver -- where it was rejected as being too similar to the Beckons clothing line. Again, at this point, despite the massive legal costs and mistakes and overly aggressive lawyers, you'd hope the matter would be done with.

No such luck.

Nordstrom's lawyers filed another complaint against the original Beckons trademark, claiming that they had abandoned their rights to the mark, once again sending everything to the Appeals Board (more legal bills!) only to have the filing dismissed, after it was realized that Nordstorm's original request to cancel the Beckons trademark was still out. And, in fact, that attempt to cancel the trademark is still active, but is in a long queue of cases to hit the Appeals Board -- meaning that the small company behind Beckons still has plenty more to spend on legal bills, and plenty of uncertainty concerning the simple trademark they filed for a few years ago.

While we often rail against problems with patent and copyright law, the purpose behind trademark law is entirely different It's a consumer or fraud protection law -- designed to make sure consumers aren't tricked into believing one product is associated with another company. Yes, it's all too often abused, but the small clothing company behind Beckons was doing exactly the right thing... and a mistake and some aggressive lawyering seem to have left them in a bad spot. The USPTO should fix things and Nordstrom's should drop its ridiculous vindictive legal attack against the much smaller company.

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Psion Gets Google To Ban 'Netbook' In Ads

from the doesn't-look-that-way... dept

Late last year, we wrote about Psion's attempt to reclaim the word "netbook." Years back, the company had a marginally popular product with that name -- though it no longer offers such a product. The company was apparently upset at the commercial use of the word "netbook" which is commonly being used to describe cheap, small laptops like the EeePC. jkOnTheRun now has a story -- direct from Psion PR -- claiming that Google has agreed to block Google ads that use the term after recognizing that Psion has a trademark on the term.

Of course, advertisers can still advertise using the keyword "netbooks" but are apparently barred from actually using the word in the advertisement itself. So a search on "netbooks" still shows ads -- just none of those ads say "netbooks" anywhere. Thus, if you look at the netbooks search, you see all the ads refer to things like "mini notebooks."

This seems pretty pointless all around. As much as Psion may wish it still holds onto the name of a product it stopped selling years ago, the term has become generically accepted as referring to this generation of small and cheap notebook computers. Psion has had nothing to do with the current value in the word, and its attempt to take back control over the word it abandoned years ago is not, at all, what trademark law was intended to allow.

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Another Bad French Ruling Against Google Over Trademarked Adwords

from the this-again? dept

It's amazing that after all these years, we're still seeing these types of lawsuits -- with these types of results. It involves the question of whether or not a company can buy an AdWords advertisement on Google using keywords that are trademarked by a competitor -- and then, secondarily, if this is trademark infringement, whether or not Google is liable. I have trouble seeing how the answer to the first question is even a yes, but French courts have repeatedly said yes not just to the first one, but to the second question as well. This time Google is being fined hundreds of thousands of euros for allowing certain trademarked words to have advertisements run against them.

It's hard to see how this makes any sense at all. First, unless the ads are designed to confuse someone, there should be no question that ads against a competitor's keywords are perfectly legal. There's no customer confusion (the point of trademark law). It's no different than having your product placed on the grocery store shelf next to competing products, or (as is quite common in supermarkets these days) having a coupon print out for your product when you buy a competing one. Claiming this is trademark infringement is just a weak attempt to stifle competition by brands that don't want to compete.

That said, even if you somehow think that this is trademark infringement, it's an even bigger stretch to then pin the liability on Google. The actual party doing the "infringing" would be whoever bought and created the advertisement. Going after Google is a Steve Dallas defense: going after the biggest company that, tangentially, is involved just because it has the biggest bank account. Sure, Google makes money from the ads, but that shouldn't create liability any more than the guy who sells the paints that are used to paint a trademark-infringing billboard is liable for what's painted. Like the paint seller, Google is just a tool provider and has nothing to do with the content. Unfortunately, this bit of common sense still hasn't made it into the French court system.

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Do Morons In A Hurry Rent Moving Vans?

from the uHauled-what-now? dept

I recently became aware of yet another lawsuit where it looks as though a big companies with deep pockets appears to be bullying a small competitor through questionable use of intellectual property laws. The lawsuit was filed by uHaul against a small startup called HireAHelper, but also against HireAHelper's founder and his wife personally. You can see the full filing here:

The main gist of the story is that Michael Glanz had signed up with a uHaul subsidiary, named eMove, offering his services as a mover. Later, Glanz ended up starting his own startup called HireAHelper, in part claiming that his experiences with eMove made him believe he could do a better job helping people find a variety of helpers (beyond just moving help apparently). Of course, here in the US, there's a long history of people breaking off from a service or company they found inadequate and creating a better competitor. That's competition, and it drives innovation. But, to uHaul, apparently it's a threat that needs to be stamped out.

The lawsuit covers a variety of different charges, almost all of which seem questionable from what's presented. The most complete charge appears to be trademark violations, but the two trademarks in question seem highly questionable by themselves: "Moving Help" and "Moving Helper" which are both generic and descriptive -- which are two no-nos in getting a trademark. If we applied our ever popular moron in a hurry test, it seems unlikely that anyone (even folks who worked for uHaul) would be confused and believe that HireAHelper was somehow connected to eMove/uHaul.

After that, it appears that uHaul's lawyers just threw everything they could think of at Glanz and his company: including copyright infringement (of what? not clear), "business method material" (here in the real world, we call that competition and think it's a good thing), design logos (of what? not clear) and trade secrets. There may be more to the trade secrets claim, as the lawsuit provides almost no details other than to suggest that the trade secrets are from being a member of eMove -- something that many, many, many other people are, so it's difficult to see what the trade secrets are since most of the info is widely known.

Given how there are so many different claims without a clear explanation, I contacted uHaul by phone and email a week ago with a list of questions, hoping they might provide some more details and clear up some of the confusion over the lawsuit. To date, there has been no response (I can't even get a "no comment" apparently). From what we've seen, it certainly sounds like uHaul is simply lawyering up to get a much, much smaller competitor to shut down, in part because he was better at getting his site listed well in Google compared to eMove. Consider it the crime of being a better marketer.

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Covering Up Any Brand In Beijing That Hasn't Paid To Sponsor The Olympics

from the ip-insanity dept

Every time you think that the Olympics' bizarre obsession with extra-ordinary protections on intellectual property took a step beyond ridiculous, you were probably just underestimating the International Olympic Committee, who will just keep going further and further. You may recall the efforts put forth by the IOC to get special trademarks on certain words, like 2010 and Vancouver and 2012 and London, since that's where the next two Olympics will take place. While it seems ridiculous to be able to get trademarks on such things (and goes against the very purpose of trademark law), politicians seem to bow down to the Olympics. But that was just the start.

The Olympics has threatened any non-sponsor advertiser from even mentioning the Olympics, banned people in the stands from wearing clothing that has the logos of competitors to sponsors and even insisted that its security technology choices would be limited to sponsors, even if others had better technology.

The latest, however, may be the most ridiculous. All over Beijing, the brands of non-sponsors are being covered up by Olympic officials so that no one thinks that faucet maker American Standard got a "free ride." Seriously. They're putting tape over the brand name on faucets. And on light switches. And the headphones used by reporters and many other places where perfectly normal brands might occur. They've even covered up the name of a major hotel in Beijing, because it's not an Olympic sponsor.

In media centers, dormitories and arena bathrooms, pieces of tape cover logos of fire extinguishers, light switches, thermostats, bedroom night tables, soap dispensers and urinals. The Taiden Industrial translation headsets in a large conference room have had their logos covered, as have the American Standard faucets in the bathrooms nearby, and the ThyssenKrupp escalators down the hall. Even the sign atop the InterContinental Beijing Beichen hotel, attached to the Main Press Center, has been obscured by an Olympic cloth wrap. InterContinental Hotels Group isn't an Olympic sponsor.

Why? Well, the IOC claims that it's necessary:

The International Olympic Committee says that such "brand protection" is essential for the Games to raise the corporate money that keeps them going and growing. The Games get 40% of their revenue from sponsors, with the rest coming from broadcast rights, ticketing and licensing.

A few quick responses to that whopper of a statement:

• The purpose of trademark law is not to protect the ability of the Olympics to make a profit. It's to avoid people being confused into thinking one product is made by someone else.
• Even if it's important for the Olympics to make money off of sponsors, it's difficult to see why that would necessitate blocking everyone else's brands. No other event does this, and those events make out just fine.
• Couldn't some of the covered up brands make the exact same response back? American Standard sold its faucets at a certain price, knowing that it would get some brand recognition from having its brand on the faucets. By blocking that, aren't the Olympics denying American Standard's "essential brand protection" that it needs to keep making money?

Once again, the true spirit of the Olympic games seems to be in absolutely trashing the meaning and purpose of intellectual property laws.

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American Airlines And Google Settle Keyword Advertising Spat

from the too-bad-it's-secret dept

Despite lawsuit after lawsuit ruling in favor of Google whenever a company sued Google because one of their own competitors was buying keywords based on their trademarks, American Airlines decided to get in on the game as well. Since American Airlines was probably the biggest company to take on Google in this manner, some undoubtedly were hoping that it might actually be able to succeed. However, the two companies have now settled the case. And, while the terms of the deal remain secret, Eric Goldman checked the ads on Google and doesn't see anything that indicates that Google has changed its usual practice of allowing non-confusing ads.

In other words, it sounds like American Airlines lawyers finally looked at the details of earlier rulings and realized the company had close to no chance of winning this. A trademark does not give the holder complete control over the use of the word, and a competitor using the word for competitive advertising is completely legal, so long as they're not using it in a way that is likely to confuse a consumer. Even more important, if there's any liability, it should be on the other advertisers, not Google, which is merely the platform provider.

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Internet Marketer Tries To Trademark 'SEO'

from the *sigh* dept

Similar to the guy who tried to register a trademark on the term cyberlaw, it turns out that some internet marketing guy is trying to get a trademark on the term "SEO" (thanks to Eric Goldman for pointing this out). SEO, of course, is a very generic acronym for "search engine optimization" and has been used for ages (not, as the guy claims, since early 2007). The link goes through, in rather great detail, how the Trademark folks turned this guy down multiple times, and he kept adjusting the trademark application, occasionally in totally nonsensical ways -- but eventually it seems as though people in the USPTO simply threw up their hands and said "whatever, let it through...." It's now at the stage where the USPTO is waiting to see if anyone objects to the filing, so hopefully with enough folks in the SEO filing objections this one will get completely rejected.

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Engadget Mobile Threatened For Using T-Mobile's Trademarked Magenta

from the morons-in-a-hurry dept

We've certainly seen some dumb trademark lawsuit threats lately, but T-Mobile parent Deutsche Telekom's supposed threats to Engadget may take the cake. It's not that extraordinary for a company to trademark a distinct color that it uses in its logo, and that's exactly what T-Mobile did last year with a trademark (in Germany only) on the color magenta. Now, it's important to realize that this doesn't mean T-Mobile "owns" that color or can forbid anyone else from using it. It really just means that competing providers offering similar goods and services might run into trouble for using the same color, potentially leading to consumer confusion. When this news broke, plenty of people got up in arms, suggesting that T-Mobile "owned" magenta, which just isn't true. However, it does look like its lawyers think it gives them rights far beyond what it actually does.

According to Engadget, Deutsche Telekom lawyers have sent a nastygram to Engadget, because the blog uses magenta in the logo for its sister site, Engadget Mobile. Of course, it's hard to believe that anyone would go to Engadget Mobile and believe it was somehow affiliated with T-Mobile. The logos are quite different, and the services they offer (obviously) are totally unrelated. In fact, this whole thing seemed so ridiculous that I assumed it was an April Fool's joke -- though the folks at Engadget insist it's not. And, if you want icing on the cake, last year Engadget was one of a few sites that defended T-Mobile for its magenta trademark when it became news last year.

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Unnecessary Anti-Phishing Law Potentially Even Worse Than First Thought

from the totally-unnecessary-and-totally-damaging dept

Last month, we wrote about a bill proposed in the Senate that would outlaw phishing even though phishing is already illegal. If it merely restated that phishing was illegal, that would be one thing (a basic waste), but it also added some other points that were problematic, including taking away the right to anonymity in registering domain names. It turns out the bill may actually be much worse than that -- but it may depend on how it's read. The EFF has gone through the bill and claims that the bill would also outlaw the use of a trademark in a domain name. Thus, things like "sucks sites," which are currently legal, could now be considered illegal. The EFF also claims that it would not allow you the use of someone else's domain name in an email, web ad or on a website. As the EFF notes, if the domain name is used in a confusing manner, that's already a trademark violation. To completely ban it seems not just over the top, but dangerous. If you look through the text of the bill, it does seem to grant some leeway in determining what actually constitutes phishing, but it's certainly broad enough that the law can be abused. Considering that it isn't at all necessary since existing laws cover phishing, is there any reason to allow this bill to go forward, other than to have some Senators get a headline in their local newspapers about how they're tough on phishing?

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UK Court Recognizes That Keyword Advertising Isn't A Trademark Violation

from the mr-spicy-mr-spicy-mr-spicy dept

While US courts have gotten much better lately at realizing that keyword advertising is not, by itself a violation of trademark law, judges in some other countries have had trouble recognizing the same thing. France, in particular, seems to have judges who consistently are confused over the matter. Remember, the purpose of trademark law is not to give total control over the mark to the holder, but to prevent consumer confusion. It's so they're not tricked into buying Bob's Cola thinking that it's Coca Cola. If someone does a search on a trademarked term, and it shows a variety of ads, including from competitors to the holder of the trademark, that's not a violation of trademark -- it's just competition. It certainly isn't trademark infringement on the part of the search engine, who is merely hosting the ad. If anything, it might be trademark infringement on the part of the advertiser, but only if the ad itself is somehow designed to confuse the consumer.

Thankfully, it looks like the High Court in the UK has recognized the issues at play and has come out with a ruling more like the American courts than the French courts, noting that there is no trademark violation for search engines in these cases. This specific case involved Yahoo, who was getting sued by someone who owned a trademark on "Mr Spicy." He claimed that competitor's ads were showing up when someone searched on "Mr Spicy." That was true, but it wasn't even because anyone had set up keywords on "Mr. Spicy." They had merely set up keywords on "spicy," which still showed up on a search for "Mr Spicy." Of course, even if it had been on "Mr. Spicy" it wouldn't have mattered much, since it still wasn't Yahoo's issue. Also, the court seems to recognize that since the ads themselves don't even refer to Mr Spicy, it's hard to see how there's any loss or confusion that would violate the trademark. Hopefully other courts around the world will start employing similar logic as well.

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Trademarking Pwnage

from the pwned! dept

The folks over at Against Monopoly alert us to the fact that a Finnish software/gaming development company has applied for a US trademark on the term "pwnage" in the video game space. You'd think that the nearly 2 million Google results that show up on the term would suggest that it's already generic and not deserving of a trademark, but I guess we'll find out what the USPTO has to say about the matter soon enough.

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The Naked Cowboy Has A Trademark And A Lawyer... And He's Not Afraid To Use Either

from the our-wonderful-society dept

Eric writes in to let us know of a rather odd trademark infringement lawsuit going down in New York. It appears that "The Naked Cowboy," a Times Square institution (he's basically a guy who plays a guitar in Times Square in a cowboy hat and underwear) not only has a trademark on the concept, but he's suing the Mars Company for a video billboard it put up in Times Square (of course) showing animated M&Ms prancing around in cowboy hats and underwear in a virtual Times Square. As the article above reports, the guy may actually have a case of trademark infringement under current laws, though $6 million seems a bit excessive no matter how sure the cowboy (real name: Robert Burck) is of his chances. The real question, though, is whether or not this makes any real sense. The purpose of trademark law is to prevent consumer confusion. It's to prevent Bob's Cola from labeling its bottles as Coca Cola and getting people to buy something other than what they think they're buying. Is that the case here? Will M&Ms buyers be confused? I doubt it, even when we apply the famous "moron in a hurry" test. It's certainly difficult to see how the ad takes anything away from Burck himself -- though, I imagine the lawsuit should only serve to draw more attention to him, which is likely the point, whether or not he scores $6 million out of Mars.

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