Time for a rant on one of my major beefs -- corporations buying popular culture. There are a number of ways they do this, one of the most insidious is through trademarks. They take a popular, generic term, trademark it, and then try to stop everyone else using it. I'm not going into an extensive list here (but please feel free to add your own examples in the comments), but here's a few. Ugg Boots. "Ugg boots" is a generic term for a sheepskin lined boots, popularised in Australia around the 1920's. Nevertheless, US company Deckers trademarked the term in the mid-90's (because when the US examiner asked "What is the significance of the term ugg?", she was told under oath that "There is no significance of the term UGG in the relevant trade or industry.") and began a concerted effort to stop everyone else using the term. Cease and desist letters were sent to companies that had been making and marketing Ugg boots for several decades. Thus began a costly legal battle and popular uprising. Deckers claims to have spent millions of dollars promoting the term around the world, to which the only response can be the question "then why the hell did you choose a generic term?" The decision was overturned in January this year (see IPKat) after a two-year fight, but that can be appealed, and anywy only applies in Australia -- Australian manufacturers can't market the boots overseas under the generally-used name. In order to try to pull a fast one Down Under Deckers marketed the boots as Ugg Australia, despite the fact that it's an American company selling Chinese-made goods. The only Australian thing was the fact that the term Ugg was commonly used in Australia long before Deckers' got hold of it. So, don't by Deckers' Ugg Boots. They're not genuine.
The hearing is here.
The Save The Ugg campaign is here.
Chocolate Crackles. Still in Australia (since that's my country), back in 2003 Kellogs tried to trademark the recipe to Chocolate Crackles. This isn't as bad as Deckers since Kellogs at least did create the original recipe and trademarked the term as a breakfast cereal term back in 1953. Kellogs tried to trademark the entire recipe -- which doesn't strike me as what the trademark law is for. In the last 50 years Chocolate Crackles became a staple at school and church fairs across the country. I'm not entirely sure what Kellogs hoped to achieve, but the general belief is that the company was upset because some people weren't using Rice Bubbles (Rice Krispies almost everywhere else) but rather similar products from other brands. However, there's the contention that Chocolate Crackles are more closely associated with copha, which provides the chocolate part...I would hazard a guess that most Australians only ever use copha to make Chocolate Crackles, as opposed to Rice Bubbles which are far more common. "Unilever said copha was a niche product whose packet is printed with a chocolate crackle recipe and whose sales depend on it." I haven't been able to find out the result of Kellogs little effort, and I suspect the company let the issue quietly slip away rather than have an annoyed public conciously abandon its products in favour of competitors.
iPodcast. Apple has applied for a trademark on iPodcast, which of course is not the same as the generic term podcast but is very, very close. Ironic, considering the name of the company itself infringes another company's trademark. I don't trust Apple not to abuse the trademark if it gets it, but it is possible its more interested in protecting its iPod trademark against companies trying to market portable MP3 players linked to the term podcasting.
On The Commons reports on a bill in the US which will give "famous" companies even more power to restrict other people using their trademarks. PublicKnowledge.org has an analysis of the bill, which was passed by the Senate on March 8th 2006 with some amendments, and is now back before the house. With some of the stupid terms in Free Trade Agreements some countries have with the US this could spill out of that country.
So bear in mind what these companies are doing and fight them in the most basic way you can. Don't buy their products. They have a lot of power, but they cannot legally force you to buy their product. Yet.
MacWorld:Apple Computers has been wrangling for decades with Apple Corp, which is the parent company of The Beatles. There's a suggestion that's the reason why John Lennon's music has been released on pretty much all digital download services except iTunes.
Entrepreneur: This article is focussed on up-and-coming inventors to give them an idea of if -- and when -- they should apply for a patent on their invention. It gives the benefits and drawbacks of patent protection, as well as basic advise on what to do before you start and who you should get to help you.
BizWomen: And now on to trademarks...how to select them and things you should look for when searching to see whether it will conflict with a previous trademark.
PC Pro: The UK owner of the Gmail trademark is still trying to get Google to license it...apparently realising that it has no chance of getting the search giant to stop using the trademark. It sounds like it has got a pretty good case...
ZDNet Australia:Linux Australia has failed in its bid to trademark the word "Linux", with IP Australia ruling the word does not have an "inherent adaptation to distinguish in the marketplace".
Linux Australia (and from what I understand, Linux Torvals) had argued that the trademark is necessary to stop people using the Linux name inappropiately, such as selling software that was buggy or not compatible with Linux. There was a fair amount of defence for this, with heavyweights such as Richard Stallman coming down on the side of Torvalds, claiming that the important thing was the open nature of the software, not the trademarking of the name. The trademark wouldn't prevent anyone from using Linux, only from selling it under the Linux name unless they bought a license.
However Linux Australia claims the decision has one good result: "My understanding is that if Linux Australia can't register that [Linux] as a trademark, then nobody else could either...Our goal was to make sure the name is used in a reasonable way. If it's not possible [for anyone else] to register it as a trademark, then that has to some extent been achieved," said Linux Australia president Jonathan Oxer. The organisation will seek its members approval on whether to continue to seek the trademark...
ABC: When Brisbane intellectual property lawyer Malcolm McBratney decided to sponsor the Brisbane Irish football team he emblazoned his nickname McBrat on the back of the players' shorts...When he tried to register the trademark, McDonald's opposed it on the grounds it clashed with the McKid trademark. Now McBratney points out that McDonalds hasn't used the McKid trademark for clothing and wants it removed...serves McDonalds right for making such a claim in the first place...
E-Commerce News: The appellate court has thrown out a claim that pop-up advertising can infringe trademarks. The basic complaint was that WhenU.com promotes software that detects when you are searching for something and opens a pop-up with an ad for what you are searching for. The upshot is that when you go to a website to buy something a pop-up appears with an ad for a competitor. Some irate companies claimed that the fact that WhenU used their URL (which is very similar to their trademark) in their unpublished database they were infringing trademark laws. The argument to me seems like a load of bollocks and the court agreed...even the Electronic Frontier Foundation came down on the side of the pop-ups...
LATimes.com: Disney has sued some makers of piñatas for using Disney characters in the designs...The article covers all sides of the issue which is relatively unusual, making this a good read. A few companies have bought the rights to produce Disney-based piñatas, although it isn't them bringing the suits. "The cottage industry is not putting us out of business, but it is certainly a concern. The biggest problem we have … is in California," said Debbie Beer, marketing director of Unique Industries. "It's certainly because of the large Mexican immigration. They are very skilled and this is part of their culture."
The Empire Journal: Annoyed by repeated breaches of its copyright the journal has published an article about the basics of copyright written by Ann Dunn Wessberg of the Minneapolis law firm of Faegre & Benson LLP. Worth a read to get a general gist of the issue.
LocalTechWire: Investors need to invesitgate the intellectual property of a company they are thinking about investing in, but many patents are too technical or complex to allow for easy investigation. This article gives some ideas on what needs to be done...
Corante: Judge Patel has dismissed the claims by the recording industry against the investors in Napster, but issues still remain.