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Lessons In Smart Trademark Management: Free Licensing Of The Mark From Twitter
A year and a half ago, we noted how nice it was to see Twitter's rather laissez-faire attitude towards trademarks, where it seemed to have no problem with third parties making use of Twitter-related terms in their own names -- such as TwitPic, Stocktwits, Tweetdeck and many others. So, at first I was a bit surprised to see a report claiming that Twitter might be cracking down on those who use such names. The truth, however, actually demonstrates how many companies should respond to many trademarked situations.
First off, it's worth pointing out, as people always do, that one of the oddities of trademark law is the idea that a trademark holder has to prevent others from using the mark without permission, or they run the risk of losing the mark. That leads to lots of nasty cease and desist letters from lawyers, and people defending them claiming they "have to" do this. But that is not so at all. First off, they only have to do that for cases where there is a likelihood of confusion, so they can certainly leave many other cases alone. But, more importantly, there's another option out there, which very few trademark holders embrace: they can just give a free license out.
The story about Twitter is really just that the company has filed for a trademark on TWEET, which is perfectly reasonable. Just because you're getting a trademark, it doesn't mean you're going to stop others from doing things (and, the TechCrunch post seems confused by a different trademark on Tweet -- but trademarks are specific to areas of use, so it's possible to have multiple trademarks on the same term in totally different areas of use). And, in fact, Twitter made a statement pointing out that it does, in fact, freely license its marks:
"We freely license "Tweet" for ecosystem partners who are using it correctly as part of accessing the Twitter API. That said, "Tweet" means something specific and we aim to protect that meaning. More on this can be found here: http://support.twitter.com/forums/26257/entries/77641."
This seems like not just a perfectly reasonable trademark policy, but a smart one for encouraging others to help promote you and feel comfortable working with you as a partner. It's really surprising how quickly most other companies go for the legal nastygram, rather than "freely license" trademarks in cases where the use is clearly promoting the brand.
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Did Activision Violate Arnold Schwarzenegger's Publicity Rights With Austrian Accented Thor?
Ah, the fun never stops with the still ambiguous world of publicity rights, a relatively recent, but growing field of "intellectual property" that has all sorts of problems. THREsq points us to a legal analysis of whether or not California Governor Arnold Schwarzenegger would have a publicity rights claim over the character "Thor," found in Starcraft II. It's hard to argue that the character isn't based on Ahhh-nold, as it has his accent and repeats (sometimes paraphrased) famous Arnold lines from various movies:
In some ways, this is not all that different than the recent complaint from Michael Jackson's estate over the "zombie" Michael Jackson found in the game Plants vs. Zombies. Of course, to make this even more interesting, Schwarzenegger is still leading the legal fight against violent video games in California, so it seems even more amusing that his "voice" appears in a new video game.
That said, there's no indication that Schwarzenegger is actually upset by this -- and he apparently has not complained about other attempts to mimic his voice, such as with the Simpson's character McBane. So, at this point, the post above appears to be idle speculation on how a publicity rights claim might play out. However, it seems like a sad commentary on the state of publicity rights law that it's even worth considering whether such a creative choice by the gamemakers might break the law.
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MLB Using Trademark To Decapitate Fan Promotion Of The Philly Phanatic On A Flugtag
Major League Baseball is notorious for it's incredibly over aggressive enforcement of copyright and trademark laws, often well-beyond what is reasonable. Reader Mark alerts us to MLB's latest move, which is to demand that a flugtag team from Philadelphia remove the head of the Philly Fanatic that it put on their flugtag for one of Red Bull's regular Flugtag competitions. MLB's defense, I'm sure, is that it has to enforce the trademark and make sure no one else is using it without a license. But that's just silly. First of all, there's only a trademark offense when it's a use in commerce, and a silly competition based on trying to launch homemade, human-powered flying machines that cannot fly, is not quite a use in commerce. But, more to the point, these are fans of the team trying to promote the team and promote their fandom. And MLB is shutting them down. That's not particularly fan friendly. And so, instead of the Philly Phanatic on a Flugtag, it'll be decapitated by a silly trademark claim.
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German Court Says YouTube Has To Pay Because A User Uploaded A Musician's Video
Just after a court ruling saying that YouTube did not have to rush and takedown videos covered by German collection society GEMA, but warning that YouTube could very well lose during a full trial, it appears that a German court has ordered YouTube to pay up, because some users uploaded videos of singer Sarah Brightman without permission. Google had argued that it can't be held responsible for making sure the content users upload is not infringing, and pointed out that it even asks users to confirm that they have the rights to upload the works they're uploading. However, the court claimed that such a requirement doesn't absolve YouTube from liability.
The company is going to appeal, but I'm trying to figure out how this makes any sense at all. How can Google possibly know upfront whether or not a user has permission to upload content? It makes absolutely no sense.
Of course, the timing on this is quite good for me. I'm hopping a flight to Germany this weekend, to attend the A2N conference where (among other sessions), I'll be having an on-stage talk with Patrick Walker, from YouTube -- where I'll at least be certain to ask about this.
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Eminem Wins Appeal Over Universal Music: iTunes Downloads Should Be Accounted Differently Than CD Sales
Well, well, well. A few years back, we noted that Eminem's publisher was upset about the royalty cut they were getting from sales on iTunes, and they eventually sued both Apple and Universal Music over this (though, I'm still confused why Apple is involved). The issue is a contractual one: as is standard in lots of recording industry deals, musicians make very little money from each album sold. However, when their music is "licensed" for other things -- such as a commercial, movie or video game, they make a much larger percentage. The reasoning, of course, is that there are a lot more "costs" that go into making and selling a CD, which the label is taking on.
But here's where it gets tricky: what is a sale via iTunes? Is that a "sale" like a CD (meaning a small percentage royalty)? Or is it a "license" like for a movie (meaning a much bigger royalty)? Conceptually, you can make a reasonable argument for either side. After all, from the consumers' perspective, it's very much like buying a CD. But... from a technological perspective, it's really a lot more like licensing, since you don't have the same production, physical goods, shipping and distribution costs. A jury originally sided with Universal Music, saying that it's really just like a CD sale, and thus, the lower royalties should apply.
However, the 9th circuit appeals court has just ruled the opposite way, saying that the contract is "unambiguous" that iTunes sales count as a license, for which the higher royalties apply:
This could have a major impact on how much Universal has to pay out to musicians for iTunes sales. Of course, Universal Music is downplaying the ruling, saying that it's unique to Eminem's contract, and that the company plans to fight the ruling. However, Universal Music (and others, potentially) may be in bigger trouble than they care to admit over this ruling. There are other, similar cases underway as well. While I'm sure its more recent contracts are quite specific on this point, for large segments of the back catalog, Universal could be looking at actually having to pay out significantly more in royalties. Of course that assumes they have accurate records somewhere -- which certainly is no given.
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