Avast! The Pirate Bay’s Intellectual Property’s Been Boarded!

December 18, 2009


If you haven’t heard of The Pirate Bay by now, you may want to emerge from that cave, wipe the sleepies from your eyes, and start getting caught up on your backed up WIRED magazines in the bathroom. The Pirate Bay (TPB) is a website run by a few Swedish intellectual property anarchists. TPB provides a comprehensive indexing service for BitTorrent files. In plain English, TPB is the backbone of one of the most comprehensive copyright infringement schemes to ever exist. And, TPB isn’t just about “free information,” as it makes a significant income from sponsored ads on its webpage, to the tune of about $65,000 per month. TPB denies that it makes very much money, claiming that most of the income goes to supporting the infrastructure of the site. In April of 2009, its principals, Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström were sentenced by a Swedish court to one year in prison and a $3.6 million fine. (source) The verdict is under appeal.

In a strange case of turnabout, a commercial entity in Sweden has hijacked TPB’s iconic logo. TPB has always allowed others to use the logo, without restriction, as a demonstration of their anti-intellectual property ethos. However, Sandryds Handel, AB took the sharing a step too far.

Today news broke that a private Swedish company, noticing that the logo had no commercial protection, took the opportunity to hijack it. The outfit, Sandryds Handel AB, have officially registered the emblem as their own with the authorities, with the intention of commercially exploiting it.

While admitting they have absolutely nothing to do with The Pirate Bay, in a radio interview Sandryds Handel spokesman Bengt Wessborg defended his company’s action.

“The idea is to sell USB drives using this brand,” he told SR. “We saw that it was not already allocated to someone else. It was not registered,” he added. (source)

Although I previously worked for a Swedish intellectual property law firm, I can’t claim to know Swedish IP law all that well. But, it might be a fun exercise to think about how this might be dealt with under U.S. law.
One would imagine that TPB would try to cancel the usurper’s trademark registration, or even sue them for trademark infringement. However, under the “illegal use doctrine,” TPB would likely face more than a karmic defeat.

Under U.S. law, in order for The Pirate Bay to establish trademark rights, they would need to establish “use in commerce.” This, in itself, is not a difficult fact to establish. However, if this use was unlawful, then it would not be “use in commerce” as defined by the Lanham Act. See 15 U.S.C. § 1127; Gray v. Daffy Dan’s Bargaintown, 823 F.2d 522, 526 (Fed. Cir. 1987); The Clorox Co. v. Armour-Dial, Inc., 214 U.S.P.Q. 850, 851 (TTAB 1982) (”‘use in commerce’ means a ‘lawful use in commerce’”).

[T]he inquiry does not stop with use in commerce. It has long been the policy of the PTO’s Trademark Trial and Appeal Board that use in commerce only creates trademark rights when the use is lawful. See, e.g., In re Midwest Tennis & Track Co., 1993 TTAB LEXIS 27, 29 U.S.P.Q.2d 1386, 1386 n.2 (T.T.A.B. 1993); Clorox Co. v. Armour-Dial, Inc., 214 U.S.P.Q. 850, 851 (T.T.A.B. 1982); In re Pepcom Indus., Inc., 192 U.S.P.Q. 400, 401 (T.T.A.B. 1976); In re Stellar International, Inc., 159 U.S.P.Q. 48, 51 (T.T.A.B. 1968). At least one circuit has adopted and applied this rule. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th Cir. 2000). A question of first impression in this circuit, we also agree with the PTO’s policy and hold that only lawful use in commerce can give rise to trademark priority.

The rationale for this rule is twofold. First, as a logical matter, to hold otherwise would be to put the government in the “anomalous position” of extending the benefits of trademark protection to a seller based upon actions the seller took in violation of that government’s own laws. See In re Stellar, 159 U.S.P.Q. at 51. It is doubtful that the trademark statute–passed pursuant to Congress’s power under the Commerce Clause–”was . . . intended to recognize . . . shipments in commerce in contravention of other regulatory acts promulgated [by Congress] under [that same constitutional provision]. ” Id. Second, as a policy matter, to give trademark priority to a seller who rushes to market without taking care to carefully comply with the relevant regulations would be to reward the hasty at the expense of the diligent.

Accordingly, it seems that since TPB has not used its mark in lawful commerce, it would not be well positioned to enforce its trademark rights.

Nevertheless, TPB would not be without some form of redress. The Copyright Act contains no similar “lawful use” requirement. Provided that TPB went through the formalities of registration first, they would be able to enjoin further use of their logo by Sandryds Handels if they sued under Title 17, and they might even be able to collect “actual damages,” which would be hard to prove.

Unfortunately, I doubt that they would be able to collect statutory damages or attorneys’ fees, as I am certain that they did not register the copyright within the statutorily required time frame for such prizes to be awarded.

That said, if you want to see the irony meter in the roflcopter go over 9,000, file a copyright infringement suit on behalf of TPB.

H/T: Tactical IP

USPTO Jumps in Line to Provide “Green” Initiatives, Ignores Climate Gate

December 9, 2009

by Jason Fischer


“Awe!  Come ON!  I made a movie about it.  That proves it’s true.”

Director Kappos, of the United States Patent & Trademark Office (USPTO), writes on his blog this week about how the Office intends to fast-track the examination of patent applications that deal with so-called “green” technologies.  Great headline for a month ago, when the popularized position was that anthropogenic climate change (formerly known as “global warming”) was a *proven* phenomenon.  However, recent developments have put those findings in serious doubt.

In case you haven’t been keeping up, as Director Kappos clearly hasn’t, emails were leaked last month from the University of East Anglia’s Climatic Research Unit – a world-renowned climate change research center – which reveal a “trick” being employed by researchers to massage temperature statistics (source).  Seems that a decline in temperature didn’t fit into the doomsday scenario that’s being thrown about to justify new grant money, new cap-and-trade legislation, and new taxes.  The emails openly discuss the deletion of historic source data and ways to discredit scientific journals that have published skeptic papers, as a couple of examples (source).

Moving back to the IP tie-in, the USPTO is continuing to drink the climate change kool aid by proposing that so-called “green” patent applications should be given priority treatment in examination.  Kappos’s announcement of the policy was timed to coincide with the start of the United Nations Climate Change Conference in Copenhagen, Denmark.  In that announcement, the Director explains the impetus for such an initiative:

kool_aid_man_glassAs I have often said, the USPTO is committed to dramatically reducing the backlog and average patent pendency time across the board.  As we work toward this goal, we are going to pilot a program that will give priority to applications that combat climate change and foster job creation in the green tech sector.  The Green Tech patent pilot program will decrease the time it takes to obtain patent protection for green tech innovations by an average of 12 months.  (source)

One has to wonder what other types of applications will be “de-prioritized,” in order to let climate-change-fighting inventors skip the line.  It seems clear that this initiative would do absolutely nothing to improve the average pendency time across all patent applications.  It is truly odd that, at the Patent Office, where a science degree is required to prosecute or examine applications, they’re not letting a silly thing like the absence of a scientific foundation stop them from disparaging the majority of the inventing community.  It certainly isn’t stopping the charlatan proponents of climate change theory from generating a city-sized carbon belch to gather and talk about how to reduce carbon emissions.

Once again, the Director concludes his blog post, claiming that he welcomes comments and feedback, but somehow my comments thereto on this subject failed to clear moderation.

This article was originally posted on GaneshaFish.com

A Likelihood of Confusion and Cameltoe Camouflaging

December 4, 2009

By: Zac Papantoniou

H/T to Ryan Gile at Las Vegas Trademark Attorney Blog, for bringing this trademark infringement suit involving cameltoe-covering undies to light, and thus making it clearly visible for us here at the Legal Satyricon to find (Note – Due to the nature of this case, and my juvenile sense of humor, I take no responsibility for making really bad puns).

Ryan Gile wrote an interesting post yesterday, regarding a trademark infringement lawsuit filed in the U.S. District Court for the Eastern District of Michigan. The plaintiff and defendant in the suit are competing makers of cameltoe covering underwear for women, who both (at some point) have used a variation of the word “camouflage” to identify the brand of their respective products.

According to the complaint, Ruby Tuesday Designs, LLC (the Plaintiff) has been engaged in selling its cameltoe-masking undergarments under the mark KAMELFLAGE since March 2009. The Plaintiff is suing Camelflage, LLC, who registered the domain name “camelflage.com” on May 27, 2009; two days later, the Defendant also applied to the USPTO for registration of the word mark CAMELFLAGE (for undergarments and other apparel) stating that the mark’s first date of use-in-commerce was March 15, 2009. The Defendant is currently selling its version of cameltoe-masking undies through their aforementioned website using the CAMELFLAGE mark. The story leading up to the filing of the suit has some amusing twists and turns (which Gile has done a superb job of detailing in his post on the matter), not to mention plenty of references to cameltoes, so if you want a few laughs (and some case analysis) check out Gile’s take on the suit.

As for my take on the matter . . . I would give at least $100 to be in that courtroom, as the judge attempts to keep a straight face while listening to a couple of attorneys argue for/against a likelihood of confusion in the context of cameltoe camouflaging apparel.

Immoral or Scandalous Matter?

October 14, 2009

by Jason Fischer

One of the "peculiarities" of U.S. trademark law is that the government has a stick up its collective ass about recognizing trademarks that may be suggestive of dick-and-fart humor.  Section 2 of the Lanham Act (the federal statute that creates trademark rights) provides:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it —

  • (a) Consists of or comprises immoral, deceptive, or scandalous matter . . . .

15 U.S.C. § 1052 (2008).


Presumably, you can decide for yourself whether the above image is offensive or (as I did) worthy of a snicker or three.  It looks like, from the license plate and unfamiliar make/model of the van, this company is doing business overseas, but rest assured this mark would never appear on the principal register of trademarks in this country.  Now, don’t misunderstand me; if this business opened up an office on this side of pond, they could likely prevent others from using the same mark, based on any common law rights that could be established, but our federal government would never give them the benefits of a federal registration for the mark.

Now, you may be asking yourself, "Wait; isn’t that the whole point of trademark law — preventing others from using your mark?"  That is true, but the game gets much, MUCH easier when you have a federal registration.  Establishing common law rights is generally an extremely lengthy and expensive evidentiary process, which involves paying your attorney to prepare and file a phone-book-sized amount of paperwork in any infringement suit.  Compare that with the single sheet that must be presented by the owner of a federally registered trademark, and you begin to see some of the benefits of registration.

Lots of hardcore civil libertarians that I know pound the table and froth at the mouth while denouncing the puritanical nature of our trademark regime.  Even though I don’t get as worked up, personally, I do happen to agree.  What difference does it make that someone wants to call their business "Butt Drilling"?  Do we really need the federal government to discourage that guy from doing what he wants with his entrepreneurial humor?  Should we be shielded from this "attack of immorality" at the expense of his freedom?  Trust me, plenty has already been written on whether there is even a rational basis for Section 2(a), by people way smarter than I — enough that I won’t bore you with any more.  Suffice it to say, it is something that must be given careful consideration when choosing your brand.

This story has also been published on The Tactical IP Blog.

New Copyright Czar, Background in Trade and Education

September 27, 2009

by Jason Fischer

Victoria the Not-so-Terrible

Victoria the Not-so-Terrible

On Friday, President Obama appointed the first “Intellectual Property Enforcement Coordinator,” a new position created last year by the Prioritizing Resources and Organization for Intellectual Property Act (a.k.a. the PRO-IP Act). While many criticized that legislation as further enlisting U.S. law enforcement to do the dirty work of the RIAA and MPAA, some of those same voices are praising the president’s choice of Victoria A. Espinel as a fair compromise.

“We believe she will be fair in her approach to intellectual property enforcement issues,” said Gigi Sohn, president of Public Knowledge, a left-leaning digital-rights advocacy group. (source)

This commentator hopes that Ms. Espinel’s understanding of the complex landscape of international trade, combined with a history in academics — where the value of citation and accretion is recognized over draconian exclusion — will help move copyright policy towards something a bit more sensible than life-plus-70.

This story has also been published on The Tactical IP Blog.

Producers of Copyrighted Content – They Just Don’t Get It

February 19, 2009

by Jason Fischer


I don’t understand why producers of copyrighted content have such a hard time comprehending their customer base. We’re not that difficult to fathom. We only really have a few, simple needs:

  • We want to be able to get to desired content, whenever and however we want.
  • We don’t want to pay through the nose for it.
  • If you make it difficult for us, there are other ways for us to get what we want. Ways you don’t like, because it means you won’t get your cut.

It’s precisely because content producers don’t understand us that we have scenarios like this.

I really thought that everyone was coming closer together, though, producers and consumers, when I discovered a service called Hulu this summer. It just so happened that I found myself, for about six weeks, in a place with Internet access, but limited cable service. I began to fret when I realized that I would not be able to get my weekly Battlestar Galactica fix – right when the last season was beginning to air. Also, with the writers’ strike delaying everything, many of my other favorite programs were still running new episodes into June. I was going to miss the season finales for a handful of shows, which I had been watching religiously at home. I began to panic a little bit.

Read the rest of this entry »

Facebook Caves to User Pressure

February 18, 2009

by Jason Fischer

A few days ago, Facebook announced that it would be changing its terms of service. The updated terms made changes with regard to intellectual property ownership of content that users posted to the site. The changes were denounced as oppressive by many blog commentators. Apparently in response to the negative “press,” Facebook has reversed course, posting the following message on the “home” page for all users.

Facebook Message to Users

Barack Obama: Champion for Copyright Reform?

December 2, 2008

by Jason Fischer

I’m no fan of our President-elect, but I have to tip my hat to him on this interesting bit of P.R.:

The new administration’s transition site, Change.gov, is being published under a Creative Commons license. (source) This means that the content is not subject to the draconian, life-plus-70 protection that is the default under the current federal copyright act. Does this mean that our next president may be in favor of copyright reform? One can only dream.

Google Honors a Thief

March 3, 2008

I like how Google sometimes changes its graphic to mark holidays or other important days. Today, this is the image that appears on the Google home page.


For those of you who do not know, today is Alexander Graham Bell’s birthday. Hence the cute little old man with the antique phone.

What most of you don’t know is that Bell was a fraud and a thief.

In the 1830s, Antonio Meucci moved from Tuscany to Cuba. While he was there, he was working on electric stimulation of illnesses. His research revealed that sounds could be made to travel through copper wire in the form of electrical impulses. He moved to Staten Island in the 1850s to work on his telephone project.

When Meucci’s wife, Ester, became paralysed he rigged a system to link her bedroom with his neighbouring workshop and in 1860 held a public demonstration which was reported in New York’s Italian-language press… Meucci struggled to find financial backing, failed to master English and was severely burned in an accident aboard a steamship.

Forced to make new prototype telephones after [his wife]Ester sold his machines for $6 to a secondhand shop, his models became more sophisticated. An inductor formed around an iron core in the shape of a cylinder was a technique so sophisticated that it was used decades later for long-distance connections.

Meucci could not afford the $250 needed for a definitive patent for his “talking telegraph” so in 1871 filed a one-year renewable notice of an impending patent. Three years later he could not even afford the $10 to renew it.

He sent a model and technical details to the Western Union telegraph company but failed to win a meeting with executives. When he asked for his materials to be returned, in 1874, he was told they had been lost. Two years later Bell, who shared a laboratory with Meucci, filed a patent for a telephone, became a celebrity and made a lucrative deal with Western Union.

Meucci sued and was nearing victory – the supreme court agreed to hear the case and fraud charges were initiated against Bell – when the Florentine died in 1889. The legal action died with him. (source)

See also, Who is credited as inventing the telephone? Was it Alexander Graham Bell, Elisha Gray, or Antonio Meucci?

Bell is certainly unworthy of the honor that Google has bestowed upon him.

Buttweiser and Booblight are not Cybersquatters

August 2, 2007

Sheesh, did Anheuser – Busch really think they could win this one? I hate cybersquatters as much as the next guy, but cyber-bullies really need to chill out. It was nice to see a pro-se defendant slap Anheuser – Busch’s wrist in this one.

See Anheuser – Busch, Incorporated v. Holix Inc.

For another case where a cyber-bully got shown the door, see Louis Vuitton Malletier S.A. v. Manifest Information Services c/o Manifest Hostmaster (domain owner was ably represented in this case by Brett Lewis of Lewis & Hand).

Promote the Progress…. Do I.P. Laws Hurt Poor Countries?

August 1, 2007

Here is an interesting take on Intellectual Property.

August 01, 2007 (LBO) – Developing countries Sri Lanka must be provided policy space in areas like intellectual property and get a comparative advantage in world markets, academics say.

“There is a great divide between the rich world and the poor world. We can see astonishing wealth being enjoyed by some countries [while] billions of people experience enormous poverty,” Tony Anghie, professor of law in the University of Utah says.

The rich world was able come to its current position by amassing wealth, making use of relaxed intellectual property laws and the protection that was given to industries while they were in the developing stage, he told an international trade law conference organized by the Sri Lanka Law College.


Not exactly on point, but here is an earlier post in support of piracy for cultural reasons.