Category Archives: Advertising Law

Artisan Puffery?

There once was a day when being an "artisan" meant something: "A person or company that makes a high-quality, distinctive product in small quantities, usually by hand using traditional methods: artisan foods." The key elements of an artisan's handiwork seem to be hand-crafted, distinctive products of high-quality that are produced in small numbers. Perhaps bread from the local bakery, craft beer from the corner brewpub, unique cheese from a small dairy farm, and for the less edible, one-of-a-kind jewelry items, custom furniture pieces, and hand-painted household knickknacks. But, nowadays, even a "major online service provider" in the field of intellectual property filings appears interested in suggesting or emulating the qualities of an artisan's handiwork: Artisan IP. Meanwhile, back to our discussion of "artisan" foods, I'm thinking it's safe to say that when Domino's Pizza adopts the term for its latest fast food pizza delivery offering, when Starbucks employs the term in naming its breakfast sandwich offering, and when Frito-Lay chooses Artisan Recipes as a trademark for its latest pre-packaged tortilla chip offering, true artisans must be in desperate search of a new title to reclaim their identity: Foodette Reviews also has noticed the incongruity of mass merchandise national chains adopting the term. I just don't think it makes one a "snob" to be bothered by the misdescriptive use. Yet, I suppose "artisan" still means something, we're just not sure what, at the moment, since it appears to be a moving target, as Nancy Friedman recently noted on her truly artisanal Fritinancy Blog (not to be confused with Artesians, of course). According to Grub Street New York (hat tip to Nancy on this find), what appears to be certain is that the marketing cachet of the word "artisan" began its rapid demise into "meaninglessness" about a decade ago when the co-opting by "giant companies" began, in order to "hawk fast-food burgers and delivery pizza." As a trademark type, given the larger-than-life bandwagon of those using the term "artisan" in connection with pizza (WeightWatchers, Wedge, Pitfire, Roundtable, Mario's, Max & Leo's, Mazzio's, and Freschetta, among others), I'm left wondering whether Artisan Pizza is the next Brick Oven Pizza — namely, a new category of pizza, rendering the term generic, and free for all to use, assuming of course, the use is not false or misleading to consumers. Last, but not least, for an excerpt from a 2003 Office Action from the USPTO refusing registration of ARTISAN as a trademark for "frozen pizza," based on deceptive misdescriptiveness, see below the jump. Mark is Deceptively Misdescriptive "The examining attorney also refused registration on the Principal Register because the mark is, potentially, deceptively misdescriptive of the goods. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); TMEP §1209.04. A mark is descriptive if it conveys an accurate or true idea of an ingredient, quality, characteristic, function or feature of the relevant goods. If the idea conveyed by the mark is false, and also plausible, then the term is deceptively misdescriptive and is unregistrable under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1). In re Woodward & Lothrop Inc., 4 USPQ2d 1412 (TTAB 1987); In re Ox‑Yoke Originals, Inc., 222 USPQ 352 (TTAB 1983). TMEP §1209.04. The test for deceptive misdescriptiveness has two parts: (1) does the mark misdescribe the goods, and (2) are consumers likely to believe the misrepresentation? In re Quady Winery, Inc., 221 USPQ 1213, 1214 (TTAB 1984). TMEP §1209.04. If applicant's goods are not in fact "artisan pizzas", then applicant's mark would misdescribe its goods. From the previously-attached stories, it is reasonable to believe that consumers would likely believe that applicant's goods were artisan pizzas. Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration." Do you think the applicant could have overcome the deceptively misdescriptive refusal? Almost ten years later, is the USPTO likely to begin refusing such marks on genericness grounds?.. To continue reading this legal news please click Read full information...

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Fred Wilson on the E-Parasites Bill

Fred Wilson, pictured above, is a NY VC at Union Square Ventures. He was a ground-floor investor in Twitter and Zynga. You all should be reading his blog AVC.COM. When I heard that Fred was heading to DC to discuss the E-Parasites bill, I asked him if I could re-post anything he wrote on E-Parasites. Here it is: Protecting The Safe Harbors Of The DMCA And Protecting Jobs My partner Brad and I spent Thursday in DC along with a bunch of entrepreneurs and VCs. We talked to dozens of our elected officials about an issue that is very concerning to us, protecting the safe harbors of the DMCA. The DMCA is the Digital Millennium Copyright Act. It received unanimous support in the Senate and was signed into law by President Clinton in 1998. It is a complex piece of legislation but it contains four "safe harbors" for "network service providers. The four safe harbors are explained here. "Network service providers" is shorthand for web services. Companies like Google, YouTube, Facebook, and Twitter are "network service providers." The DMCA took a long time to become law. There were many legislative stops and starts on the way to its passage. Ultimately, congress and the administration forced the content industry to negotiate with the technology industry. That negotiation produced the compromises that are contained in the DMCA and that is what allowed it to get unanimous support in the Senate. Fast forward to today. The content industry's lobbyists have forged two new bills, one in the Senate called Protect IP and one in the House called E-Parasites. These bills were written by the content industry without any input from the technology industry. And they are trying to fast track them through congress and into law without any negotiation with the technology industry. These bills are positioned as necessary actions to prevent "online piracy" particularly from rogue sites outside of the US. The technology industry is certainly concerned about online piracy. It has developed both protectitive technologies like DRM and alternative distribution services like premium streaming audio and video services such as Netflix, Spotify, and many others. These protective technologies and alternative distribution services have significantly cut the amount of online piracy in the past decade. An executive from Viacom testified recently in Congress that the vast majority of piracy is limited to "about twenty websites." So the technology industry has done a lot to help the content industry get a handle on online piracy in the past decade. If another negotiation is in order to amend the DMCA, then let's have it. The last negotiation produced an excellent compromise that has stood the test of time and allowed important new services like Google, Facebook, YouTube, and Twitter to be created and become large companies and massive job creators. It is this last point that is critical. The content indusrtry is not creating new jobs right now. The tech industry, led by startups, have created all the net new jobs in the past five years. Companies like Apple, Google, Facebook, and startups like Dropbox, Kickstarter, and Twilio are the leading exporters and job creators of this time. They are the golden goose of the economy and we cannot kill the golden goose to protect industries in decline. Big companies like Google and Apple can afford to defend themselves from litigious content companies. But three person startups cannot. And Facebook, Twitter, and YouTube were three person startups not so long ago. If they had not had the protection of the safe harbors of the DMCA, they could have been litigated out of business before they even had a chance to grow and develop into the powerhouses they have become. And venture capitalists will think more than twice about putting $3mm of early stage capital into startups if they know that the vast majority of the funds will go to pay lawyers to defend the companies instead of to hire engineers to create and build product. The bottom line is that DMCA works. Its safe harbors have allowed the Internet to become the US's most important new industry in a century and a critical job creator. If we need to amend the DMCA, let's do it with a negotiation between the interested parties, not with a bill written by the content industry's lobbyists and jammed through congress on a fast track. Now we are going to try an experiment using Disqus as an easy way to do something about this. If you want to write Congress on this issue, then simply write your letter in the comments below as if you were writing Congress directly and tag it with '@votizen' followed by your residence zipcode (see my test comment as an example). The Votizen guys will get a copy of your letter through Disqus, and will automatically deliver the message to your specific Congressional representative. Votizen will follow up with you in case you want to track the message and get a response, but that is optional. Mostly, this is just a test to see if more people get involved when we make it easier and transparent. If it works and you like it the Disqus and Votizen guys might invest a bit more time on seeing how blog commenting could be used as a new form of civic engagement. Comments on Fred's blog are here... To continue reading this legal news please click Read full information...

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UK ASA: Computer Generated Sexual Content = Sexual Content

The UK's advertising regulator, the Advertising Standards Authority (ASA), banned a TV ad for Take Two's computer game Duke Nukem Forever from being aired in peak time. The ad, which had been cleared with a post-9pm timing restriction, featured animated scenes from the game including naked women dancing in a strip club, a full frontal view of a semi-naked woman with pixilation obscuring her nipples and bottom, and two school girls about to kiss. The ad also featured quickly edited action scenes such as an aircraft firing weapons over a blazing city, a man being punched and a robot marching through a street. The ASA received 34 complaints that the ad was offensive and irresponsible because it was sexist, violent, overly explicit and featured imagery which was likely to harm children and vulnerable people. Defending the ad, Take Two said that Duke Nukem Forever was a cartoonish, over-the-top, humorous take on the first shooter video-game and was deliberately presented in an exaggerated and non-realistic way, in an attempt to send up the muscle-bound, ultra-macho protagonist, Duke Nukem. Take Two pointed out that the imagery shown in the ad was computer generated and cartoonish in style (rather than photorealistic), and that the images in sequences of a sexually suggestive nature were pixilated or non-explicit; they believed the imagery was of a type commonly seen in TV, film or music videos and that it was not offensive. The ASA was content that the violent imagery was representative of the game's content and that it was not overly graphic, considering the post-9pm scheduling restriction. However, it found that the ad's strip club scenes, showing "the women's naked bodies and their very sexual movements and gyrations", were inappropriate even for a post-9pm advert; it also considered that the scene of the two schoolgirls about to kiss appeared to link teenage girls with sexually provocative behaviour. It concluded that the ad was in breach of rules on responsible advertising and harm and offence, and that it could not be shown before 11pm. The ad had shown actual scenes from the computer game, rated 18 in the UK. Whilst the ASA was not surprised by the scenes of violence shown, and it did not consider the ad overtly sexist, it considered that the sexual content was overly explicit for prime time broadcast. It did not matter that the women and girls featured were clearly fictional, computer generated characters; the titillating strip club sequences made the computer game advert a late night only affair. – Richard Dickinson.. To continue reading this legal news please click Read full information...

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What About Us? I-1183′s Impact On Washington's Fledgling Craft Distillers

Sound Spirits' Ebb & Flow Gin may find more consumers if I-1183 passes The liquor initiative is all I hear about. If you watch television ever, you are bound to see an ad supporting I-1183 followed immediately by an ad opposing I-1183. Costco has dumped more than $22 Million into its support for the initiative! Its pandemonium. Last year, I really got into the discussion, posting regularly here on the Brewery Law Blog. But last year, the craft brewer was heavily involved. The Washington Beer Commission came out strongly opposing I-1100 with concerns that complete deregulation would harm their ability to earn a reasonable margin. But this year, the WBC has been silent. Someone that has been lost in the shuffle of big corps trying to gain market share and public interest groups lobbying for safety: craft distillers. Yesterday, the Seattle Weekly ran an interview with Steven Stone. Steven is the owner of Seattle's first craft distiller, Sound Spirits, located on 15th Avenue. In addition to making an unbelievable craft gin (get the oak-rested one), Steven has always been willing to talk about his industry. Here, he talks about the burden set on craft distillers: "Most of the small guys, we've tended to stay out of it," says Steven Stone, founder of Sound Spirits in Interbay. "If we come out for it, we've pissed off the only retailers of our products. And if you come out against it, you might upset the public." Stone says that when he criticized an earlier liquor-privatization measure on hisFacebook page, he was called a communist. Check out the full article by following this link. I have always thought that the craft distilling industry might benefit from the brewery/winery model, that allows for direct sales to the public. Steven correctly points out that grocery store competition will be fierce, but with a wider market, I am sure that craft distillers will see sales pick up... To continue reading this legal news please click Read full information...

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Compliance Deadline Looms for New Transparency in Supply Chains Act

On January 1, 2012, the California Transparency in Supply Chains Act of 2010 will become effective. This legislation will require every large retailer and manufacturer doing business in California to publicly disclose whether it has taken specified actions to eliminate slavery and human trafficking from its product supply chain. The Act does not require a company to make any effort to eliminate slavery or human trafficking, but only to disclose the extent, if any, to which it has taken the actions listed in the Act. The impact of the Act ultimately will depend on whether consumers, investors and activists use the required disclosure to pressure companies to monitor and eliminate abuses in their supply chains. California Civil Code Section 1714.43(a). This article, by Peter Menard, was originally published in the Daily Journal. To read the full article please click here... To continue reading this legal news please click Read full information...

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