“All terms mentioned in this book that are known to be or are suspected of being trademarks or service marks have been appropriately capitalized.  [Book publisher] cannot attest to the accuracy of this information.  Use of a term in this book should not be regarded as affecting the validity of any trademark of service mark.”

My initial questions are:

1/ What is this clause trying to achieve?

2/ Is it an attempt to avoid liability for TM infringement or dilution?  If so, I’m not sure how it would achieve that, particularly as it’s framed in terms of the validity of the mark in the markholder’s hands.

3/ How does the reference to ‘appropriately capitalized’ terms have any bearing on the question as to the potential liability of the publisher for TM infringement or dilution, if indeed that’s what the reference is for?

4/ How does it make sense to frame the clause in terms of ‘not affecting the validity of the TMs’?  Wouldn’t the potential problem for the publisher be a concern by a TM holder that its marks had been infringed or diluted in some way, not that they may be invalid?

Has anyone else come across these types of clauses in print or online publications?

This is a virtual crime case that involved real violence used to obtain virtual goods.  The victim was beaten and threatened with a (real) knife, with the defendants demanding he hand over a virtual mask and a virtual amulet within the online game Runescape.  So at the very least, this was a case of criminal assault.  The only issue was whether the crime amounted to theft, which hinged on whether or not the virtual items could be classified, under Dutch law, as goods.

The lawyer for the defendants argued that Runescape’s virtual items are not goods because they are not tangible and have no commercial value.  The Dutch Supreme Court disagreed.  Citing to the size of virtual economies as well as to specific sales on eBay of Runescape items, it rejected the argument that the goods had no economic value.  It also observed that the victim had invested time and effort to obtain the value of the items, that the game gave him exclusive rights to the items, and that the defendants had, by violence, acquired that value and those exclusive rights from the victim.

In my opinion, the reasoning of the Dutch Supreme Court is roughly analogous to the reasoning in the U.S. decision of Kremen v. Cohen, which found that domain names were subject to civil conversion in California despite their intangible nature.  Though I have mixed feelings about the Cohen case, I believe the recognition of the Runescape items as legal goods is the right result in this case.  As the Court explains, the victims here were clearly motivated by the prospect of acquiring the value of the virtual items of the victim and they used violence to obtain that value.

Additionally, as the Dutch Supreme Court explicitly notes, the violence here was not in the context of the game.  As I explain in Chapter 6 of my book, there can be cases where legal prohibitions against in-game theft of virtual property may be in tension with the rules of a game.  In this case, however, the theft occurred completely outside the rules of Runescape.  Given this, I think the Dutch Supreme Court’s recognition of the economic and status value of virtual items is entirely appropriate.

In addition to my work with Dan and Arno’s writing, the Court AG opinion accompanying the decision (see my comment below) cites the work of Orin Kerr, Jack Balkin, Fred Schauer, Andrea Arias, and Alec Levine.  I may have more to say once I get a better translation of the ruling — Google Translate is great to get the gist of the matter, but I have a feeling I’m missing plenty of nuance.

(X-posted on Terra Nova.)

Art is both love and friendship, and understanding; the desire to give. It is not charity, which is the giving of Things, it is more than kindness which is the giving of self. It is both the taking and giving of beauty, the turning out to the light the inner folds of the awareness of the spirit. It is the recreation on another plane of the realities of the world; the tragic and wonderful realities of earth and men, and of all the inter-relations of these.

The full letter is here.

In very much the same spirit, do not miss Lewis Hyde’s wonderful The Gift.

(URL: http://seattletimes.nwsource.com/html/businesstechnology/2017372375_tweetingteens30.html in case the hyperlink above isn’t working).

and more particularly this description of prose and poetry writers at parties…

“Fiction writers cluster in the unlit corners of the room, silently observing everybody, including the poets, who are usually having a fine time in the center spotlight, making a spectacle of themselves as they eat the popcorn and drink the beer and gossip about other poets.  Usually it’s the poets who leave the mess just as it was, the empty bottles and the stains on the carpet and the scrawled phrases they have written down on the backs of pizza delivery boxes – phrases to be used for future poems, no doubt, and it’s the prose writers who in the morning usually have to clean all of this up.  Poets think that a household mess is picturesque – for them it’s the contemporary equivalent of a field of daffodils.  The poets start the party and dance the longest, but they don’t know how to plug in the audio system, and they have to wait for the prose writers to show them where the on/off switch is.  In general, poets do not know where the on/off switch is, anywhere in life.  They are usually off unless they are forcibly turned on, and they stay on until they are taken to the emergency room, where they are medicated and turned off again.” (p 108)

Apologies to any poets or aspiring poets out there.  But the passage does remind me of the ‘flash of inspiration’ explanation of creativity – as applied here to poets – with a more ’sweat of the brow’ rationale for the creativity of fiction writers.  I wonder what Baxter would say about copyrighting computer software?

Dublin Dr. Pepper and Dr. Pepper Snapple Group have settled their trademark licensing dispute and Dublin Dr. Pepper, the beverage darling of the Lonestar State, is no more.

Dublin Dr. Pepper is a Texas favorite.  This original Dr. Pepper was created in 1891, and its birthday is still celebrated every year in the town of Dublin, which changes its name to “Dr. Pepper, Texas” each year on that day.  What makes Dublin Dr. Pepper unique in today’s market is the fact that it has continuously (even during difficult times, including WWII sugar shortages) been manufactured with cane sugar—which gives it a distinct (many would just say “better”) taste.

For years, Dr. Pepper Snapple Group and Dublin Dr. Pepper operated under the terms of a licensing agreement.  The agreement provided, inter alia, that the sales territory for Dublin Dr. Pepper would be limited to six counties in Texas, and that Dr. Pepper Snapple Group would approve designs for the Dublin Dr. Pepper bottles.  Several months ago Dr. Pepper Snapple Group filed a complaint alleging that Dublin Dr. Pepper violated the terms of the agreement by selling Dublin Dr. Pepper outside of its agreed-upon six county territory (through internet sales, telephone sales, and otherwise) and creating a likelihood of confusion in the marketplace.

Dublin Dr. Pepper countersued, claiming that Dr. Pepper Snapple Group wanted to create its own “retro” version of Dr. Pepper, using trade dress similar to that of Dublin Dr. Pepper based on designs Dublin Dr. Pepper had submitted for approval in the past.  (Dublin Dr. Pepper is quick to point out that Dr. Pepper Snapple Group’s version was made with refined beet sugars, however, and not cane sugar.)

The settlement agreement provides, among other things, that Dr. Pepper Snapple Group will make a Dr. Pepper with “nostalgic packaging” sweetened with cane sugar that will be distributed to certain parts of Texas—but it won’t be called “Dublin Dr. Pepper.”  Austin station KXAN reports on the story here, and the Wall Street Journal story can be found here.  Dublin Dr. Pepper’s original response and counterclaim to the lawsuit can be found here.  What the newly named “Dublin Bottling Works will be doing next is discussed in the Dallas Observer blog here.

The underlying issues would be good fodder for a trademark class, including establishment of trademark rights, trade dress, geographic designations, geographic limitations on sales, concurrent use, infringement, and trademark policing.

“Tequila” is registered appellation of origin for spirits produced in five Mexican states. A storm is now brewing over proposals in Mexico sponsored by the tequila industry that would limit the use of the word “agave” — the genus of the blue agave plant from which Tequila is distilled — in connection with both tequila itself and other spirits (mezcal and banacora) distilled from various agave species.

Resistance is growing.  Even the botanical community is pointing out the absurdity of the limiting use of a genus when the tequila industry itself relies on a particular species. Given opposition by Cofemer, Mexico’s Commission on Regulatory Improvement (within the Ministry of the Economy), adoption of the standard is far from a sure thing.

• Coverage from The Economist (”Storm in a shot glass”).
• Opposition by the Tequila Interchange Project (”Stop Nom 186″).
• Coverage and opposition by Diffords Guide.
• Homepage of the National Chamber of the Tequila Industry (CNIT).
• The NOM-186 proposal (in Spanish), from the Ministry of the Economy. A related proposal comes from IMPI, Mexico’s Institute of Industrial Property, or intellectual property agency.

In an interview with Texas Monthly, Robert Earl Keen discussed the release of his new album, which contains a song called “The Road Goes On and On.”  Apparently, the melody in Toby Keith’s song “Bullets in the Gun” sounds remarkably like Robert Earl Keen’s well-known song “The Road Goes On Forever.”  But instead of suing Keith, Robert Earl Keen decided to approach the situation differently: “[I]nstead of getting really ugly about things—I don’t really believe in lawsuits or threats—I took the Alexander Pope road and answered this guy in song.”

The song is called “The Road Goes On and On.”  While it doesn’t name Toby Keith explicitly, Keen acknowledges that the song is about him, and the song describes Keith in a variety of ways, including, as a “goldilocks . . . all duded up in [his] Cowboy Crocs singing the same old song.”  (Does Keen mean crocodile-skin boots, or the popular Crocs-brand shoes?  I find the latter interpretation much funnier, and I did see multiple, if random, internet references to Toby Keith wearing Crocs…)  Some of the lyrics include:

I don’t care what you say

I never liked you anyway

Wouldn’t give you the time of day

If I had the time to spend

You’re malicious and downright cruel

Superstitious, so uncool

Best wishes, you loudmouthed fool

I hope I never see you again

You’re a regular jack in the box

In your clown suit and your goldilocks

The original liar’s paradox (you’ll have to Google that)

How in the hell do you think you’ll make it

When the real test comes and you just can’t fake it

Your sycophants say they can’t take it and leave you lyin’ flat

Interesting alternative to the C&D.  Now we can wait and see if Google writes a song about how Robert Earl Keen shouldn’t use “Google” as a verb…

So many IP things to blog about, so much to catch up on … I’ll start with this:

If an Oreo isn’t round and black and white and crazy sweet, is it still an Oreo? What is the essence of Oreoness?

What the Chinese team at Kraft figured out is that an Oreo is an experience. You pry it apart, scrape out the filling with your teeth and plop it into a glass of milk. Their shorthand for the concept: “Twist, Lick, Dunk.” All the wild new shapes and flavors of Oreo wouldn’t work in China, unless they could somehow share that same experience.

Full story here.  For those few of us who enjoy thinking about the roles and histories of “things,” this is an entertaining and instructive tale.