Jose Cuervo Loses Bid To Block Trademark Registration For Il Corvo Wine
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When it comes to trademark disputes involving alcohol companies, we should all agree by now that things tend to get really, really silly. Too often a reversion to protectionism causes company lawyers to stretch the plain meaning of words on matters of similarity and the potential for customer confusion. The latest example of this comes to us from South Africa, where the company behind Jose Cuervo tequila attempted, and failed, to block the trademark registration for Il Corvo branded wine.Tequila Cuervo SA de CV turned to the North Gauteng High Court in Pretoria for relief when Fabrication and Light Engineering CC – South Africa’s largest storage and construction equipment manufacturers – applied for the registration of the proposed Il Corvo trademark.The tequila manufacturer, which owns the trademarks Cuervo and Jose Cuervo, as well as the raven depicted on some of their products, maintained the proposed Il Corvo mark was likely to deceive or cause confusion because of the mark’s similarity to their registered trademarks. The court didn't buy the argument for several reasons. To start, wine and tequila might be said to be in the same or similar marketplaces, but it's more accurate to say they are in tangential markets. Both products might be sold in the same store, for instance, but nobody is going to accidentally buy a bottle of wine with the intention of buying tequila. It's something I have been arguing for years: the marketplace distinction for trademarks needs to be more nuanced than a marketplace designation for something like "alcoholic beverages."Almost certainly more impactful was that nothing in the trade dress for the two companies or their products was similar. That's because Il Corvo wasn't trying to trade on Jose Cuervo's name at all; it was just a slightly similar name. And that name is ultimately what this was all about. The entire question is whether a wine that incorporated "Corvo" in its name would be confused for a tequila that incorporated "Cuervo" in its name.The proposed Il Corvo trademark did not globally resemble Tequila Cuervo’s trademarks and were visually and conceptually different. The differences between the marks were stark, the judge said. He said although there was a similarity between Corvo and Cuervo, the overall impression given by the marks based on their distinctive and dominant components were not so similar that it would cause confusion. He said it was extremely unlikely that the notional consumer would know that “corvo” and “cuervo” both mean raven in different languages. It's the kind of ruling I wish we saw more of stateside, taking into account the overall impression left with the consumer, rather than defaulting to rewarding protectionism and aggressive policing of a trademark.
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posted at: 12:00am on 28-Jan-2017
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Twitter Reveals Two National Security Letters After Gag Orders Lifted; Rightly Complains About Gag Orders
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In the last few months, we've seen multiple internet companies finally able to reveal National Security Letters (NSLs) they had received from the Justice Department, demanding information from the companies, while simultaneously saddling those companies with gag orders, forbidding them to speak about the orders. It started last June, when Yahoo was the first company to publicly acknowledge such an NSL. In December, Google revealed 8 NSLs around the same time that the Internet Archive was able to reveal it had received an NSL as well. Earlier this month, Cloudflare was finally able to reveal the NSL it had received (which a Senate staffer had told the company was impossible -- and the company's top lawyer was bound by the gag order, unable to correct that staffer).And now we can add Twitter to the list. On Friday, the company announced that the gag order on two NSLs had been lifted. There's one from 2015 and another from June of last year. Twitter appears relieved that it's finally able to reveal these, but quite frustrated that it was gagged at all.If you don't recall, Twitter has been much more aggressive than basically all of the other tech companies in challenging these gag orders. Back in 2014, Twitter sued the government, claiming it was a First Amendment violation to enforce these gag orders. That was after most of the other major internet companies had come to an agreement over how and when they could report such requests. Twitter, thankfully, felt that the agreement between the DOJ and internet companies was way too stifling and has fought it:Twitter remains unsatisfied with restrictions on our right to speak more freely about national security requests we may receive. We continue to push for the legal ability to speak more openly on this topic in our lawsuit against the U.S. government, Twitter v. Lynch.We continue to believe that reporting in government-mandated bands does not provide meaningful transparency to the public or those using our service. However, the government argues that any numerical reporting more detailed than the bands in the USA Freedom Act would be classified and as such not protected by the First Amendment. They further argue that Twitter is not entitled to obtain information from the government about the processes followed in classifying a version Twitter's 2013 Transparency Report or in classifying/declassifying decisions associated with the allowed bands. We would like a meaningful opportunity to challenge government restrictions when classification prevents speech on issues of public importance.Our next hearing in the Lynch case is scheduled for February 14, 2017. Concurrently, Twitter is using the statutory means provided in the USA Freedom Act to seek more transparency into similar NSL requests, and will provide updates as they become available. That last paragraph makes it fairly clear (though it should have been obvious) that Twitter is still gagged on more NSLs. And that's kind of a key thing in all of these recent "releases" of NSLs. They're only released when the government lifts the gag orders on them -- and that's very troubling. There is a long history in this country of the government abusing its powers to spy on the public. If it alone gets to decide when to reveal the nature of its surveillance efforts, then the public really has no insight or understanding into just how widespread the practice might be.And the most ridiculous thing in all of this is that it's hard to fathom any actual justification for this kind of thing. Yes, you can understand not necessarily revealing an ongoing investigation into a crime, but the gag orders go much further, barring companies from even admitting how many NSLs they receive. It's hard to see how revealing that kind of information -- in any way -- compromises law enforcement or intelligence investigations. The only thing it serves to do is to hide from the public the scale of the surveillance.
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