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February 2017
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Wawa Versus Dawa: Trademark Dispute Blamed On A Need To Police That Doesn't Exist

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We've made the point before. In the pantheon of trademark disputes, the most commonly trotted out excuse for overt protectionism is nothing but a headfake. While companies often proclaim their bullying actions are a requirement under trademark law's provision for active policing of infringement, the fact is that this requirement does not mandate that companies roadblock any and all similar uses to their marks. Instead, the idea is that trademark holders cannot allow actual infringements to go unchallenged.For an example of the difference, we can point to the current dispute between two companies in the food mart business, Dawa Food Mart and Wawa Inc. The former is a single store in New Jersey that has operated for two years now. The latter is a mid-sized chain that only recently decided that Dawa infringed on its trademarks.

According to The Courier-Post, Wawa has filed a federal trademark infringement lawsuit against Dawa Food Mart, located at 15 Lafayette Street in Paterson, Passaic County.The Korean owner of Dawa Food Mart, identified only as Han in the report, explained to the Courier-Post that "Dawa" means "welcome" in his native language. The shop has been open for about two years now.
It's worth noting that Wawa has a long history of policing its trademark to near feverish degrees, having filed suit against tour and gaming companies that use the term "wawa" in their names. At least Dawa Food Mart is more in the marketplace ballpark, though even then we're talking about completely different animals. Add to that the difference in stature and offerings and it's unclear how likely any real confusion could possibly be.And, since the potential confusion is really the question in trademark actions, you might have expected Wawa to make the claim for it when asked to comment on the suit. But it only did so in a roundabout way, instead seeming to fall back on the old requirement to police excuse.
"Wawa spokeswoman Lori Bruce told the newspaper that the lawsuit is about fulfilling an "obligation to protect consumers from any likelihood of confusion" and protecting "the brand name," symbolized by the Canada goose whose name is a direct translation from the Native American language used in the region."
There are some barriers to Dawa winning out, which mostly amounts to both brands using the color red on signage. Still, it seems silly to soberly worry about any real customer confusion here.

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posted at: 12:00am on 07-Feb-2017
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Michigan Lawmakers Looking To Amend State Constitution To Add Protections For Electronic Data

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A ballot measure introduced by a bipartisan group of Michigan legislators is sure to encounter some heavy resistance on its trip through the lawmaking machinery. The proposal amends the state's constitution to add a warrant requirement to data that law enforcement is used to obtaining without one.

House Joint Resolution C (HJRC) was introduced by Rep. Jim Runestad (R-White Lake) along with 11 bipartisan co-sponsors. If approved, voters would have the opportunity to alter Article 1, Section 11 of the Michigan state constitution in the following manner:The person, houses, papers, and possessions, and electronic data and communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.
The phrase "electronic data" covers a lot of things normally considered to be "third-party records" and currently given little to no protection under the Fourth Amendment. This amendment would establish an expectation of privacy in electronic communications and data -- at least under the state's constitution.If passed, courts will have to consider the implications of the state's more stringent privacy protections when dealing with the admissibility of electronic data/communications. This means state law enforcement partnerships with federal agencies could result in unprosecutable charges if any evidence is derived from the warrantless acquisition of protected data and communications. In practical terms, this may not change much, as the feds will just bring the case to federal court in order to (hopefully) bypass the state's more restrictive constitution.But, as the Tenth Amendment Center points out, if the new law passes, it will discourage local law enforcement from helping themselves to data harvested by federal surveillance programs.
Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage the amendment could potentially hinder federal surveillance programs that depend on state cooperation and information gathering.State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes. Requiring warrants to gather such data would undoubtedly limit the amount of information collected by state and local law enforcement. Information that doesn’t exist cannot be shared with the feds.
If "electronic data" is defined in such a way to include data gathered en masse by electronics, this would institute a warrant requirement for ALPR deployment and would make pen register orders demanding historical cell site data a thing of the past.The constitutional amendment has a long way to go before it's ratified. Hopefully, it will make its way through the process mostly intact.

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