Wu-Tang Clan's RZA Opposes Trademark Application For Dog-Walking Company Called Woof-Tang Clan
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The last time we mentioned the Wu-Tang Clan here at Techdirt, we were discussing the group's bizarre yet inventive attempt to curtail digital music's infinite goods problem by releasing a single copy of an entire album for $1 million. It was a creative approach, though one that likely isn't a model that transfers well to the music industry as a whole. But it seems that the copyright arena isn't the only intellectual property venue in which Wu-Tang wants to play, as RZA, a member of the group, has filed a trademark opposition to a dog-walking company calling itself Woof-Tang Clan.In a lawsuit filed November 15th, RZA (real name Robert Diggs) touted the long history of the Wu-Tang Clan mark and how its appearance on various goods and services "has come to represent enormous goodwill." The suit also claimed the Wu-Tang mark is "unmistakably associated with [RZA] such that it constitutes part of his identity."Woof-Tang Clan's owner, Marty Cuatchon, filed a trademark application for his company on June 8th. As the New York Daily News noted, the company also briefly sold T-shirts on its website that made explicit reference to late Wu-Tang rapper Ol' Dirty Bastard's debut album, Return to the 36 Chambers: The Dirty Version. The shirt tweaked the album's famous cover – a snapshot of ODB's ID card for food stamps – to feature a dog named Bali in the rapper's place. Another shirt parodied the cover of De La Soul's 3 Feet High and Rising. Both have been removed from the company's website. Now, the t-shirt aspect of this will muddy the waters as to just how valid an opposition this is. It's almost certain that RZA has a trademark for all things "Wu-Tang Clan" for apparel, after all. Still, the shirts are obvious parody, in line with Woof-Tang Clan's obvious homage as a parody in its business' name to begin with. Commercial in nature or not, this sort of parody is generally regarded as protected fair use.Particularly, it should go without saying, when that use in no way deceives the consuming public about the source or affiliations of the supposedly offending company. That confusion is the controlling factor for trademark concerns and any claim that the public is going to think this small dog-walking company is run by or is affiliated with a world-renowned rap group is a hell of a logic-hurdle over which to leap. Rolling Stone's reporting suggests that RZA's filing claims that Woof-Tang Clan is suggesting a connection to the group, but all it actually suggests is that the folks behind Woof-Tang Clan are likely fans of the RZA and his cohorts. Marty Cuatchon, the man behind the company, confirmed as much.Speaking with the Daily News Saturday, Cuatchon said he was unaware of RZA's trademark challenge and declined to comment until speaking with a lawyer. However, he did say, "I am a fan. We walk dogs. I thought it was a good idea." A much better idea than this needless trademark opposition, I would say.
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Yet Another Legal Action By Dogged Privacy Activist Brings Good News And Bad News For Facebook In EU's Highest Court
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The Austrian privacy activist Max Schrems has appeared a few times on Techdirt, as he conducts his long-running campaign to find out what Facebook is doing with his personal data, and to take back control of it. In 2011, he obtained a CD-ROM (remember those?) containing all the information that Facebook held about him at that time. More dramatically, in 2015 Schrems persuaded the Court of Justice of the European Union (CJEU) that the Safe Harbor framework for transferring personal data from the EU to the US was illegal under EU laws because of the NSA's spying, as revealed by Edward Snowden. As Schrem's detailed commentary (pdf) on that CJEU judgment explains, the case was specifically about Facebook, although it applied much more generally. Last month, we wrote about another case, currently being referred to the CJEU, concerning Facebook's use of standard contractual clauses (SCCs) (pdf), also known as "model clauses". It's an alternative legal approach for transferring data across the Atlantic, and if the CJEU rules against Facebook again, it could make things rather difficult for the big US Internet companies (but ordinary businesses won't be affected much.)You might think that all these Facebook cases would be more than enough for any privacy activist, but not for Schrems, apparently. He is engaged in yet another legal action that involves Facebook (pdf). As Schrems explains:[he] has sued Facebook over his private Facebook account at his home court in Vienna, Austria. Schrems accuses Facebook to massively violate strict European privacy laws. The lawsuit includes claims from invalid privacy policies all the way to data sharing with US intelligence services. In addition to bringing his personal claims, he also invited other users to sign over their rights to him, to form a so-called "Austrian style class action" against Facebook, in which he represents other users on a pro bono basis. This legal action is rather different from the others discussed above, and involves Schrems personally suing Facebook in Austria using civil law. Unusually, he also gathered 25,000 people to join him in a class action against Facebook, each asking for €500 damages. Because of the importance of the legal questions under discussion, Austria's supreme court referred them to the CJEU for a definitive ruling. As is usual, before the CJEU judges themselves rule, one of the court's Advocates General offered a legal opinion, which has just been published. Two questions were considered: whether Schrems could bring a case at all, and whether a class action was possible. Here's Schrems' explanation of what the Advocate General (AG) said for the first issue:Facebook tried to argue that Mr Schrems cannot bring a lawsuit at his home court, as he would not qualify as a consumer, but as a business. This is despite the fact that the courts have found, that the lawsuit is organized on a pro bono basis and he never used his Facebook account in any commercial way.The strategy of Facebook was to force Schrems to bring his lawsuit at Facebook's home court in Dublin -- where a single case of €500 could cost Millions in legal fees. This was clearly rejected by the AG, just like previously by the Higher Regional Court in Vienna: Individuals that fight for their rights as volunteers are not 'businesses' and can enjoy their consumer rights. The AG confirmed: Mr Schrems can bring a 'model case' in Vienna. On the second question:the advocate general accepted Facebook's point of view: An "Austrian style class action" is only admissible against an Austrian company -- but not if an Austrian consumer sues a company in another EU member state [Facebook's EU operations have their headquarters in Ireland]. Schrems spends some time explaining why he thinks the Advocate General is wrong, and it's worth reading his thoughts here, since Schrems is naturally something of an expert in this domain after all these years. But as he also points out, what counts is what the five judges who will consider the case at the CJEU decide. Although they usually accept the reasoning of the Advocate General, they don't have to and sometimes disagree. Schrems thinks their judgment will be handed down in January 2018, after which the case will go back to the Austrian courts to make a final ruling based on the CJEU's findings.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
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