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October 2018
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One Company's Story Of The Soft Cost Of Aggressive Trademark Enforcement

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When we talk about trademark disputes around here, we're often talking about them at the start of a bullying process or at the conclusion of a trial. Those are the natural checkpoints for covering these kinds of disputes, with either the initiation of the dispute, often times specious, or the conclusion when an outcome is reached, often times unfortunate. Less discussed but certainly as important are the softer outcomes of trademark bullying and disputes. And it's useful to highlight just what it can cost a small entity that is victimized by all of this.Dick Fowles and Kate Ackerly opened a clothing store in 1993 called Peter-Blair Accessories, named after the duo's godchildren. Out of the blue in 2009, Fowles and Ackerly received a letter from Blair Corp., a discount retailer of accessories that primarily sells its goods online. Blair Corp. too sold ties and accessories on its website, though they were significantly different in terms of price and quality. The letter accused Peter-Blair Accessories of infringing Blair Corp. trademarks by selling its goods online. After a great deal of back and forth, Blair Corp. agreed to allow the smaller clothier to sell only its own branded ties online. Nothing else.This went on for nearly a decade, coinciding with the exact time when online clothes shopping took off.

“It was probably a lot (of lost revenue),” Snyder said. “People were starting to buy on the web more and more. That whole chunk of our business was gone.”“And people aren’t wearing ties like they used to,” Ackerly said. “We needed to branch out with the accessories company, but we couldn’t because of this infringement.”
Business was constricted due to the lack of online sales. The two went so far as to explore changing the business name to get around all of this with a creative branding company. While they eventually decided against the name change, that branding company introduced them in 2017 to a trademark attorney, Pike IP Law. That attorney found that many other retailers had attempted to get trademarks in the clothing business that included the term "Blair", with Blair Corp. opposing and forcing many to back off their applications. In some instances, however, the smaller retailers would push back and get some kind of settlement that allowed for a good chunk of goods to be sold online.A strategy was formed.
“(Pike) said we should purposefully put extra items (to sell online) into the trademark that we weren’t interested in pursuing,” Snyder said. “So that if Blair wanted us to concede in some way, we’d have something to give up.”
After putting its application in, Blair Corp. immediately opposed, initially filing for two extensions to oppose Peter-Blair's application. After some back and forth, true to form, Blair Corp. settled, with Peter-Blair giving up the fluff in its application that it didn't really want anyway. With the opposition dropped, Peter-Blair Accessories got its trademark in August. While this was reason for celebration, nothing can make up for nearly a decade of lost revenue due to a threat letter over trademarks that Blair Corp. barely ended up enforcing anyway.Sadly, this story doesn't have the happiest of endings. If you thought Fowles and Ackerly had taken the lesson from all of this to be the burden and dangers of jealous IP enforcement, think again. Missy Snyder, commenting below, is Peter-Blair's COO.
“(Dunlap and Pike) made us realize how damaging it was to not copyright some of our designs. There are companies that have copied (our designs), like Vineyard Vines, who’s much bigger than us. Bernie and Tricia have sent cease-and-desist letters on our behalf,” Snyder said.
C'est la vie.

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posted at: 12:52am on 23-Oct-2018
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Texas Teens Can't Graduate High School Until They've Been Told How To Behave Around Cops

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To graduate from high school in Texas, you must first be able to show you won't provoke police officers into shooting/tasing/beating you during a traffic stop. That's according to a new state law that ran through the legislature under the guise of solving police/community relationship problems. (via Popehat)

In the aftermath of several fatal police shootings of unarmed citizens, Texas lawmakers sought to pacify tensions between law enforcement and civilians. The state legislature brought civil rights groups and law enforcement organizations together to develop a solution: the Community Safety Education Act, which was signed into law last year.

The bill requires any student entering ninth grade in the 2018-2019 academic year and thereafter to participate in a class and watch a video instruction on how to interact properly with officers during traffic stops. Without a notation of attendance on their transcripts, seniors cannot receive diplomas.

To "pacify tensions" brought about by cops killing unarmed people, we're instructing teens to become docile subhumans who should only respond to the presence of law enforcement in the manner law enforcement prefers. That's the gist of the Community Safety Education Act Instructor's Guide [PDF], which not only tells people to remain suitably cowed during traffic stops, but also gets the law wrong.

The problems with the instruction manual (and the law... and required course itself...) begin at the beginning, in the "Tips for Educators." The guide says instructors should remind students of their rights, as well as warn them that exercising them could get them killed.

Students may ask about citizens videotaping traffic stops. It is a citizen's right to videotape. Drivers and passengers should be aware that unknown items in a citizen's hand may cause safety concerns for officers.

In short, it's best not to record a stop for your own personal safety because there's no telling what a professional highly-trained in law enforcement and force deployment might do if they see something in someone's hand -- even if that something is 1,000,000x more likely to be something everyone carries with them (a cellphone) than a weapon. Most people aren't going to escalate a traffic stop into a murder one charge. But that's hardly reassuring to highly-trained law enforcement officers, who are led to believe every interaction with the public carries the potential of death and destruction and respond to every movement like bunnies scattering at the sound of a stepped-on twig.

Since highly-trained law enforcement officers are completely unpredictable, it's up to Texas' education system to crank out harmless teen drivers. Hence the stupid law and the stupid course, which comes with graduation strings attached.

The "notes for drivers" says it's "recommended" officers treat drivers courteously, but there's certainly no law requiring courteous behavior, much less one that withholds a police academy diploma until would-be officers of the law complete their "Don't Be An Asshole" course.

The advice given is basically this: do everything a cop tells you unless they tell you to stop doing it or to do something else. The course says students have the right to refuse vehicle searches, but kind of portrays assertions of rights as a way to get arrested.

And the guide gets the law wrong: specifically, Texas' "failure to identify" statute. Here's what the guide says:

Although it is lawful for you to remain silent during a traffic stop, you are required by law to truthfully identify yourself when asked to do so by an officer. A driver or passenger can be arrested for giving false identifying information to an officer.

The second part is true. The first part isn't. That's OK. Texas law enforcement officers can't manage to wrap their minds around this law, so it's unsurprising a teacher's guide put together by politicians is inaccurate. The law actually says [emphasis added]:

A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

A traffic stop is a detention, not an arrest. It likely makes little difference in the context of a traffic stop, where documents asked for by officers will likely identify the driver with or without their verbal input. But placing this misinformation inside a required course will likely cause students to think this applies everywhere, not just during traffic stops. It doesn't. An officer needs to arrest a person before they can legally demand identification. And officers can't use a refusal to provide identification as the basis for an arrest.

Passengers aren't required to ID themselves. They're only forbidden from providing false information -- the same as the driver. But the teacher's guide makes the same mistake again in its "Notes for passengers."

Although it is lawful for you to remain silent during a traffic stop, you are required by law to truthfully identify yourself when asked to do so by an officer.

The law does not require this. It does not require it of drivers, even though proving you can legally operate a vehicle tends to undermine any "remaining silent" about your identity. Passengers, however, have nothing to prove, so this course is telling high school students something that simply isn't true and will only contribute to Texas law enforcement's continued abuse of the statute.

It would be bad enough if the mandatory course was limited to "pacifying tensions" by implying unpredictable civilians are what really needs to be fixed. But the course goes even further by getting the law wrong. So, high school students will be forced to attend a pointless course containing misinformation to be considered educated enough to secure a diploma.

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posted at: 12:52am on 23-Oct-2018
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