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February 2019
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Owner Of Harry Caray's Restaurants Finds You Can't Just Trademark A Widely Used Hashtag

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As someone who spends a great deal of time writing about trademark law and trademark disputes, I am often repeating that trademark law was put in place specifically to keep the public from being confused as to the source of affiliations of a particular good or service. This is a necessary repetition, as far too many people think that trademark law was designed to allow opportunists to lock up language for commerce simply because they thought to do so. While the USPTO has historically been far too lenient on trademark matters, it is a fact that a mark that doesn't function to inform the buying public as to the source of a good or service is an invalid mark.This is a lesson recently learned by Grant DePorter, owner of Chicago's Harry Caray Restaurant Group, who attempted to register the hashtag "#MAGICNUMBER108", a reference to the Cubs long-held World Series drought.

Initially, the examining attorney assigned to DePorter's application said that the trademark application was not worthy of registration, because #MAGICNUMBER108 is informational matter that fails to function as a trademark to indicate the source of DePorter's goods and to identify them from the goods of others. The TTAB affirmed the examining attorney's opinion. The main issue with DePorter's application is that the mark is a commonly used term or expression, which means that it is less likely for the public to use it to identify only one source. As such, it would deem the mark as being unworthy for registration status.
In other words, as this was a hashtag already in wide circulation when DePorter decided to apply for his trademark, the hashtag wouldn't serve as a reference for anything to do with Harry Caray's restaurants. One cannot simply witness something trending widely and then decide to lock that language up for themselves. Even if, as is the case with DePorter, one is in fact using that phrase or hashtag in commerce. Directly from the ruling:
Any evidence demonstrating widespread use of the wording is relevant, including, in this case specifically, social media tweets and posts of the type the Examining Attorney made of record in this application. The evidence provided by the Examining Attorney shows wide use of the proposed mark in a non-trademark manner to consistently convey information about the Chicago Cubs' World Series appearance and win after a 108-year drought. This evidence is competent to suggest that upon encountering Applicant's 'mark,' prospective purchasers familiar with such widespread non-trademark use are unlikely to consider it to indicate the source of Applicant's goods.
Again, for those of us who have some working knowledge of trademark law and its purpose, this is all plainly obvious. That it isn't obvious to the public writ large is the result of a permission culture fully out of control coupled with a USPTO far too often found sleeping at the wheel. This is obviously a case of attempted opportunism.And it's a breath of fresh air to see the TTAB get this one right.

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posted at: 12:00am on 13-Feb-2019
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What publishers can offer brands against any advertising -opoly

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Advertising revenue has long been dominated by Facebook and Google, and now Amazon has proven itself a ready, and more than willing, third player to offer programmatic adverting opportunities through its Amazon Advertising Platform (AAP). More than an emerging player, its ad business reached $1.65B in 2017, which is more than both Twitter or Snapchat. […]The post What publishers can offer brands against any advertising -opoly appeared first on Adotas.

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EU's New 'Open By Default' Rules For Data Generated By Public Funding Subverted At The Last Minute

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The EU's awful Copyright Directive is rightly dominating the news at the moment, but there are other interesting laws being debated and passed in the European Union that have received far less attention. One of these is a revision of the Public Sector Information (PSI) Directive. Here's the background to the move:

The re-use of data generated by public sector bodies (e.g. legal, traffic, meteorological and financial etc.) for commercial and non-commercial purposes is currently governed by Directive 2003/98/EC on the re-use of public sector information, which was reviewed in 2013.On 25 April 2018, the Commission adopted the 2018 Data Package, addressing for the first time different types of data (public, private, scientific) within a coherent policy framework, making use of different policy instruments. As part of this package, the review of the PSI Directive was the object of an extensive public consultation process.
The basic idea behind the revision, which was agreed on at the end of January by the European Parliament, the Council of the EU and the European Commission, is sound:
All public sector content that can be accessed under national access to documents rules is in principle freely available for re-use. Public sector bodies will not be able to charge more than the marginal cost for the re-use of their data, except in very limited cases. This will allow more [small and medium enterprises] and start-ups to enter new markets in providing data-based products and services.
In December last year, the European Parliament proposed a version of the text that would require researchers in receipt of public funding to publish their data for anyone to re-use. However, some companies and academics were unhappy with this "open by default" approach. They issued a statement calling for research data to be "as open as possible, as closed as necessary", which would include some carve-outs.According to Science|Business, that view has prevailed in the final text, which is not yet publicly available. It is now apparently permissible for companies and academics to invoke "confidentiality" and "legitimate commercial interests" as reasons for not releasing publicly-funded data. Clearly, that's a huge loophole that could easily be abused by organizations to hoard results. If companies and academic institutions aren't willing to share the fruits of their research as open data, there's a very simple solution: don't take public money. Sadly, that fair and simple approach seems not to be a part of the otherwise welcome revised PSI Directive.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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