Owner of 'Derby Pie' Trademark Sues Newspaper For Using The Term, Publishing Recipe
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Long-time Techdirt readers may recall that the "Derby Pie", a notable desert sold in Kentucky chiefly around the time of The Kentucky Derby, has been the previous subject of trademark issues. Way back in 2013, the EFF posted a special recipe for its "mean-spirited censorship pie" after Kern's Kitchen, headed by Alan Rupp, went on a threat blitz against a bunch of blogs for posting their own recipes for "derby pie". Rupp has a trademark on the term, see, and seems to think that trademark means that he is in universal control of anyone using it for their own recipes, regardless of whether those recipe posts cause any customer confusion, are used in actual commerce, or generally violate the other aspects of trademark protection statutes. He's wrong about that, of course, but his threats are often met with shivering compliance.But Rupp took this to a whole new level when he filed a trademark suit in 2018 against the Louisville Courier-Journal, a newspaper, for both posting its own Derby Pie recipe and for mentioning that other bakeries had derby pie products. The court promptly dismissed the lawsuit.U.S. District Judge Rebecca Jennings, an appointee of President Donald Trump, dismissed Rupp’s complaint in March and ruled the newspaper had used the term in a “non-trademark” fashion.Jennings called Rupp’s complaint “skeletal,” finding he failed to establish a plausible claim that a consumer would think the newspaper asserted ownership of the mark or itself was a manufacturer of Derby Pie. In other words, there was no chance for customer confusion because, well, The LCJ is a damned newspaper. As to mentioning that other bakeries had products that existed, the LCJ reporting on that factual occurrence had nothing to do with trademark law and is protected First Amendment speech.But rather than admitting how absurd this all was and slinking away, Rupp instead appealed the ruling. At this point, Rupp's legal team is asserting that dismissal at the pleading stage was incorrect, as courts are supposed to give deference to plaintiffs at that stage. Which is true, except in cases when the case has little to no chance of succeeding, which is certainly the case here. The LCJ itself responded, pointing out that First Amendment is a thing.Attorney Michael Abate argued on behalf of the Courier-Journal and told the panel there is “no conceivable basis” for a trademark infringement claim, but also pointed out the newspaper’s speech is protected under the First Amendment.“We’re talking about news stories that are plainly protected under the First Amendment. Add to that the non-commercial nature of the article's recipe (the newspaper isn't selling pies or the recipe itself), the lack of monetary harm to Rupp, and the fact that these attacks are on news coverage and you have a, ahem, recipe for a failed lawsuit. Rupp possibly should be going after other bakeries using his trademark, but not a newspaper.A panel of judges is currently reviewing all of this, but one expects this appeal will be tossed as quickly as the original lawsuit.
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posted at: 12:01am on 15-Dec-2020
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Two Studies Show Giving Military Gear To Cops Doesn't Result In Lower Crime Rates
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One of President Trump's main goals while in office was to roll back anything his predecessor had put in place. One of his earliest executive orders removed the (minimal) restrictions Barack Obama had placed on the Defense Department's 1033 program. This program allowed local law enforcement agencies to acquire military gear at almost zero cost -- something that had been used and abused for years until the sight of an armored vehicle rolling up on protesters in Ferguson, Missouri proved to be a bit too much for Americans and their Congressional representatives.Trump's reopening of the 1033 program was based on a couple of factors: his all-encompassing love of all things law enforcement and some dubious research that claimed giving cops access to war gear actually reduced crime.That was the point made by then-Attorney General Jeff Sessions ahead of the rollback.President Trump is serious about this mission. He is doing all he can to restore law and order and support our police across America. And that is why, today, I am here to announce that President Trump is issuing an executive order that will make it easier to protect yourselves and your communities. He is rescinding restrictions from the prior administration that limited your agencies' ability to get equipment through federal programs, including life saving gear like Kevlar vests and helmets and first responder and rescue equipment like what they’re using in Texas right now.[...]Those restrictions went too far. We will not put superficial concerns above public safety. Those "superficial concerns" included genuine concerns that deploying war gear against US citizens tends to make officers think they're soldiers in a war zone, rather than public servants who need a solid relationship with those they serve to make meaningful changes that reduce crime and increase public safety.The push for more distribution of military gear was backed by a study by the American Economic Association, which claimed law enforcement agencies that utilized the 1033 program were more effective at lowering crime rates. That data has now been examined by two other sets of researchers, and the conclusions they've reached contradict the AEA's findings.When Emory scholars read the studies, they noticed statistical flaws in the analysis. They set out to rigorously test those two previous studies’ claims by replicating them. They utilized the same 2014 NPR data and applied the studies’ same methods of analysis.What immediately got the attention of the Emory scholars was that the studies were doing analysis at the county level, not the municipal level (i.e., the individual jurisdictions of cities). So, there wasn’t a way to directly compare which local agencies received SME and their specific crime rates. That’s because the federal government only reported the 1033 Program data at the county level. Fortunately, there was more data available now to double-check the claims made by these earlier studies. Obama's 1033 program reforms mandated more reporting on acquisition, which gave these researchers more to work with. The granular detail missing from the first studies was included in the second examination.It was only after Emory used the new, agency-level data in analysis that they determined the SME didn’t reduce crime.“It crystalizes so many of the concerns and claims both pro and con about policing in the U.S. It raises the matter of funding the police and how do we provide resources to the police — through money or giving them equipment. It raises the matter of police militarization — that the police look and act like they are soldiers at war against citizens,” [Associate Professor Michael] Owens says. “And it raises questions about efficiency — costs and benefits." It's not just Emory researchers arriving at this conclusion. A simultaneously-released study by the University of Michigan professor Kenneth Lowande says the same thing:I use 3.8 million archived inventory records to estimate the magnitude of sources of bias in existing studies of the 1033 Program. I show that most variation in militarization comes from previously unobserved sources, which implies that studies that show crime-reduction benefits are unreliable. I then leverage recent policy changes to evaluate the effect of military equipment: the Obama Administration recalled property under Executive Order 13688, which resulted in a forced demilitarization of several hundred departments. Difference-in-difference estimates of agencies that retained similar equipment show negligible or undetectable impacts on violent crime or officer safety. Of course, these studies have drawn some criticism. Law enforcement officials -- who've performed no research of their own -- dispute these findings."This is just a symptom of the larger defund the police movement and this has turned political," retired police Sgt. Betsy Brantner Smith, a spokesperson for the nonprofit National Police Association, which educates the public on policing in America, told ABC News. "Obama took it away, Trump gave it back, and now we’ll probably see Biden take it away again so that they can say, ‘I took this away from the big bad police.'" Wow. What a thoughtful counterpoint. On one hand, we have data showing handing cops military hand-me-downs doesn't reduce crime. On the other hand, we have a police union rep claiming math is politicized. At least the other police union rep quoted in piece makes a better point while still disputing the findings.Patrick Yoes, national president of the Fraternal Order of Police, the world's largest organization of sworn law enforcement officers, also slammed the two studies as "convoluted logic.""It has never been the contention of the FOP that surplus military equipment prevents crime, but rather that such equipment plays a critical role in protecting police officers and citizens in life-threatening situations such as active shooters at large, civil disturbances, and natural disasters." But do cops really need war gear to make them safer? Crime rates in most of the country are still at historic lows. Officer safety remains at an all-time high. This last decade has been the safest time in history to be a cop and yet complaints like these are always offered up anytime someone points out the flaws in their logic.So, military gear given to cops doesn't reduce crime. And it likely doesn't make officers much safer than they are already. What it does do is cultivate a warrior mindset that harms law enforcement's relationship with the public. And maybe that's all law enforcement really wants: more distance between them and those they've declared war on.
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posted at: 12:01am on 15-Dec-2020
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