Lemonade Beats Deutsche Telekom In French Court Over Use Of The Color Magenta
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Last year we wrote about a New York insurance company called Lemonade being forced by a German court to cease using the color pink/magenta in its branding in Germany after a dispute with Deutsche Telekom, parent company of T-Mobile. See, DT has a long, long history of using insane trademarks its been granted for the color magenta to go after all kinds of other companies, whether they're actually using that same color or not, and regardless of whether they compete in the same marketplace or not. While Lemonade complied with the court, it then took two further steps. First, it released a Chrome browser extension that strips the color pink out of, well, everything in the user's browser. This was coupled with a #FreeThePink PR campaign. And the, for added measure, Lemonade set out in various European courts to invalidate any claim DT might have to the trademark for the color in the field of financial services.Well, the first resolution of one of those cases is out and it's a full win for Lemonade. Note that much of the text in the quotes below is from a press release, but the factual aspects of it still stand.Deutsche Telekom has owned the French trademark on the color pink, or magenta, in the field of financial services (known as ‘class 36’) since it registered this color-mark 25 years ago. No longer. In a ruling issued on December 15, 2020, French authorities found that “there is no evidence of genuine use of this mark for the contested services” by Deutsche Telekom, confirming that “the owner of the contested mark should therefore be deprived of his rights.”“The French decision hopefully signals a turning point in the battle to stop trademark trolling by Deutsche Telekom and T-Mobile,” said Daniel Schreiber, Lemonade CEO and cofounder. “In recent years DT has banned the use of pink by a technology blog in the US, an aspiring watchmaker seeking crowd-funding on Indiegogo, an invoice processor in Holland, a nine person IT shop in England. That’s nuts. When they tried to extend their monopoly over pink to the insurance industry, we felt it was time to fight back. If some brainiac at Deutsche Telekom had invented the color, their possessiveness would make sense. Absent that, the company’s actions just smack of corporate bully tactics, where legions of lawyers attempt to hog natural resources – in this case a primary color - that rightfully belong to everyone.” Again, press releases quoting their own subjects in this case, but the points still stand. What's notable about this is two things. First, DT has gotten away with its bullying over the color magenta, largely successfully, chiefly because nobody ever fights back. As Schreiber notes above, this represents a very rare pushback instead. And, perhaps more importantly, Lemonade also notes that it's going to pursue this in other European markets as well.The whole thing is monumentally dumb on the part of DT. To wield a trademark in an industry in which they do not participate in order to smack around small companies over the use of an extremely common color has nothing to do with how trademark laws are supposed to work. If ever there were a trademark bully crying out to get the tables turned on it, it sure is this one. And it's nice to see Lemonade has gotten its first win.
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posted at: 12:00am on 19-Dec-2020
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Content Moderation Case Studies: Copyright Claims On White Noise (2018)
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Summary: Every platform hosting user generated content these days is pretty much required (usually by law) to have policies in place to deal with copyright-infringing material. However, not all content on these platforms is covered by copyright, and that can potentially lead to complications, since policies are often built off of the assumption that everything must be covered by some form of copyright.Australia-based music technologist Sebastian Tomczak, who has a PhD in computer generated music, created from scratch a 10 hour low level white noise recording, which he placed on YouTube. He created the file himself, then made a video version of it, and posted it to YouTube. In early 2018, he discovered that there had been five separate copyright claims on the video from four separate copyright holders.Each of the claims argued that other videos of white noise held the copyright on white noise, and that Tomczak's video infringed on their own. Amusingly, each claim designates which short segment of the 10 hour video infringes on their own work -- even though the entire 10 hours is literally the same white noise.None of the claims demanded that Tomczak's video be taken down, but rather sought to monetize it under YouTube's ContentID offering, which allows copyright holders to leave up videos they claim are infringing but divert any advertising revenue to the copyright holder.Somewhat incredibly, one copyright holder claims that Tomczak's video infringes on two separate videos of their own, both of which also offer white noise.One company involved - Catapult Distribution - say that Tomczak's composition infringes on the copyrights of White Noise Sleep Therapy, a client selling the title Majestic Ocean Waves. It also manages to do the same for the company's Soothing Baby Sleep title. The other complaints come from Merlin Symphonic Distribution and Dig Dis for similar works . It appears that all of the claims were automated claims, using various services that scan videos for similarities. However, it does not appear that any of those services first check if the originating videos actually involve a valid copyright in the first place. Instead, they often are based on an entire account, and just search for any similar videos, whether or not there is a valid copyright.Decisions to be made by YouTube:- Is white noise even covered by copyright?
- Should the platform allow users to claim the monetization rights on other similar videos in which there is no valid copyright?
- If there are multiple copyright claims (and monetization claims) on the same video, how is it determined who has the rights and who gets to monetize?
- Should automated systems be allowed to make copyright claims without any regard to actual copyright status?
Questions and policy implications to consider:- If copyright laws and policies are built on the assumption that every piece of content is covered by copyright, how should internet websites deal with situations in which there does not appear to be a valid copyright?
- What are the long term implications of automated systems that do not involve any actual lawyers or experts reviewing either copyright takedown or monetization requests?
Resolution: Tomczak seemed to find the situation more amusing than anything else and noted that he'd received a few similar notices in the past. He expected that after contesting these claims, YouTube would likely drop them:In any of the cases where I think a given claim would be an issue, I would dispute it by saying I could either prove that I have made the work, have the original materials that generated the work, or could show enough of the components included in the work to prove originality. This has always been successful for me and I hope it will be in this case as well. Indeed, a few days after he contested the claims (and those claims received widespread press attention), YouTube did release all of the claims on the white noise video. Tomczak has separately argued that this case -- even with the final outcome -- suggests that parts of the system need to change."Hopefully cases like these with the white noise, which shows how sort of broken their copyright system is, can shed some light on it or get YouTube to think about changing their system," he said. Originally posted on the Trust & Safety Foundation website.
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posted at: 12:00am on 19-Dec-2020
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