Girl Scouts Continuing To Fight Boy Scouts Of America Over Trademarks, Branding
Furnished content.
While Techdirt generally and myself more specifically tend to fall on the side of a more permissive philosophy when it comes to policing trademarks, there are certainly times when one entity or another crosses the line. As it happens, it seems somewhat common that those lines get crossed by parties that have themselves been quite aggressive in policing their own IP. When the Girl Scouts of America (GSA) sued the Boy Scouts of America in 2018 over the rebranding BSA went through after finally allowing girls to join, it was not difficult to see the GSA's side of things. Essentially, what was The Boy Scouts of America became simply Scouts BSA, which did away with the core gender distinction that drew a shiny line between the two organizations in the public sphere. GSA provided real world examples of confusion in the public, with stories of some families thinking or being told that BSA and GSA had merged, and others having intended on signing their daughters up for GSA and ending up in Scouts BSA.In the end, this ultimately was caused by the cavalier attitude Scouts BSA took to its rebranding. A moment's thought would immediately have brought these concerns to light, but Scouts BSA plowed ahead.And now that cavalier attitude appears to have continued, with GSA issuing another filing against BSA over further rebranding efforts its undertaken.In its filing, the Girl Scouts said the Boy Scouts’ marketing of expanded services for girls was “extraordinary and highly damaging to Girl Scouts” and had set off an “explosion of confusion."“As a result of Boy Scouts’ infringement, parents have mistakenly enrolled their daughters in Boy Scouts thinking it was Girl Scouts,” the lawyers said, adding that this never occurred before 2018. At issue here are numerous instances of Scouts BSA groups either blurring the lines in recruitment advertisements, or outright creating confusion. In the cases that are less clear-cut, GSA alleges that Scouts BSA advertised recruitment referencing simply "scouting" or "scout me in" alongside images of young women. In the more clear instances of sowing confusion, Scouts BSA groups advertised "girl scouting", which seems like a fairly flagrant infringement of GSA's trademarks.And then there are some allegations that are nearly too brazen to believe.The lawyers said Boy Scouts councils in Illinois acknowledging improperly using the Girl Scouts’ slogan in Cub Scout recruiting materials and pictures of Girl Scouts to promote a Boy Scouts “Scouts Sign-Up Night!”They said a western Massachusetts Boy Scouts council posted a recruiting flyer on Facebook including a photograph of a girl depicted in her Girl Scouts Brownie uniform.Meanwhile, Ohio Boy Scouts used the Girl Scouts trademark to try to get a local newspaper to write an article, suggesting a storyline entitled “Boy and Girl Scouts Looking for Members” even though the recruitment involved only the Boy Scouts, the lawyers said. This, again, from an organization that has a fairly clear track record as being quite aggressive in the enforcement of its own IP. Hell, back before the rebrand, the BSA lobbied Congress for its own special law to allow it to be an even bigger trademark bully.All of which is to say that it's very hard to be on Scouts BSA's side of any of this.
Read more here
posted at: 12:00am on 30-Dec-2020
path: /Policy | permalink | edit (requires password)
Section 230 Isn't A Subsidy; It's A Rule Of Civil Procedure
Furnished content.
The other day Senator Schatz tweeted, "Ask every Senator what Section 230 is. Don't ask them if they want to repeal it. Ask them to describe it."It's a very fair point. Most of the political demands to repeal Section 230 betray a profound ignorance of what Section 230 does, why, or how. That disconnect between policy understanding and policy demands means that those demands to repeal the law will only create more problems while not actually solving any of the problems currently being complained about.Unfortunately, however, Senator Schatz's next tweet revealed his own misunderstanding. "I have a bipartisan bill that proposes changes to 230, but repeal is absurd. The platforms are irresponsible, but we should not have a government panel handing out immunity like it's a hunting license. We must rein in big tech via 230 reform and antitrust law, not lazy stunts."There's a lot to unpack in that tweet, including the bit about antitrust law, but commenting on that suggestion is for another post. The issue here is that no, Section 230 is nothing like the government "handing out immunity like a hunting license," and misstatements like that matter because they egg on "reform" efforts that will ruin rather than "reform" the statute, and in the process ruin plenty more that the Constitution - and our better policy judgment - requires us to protect.The point of this post is to thus try to dispel all such misunderstandings that tend to regard Section 230's statutory protection as some sort of tangible prize the government hands out selectively, when in reality it is nothing of the sort. On the contrary, it reads like a rule of civil procedure that, like any rule of civil procedure, is applicable to any potential defendant that meets its broadly-articulated criteria.For non-lawyers "rules of civil procedure" may sound arcane and technical, but the basic concept is simple. When people want to sue other people, these are the rules that govern how those lawsuits can proceed so that they can proceed fairly, for everyone. They speak to such things as who can sue whom, where someone can be sued, and, if a lawsuit is filed, whether and how it can go forward. They are the rules of the road for litigation, but they often serve as more than a general roadmap. In many cases they are the basis upon which courts may dispense with cases entirely. Lawsuits only sometimes end with rulings on the merits after both parties have fully presented their cases; just as often, if not more often, courts will evaluate whether the rules of civil procedure even allow a case to continue at all, and litigation frequently ends when courts decide that they don't.Which is important because litigation is expensive, and the longer it goes on the more cost-prohibitive it becomes. And that's a huge problem, especially for defendants with good defenses, because even if those defenses should mean that they would eventually win the case, the crippling cost involved in staying in the litigation long enough for that defense to prevail might bankrupt them long before it ever could.Such a result hardly seems fair, and we want our courts to be fair. They are supposed to be about administering justice, but there's nothing just about letting courts being used as tools to obliterate innocent defendants. One reason we have rules of civil procedure is to help lessen the danger that innocent defendants can be drained dry by unmeritorious litigation against them. And that is exactly what Section 230 is designed to do as well.An important thing to remember is that most of what people complain about when they complain about Section 230 are things that the First Amendment allows to happen. The First Amendment is likely to insulate platforms from liability in their users' content, and it's also likely to insulate them from liability for their moderation decisions. Section 230 helps drive those points home explicitly for providers of "interactive computer services" (which, it should be noted, include far more than just "big tech" platforms; they also include much smaller and non-commercial ICS providers as well, and even individual people), but even if there were no Section 230 the First Amendment would still be there to do the job of protecting platforms in this way. At least in theory.In practice, however, defendant platforms would first have to endure an onslaught of litigation and all its incumbent costs before the First Amendment could provide any useful benefit, which will likely be too little, too late for most if not all of them. The purpose of Section 230 is therefore to make sure those First Amendment rights can be real, and meaningful, and something that every sort of interactive computer service provider can be confident in exercising without having to fear being crushed by unconstitutional litigation if they do.What people calling for any change to Section 230 need to realize is how these changes will do nothing but open the floodgates to this sort of crushing litigation against so much that the Constitution is otherwise supposed to protect. It is a flood that will inevitably chill platforms by effectively denying them the protection their First Amendment rights were supposed to afford, and in the process also chill all the expressive user activity they currently feel safe to enable. It is not an outcome that any policymaker should be so eager to tempt; rather, it is something to studiously avoid. And the first step to avoiding it is to understand how these proposed changes will do nothing but invite it.
Read more here
posted at: 12:00am on 30-Dec-2020
path: /Policy | permalink | edit (requires password)
|
|