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Craft Brewing Trade Mag Argues Beer Is The Most IP Product Ever, Ignores History Of The Industry

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And now, we shall talk about one of life's great pleasures: beer. This nectar of the gods has been something of a focus of mine, particularly given the explosion of the craft brewing industry and how that explosion has created an ever-increasing trademark apocalypse over the past decade. It is important context for the purposes of this post that you understand that the craft brewing industry, before it exploded but was steadily growing, had for years operated under a congenial and fraternal practice when it came to all things intellectual property. Everything from relaxed attitudes on trademarks, to an artistic bent when it came to beer labels, up to and including the regular willingness of industry rivals to regularly collaborate on specific concoctions: this was the basic theme of the industry up until the past decade or so. It was, frankly, one of the things that made craft beer so popular and fun.With big business, however, came corporatized mentalities. Suddenly, once small craft breweries doubled in size or more. Legal teams were hired and there was a rush to trademark all kinds of creative names. The label art, once the fun hallmark of the industry, became a wing of the marketing department. This is how, now in 2020, you get trade publications like Craft Brewing Business arguing that beer is one of the most all-encompassing products when it comes to intellectual property.To be fair, given the current climate, you can see some of the logic in the following:

Beer aficionados worldwide can easily describe the nuances of pilsners, IPAs, milkstouts, and lagers. More hazy is the fact that beer is a product that touches upon nearly every type of intellectual property. Indeed, the names of breweries and beers are subject to trademark; label art and packaging are works of authorship covered by copyright law; and hops—that critical component of a beer’s aroma and flavor—can be patented.
It's a fair point, certainly. Though, left entirely unsaid in the entire post is whether any of this is a good thing. Instead, the post goes on to explore in some detail just how all things IP can be applied to brewers' products. Even when it gets absurd, the post hand-waives away any concerns. We'll start with the patenting of hop varieties.
The short answer to this seemingly straightforward query is the plant patent. By statute in the United States, whoever:” invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, . . . may obtain a patent therefor. . . .”Hops can be among these new plant varietals, and as part of the bargain for inventing a novel strain, brewing innovators release their work into the public domain after 20 years. But until that two-decade window closes, the creator and owner of a plant patent gets to cash in exclusively on the agricultural brainchild.
A couple of things here. First, the idea that mild differences in varieties of particular plants should get patents doesn't strike me as a great thing. And, given the longstanding practice of patent-extending by making minor tweaks to the biology of the plants and then re-patenting them, I can't imagine why the craft beer industry, once rife with creative brews, would want any of this protectionism.Second, as the post mentions, though barely, patent holders for even some of the most well-known hop varieties regularly fail to hold up their end of the patent deal with the public.
Of note, if a patent owner does not adequately teach the world (translation: the public domain) about the plant at issue and how to make it upon the patent’s expiration, the patent’s owner—by effectively keeping the invention secret and taking advantage of the 20-year monopoly bestowed by patent law—has not kept up its side of the bargain. This unfortunately seems to be the case with respect to the Citra hops patent, which does not offer much in the way of substantive direction for replication of this varietal, meaning it may not be enabled and, therefore, subject to challenge.
Great.When it comes to trademarks, the post does a decent job of articulating how trademarks are chiefly meant to avoid customer confusion. While true, the industry survived for decades without putting any real emphasis on trademarks. That seems worth mentioning. Instead, the post goes on to use an absolutely awful example of trademarks being used to protect an industry brand.
To be clear, marketplace confusion is what trademarks are meant to prevent. That being said, if a shopper strolls down a grocery aisle, peruses the beer selection, and confuses a bottle of Stone IPA with and a Keystone Light by virtue of packaging—and advertisement—encouraging drinkers to “grab a Stone,” Molson Coors Beverage Company (owner of the Keystone brand) may be infringing upon Stone IPA’s trademark. If this scenario sounds familiar, that is because this very dispute between Stone Brewing and Molson Coors is scheduled for an October trial in federal court.
Here again we have errors of omission. While Stone is indeed in a fight with Molson Coors as described above, the article fails to point out that Stone Brewing, in service of getting a huge judgement in this court case, has turned on a ton of other craft breweries with which they used to coexist peacefully, and has started bullying them with its trademarks as well. And, what's more, Stone went on to piss and moan when the wider public thought it was behaving like bullying dickheads in all of this. This seems like exactly the sort of thing craft breweries could learn from, yet it's all totally absent from the post.And, while the post goes on to ignore the question of copyright in label art, the most glaring absence of information has to do with the history of the industry. Again, this is an industry that exploded before everyone decided to have corporatized legal firms challenging every trademark application that's even close to infringement. If there is a lesson in the last decade for the craft beer industry, it's that it should have striven really hard to retain its roots when it became big business.And the real shame of it is that new brewers reading trade magazines like Craft Brewing Business may not know, and now won't learn, of those far better times.

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posted at: 12:00am on 15-Sep-2020
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Minnesota Cops Are Dismantling Criminal Organizations At Less Than $1,000 A Pop

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Law enforcement officials love to defend asset forfeiture. While sidestepping the fact that it almost always directly enriches the agency doing the forfeiting, these officials love to claim it's an invaluable tool that helps cops dismantle dangerous criminal organizations.This is why they fight reporting requirements. No one knows you're just making poor people poorer unless you're required to report all of your forfeitures. Up in Minnesota -- like far too many other places around the country -- law enforcement officers roll Sheriff of Nottingham style. Unfortunately, there's no Robin Hood lurking in the forests patrolled by opportunistic officers.Here's state auditor Julie Blaha offering her opinion about forfeitures in Minnesota after digging into the data the agencies provided:

“The data shows that when it comes to the impact of forfeitures, the big story is in the small numbers,” Blaha said in a statement. “Those kinds of amounts have a small impact on government systems, but they have a big impact at the individual level.”[...]“If you are managing a public safety budget, small forfeitures are a minor and unpredictable part of your revenue stream,” Blaha continued. “But if you are a low income person experiencing a forfeiture, those amounts can have a big effect on your life. Having a few hundred dollars seized can mean the difference between making rent or homelessness. Losing that old car can lead to missing work and losing your job.”
The program punishes the poor. Very few law enforcement agencies which rely on forfeiture for their discretionary funds want to tangle with an actually organized criminal organization. Those guys can afford lawyers. Most citizens can't. That's why most seizures are so small they're not worth fighting in court. At the end of the jurisprudence day, citizens may win back their cash or cars, but they'll lose the war, having paid more in court and legal fees than what their property is worth.Everything adds up to real money if you have enough of it. Here's the ugly truth, straight from the auditor's report [PDF].
523 (12 percent) forfeitures were less than $100.
1,414 (32 percent) forfeitures ranged from $100 to $499.
858 (20 percent) forfeitures ranged from $500 to $999.
1,252 (29 percent) forfeitures ranged from $1,000 to $4,999.
304 (7 percent) forfeitures were equal to or greater than $5,000
.
Only seven percent targeted amounts that might actually do damage to criminal organizations. 64% of forfeitures targeted less than $1,000.Here's the list of crimes associated with these seizures, which shows officers are willing to take easy wins and easy cash, rather than actually tangle with criminal enterprises far more harmful and dangerous.
In 2019, DUI-related and controlled substance accounted for 94 percent of the forfeitures. DUI-related forfeitures accounted for 3,654, or 47 percent, of reported forfeitures, while forfeitures involving a controlled substance accounted for 3,611, or 47 percent, of reported forfeitures. The remaining forfeitures involved fleeing (251), prostitution (69), “other” crimes (36), weapons (31), robbery/theft (23), assault (20), and burglary (13). Figure 5 on the following page shows completed forfeitures by type of crime.
Oh thank god. They're dismantling Big Drunk. We won't have to fear the scourge of alcohol/drug consumers for much longer. #Heroes. And if that wasn't enough, the dangerous Sinola Fleeing Cartel is being destroyed bit-by-bit. Abandoned property is so much easier to seize and forfeit than stuff people are still standing next to and stating their claim for.This is how asset forfeiture works: easy wins predicated on criminal activity that rarely affects anyone besides the person stopped and their property. It all adds up though. For the state of Minnesota, the total was $7.5 million. And what did it accomplish? Did it cripple the non-organized crime of driving under the influence? Did it make it less likely for people to carry their personal stashes of illicit substances? No one dismantled a drug cartel. No one ensured Minnesotans would be subjected to fewer violent crimes. All that happened was cops took stuff that was easy to take and spent the money once it rolled in.

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posted at: 12:00am on 15-Sep-2020
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