Judge Has Some Fun Denying Injunction Requested By One Brewery For Another Over Trademark Suit
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While I write about a great many trademark disputes in these pages, there are certain stories that pique my interest above others, or otherwise become more fun. Writing about trademark issues in the alcohol industries has been something of a passion of mine, for instance. It's also fun to highlight when the courts get trademark questions right, since far too often the opposite occurs. And, when you have a judge who chooses to embed some humor in their rulings, that gets pretty fun as well.And then sometimes you run into a trademark story that combines all three of the above. Such is the case in a trademark dispute between two South Carolina breweries. Low Tide Brewing has sued Tideland Brewing for trademark infringement over its name. As part of that suit, Low Tide Brewing went so far as to seek a preliminary injunction against Tideland to keep it from using that name while the suit plays out.In ruling on the injunction, the judge was simply not having it.“Low Tide has not made a clear showing of its likelihood to succeed on the merits of its trademark infringement claim. Without that showing, Low Tide is up the creek,” U.S. District Court judge David C. Norton concluded in his April 12 opinion. “Accordingly ... Low Tide’s request for an injunction (is) dead in the water.” It's not Dave Chappelle level comedy, but it's pretty fun as far as these rulings go. And that wasn't the only part of the decision that incorporated a bit of humor into it. Though, given what the judge's reasoning for denying the injunction was, it seems likely that Low Tide isn't yucking it up alongside the judge.As Norton noted in his ruling, a preliminary injunction is “an extraordinary remedy” that penalizes the defendant before the case is heard. Consequently, a trademark holder seeking a preliminary injunction must satisfy all parts of a four-prong test. One of those prongs involves demonstrating that consumers are likely to be confused about who made the product they’re enjoying. Norton agreed that Low Tide’s trademark is valid and distinctive, but found it wasn’t strong enough to cause customer confusion.“The instances of third-party use of the word ‘tide,’ locally and within the relevant industry, are enough to take the wind from Low Tide’s sails,” Norton wrote. “As such, Low Tide’s endeavor to wash away the prevalence of the word ‘tide’ in coastal commerce holds little water.”Furthermore, Norton ruled the two names aren’t so alike that consumers would struggle to tell them apart. “The marks are, at best, somewhat similar, meaning that Low Tide, now swimming upstream, has failed to demonstrate that the factor tilts the inquiry in its favor,” he wrote. It doesn't end there. Norton went on to comment on Low Tide's submissions for what it calls actual customer confusion. That submission consisted of a single instance in which one of Low Tide's own employees called Tideland to ask if they were part of a Low Tide expansion. To that, Norton wrote in the ruling that "The court declines to take the bait."All of which is a puntastic way for the judge to let Low Tide know that, while the trademark case will indeed go on, the court isn't looking too fondly on Low Tide's side of the equation. At this point, it might be time for Low Tide to find a way to bow out of all of this as gracefully as it can muster.
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posted at: 12:00am on 20-Apr-2021
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From Jurassic Park To Telepathic Monkeys, Elon Musk Press Hype Is Getting A Bit Thick
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Last week the press was jam packed with headlines discussing how Elon Musk and his Neuralink co-founder Max Hodak would soon "have the technology to build a real life Jurassic Park." From the New York Post to The Hill, outlets quickly parroted the claim that Neuralink might soon get into the reanimated dinosaur business, triggering not only waves of Jeff-Goldblum-themed ridicule on social media, but a lot of free advertising for Elon Musk and Neuralink.Except none of that's actually happening. For one thing, the original tweet by Hodak doesn't even mention Neuralink by name:Hodak appears to have been speaking generally, not specifically, and there's zero evidence the company is even pursuing the concept. Nor is it clear that Hodak is actually correct in his statement that such a venture is technically possible:"...it's pretty much impossible to resurrect a dinosaur. The science of bringing dinosaurs back from the dead isn't really as sound as Hodak makes it seem though. Even humanity would have a tough time building a Jurassic Park in the next 15 years. First, we'd need some DNA from the prehistoric tyrants. Unlike in the film Jurassic Park, where the DNA is retrieved from mosquitoes in amber and fused with frog DNA, that information has completely degraded over the millions of years it has spent in the ground." To be clear, Musk has done, and is doing, plenty of interesting, innovative things. Just Space X/Starlink alone are impressive achievements that are delivering genuine innovation. At the same time, Musk and friends have a growing history of over-hyping products that either don't exist, or don't deliver what was promised by marketing. Like his Boring Company's Las Vegas Loop, a project built on $50 million in taxpayer dollars that was supposed to revolutionize mass transit. Yet during a media event last week was shown to be just a boring, one-way tunnel filled with non-automated Tesla vehicles moving at 35 MPH:"Whatever happened to those 16-person vehicles? When Musk first announced the Loop, it genuinely looked like an exciting new transportation system. Musk promised that each vehicle could fit over a dozen people inside and everything was autonomous. But it doesn't look like much of anything is automatic anymore. You even have to tell your human driver where you want to go." Many outlets couldn't be bothered to even mention any of this, instead offering gushing, unskeptical stories that called the undercooked tunnel a "thrill ride":Last week Neuralink also made an ocean of headlines after posting a video showing a monkey playing Pong with a brain implant. Press outlets went to great lengths claiming this new pong-playing psychic monkey would soon be "revolutionizing healthcare." Only a few outlets could be bothered to mention that nothing Neuralink is doing has been peer reviewed, FDA approved human trials appear nowhere on the horizon, there's notable safety and adoption issues that could derail such efforts, or that most of what Neuralink was hyping isn't particularly new:"It's really cool and looks really impressive. But so does the below video, which shows an implant being used by a human to control a robotic arm. Notably, this video dates from 2012. The actual work was probably done earlier, and there were undoubtedly trials in monkeys well before this." Meanwhile, actual experts and neuroethicists quietly doubted Neuralink can get remotely close to the kind of technology the company and Musk have promised anytime soon. But such voices in unskeptical, hyper-enthusiastic news coverage weren't particularly well represented.That's not to say that Neuralink's experiments don't hold potential, or that it's not damn impressive to see scientists transmitting data from 1,000 electrodes implanted in a monkey over a Bluetooth link. But at the same time, a lot of what Musk promises simply never materializes (like full and safe Tesla self driving), and news outlets aren't particularly great at presenting Musk and friends' latest claims with a grain or two of salt, or seeding stories with the essential context of a growing pattern of empty or over-inflated promises.Many journalists and readers alike can't seem to hold conflicting ideas in their heads simultaneously when it comes to Musk. The reality is that Musk is both an innovative tech pioneer and an egomaniacal grifter who routinely says dumb and untrue things:"It turns out it's all true. The cars are impressive and their flaws get covered up. Musk is a lying ignorant grifter and he has inspired innovation in the electric car industry. Understanding that these seemingly contradictory things can be true simultaneously is important, because societies who cannot hold these two ideas at the same time may end up following scam artists and false prophets off the cliff and into the abyss." There are countless researchers and scientists laboring under harsh halogen lighting at the edge of breakthrough tech and scientific innovation, who see little public attention. Their slow, steady progress generally isn't of interest to the ad-based media model. Such a model often isn't keen on explaining the deeper nuances of innovation with actual experts, because that simply doesn't make as much money as slack-jawed hype. Combine our ad-based media dysfunction with the generalized fanboy treatment of Musk as some kind of hybrid between Tony Stark and a god, and the net result is compounded hype untethered from reality.
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posted at: 12:00am on 20-Apr-2021
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