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Israel, Ice Cream, Trademarks: This Year's Dumbest Controversy Results In Trademark Skullduggery

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Welcome to this year's dumbest controversy thus far. A couple of weeks ago, famed ice cream maker Ben & Jerry's announced that it would no longer be selling its products in "occupied Palestinian territory." Indicating that doing so would not align with the company's values, the idea here was that settlements that infringed on territory that was deemed to belong to the Palestinians by international law would be off the company's radar. Not all of Israel, mind you. Just the occupied territories. And that is when everyone lost their god damned minds. Ron DeSantis is seeking to have Florida put B&J and its parent company, Unilever, on a list of companies that should be scrutinized for "boycotting Israel". Jewish leaders indicated that the kosher rating of the ice cream could be altered for the same reason. Except that isn't what B&J are doing. It isn't boycotting Israel at all. It's simply refusing to sell its product in small sections of land that Israel currently occupies.And where this gets into Techdirt territory is that one law firm in Israel is going to so far as to try to screw with Ben & Jerry's trademark rights, arguing now that it can use the B&J trademarks in those territories because the company isn't selling products there any longer.

Ben & Jerry’s is on its way to losing ownership of its brand in the settlements. The law association Shurat HaDin has submitted a request to the Registrar of Companies to register a company called “Ben & Jerry’s Ice Cream of Judea and Samaria.” This would be in keeping with US law under which a company loses the right to trademark protection in areas in which it has stopped selling its product.The law firm informed food giant Unilever that since it had given up selling Ben & Jerry’s ice creams in the “West Bank,” under US law, it had lost the right to protect the Ben & Jerry’s trademark in those areas. Shurat HaDin has already submitted an application to the Israeli Registrar of Companies to register the new brand “Ben and Jerry’s Ice Cream of Judea and Samaria,” which will receive legal protection to sell the exact same ice cream, with the same trade name, and actually compete with the original company.
It should be obvious that this is absolutely not what trademark law is for. What is happening here is some combination of extortion and punishment simply because a private company has taken a very small stance on an international issue. This is typical of the maximal response that tends to be trotted out when Israel encounters these types of scenarios. I've heard this described by foreign policy experts as a form of "diplomatic deterrence", where a minor issue generates a response that's dialed to eleven simply to deter any like-minded companies or actors from taking the same actions.But that, again, is not what trademark law is designed to do. It's designed to keep the public from being confused as to what they're buying. And it's hard to imagine a more perfect scenario for creating public confusion than a fraction of territory being sold B&J branded ice cream that isn't legit while the rest of the country gets the legit stuff. And the idea that US law is being used to do all of this makes this all the more infuriating.
Shurat HaDin examined and found that under US law, in order to preserve the protection of a trademarked brand against use by other parties, there must be full intention to conduct business in a particular area. That is, in cases where a commercial brand is intended only to prevent another party from using the same label, without having any intention of operating in the same area, its request will not be approved. Therefore, once that person announces that he does not intend to operate in the same area, it means that he has no intention of using his trademark and his right to trademark will no longer stand.
It's not that simple, obviously. And hopefully the Trademark Office and any courts that might get involved will see this for the skullduggery that it absolutely is. Whatever stances you might want to take on political issues related to this, this simply isn't what trademark laws are for.

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posted at: 12:00am on 03-Aug-2021
path: /Policy | permalink | edit (requires password)

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New York Congresswoman Thinks It's Too Hard To Be A Good Cop, Offers Up Bill That Would Codify Qualified Immunity

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Last summer, following the George Floyd killing, members of Congress introduced the Justice in Policing Act of 2020. Among other reforms, the bill (since renamed the George Floyd Justice in Policing Act) attempted to bring an end to qualified immunity, the Supreme Court-created legal doctrine that allows officers to escape civil rights lawsuits if the court decides no existing precedent would have put them on notice that the violation of rights they committed was actually a violation of rights.This doctrine has made it extremely easy for officers to escape accountability for their actions. If there's no case pretty much on point, the cop walks. While the Supreme Court has recently reconsidered its demands for cases on point, the prevailing rule pretty much still stands: as long as rights are violated in new ways, the rights violation must be suffered by the victim with no hope of compensation. In most cases, this also means the courts never get around to deciding this new violation of rights is a rights violation, so officers remain free to pretend they don't know any better.It's a terrible system and it needs to be changed. Legislation could do it. This legislation apparently can't, though. After being passed by the House on June 25th of last year, it went to the Senate to die. The bill has not moved forward since being placed on the Senate's legislative calendar more than a year ago.Some Congressional reps, however, think qualified immunity is a good thing. They believe police officers just don't have enough protections, even with their unions, large number of powerful political backers, their own set of rights, and the ability to just walk away from the job rather than be punished for their misconduct.Representative Claudia Tenney (New York) is one of those people. Despite facing no serious threat to the doctrine of qualified immunity, Tenney is seeking to have the Supreme Court's doctrine codified into law, preventing the court from walking it back at a future date. It also would punish any local governments that fail to "respect" law enforcement with the same fervor Tenney does.

Congresswoman Claudia Tenney (NY-22) today unveiled details of her legislation, the Local Law Enforcement Protection Act, that protects qualified immunity for police officers serving at the state and local level.Tenney's bill would prevent state and local governments that remove qualified immunity protections for police from applying for certain federal grants.
Still not sold? Here's more from Tenney, who appears ready to elevate each and every law enforcement officer into sainthood.
"Our Law Enforcement Officers put their lives on the line every day at great personal risk. In the last year alone, police have faced unprecedented challenges like the pandemic and increasing crime. Accountability and transparency are vital, but removing qualified immunity achieves neither. It opens police officers to unfair and frivolous attacks simply for doing their jobs. At a time when activists and politicians in Washington are demonizing and defunding our police, I'm honored to stand with them to deliver the resources and support to keep our communities safe," said Congresswoman Tenney.
One can almost imagine the red, white, but mostly blue flag flying behind her as Tenney boldly stands up for people with an immense amount of power that have, for years, barely been reined in by almost nonexistent accountability. No one's saying law enforcement isn't a difficult job. We just want law enforcement officers to do this job better and be accountable for their actions when they do it wrong. A litigation ejection seat only government employees can use hasn't done anything for accountability or transparency, so if these concepts are actually important to Rep. Tenney, maybe it's time to strip away the barrier to accountability erected by the Supreme Court.But there's more. Tenney also drops this truth bomb:
The past two years have marked the deadliest period for law enforcement in decades. In 2020 alone, 264 police officers died in the line of duty. So far this year, at least 148 officers have tragically died.
What's deliberately left unsaid here is that the past two years were the deadliest period for pretty much all of humanity in decades. Law enforcement couldn't escape COVID either. Here's what's left out of this selective statement:
Of the 264 officers who have died in the line of duty, there were 145 confirmed Covid-19 cases.
COVID-related deaths are 55% of that total. Tenney's effort to spin a narrative that it's more dangerous out there for cops than it's been in decades also ignores this factoid:
Forty-eight officers were shot and killed during the year compared to 51 during the same period in 2019, resulting in a 6% decrease.
It's not getting worse, in terms of the normal dangers of the job. It's still about the same as it's been for several years, which have seen historic lows in both the killing of officers by suspected criminals and crime rates in general. To read this in the context of Tenney's heated comments, it would appear officers actually need a little less protection than they've needed historically. Why not start with the end of qualified immunity?As is to be expected, a long line of law enforcement officials have offered their support for the bill, which directly caters to their interests. That's a natural reaction, albeit one that does nothing to bridge the gap between them and the people they're supposed to be serving. Rep. Tenney would prefer to serve the interests of other government employees, and that's not going to bridge any gaps either. This redundant bill is a yet-to-be-drafted sermon that aims to only engage with the already-converted. Hopefully, it will be ignored in the order it is received.

Read more here

posted at: 12:00am on 03-Aug-2021
path: /Policy | permalink | edit (requires password)

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