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Burger King Fights Proxy War Against McDonald's Over Hungry Jack Trademark Dispute

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As one of the largest private employers in the world, it probably shouldn't come as too big a surprise that McDonald's is fairly protective of its trademarks. The company, large legal coffers though it has, is not undefeatable, however. It was only a year or so ago, for instance, that McDonald's famously lost its "Big Mac" trademark in Europe when another chain, Supermacs, got it cancelled as it expanded into more European markets.Well, now Mcdonald's is facing another trademark issue in Australia. Down Under, there is a fast food chain called Hungry Jack's, which is actually a part of Burger King. Burger King, of course, is McDonald's chief global rival. There is something of a proxy war currently being waged over Hungry Jack's "Big Jack" sandwich, with McDonald's crying trademark infringement over its "Big Mac" trademark.

McDonald's Asia-Pacific filed Federal Court proceedings on August 28 against Hungry Jack's over its rival's new burger trademark, which it claims is "substantially identical with or deceptively similar" to its own Big Mac trademark.Hungry Jack's has been the owner of the registered trademark "Big Jack" since November last year but McDonald's says the trademark "is liable to be cancelled, and should in the exercise of the court's discretion be cancelled" on a number of grounds, including that it is "likely to deceive or cause confusion" among consumers.
So let's stipulate immediately that the rival for McDonald's absolutely constructed a sandwich burger that has a lot of similarities to a Big Mac. The construction of the food is similar and the names both have the word "Big" in them, and then culminate in designators for the companies selling them, but those names rhyme. Big Mac. Big Jack. You get it.So, with all of that stipulated, is this trademark infringement? Well, as always, that comes down to the question of whether there will be public confusion as to the source of the products. And Hungry Jack's is apparently prepared to argue that there won't be.
In a defence filed in the Federal Court on Friday, lawyers for Hungry Jack's said consumers were "well aware" of the "competitive rivalry between Hungry Jack’s and [McDonald's]" and it had not infringed the latter's trademarks. Consumers would not be deceived into thinking the Big Jack was a McDonald's product, they said.Hungry Jack's said it was entitled to use the Big Jack trademark, which played on the company's name and the name of "its founder and current owner, Jack Cowin". The word Jack was "closely associated by consumers with Hungry Jack's' goods and services", the company's lawyers said.
Add to the above that much of the complaints McDonald's lodges aren't relevant in a trademark dispute. The recipe for the sandwich doesn't really matter, unless McDonald's has trademarked this construction. If it has done so, it certainly hasn't said as much. The word "Big" in the name of each product basically doesn't matter, since it is both descriptive and in common use in trademarks all over the place. Instead, this is going to come down to whether "Jack" is too similar to "Mac", sufficiently so to lead to public confusion.Which is where Hungry Jack's point is made. The rivalry between these two is as famous in Australia as Burger King versus McDonald's is in America. Given that notoriety, and the simple fact that the dispute is over two words that very specifically designate the origin of the product, it's hard to imagine the public being confused by any of this.In other words, it would seem that McDonald's would need to bring instances of actual confusion to court to make this lawsuit successful.

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posted at: 12:00am on 01-Oct-2020
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Content Moderation Case Study: Ask.fm Responds After A Teen's Suicide Is Linked To Bullying On The Site (August 2013)

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Summary: After a UK teen took her own life in response to bullying on social networking site, ask.fm, her father asked both the site and the UK government to take corrective measures to prevent further tragedies. This wasn't an isolated incident. Reports linked multiple suicides to bullying on the teen-centered site.Ask.fm's problems with bullying and other abuse appeared to be far greater than those observed on other social media sites. Part of this appeared to be due to the site's user base, which was much younger than more-established social media platforms. This -- combined with the option to create anonymous accounts -- seemed to have made ask.fm a destination for abusive users. What moderation existed before these problems became headline news was apparently ineffective, resulting in a steady stream of horrific stories until the site began to make serious efforts to curb a problem now too big to ignore.Ask.fm's immediate response to both the teen's father and UK Prime Minister David Cameron's criticism (Cameron called for a boycott of the site) was to point to existing moderation efforts put in place to deter bullying and other terms of service violations.After major companies pulled their advertising, ask.fm pledged to assist police in investigating the circumstances behind the teen's suicide, as well as consult with a law firm to see if moderation efforts could be improved. It also hired more moderators and a safety officer, and made its "Report" button more prominent.More than a year after ask.fm became the target of criticism around the world, the site implemented its first Safety Advisory Board. The group of experts on teens and their internet use was tasked with reducing the amount of bullying on the platform and making it safer for its young users.More significantly, ask.fm's founders -- who were viewed as unresponsive to criticism -- were removed by the site's new owners, InterActiveCorp (IAC). IAC pledged to work more closely with US law enforcement and safety experts to improve moderation efforts.Decisions to be made by ask.fm:

  • Should anonymous accounts be eliminated (or stop-gapped by gathering IP address/personal info) to limit abusive behavior?
  • Does catering to a younger user base create unique problems not found at sites that skew older?
  • Would more transparency about moderation efforts/features nudge more users towards reporting abuse?
  • Should the site directly intervene when moderators notice unhealthy/unwanted user interactions?
Questions and policy implications to consider:
  • Given the international reaction to the teen's suicide, does a minimal immediate response make the perceived problem worse?
  • Does having a teen user base increase the risk of direct regulation or unfavorable legislation, given the increased privacy protections for minors in many countries?
  • Are moderation efforts resulting from user reports vetted periodically to ensure the company isn't making bullying/trolling problems worse by allowing abusive users to get others suspended or banned?
Resolution: When immediate steps did little to deter criticism, ask.fm formed a Safety Committee and, ultimately, dismissed founders that appeared to be unresponsive to users' concerns. The site made changes to its moderation strategies, hired more moderators, and made users more aware of the features they could use to report users and avoid unwanted interactions.

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posted at: 12:00am on 01-Oct-2020
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Appeals Court Says ICE Detainees Should Be Able To See A Judge In 48 Hours, Just Like Criminal Suspects

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The Fourth Amendment says law enforcement needs probable cause to effect an arrest. Further probable cause is needed -- as determined by a neutral judge -- to continue holding this person. This isn't even controversial. It has been established law for years. And yet, when ICE goes hunting for people it wants to deport, the Fourth Amendment just kind of vanishes. This happens even when ICE is wrong, and the person officers want to eject from the country is actually a US citizen.It seems awful to have to describe this recent Ninth Circuit Court of Appeals as "upending" the Fourth Amendment status quo. It really isn't. It simply affirms what's far too often been ignored by ICE and other border security agencies.Here are the facts leading up to this lawsuit, as recounted in the court's decision [PDF]:

Gerardo Gonzalez is a United States citizen. He has never been removable from the United States. The United States Immigration and Customs Enforcement (ICE), however, came to a different conclusion in December 2012. After Gonzalez was booked on state law criminal charges by the Los Angeles Police Department (LAPD), an ICE agent ran his name through electronic databases, an automated procedure that ICE uses to determine whether an individual is a removable noncitizen. Because one database flagged Gonzalez’s birthplace as being in Mexico, and the agent could not find records showing that Gonzalez had lawfully entered the United States, the agent determined that Gonzalez was removable from the United States. ICE issued an immigration detainer, requesting that the Los Angeles Sheriff’s Department (LASD) detain Gonzalez for up to an additional five days in the Los Angeles County Jail after when he was entitled to release from custody on state criminal charges so that ICE could take him into its custody.
This situation used to be even worse. Prior to December 2012, ICE didn't even need probable cause to issue a detainer. So, even if people were free to go, that freedom to go could be removed if ICE had done nothing more than initiated an investigation into whether the person targeted by a detainer was actually removable. Thanks to some litigation, ICE began requiring probable cause. But that probable cause was limited to an officer's "belief" that a person was removable. Because one database said Gonzalez's birthplace was Mexico and the officer could find no records of legal entry, Gonzalez was held for another five days after he was prepared to post bail for the state criminal charges. Here's how this worked out for Gonzalez:
On December 31, 2012, ICE issued the immigration detainer against him. Although the detainer had no effect on Gonzalez’s custody when lodged due to a then-applicable parole hold, Gonzalez became eligible for release on bail from LASD custody on state criminal charges in May 2013 when the hold expired. He attempted to post bail with the assistance of his girlfriend, who went to a bondsman. The bondsman informed her that Gonzalez was subject to an immigration detainer. The detainer requested that LASD keep him in custody for up to five additional days after his release from custody on state criminal charges. The detainer, however, prevented him from posting bail. Even if he posted the $95,000 bail as he had intended to do, Gonzalez would remain in custody. Indeed, it was LASD policy to comply with all ICE detainers.
ICE dropped the detained when Gonzalez sued, presumably in hopes of getting him to drop the lawsuit. It didn't happen. And now there's precedent on the books that says ICE can't do this sort of thing in future.The lower court said ICE can't rely solely on the database used in this case to make probable cause determinations. The database is too inaccurate to be relied on, according to the district court.
In finding for Plaintiffs on this Database Claim, the district court concluded that the databases are unreliable for determining probable cause of removability, and thus the Government violates the Fourth Amendment by issuing detainers based solely on searches of the databases.
The Ninth Circuit says the district court didn't do enough fact-finding to make this determination. However, the Appeals Court does reach this conclusion, which has the potential to vastly alter the way ICE enforces detainers. Without probable cause, ICE can't hold people more than 48 hours on a detainer or, as in this case, five days past the point the person was due to be released by local law enforcement. Detainees should be treated the same as arrestees and given their day before the judge as soon as possible.
[T]he panel concluded that, because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer.
Thanks to Trump, our immigration courts are already overloaded. And again, thanks to Trump, ICE keeps loading them up even more by going after anyone it believes is subject to removal, rather than concentrating on the "dangerous" immigrants this Administration claims infest our nation. If ICE can't get them before a judge within 48 hours, they should be free to go, just like anyone arrested on actual criminal charges.It hardly makes sense for the Fourth Amendment to be less effective for people detained on civil violations. The Ninth Circuit Appeals Court has corrected that error and its reach covers a whole lot of border territory.

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posted at: 12:00am on 30-Sep-2020
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Bill Murray Responds To Doobie Bros. Copyright Letter With Snark, No Offer To Pay For Use Of Song

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It's true that you don't often find us here siding with copyright holders in debates over copyright. It's not that there isn't a place for that sort of thing, of course. It's just kinda not our beat. Also, it's a bit of a dog-bites-man kind of thing. As folks who tend to think that ever-expanding copyright laws and a protectionist culture that has lost its way are bad for business, we typically focus more on artists who are doing exciting things in new business models, artists who are overstepping the purpose of copyright law and/or hurting their own causes through protectionism, and artists who choose to go the human and awesome route rather than pulling out the litigious nuclear bombs.In fact, we tried to do just that when we discussed the Doobie Brothers sending famed comedian Bill Murray a rather funny and human-sounding letter about his use of their music in ads for his golf apparel company. The letter was constructed to make it clear that Murray should have paid for the use of the music, but also was chock full of one-liner zingers, self-deprecation, and a general treatment of copyright law as not the world's most serious thing. It was a good copyright letter, which is rare.Well, Murray's legal team has responded. And it seems that they are going all in on the humor part of this exchange, while claiming that Murray's use of the music is fine because the band hasn't been harmed.

If you can't read the whole thing, the response letter is full of puns based on the Doobie Brother's song catalogue. It includes an offer to send some free Murray golf swag to the band. It throws in a reference to the fact that the band's legal team was involved in defending Robin Thicke in the "Blurred Lines" case. And it argues, based in part on that association, that the Doobie Brothers haven't been harmed and so no payment will be forthcoming.
I am sure that Howard King of your firm, who argued that the song "Blurred Lines" did not infringe on Marvin Gaye's composition "Got To Give It Up", would agree that your client was not harmed under these circumstances.
This, frankly, is a bad legal position to take. The two circumstances are nothing alike. Murray is using music from the band in an advertisement. The "Blurred Lines" case was all about minute details of how much of a song's "feel" could be copyrighted -- not the music itself, in terms of the copyrightable expression of a song, but, rather, its style.What Murray could have done would be to respect the band's congeniality in order to work out an arrangement with minimal impact on his company. The Doobie Brothers' initial letter, with all of its lack of serious threat, seemed to indicate the band would be open to that sort of thing. But to simply use the song in an advertisement and claim no harm, therefore no copyright infringement, seems like a stretch.In other words, I would advise Murray's legal team try to get back in touch with the band and come up with a real offer to work this out.

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posted at: 12:00am on 30-Sep-2020
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