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December 2018
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EU General Court Refuses To Allow St. Andrews Links To Trademark 'St. Andrews' For All The Things

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For those of us who have fallen in love with the world's most personally infuriating sport, golf, the name The St. Andrews Links Golf Course is of course quite notable. The famed "Cathedral of Golf" also happens to be located in a town of the same name, St. Andrews in Scotland. St. Andrews is a fairly common term in the naming of locations and famous landmarks. Despite this, The Saint Andrews Links went to the EU's Intellectual Property Office to request it be granted a trademark for "St. Andrews" in roughly every category, including broadly in apparel and sports goods. When that request was denied in 2016 on grounds that location names have high bars to clear to get trademarks and are therefore relatively rarely granted, St. Andrews Links took its case to Luxembourg on appeal.There, the EU General Court dismissed the appeal, arguing again that "St. Andrews" is primarily a reference to the town of St. Andrews, not to any provider of the type of goods that St. Andrews Links wanted to hold trademarks for.

But having had its application to the European Union Intellectual Property Office (EUIPO) turned down in 2016, an appeal against the decision has now been dismissed by the EU General Court in Luxembourg.  According to official documents, the appeal board argued “the expression ‘St Andrews’ referred above all to a town known for its golf courses though not particularly for the manufacturing or marketing of clothing, footwear, headgear, games and playthings.”The court said EU and UK law generally excludes the registration of geographical names as trade marks “where they designate specified geographical locations which are already famous, or are known for the category of goods or services concerned.”
In other words, the town itself is also well known and, because the mark applied for consisted of the name of that famous town, St. Andrews Links can't lock up "St. Andrews" for itself in a bunch of categories not directly related to its business. Readers here will likely be nodding along, understanding that this all makes perfect sense. The reason I'm highlighting all of this is because of how frustratingly rare it is for an intellectual property office and appeals court to get this so, so right. Too often, corporate wishes are simply granted, especially when dealing with an entity like St. Andrews Links, which is itself rather famous and is a point of pride for the region.It sure would be nice if other IPOs applied the intent of the law this strictly.

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posted at: 12:12am on 14-Dec-2018
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No Agreement Made On EU Copyright Directive, As Recording Industry Freaks Out About Safe Harbors Too

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Today was the latest set of "Trilogue" negotiations for the EU Copyright Directive, between the EU Council, the EU Commission and the EU Parliament. When the trilogues were first scheduled, this was the final negotiation and the plan was to hammer out a final agreement by today. As we've been reporting lately, however, it still appeared that there was massive disagreement about what should be in Article 13 (in particular). And so, today's meetings ended with no deal in place, and a new trilogue negotiation set for January 14th. As MEP Julia Reda reports, most negotiators are still pushing for mandatory upload filters, so there's still a huge uphill battle ahead -- but the more regulators realize how disastrous such a provision would be for the public, the better.Also worrisome, Reda notes that after the Parliament rejected Article 13 back in July, MEP Axel Voss agreed to add an exception for small businesses that helped get the proposal approved in September. Yet, in today's negotiations, he agreed to drop that small business exception, meaning that if you run a small platform that accepts user generated content, you might need to cross the EU off your list of markets should Article 13 pass.One other important thing. Earlier this week, we noted that the TV, film and sports legacy companies were complaining that if Article 13 included a basic safe harbor (i.e., rules that say if you do certain things to remove infringing content, you won't be liable), then they no longer wanted it at all -- or wanted it to just be limited to music content. That suggested there might be some separation between the film/TV/sports industries and the music industries. But, no. Right before the trilogues, the legacy recording industries released a similar letter:

The fundamental elements of a solution to the Value Gap/Transfer of Value remain, as acknowledged by all three institutions in their adopted texts, to clarify that UUC services now defined as Online Content Sharing Service Providers (OCSSP) are liable for communication to the public and/or making available to the public when protected works are made available and that they are not eligible for the liability privilege in Article 14 of the E-Commerce Directive as far as copyright is concerned. We continue to believe that only a solution that stays within these principles meaningfully addresses the Value Gap/Transfer of Value. Moreover, licensing needs to be encouraged where the rightsholders are willing to do so but at the same time not be forced upon rightsholders.Therefore, proposals that deviate from the adopted positions of the three institutions should be dismissed.Unfortunately, for a number of reasons, the text now put forward by the European Commission would need fundamental changes to achieve the Directive's aim to correct the Value Gap/ Transfer of Value.For example, solutions that seek to qualify or mitigate the liability of Online Content Sharing Service Providers should be considered with an abundance of caution to avoid the final proposal leaving rightsholders in a worse position than they are in now. Any mitigation measures, should they be offered to OCSSPs, must therefore be clearly formulated and conditional on OCSSPs taking robust action to ensure the unavailability of works or other subject matter on their services.
This is pretty incredible when you get passed the diplomatic legalese. These music companies are flat out admitting that the entire goal of this bill is to hit internet companies with crippling liability that makes it literally impossible for them to host any user generated content. This isn't -- as they claim -- about a "value gap" (a made up meaningless term). Rather this is the legacy entertainment industry going all in on an attempt to change the internet from a platform for the public, to a locked up platform for gatekeepers. In short, they want to take the internet and turn it into TV. Europe should not let this happen.

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posted at: 12:12am on 14-Dec-2018
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Under Armour Can't Help But Issue A Cease And Desist For Tiny Clothier Cascade Armory

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Athletic clothing maker Under Armour has graced our fair pages a few times in the past, always for being on exactly the wrong side of the trademark equation. Between trying to torpedo tiny Christian companies like Armor & Glory, and ensuring that every member of the public is aware that its own executives don't have a sense of humor that they are aware of by suing Ass Armor, the mega-company has been quite busy making sure the entire world knows that only it is allowed to use the word "Armour." Notably important in all of this is that the company is exactly wrong in this claim, as trademark law nearly always comes down to whether customers will be confused by the use of words and trade dress, and it is not a platform for a single company being able to lock up a fairly common word.This is a lesson that apparently hasn't stuck for the folks at Under Armour, however, as the company has recently fired off a C&D letter to another tiny clothier, Cascade Armory.

According to Source Weekly, a start-up clothing store in Bend, Oregon named Cascade Armory has received a cease and desist order from the gigantic corporation claiming that the tiny store's brand could cause confusion to the billions of dads and bro-dudes who wear Under Armour's ass-ugly athletic gear.As you can see from the [below] picture, the logos of both companies share almost no similarities—other than the word "armor" which UA seems to have trouble spelling.
Here are the logos in question.
The first thing that should immediately jump out at you is just how insane any claim that there is the potential for customer confusion here would be. Cascade Armory isn't even using the word "armor", never mind the British spelling that Under Armour uses. On top of that, all of the dress and iconography is significantly different. Add to all of this that Cascade Armory isn't an athletic clothing maker, but a traditional one, and that should be the final nail in all of this. Under Armour can play make-believe pretending it lives in a world where it can tell everyone else on the planet that they cannot use any words that are even close to "armour" if it wants, but it simply isn't true.And, yet, the company makes demands far outside its legal rights.
In the cease and desist order, Under Armour demanded that Cascade Armory abandon with prejudice its application for trademark and any other applications and registrations for marks comprised of or containing the term armory, armoury, armor, armour or any misspellings or variations thereof. The company demanded Cascade Armory permanently quit using, registering or applying to register the Cascade Armory mark and any versions containing the same versions of 'armory' or 'armor.' Also, they demanded that Cascade Armory deactivate its website and social media pages that contain the same words.
These demands are flatly obscene given the flimsy nature of Under Armour's basis for all of this. Of course, we've said many times that big companies play the trademark bully because it works, largely because it can scare the hell out of startups and small companies that don't have a comparable legal war chest with which to work.
While the owners of Cascade Armory, Alex and Diana Short, have no intention of kowtowing to Under Armour's bullying tactics, they also admit that a legal fight against the conglomerate would put their young business in peril.
Which is why companies like Under Armour get away with this nonsense. Why they feel the need to do so is an open question.

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posted at: 12:12am on 13-Dec-2018
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School Boots Professor Off Campus After He Exposes Its Complicity In Predatory Publishing Schemes

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Predatory publishing -- the pay-for-play practice that allows anyone to have their research published as soon as the check clears -- may end up costing a professor his job. Derek Pyne, associate professor of economics at British Columbia's Thompson Rivers University, has managed to turn his own campus against him simply for telling the uncomfortable truth.

His 2017 paper, The Rewards of Predatory Publication at a Small Business School, exposed the ugly side effects of the constant pressure on researchers and academics to be published. "Publish or perish," the saying goes. And if you can't get published by someone who thinks your research is worth publishing, get published by someone who thinks everyone with enough cash on hand deserves to be published.

What Pyne found was schools rewarding publication, whether or not the publication was bought and paid for.

It finds that the majority of faculty with research responsibilities at a small Canadian business school have publications in predatory journals. In terms of financial compensation, these publications produce greater rewards than many non-predatory journal publications. Publications in predatory journals are also positively correlated with receiving internal research awards.

Some of those who were reaping the rewards of being published by taking advantage of pay-for-play publications were Pyne's associates at Thompson Rivers University. They didn't appreciate being the data set Pyne used in his research paper. This backlash has led to Pyne being ousted from the campus of the school that employs him. (via Reason)

As a result of that 2017 paper and the media attention that followed, Pyne says, he’s been effectively banned from campus since May. He may visit only for a short list of reasons, such as health care. Teaching is out and so, too, is the library. It’s unclear when, or if, Pyne will be allowed to resume his normal duties.

This isn't the only thing Pyne has done to piss off his colleagues. He's also engaged in a number of heated arguments with faculty about the quality of the school's grad programs and brought his numerous complaints to the press. Administrators claimed coworkers were afraid of him and demanded he undergo a psychological evaluation. His keys were taken and he was banned from campus. Pyne cleared the psych eval -- one that found (understandably) Pyne felt persecuted by his employer. He's now back on the payroll, but has been told to "cease communicating inappropriate, defamatory and insubordinate statements" about the school.

Fortunately, Pyne has a few allies. Retraction Watch -- an essential site with zero sympathy for predatory publications -- is now involved in Pyne's fight against the university.

Ivan Oransky, Distinguished Writer in Residence at New York University's Arthur Carter Journalism Institute and co-founder of Retraction Watch, has followed Pyne’s case for over a year. He said recently that he was “puzzled” about “what's actually going on. It's not very helpful when a university takes action like this but doesn't say why.”

That's why Retraction Watch has argued for the release of university investigations, he said, citing an article on why Cornell University hasn’t released its findings in the Brian Wansink research misconduct case, among other similar incidents elsewhere.

He also has some free speech warriors of the Canadian variety helping him out.

Canada's Society for Academic Freedom and Scholarship has appealed to Thompson Rivers on Pyne's behalf. The Canadian Association of University Teachers, similar to American Association of University Professors, is also looking into the case.

Thompson Rivers has refused to participate in that investigation so far, David Robinson, CAUT’s executive director, said recently.

“This is a very peculiar case,” Robinson said. “But certainly criticizing colleagues’ research or his administration is intramural speech protected by academic freedom. These are matters of educational quality. He may be correct, or he may not be correct. But he certainly has a right to express his views on educational quality.”

Entities that can't handle criticism love shooting the messenger -- especially when that messenger is pointing out the university's willingness to reward quantity over quality. Whatever reputational damage the school and its pay-for-play professors are suffering isn't the result of defamation or inappropriate statements from Pyne. It's a direct result of their actions and the incentives the university employs. The university says it will reward educators who publish. And those educators are hastily shoving receipts from sketchy publications into their pockets as they make cases for merit raises. The university could have responded by altering its incentive programs, and those stung by Pyne's research could have acknowledged their gaming of the system. Instead, they're doing this, which is unfortunate, but also just as unfortunately, unsurprising.

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posted at: 12:12am on 13-Dec-2018
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