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LeBron James Declares Victory In Losing Bid For 'Taco Tuesday' Trademark

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It was only a couple of weeks ago that we wrote about LeBron James, part-time NBA superstar and full-time taco-lover, and his attempt to get a trademark for "Taco Tuesday" in the markets of podcasts, entertainment services, and social media. As we mentioned in that post, the idea that LeBron could get such a trademark on a fairly descriptive and widely used term is insane. Nearly as insane, as we noted, as the fact that the Taco John's chain already has such a registered trademark. It was the latter bit that we, as well as many other commentators on the topic, predicted would be the reason LeBron's application would be denied, as it would be identical to an already registered trademark.But the USPTO never ceases to amaze, it seems. While the USPTO did in fact deny the application, the confusing trademark it cited in doing so wasn't Taco John's, but another application for an advertising company out of Nevada.

But there was another preceding trademark filing which Yahoo Finance also caught for “Techno Taco Tuesday” that proved to be a key piece in the downfall of James’ attempt to lock up the rights to Taco Tuesday.The techno twist on the Tuesday was actually trademarked by a Las Vegas entertainment company back in 2018, specifically for the “advertising and marketing services” category for which James was seeking protection. As such, James’ application was denied for being “confusingly similar to the registered mark.”
Okay, so the USPTO decided that the fact that both applications included "Taco Tuesday" and the "Techno Taco Tuesday" application was both filed first and was in the same market as James' application. That might normally be the end of the story, and a particularly boring one at that, except that LeBron's team is declaring victory. Why?Well, because of the other reason the USPTO gave for refusing to approve the trademark.
However, it’s not all bad news for the Los Angeles Laker. James could still respond to the USPTO filing with added or adjusted language within six months if he so chooses. And according to what someone in his circle reportedly told ESPN, James still may have achieved what he set out to do by establishing “Taco Tuesday” as a generic term to cover for any legal claims that could be brought against his use of the term.“In this case, the applied-for mark is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment,” the USPTO examining attorney wrote in the declined trademark filing.
That sound you hear is the clicking of computer mice as every restaurant that has a Taco Tuesday event is bookmarking this ruling for when the Taco John's people come calling claiming trademark infringement. I can't imagine it's going to be terribly long before some company, or group of companies, seek to invalidate the Taco John's trademark that TJ's has wielded like a cudgel for so long, because this statement by the USPTO is fairly clear: "Taco Tuesdays" is generic as all hell.We cast narrow eyes at LeBron for filing this in the first place, but if he can end the madness that is Taco Tuesday trademarks, even I'll call him King.


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posted at: 12:00am on 20-Sep-2019
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Court Shoots Down Cop's Assertion That Driving Without Breaking Any Laws Is 'Suspicious'

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Must be tough out there for cops. Literally everything is suspicious. And there are only so many hours in the day. Since no court is willing to end the tradition of pretextual stops, anything that can be described as suspicious has been used to initiate fishing expeditions.A few courts have called out this tendency to view almost everything humans do as indicative of criminal behavior. This is one of the better call-outs, as it gives some indication of just how many "training and experience" assertions the court has had to wade through while dealing with law enforcement assertions about reasonable suspicion.

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”)
This is in addition to these data points, all presumed to be "suspicious" behavior by law enforcement officers:That's the standard law enforcement holds itself to. Fortunately, some courts refuse to accept this lower standard of suspicion. The Arizona Court of Appeals is one of those courts. This recent decision [PDF] overturns a lower court's inexplicable support of a cop's extremely dubious "reasonable suspicion" claims. (via The Newspaper)The defendant was pulled over by a police officer shortly after leaving a bar. According to the unnamed officer, the defendant's driving was suspicious. Here's what the officer observed:
At the June 2018 evidentiary hearing, the officer testified that, while on patrol for a DUI task force on December 7, 2017 around 9:30 p.m., he first observed Flynn when he was exiting a strip mall parking lot near Dobson and Guadalupe Roads in Mesa. The strip mall contained several restaurants that were open at the time but, because the officer knew there was a hole in a fence on the opposite side of the complex that separated the strip mall parking lot from an adjacent bar, he followed Flynn for approximately two miles. During this time, the officer estimated Flynn’s speed at between twenty-eight and thirty-five miles per hour, never reaching the posted limit of forty-five miles per hour. In the course of following Flynn, the officer observed no traffic violations or other clues of impairment.
This was the entirety of the officer's assertion: that he had observed literally nothing else than a person leaving a strip mall and driving home while obeying all traffic laws and otherwise appearing to be sober.The officer tried to claim that the driver's inability to hit the posted speed limit was itself suspicious. This ignores that fact that a speed limit limits top speed. It does not make driving at a lower speed illegal, nor necessarily indicate the driver is impaired.On top of that, the officer could not deliver any reliable testimony about his speed limit-related observations.
The officer testified he initiated the stop solely because Flynn left the vicinity of a bar and then traveled at a speed that varied but remained below the posted limit. However, the officer did not remember how many times Flynn’s speed varied. He did not have any clear recollection of where the fluctuations occurred or whether Flynn had been required to stop or slow down for any of the seven light-controlled intersections the pair encountered. Nor was he able to testify as to how frequent or great a speed variance would need to be to qualify as a clue of impairment.
With that, the suppression order is reinstated and the prosecution loses all the evidence the cop obtained during his suspicionless stop. The problem, of course, is that a ruling like this won't deter officers from performing suspicionless stops. It will just make them work a bit harder when crafting their assertions. People are still going to get stopped for completely bullshit reasons and allow taxpayers to fund the redress of grievances.

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posted at: 12:00am on 20-Sep-2019
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Monster Energy Opposes Teenager's Trademark Application Over Logos Not At All Similar

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Monster Energy. The company's name is enough to set the average Techdirt reader's eyes rolling. The company that makes sugar-heavy energy drinks has become essentially a caricature of an overly aggressive trademark enforcer. This habit is somewhat surprising, given just how often the company loses lawsuits and oppositions, which one would think would be a deterrent for future behavior. Instead, it almost seems as though every loss only spurs Monster Energy on.This continues on to today, when we learn that Monster Energy filed an opposition to a 21-year-old's trademark application for his business, Monarch Energy. You're probably thinking that the opposition is over the name of the young man's company, which would itself be a stretch as trademark infringement. But, no, it's over the kid's proposed logo.

At age 16, Mason McGuire discovered arthritis in his lower back. The mountain biker, baseball player and motorcycle rider wanted to stay active without aggravating his newfound aches. One year older, the Forest Charter School graduate decided to start his own business to mitigate his problems, and hopefully ease those of others.While taking a business course at Sierra College, the words of one individual continued to ring in his head: “My teacher kept saying, ‘You’ll never learn it until you do it,’” he said.So he did.But on July 30, McGuire received a letter that stunted his company’s development. Monster Energy filed a notice of opposition against his company, Monarch Energy, for violating trademark rules. Specifically, it said McGuire’s logo was too similar to Monster’s.
Are the logos similar? No, they damn well are not.

Trademark imageImage result for monster energy logoOther than the fact that both logos incorporate the letter "M" and both companies list their names below that "M", there is little to nothing similar about these two logos. The names of the companies, both prominently displayed, are different. The fonts are different. The styling around the letter "M" is different. The rest of the trade dress is different. Are people going to be confused by these two company logos? No, they absolutely are not.And, yet, this 21 year old has had to deal with this opposition before even getting his company truly off the ground.

Despite maintaining distinctions, McGuire said he was a bit nervous Monster Energy would file a claim against his company, because of Monster’s history of filing lawsuits, so he tried doing his due diligence before choosing the logo.“I made sure to go over the rules many times that wouldn’t infringe with Monster,” he said. But, he later said he suspected the large energy company might intervene legally anyway.McGuire acknowledges that there is no trademark police per se, meaning that Monster Energy must be aware of smaller businesses trying to exploit its brand. But, he added, the company can drop the court filing once it realizes an entrepreneur is not acting in bad faith.“I don’t care too much that they’re going after me,” he said. But McGuire — who has yet to hire an attorney — said he could lose his business with the possible legal fees needed to combat Monster Energy. He also said he can’t afford a new trademark to change his logo, for which he’s already paid.
Monster Energy doesn't have to care about the harm it's doing, of course, but it certainly should. Especially when this is yet another example of an opposition that never needed to be filed. But because Monster Energy wants to play the bully, a young man that started a business might lose it.

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posted at: 12:00am on 19-Sep-2019
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Australian Aboriginal Flag Mess Is Getting Worse -- All Thanks To Copyright

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One of the longer-running sagas here on Techdirt concerns the disgraceful situation regarding the flag of Australia's Aboriginal peoples. Mike first wrote about this in 2010, and again in June of this year. The problem is that what is now widely regarded as the flag of Australia's First Nations was designed fairly recently by a private individual, not a group representing those peoples, or some official Australian government body. The designer, Harold Thomas, signed a licensing deal with a clothing company, Wam Clothing, which imposes hefty fees for the use of the design, even on non-profit health organizations giving away items that bear the flag:

In August, Wam Clothing charged the Indigenous Wellbeing Centre in Bundaberg AU$2,200 [about $1500] to use the flag on T-shirts it had given to patients who came into the clinic for a preventive health check.
According to an article in the Guardian, the licensing agreement between Wam Clothing and Harold Thomas specified that the design may be used by Aboriginal people for non-profit purposes. However:
Wam Clothing has said the terms of any licence agreements are confidential and legally privileged and only for the benefit of the parties to that agreement. They said the documents seen by Guardian Australia may have been fraudulently created.
Wam Clothing claims that it is the exclusive worldwide licensee for the use of the Aboriginal flag not just on clothing, but also on digital media. To prove the point:
In mid-August, the company issued a "cease and desist" notice to the creator of a Facebook discussion page called "New Aboriginal flag or flags discussion" because its "use of the digital image of the Aboriginal flag on social media platforms are [sic] being used in a negative light".
Copyright and secret deals have made the situation so ridiculous that in June 2019 the Australian Senate passed a motion calling on the national government to do all it could to "ensure that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent". More recently, the Australian MP Linda Burney called for the government there to sort things out:
"This situation is untenable," Burney said. "It's unthinkable that the use of the Aboriginal flag is now governed by a secret agreement at the discretion of a for-profit company."It is a discredit to the flag's history and the strength it represents."
This is not just about copyright, or the rights of Australia's Aboriginal peoples. For Burney, the issue is personal:
"Like so many proud Aboriginal people, I've got a tattoo of the flag. What are they going to do? Try and cut it out of me?"
Probably best not to give them ideas, LindaFollow me @glynmoody on Twitter, Diaspora, or Mastodon.

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