How the Megaupload Case Has Hurt Brand Protection

The reason the case against Megaupload founder Kim DotCom has hurt brand protection is because it has nothing to do with trademark enforcement and no one knows it. With all of the news this case is getting, the public-at-large does not know the difference between counterfeiting and piracy. There are many different kinds of Intellectual Property but only trademark was set up to protect the consumers before the content owner. The purpose of a trademark is to identify the origin of a good or service. The way this works is that, if you see my name or logo on my product, you can trust that it was made by me. Trademarks are set up as a seal of trust and quality between a manufacturer and a consumer. People who slap your favorite company’s logo on an inferior product deserve to be made to stop. By placing a company’s logo on a commercial work without permission helps dilute the brand. Even if your use is apparently harmless, they must enforce all unauthorized uses in order to be allowed to enforce the baddies. It’s the basic rule that your school teacher had when you were a child, “If I make an exception for you, I’d have to do it for all the other kids.” Copyright protection is quite different. It protects the creator or the owner. While that is still a noble cause, the difference needs to be made clearer to the public. The Copyright Act of 1790 granted an author up to 28 years of exclusive rights to his work as long as he was alive. In 1948 the United Nations passed The Universal Declaration of Human Rights which states ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ I am citing this to make it clear that I vehemently support the protection of content. I do not, however, support the combining of these interests. Our founding fathers were careful to place copyright in the hands of the legislature (Library of Congress) and trademarks in the hands of the Executive Branch (US Patent and Trademark Office). This was no mistake.

In 1946 the United States passed the Lanham Act which prohibited trademark infringement, trademark dilution and false advertising. In 1984 the Trademark Counterfeiting Act established specific criminal penalties for the commercial use of a counterfeit trademark. Later, in 1999, the AntiCybersquatting Act was passed to prohibit the unauthorized commercial use of a trademark in a domain name. President George W. Bush made trademarks a priority when he appointed the first-ever Intellectual Property Czar, which was an undersecretary position within the Commerce Department. Of course trademark protection should be important. Our brands are exported all over the world and we rely on the reputation of those brands for more than a third of our economy. When President Obama was elected, he promoted the IPEC (Intellectual Property Enforcement Coordinator) position from undersecretary to full cabinet status. Somewhere between then and now this person with executive power has been dubbed the Copyright Czar. If the Executive Branch is granted to be in charge of trademarks and patents, why are they in the copyright business? Perhaps American corporations and our own government have been blurring the distinction between the two to make sloppy cases less noticeable. Or perhaps this is happening so that the specificity of Intellectual Property Rights becomes so unrecognizable that anyone can be prosecuted for almost anything. Or perhaps this is all just a completely innocent mix-up. Once we start to see copyright enforcement activity at the USPTO, we will know that our constitution is being ignored. Protection of all property needs to be respected, but the trademark community needs to stand alone in this fight if we want to bring trust back to the consumer.

Now I’m going to finish my coffee.

SOPA: Taming the Wild West

Set in the year 1865, the television show Hell on Wheels centers on the individuals working on the construction of the first transcontinental railroad. Colm Meaney plays Thomas “Doc” Durant, a greedy entrepreneur and the driving force behind this railroad, where he hopes to take advantage of the changing times and make a fortune. Although his mad quest is noble in many ways he goes, for the most part, unwatched. He successfully kept the US government at bay by occasionally returning to lobby Washington while his operation ran as he saw fit.

Here we are in the 21st Century, where new railroads have been constructed and new entrepreneurs are taking subsidies and lobbying the US government on how they think their throughways should be governed. The Internet is not just a bunch of wires and tubes, but the sidewalks, highways and railroads of our nation. Profiteers want to bamboozle you into thinking that this is not the wild west. It is.

I was recently on Capitol Hill presenting along side many of America’s labor unions in support of the pro-jobs bill known as Stop Online Piracy Act (SOPA). We were regular working joes presenting to congress and outside were teams of Google suits with wolfish grins. I can tell you first-hand that those leading the charge against SOPA are the richest people in the history of mankind. They want to make sure they can run their operations without regulation as long as they can. The non-billionaires that oppose this bill are the gunslingers who also profit from this lawlessness.

Every nation has border security. If a swindler tries to make his way across the American border he will likely meet with an enforcement agent and, if found a threat to American consumers, will likely be turned around and not make it across the border. If a swindler makes it across the border, and is caught, he is deported. SOPA is nothing more than a border protection act.

Google and Facebook are not their own nations and they do not deserve their own laws. They are companies incorporated in the United States and want to do business here. They also stand to benefit from the sale of illegal goods to American consumers. Because they believe older generations’ learning curves are slower, they are making outrageous statements like we are going to “break” or “censor” the Internet. Heed my warning — Do what is best for the consumer, not the billionaires and the gunslingers.

A great American Eleanor Roosevelt chaired a committee to draft The Universal Declaration of Human Rights. In 1948 it was adopted by the United Nations. Article 27 Section (2) of this declaration states, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” In 2011 those rights are under attack. Under attack by faceless perpetrators who are hiding behind these Rogue websites. Forty-seven per cent of America’s gross national product now comes from Intellectual Property. That means our nation’s most precious resource is its IP. Rogue sites are not only the vessel of choice of the modern criminal, I have seen first-hand terrorist and other criminal organizations selling counterfeits online to fund their activities overseas. I will tell you this — They don’t care about the economic impact, labor standards or consumer safety.

The Internet is a real place with real people, and real businesses need real laws. Don’t let these billionaires swindle you into thinking otherwise. Wyatt Earp needs to clean up. Let’s do this!

Anatomy of an Idiot or: The Case of the Counterfeit Judge

As I regularly search for shows on my TiVo using keywords that relate to my interests and work, I ran across a rerun of ‘Swift Justice with Nancy Grace‘ that originally aired on 2/28/11 entitled “An online rip-off; pit bull puppies”. This was caught in my filter because the word ‘knockoff’ was in the show’s description. In this episode, the first case was of a woman who had purchased a pair of Coach boots from a website buymerchant.com. Upon receipt of the boots, the Plaintiff stated that she believed they were counterfeit and was entitled to a refund of $174 USD. Whether the goods in this case were actually counterfeit is actually not even relevant to what I’m about to share. What followed was some of the most irresponsible judiciary-slash-journalistic behavior I have ever seen.

Grace first examines the boots saying, “If these are fake, I’ll buy ’em! I’m all about fakes!” She then hollers backstage, “Hey, bring me out my my ‘Frauda’!” She giggled and looked back at the camera explaining, “My fake Prada. I love it.” As she brings the conversation back to the case on hand, she turns to the Plaintiff and uttered in a snarky drawl, “So… you don’t like fakes?”

After picking up my jaw from the atop my Birkenstock I witness Grace call in her ‘expert’ to authenticate the boots. This guy’s qualifications were that he was a former employee at a Coach store. Wait, it gets better. As he makes his unconvincing case, Grace barks again and looks offstage, “Hey, bring me back my fake!” Then she asks her expert to authenticate her ‘Frauda’. He explains to her that it is counterfeit and that a real handbag of this type is of higher quality and would retail for about $1,500 USD. Then Grace starts howling like a preacher with a bellyache with, “Fifteen… hundred… dollars?!?!?! Do you know how long I’ve had this thing? Five years. That’s a good quality bag!” Just as I did, you are probably asking if this idiot actually admitted to purchasing illegal goods, defend it and then promote the behavior from her bench on national television. Yes. She did. You can witness an excerpt of the event for yourself by clicking this link here: http://www.swiftjustice.com/case_files/2011-02-28

While much of the civilized world is trying to discourage this type of contraband activity, we have a nitwit like this adjudicating cases with her own television show, and doling out legal advice on CNN. While Nancy Grace is hosting ‘Swift Justice’, what she really needs is a swift kick in the rear end.

Justice is Served

In my exclusive story from August entitled “Holmes and the case of the naughty web host” I chronicled the first ever successful suit against an ISP for contributory infringement. I was honored to be involved and proud of the work my team put in to assist Louis Vuitton Malletier and their attorneys Andy Coombs and Annie Wang of J. Andrew Coombs a P.C.

The Bureau of National Affairs wrote a good article about last week’s Judgment and Permanent Injunction against Akanoc et al. Give the court document a read.

Louis Vuitton v. Akanoc et al Judgment and Permanent Injunction

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Google Reader: Latest trend in Fakery

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Even only a year ago, spam primarily consisted only of unwanted email in your inbox. But now as blogs become more popular, services such as Google Reader make it easy for people to aggregate those blog feeds (commonly RSS and Atom) into your inboxes.

Along with feeds/blogs to which you specifically subscribe, one can also subscribe to keywords and topics known as ‘tags’. Replica watch spammers constantly have to innovate ways to make it to your computer without getting caught in your spam filters. This is also a method some call ‘indirection’ which takes a web surfer to a page that acts as a placeholder prior to linking them to the actual website selling the goods. This is a method to evade security features built into most popular browsers. The image on the right is an example of what such an ad may look like.

Folks, if there is money in selling replicas, bad guys are going to figure out a way to sell them. They key is staying one step ahead. The only way to do that is to hire a good team.

Now I’m going to finish my coffee.