Archive for ‘Uncategorized’

February 23, 2012

Authentic Identity, the Savior of Friendster 3.0?

I never cared much for Facebook. I have an account, I have 100 friends (mostly my big Irish Catholic family), I post on it almost daily. But without passion. There’s no love for the Facebook.

My participation comes from a sense of obligation because I’m interested in social media and this blog is primarily about how social media changes (or should change, or, more likely, will change, whether they like it or not) the litigation equation for companies protecting intellectual property. When to sue? When to find a softer solution?

The days when it was safe to trust this decision to Legal are drawing to a close. Marketing and Public Relations need to be consulted as well.

But I don’t get what’s so special about Facebook. As far as I can tell, it’s Friendster 3.0, the flavor of the moment. It’s been done before, it will be done again. Will we get this excited about Friendster 4.0 when it comes out in a few years? Probably.

And some of what I see makes me think Facebook is already past its prime. If it is valued at 100 billion on IPO day the way some people think it might be, then I’d say the play of the year is shorting Facebook.

All of THAT notwithstanding, in Foundations of the Social Web (or, Fake Tales of Menlo Park), William Carlton of Counselor @ Law has an interesting take on one innovative thing about Facebook that he gleaned from an in-depth reading of the IPO prospectus: Facebook is ready to take advertising to the next level.

Among other of his discoveries, Carlton presents a fascinating juxtaposition regarding something called authentic identity (basically, “be who you are”).

To its users, Facebook says, “Representing yourself with your authentic identity online encourages you to behave with the same norms that foster trust and respect in your daily life offline.” Then, a little later, to its advertisers, Facebook says, “Because authentic identity is core to the user experience on Facebook and users generally share information that reflects their real interests and demographics, we are able to deliver ads that reach the intended audience with higher accuracy rates compared to online industry averages.”

Shorter Facebook to its users: Suckers!

In case you were wondering how serious Facebook is about its authentic identity program, Facebook Temporarily Denies Access to Users with Invalid Names

While I appreciate and, from an idealistic standpoint, share Mr. Carelton’s antagonistic take on advertising, I can’t argue with Stephen Green’s observation that “[w]hen a service is free, you are the thing being bought and sold.”

So there’s THAT to consider in your buying and selling decisions.

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February 23, 2012

Great Moments in Privacy Policy Juxtaposition

Via ars technica:

Web privacy standards: easy to break, hard to enforce.

And the very next article,

iPhone and Android apps now required to have privacy policies.

Well done, Jon Brodkin.

September 7, 2011

The Streisand Effect

Are you familiar with the term “Streisand Effect”?  I wasn’t until reading a recent Techdirt article about the ham handed efforts by Gamestop to keep a competing software developer out of the market, and in so doing giving that developer more free publicity than they likely had the resources to buy. Ms. Streisand received the honor of this term after attempting, citing privacy concerns, to force a photographer to remove an  aerial photo of her house from an online collection of coastline photographs (her house was shown but not identified in the photo), resulting in hundreds of thousands of page views.

Here at Timothy 3.0, I try to highlight those moments when a legal team inadvertently creates a PR problem for a company because they did not consider how the new rules of social media turn every aspect of business in potential fodder for public debate. Today, everything a company does is Marketing, not just advertising, not just interactions with customers and the press, but competitors, critics, any person or entity within and without the company. Because you never know what will go viral.

The Streisand Effect is not quite the same thing, but similar enough to be one of those moments when I think I’m on to something new only to find it’s so common there’s a name for it.

August 22, 2011

Monster Cable, Portrait of a Trademark Bully

Sell something, anything, under a name that includes the word “Monster” and sooner or later you will likely receive a cease and desist letter from Monster Cable Inc., a company that has earned a reputation for coming after anyone who uses the word “monster” in anything but its literal sense (and sometimes even then, as Walt Disney found out while merchandising creatures from the movie Monsters Inc.).

Do a Google search for “’Monster Cable’ trademark bully” and you’ll find a member of the Hall of Shame, Corporations Division. They’ve issued scores of cease and desist letters and sued dozens of companies large and small, from The Boston Red Sox to monstervintage.com, an online used clothier. For this they take a lot of grief.

Their defense? “We have an obligation to protect our trademark; otherwise we’d lose it,” explains Monster Cable founder Noel Lee.

Really? Maybe for other sellers of home entertainment accessories, Monster Cable’s product area, but, say, a mini-golf course? A trademark does not typically extend further than the goods used under the name. And Monster Cable does not sell used clothes or operate golf courses.

Monster has a defense for this. They consider their mark “famous,” a term of art in Trademark law that gives extra protection to marks that are so intertwined with the company that no other company can use them. Take Coke or Pepsi, for instance. Nobody but the Coca-Cola Company or PepsiCo can use those names no matter the product being sold.

But is the Monster Cable mark famous? According to J. Thomas McCarthy, author of “McCarthy on Trademarks and Unfair Competition,” the very treatise Monster Cable cites for its claim, such a designation cannot be claimed by a company, it must be granted by a court and no court has so granted.

Nevertheless, Monster Cable clearly wants the famous designation and vigilance in protection is key to maintenance of Trademark rights. Can they be faulted for concluding that protecting the mark as though it were famous will make such a judicial grant more likely?

As an added wrinkle to Monster Cable’s spate of seemingly frivolous suits, they often win (or at least gain in settlement). Monster.com added a link to Monster Cable on its website (check the bottom, it’s small but it’s there). The Boston Red Sox changed their marketing for the seats above The Green Monster (so called since 1947).

Their most notable and celebrated losses were not to big players like the Discovery Channel’s Monster Garage, but to little ones like Monster Mini Golf, of all places.

So how did the little guy win? “We blogged nonstop, around the clock, for weeks, and enlisted much of our staff to do the same,” says Christina Vitagliano who along with her husband Patrick founded Monster Mini Golf. Monster Cable received at least 200 angry consumer complaints. After speaking with the Vitaglianos, Mr. Lee decided to drop the lawsuit and agreed to pay up to $200,000 of their legal expenses. “We have made the decision,” says Mr. Lee, “that public opinion and that of our valued customers is more important than the letter of the law that requires us to prevent the dilution of our mark [or] risk losing it.”

Monster Cable probably deserves the complaints it gets, but this can’t be mere mean spiritedness. It’s too expensive, the victories too meaningless, the damage to their reputation real and growing.

They want the prestige of having a famous mark and both the courts and the law tell them this will help them get it. They’re not crazy and they’re not wrong, even though they should be.

August 8, 2011

Like Is the New Link: Attracting Clients in a Social Media World

I wrote the following for the HuffingtonPost blog of the New York Public Library. It is a review of a presentation I attended about using social media as a marketing tool. It is my view, which I will hit on repeatedly here, that companies and firms need to alter their IP enforcement practices in the new world of social media. An important first step is understanding what social media is all about.

Like Is the New Link: Attracting Clients in a Social Media World

By Timothy Maguire

Almost half of the world’s Internet users are on Facebook. But how many are “likable?”

For anyone with something to sell, this is a particularly tricky question. Dave Kerpen found a great example of how to be charming and oh-so-subtly self-promoting while checking in to a Las Vegas hotel recently.

After waiting in line 45 minutes, Kerpen, the founder and CEO of the social media marketing site Likeable Media, tweeted his annoyance. Minutes later he got a response. From a different Vegas hotel. “Sorry to hear about your trouble,” the tweet said. “We hope you enjoy the rest of your stay in Las Vegas.”

That subtle, restrained little tweet impressed Kerpen enormously. In a free lecture at The New York Public Library’s Science, Industry and Business Library on Monday, he held it up as an example of how companies — anyone, really — should be marketing and monitoring themselves on social media.

read more »

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August 3, 2011

A Kinder Gentler Rights Enforcement Approach. Why? Part I

IP can be among a company’s most valuable assets. Recognizing this fact, state and federal statutes give rights holders powerful weapons to punish infringement. And in doing so, they encourage aggressive prosecution. Trademark law goes even further; failure to enforce Trademark rights can result in loss of those rights.

This attitude is understandable up to a point. But there is a downside that the law does not take into account—public disapproval of companies perceived as “sue happy” can damage goodwill.

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July 7, 2011

What in the World Happened at Righthaven LLC?

Righthaven burst onto the scene a couple years ago with a hot new business model–partner with a content provider (copyrights holder) and sue everybody who uses that content without permission for copyright infringement. Derided as a lawsuit factory, Righthaven has been hit with a string of losses that have not only threatened the whole operation but have placed the lawyers themselves of jeopardy for fraud upon the court.

Most of us have a nemesis, someone who makes our life difficult, who we can’t help but wish bad things for. Usually, it is an unrequited wish. Revenge is not sought or achieved, justice is not done, life goes on without satisfaction. In fact, it’s quite rare that someone’s fondest wish for their worst enemy comes true, it’s an event normally reserved for Hollywood screen writers. But Righthaven LLC, the bane of bloggers and fair use advocates everywhere, is in the process of giving their enemies just such a present as they melt down in spectacular and very public fashion.

How did this happen?

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March 9, 2011

What and Why

I’m an attorney interested in Intellectual Property (IP) issues, but not an IP attorney. See my blogroll for a partial list of bloggers who know IP law better than I do.

My interest is not in the law, precisely, but in the intersection of law and life from a philosophical and utilitarian standpoint. My two big ideas are: (1) the current law and lawmaking trend for Intellectual Property in the United States is not in compliance with the Constitution and (2) most companies will be best served most of the time by not fully litigating their rights.

Please see my About page