This has been on my to-do list for months and I’m finally making it a priority – the firm is starting its newsletter this month.
The goals of my firm’s monthly newsletter are to be short, relevant, and useful. Each edition will address one timely topic and provide updates from the blog and my speaking schedule. It may take me a few months to figure out the best days and times to do my mailings, but you should only get one email a month.
Will my newsletter have a shameless plug for my book? Of course! But I promise it will not be the main content. This newsletter is designed to offer helpful tips and suggestions to my subscribers, not to boost my book sales. If that’s a side effect, it’s just a bonus.
So how can you subscribe? It’s easy – you can subscribe to the newsletter here. Please note you have to add yourself to my mailing list. I will not add you without your explicit request and consent. One of my pet peeves is meeting a new person at a networking event, exchanging business cards, and finding myself added to their newsletter mailing list the next day without consent. I promise not to spam you or to sell my mailing list to third parties.
The first edition of the newsletter is scheduled to be delivered on Wednesday, November 28th. Please subscribe now if you’re interested in receiving it.
One of the Greeting Cards available on TheOatmeal.com
I suspect he has a harder fight on his hands this time around.
Ars Technica released a story this week that The Oatmeal (aka Matt Inman) is going back to court, courtesy of Oatmeal Studios. Oatmeal Studios is a greeting card company that’s suing the artist for trademark infringement because he’s selling greeting cards on The Oatmeal website.
Matt became more infamous than ever with his legal issues related to FunnyJunk earlier this year. I think that was a pretty easy fight for him to win, but this time he has a more formidable opposition.
According to the USPTO, Oatmeal Studios has been selling greeting cards under this brand since 1978 – that means they’ve been selling cards since before Matt was born. In 2004, the company registered the trademark “Oatmeal Studios” for use on “greeting cards, gift cards, occasion cards, paper party decorations, writing pads, note pads, and memo pads.” That means no one can start using “Oatmeal Studios” as a trademark on these or similar products anywhere in the United States after the mark was registered.
Matt has had his site since at least 2009 according to the WhoIs records. He started drawing comics and now he also sells greetings cards, prints, mugs, t-shirts, stickers and posters on his site.
I suspect Oatmeal Studios thinks “The Oatmeal” is too similar to “Oatmeal Studios” so they want to shut down at least the greeting card arm of his operation. Since they have the federally registered trademark, they might succeed, but I think there’s a strong argument that the marks are different enough and the products are different enough that Matt could be allowed to sell his cards because no consumer would ever confuse the two products.
Let’s take a brief look at the factors the court looks at when deciding the likelihood of confusion.
Strength of the Plaintiff’s Mark: “Oatmeal Studios” for a greeting card company sounds like an arbitrary mark to me, which is a pretty strong mark. This makes it more likely that consumers will be confused about the difference between “Oatmeal Studios” and “The Oatmeal.”
Degree of Similarity between the Marks: The marks are pretty similar. One has an added “the” and the other has “studios.” I think the fact that Matt doesn’t have “studios” or something along those lines as part of his name helps him. “Oatmeal” describes the company on one side but “Oatmeal” describes him as a person on the other.
Proximity of Products: Matt sells his cards on his site. Oatmeal Studio’s cards look like the cards I see in Walgreens and stationary stores. The fact they’re not sold in the same places helps Matt’s case.
Likelihood that the Plaintiff will Bridge the Gap: These companies both sell greeting cards, but I doubt Oatmeal Studios will be selling signed prints, posters, mugs, t-shirts, or stickers anytime soon.
Evidence of Actual Confusion: Has anyone been confused about the differences between Oatmeal Studios and The Oatmeal? I doubt it.
Defendant’s Good Faith in Adopting the Mark: If memory serves, Matt’s alter ego The Oatmeal came from his activities in the gaming world. It had nothing to do with Oatmeal Studios. I suspect when he started his site to share his comics that he wasn’t thinking of creating a line of greeting cards.
Quality of the Defendant’s Product: Go check out Oatmeal Studios’ website. I see no similarities between these cards and The Oatmeal’s greeting cards except that they’re both on paper. I think they’re of equal quality as paper products, but when you look at the quality and characteristics of the artwork, they’re not similar at all.
Sophistication of the Buyer: People who buy The Oatmeal products specifically seek out Matt’s work. They will not even thing for a second that Oatmeal Studios is his work.
I think there’s a good chance that Matt can argue that there is no likelihood of consumer confusion when it comes to these two brands. The names may be similar, but I think the products are different enough that Matt has a good shot at winning. I hope this case also inspires Matt to register his trademark for his products to avoid similar problems in the future.
Call a spade a spade by scarycurlgirl_photos from Flickr
I had the pleasure of speaking at TechPhx last weekend. My presentation was entitled The Legal Side of Blogging: 10 Questions to Ask Before you hit “Publish.” We had a great discussion about how to be an outspoken blogger without setting yourself up to get sued for defamation or invasion of privacy. Hat tip to Tyler Hurst who joined us via Ustream from Portland.
I walked away from the discussion with the reminder that big problems can result from little mistakes. Often times saying less is the best course of action. Sometimes it’s best to point out the dots and let your readers connect them. If there’s a news story that’s a hot topic in your community, you may want to write about the topic in general instead of the specifics about the situation. Your readers will know what you’re alluding to without having to explicitly state it.
When you’re a passionate writer, it’s important to state the facts and your feelings as they are without over-embellishing. Don’t manipulate the facts to get the message you want. Take a step back and review your work. Ask yourself what you can think, what you know, and what you can prove. When something is a rumor or an allegation, state that and cite your source when you can. Always be mindful of the fact that you can be sued for defamation if you repeat someone else’s defamatory statement – even if you didn’t know it was false.
One of my favorite ways to state my views without having to be so blunt about it is to quote someone who shares my perspective. I could call someone that I dislike or disapprove of an ass on my blog, but I think it’s more fun and effective to listen when others are talking about the issue and quote one of them when I hear them say “He’s a prick.”
Last week during Hurricane Sandy, many of us turned to Twitter for up-to-the-minute updates about the storm. An anonymous person using the handle @ComfortablySmug made several tweets.
BREAKING: Con Edison has begun shutting down all power in Manhattan
BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter
BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water.
It was later revealed that the information was false, but not before these tweets were retweeted more than 500 times according to reports.
Buzzfeed’s Jack Stuef investigated the situation and determined that the anonymous tweeter was Shashank Tripathi, a campaign manager for Republican congressional candidate Christopher Wight. Tripathi has since resigned from his position and tweeted an apology for posting inaccurate information. That was his latest tweet from that account.
The New York District Attorney’s Office was asked to pursue criminal charges against Tripathi for his irresponsible tweeting. It will be interesting to see if he’s charged.
What Might He Be Charged With?
In many situations, it’s not illegal to lie unless you’re entering realms like fraud or identity theft. I did some digging in the Arizona criminal code and I could see a prosecutor making an argument that a person who posts inaccurate information during an emergency could be charged with electronic harassment, falsely reporting an emergency or causing public panic, creating a hoax, or possibly something along the lines of disorderly conduct.
Some of these crimes, like electronic harassment, require a victim and Tripathi didn’t appear to have a target. I wonder if issues like this might make the prosecution’s job harder.
What About Tripathi’s Right to be Anonymous?
Yes, the First Amendment protects your right to free speech, including your right to speak anonymously. It does not guarantee your anonymity. If you want to be anonymous, you have the responsibility of not making it easy for others to figure out who you are. Apparently @ComfortablySmug was unmasked because he posted censored pictures of himself and the uncensored version was easily discovered and revealed his identity.
If he committed a crime, his right to be anonymous also went out the window.
What do you think should happen to Shashank Tripathi? Should he be charged with a crime for tweeting lies about Hurricane Sandy? Please share your opinion as a comment below.
In the last week there have been a few stories about celebrities running into trouble with prospective trademarks. I thought I’d break down the two major stories I’ve heard.
Blue Ivy
Jay-Z and Beyonce had a daughter earlier this year and named her Blue Ivy Carter. (Why do celebrities give their kids such stupid names?) According to the news report, Jay-Z filed an application to trademark her name within days of her birth. It seems very strange to me that a high priority of a new parent is starting a product line based on their kid’s name.
To have a trademark, you have to select a mark and the product or service you’re going to use it with. A mark can be anything that will differentiate your product or services from the competition – a word, a tag line, a color, a scent, a sound, etc. Its purpose is to inform consumers about the source and the quality of the goods they’re buying. Once you register a mark with the U.S. Patent and Trademark Office, no one can use a similar mark on similar goods and services because it might lead to consumer confusion.
Jay-Z’s trademark plan hit a bit of a snag. When he applied for the trademark, he was likely informed that there are several registered trademarks featuring the phrase “blue ivy.” One is an event and wedding planning service, another is an online furniture retailer, and another is a retail store that sells clothing, jewelry, accessories, and giftware.
Jay-Z and Beyonce could register “Blue Ivy Carter” as a trademark, but not to sell a good or service that was similar to one of the existing registered marks. It appears they’ve registered the mark for skin care products, baby products, ring tones, key rings, and accessories among other things. The list is disgustingly extensive.
The best part of the trademark record is where it says, “The name ‘BLUE IVY CARTER’ identifies a living individual whose consent is of record.” That’s funny.
Khroma
The other trademark story I heard recently involves the Kardashians. Apparently they plan to release a makeup line called Khroma Beauty that is expected to be sold in Sears and CVS Pharmacies. The problem they’re running into is the fact that there’s a salon called Chroma Makeup Studio in Hollywood that sells its own Chroma brand of makeup. I couldn’t discern in a quick search if the studio owner had registered the trademark.
The general rule in trademark is that it’s not enough to have a different spelling of the same word as your competition’s mark. For example, if someone owed an “Alligator Furniture Store” in your city, you probably couldn’t open a competing store called “Allig8tor Furniture.”
Even without registration, the owner of the Chroma mark gets the exclusive rights to use his mark in commerce wherever the market has been established. If nothing else, he might have a valid argument to keep Khroma makeup out of the stores near his studio. He’s asked the Kardashians to change the name of their makeup.
When selecting a potential mark, it’s a good idea to check the U.S. Patent and Trademark Office to see if someone has already registered the mark you want to use on similar goods and services. If they are, you’ll have to pick a new trademark.
It’s also prudent to run a simple Google search to see if someone is using the mark in commerce without registering it. If they are, you’ll have to consider whether it would be better to pick something new or use a similar mark knowing that the other user has the exclusive right to use the mark where they’re established. If you register your similar mark, you can use it everywhere in the country except the areas where your competition established itself prior to your registration.
Zombathalon – Zombies shamble forth! by Moriartys from Flickr
Around Halloween there are a lot of organized zombie walks and zombie races, but we wanted to see what would happen if we created a zombie outbreak in an unexpected location.
Zombathalon – Zombie Outbreak Warning! by Moriartys from Flickr
Improv AZ organized a group of 13 zombies that invaded the Arizona Canal, a popular running/walking/biking path in Phoenix over the weekend. For about 30 minutes we stumbled and groaned up and down a section of the canal while covered in fake blood, ripped clothes, and with pasty white makeup covering our skin. We warned people that they were coming upon a gaggle of zombies by posting yellow signs covered in fake blood that said, “Warning: Zombie Outbreak.”
We had an awesome time entertaining, surprising, and scaring our unsuspecting audience, but was it legal?
Did We Commit Trespassing?
No. It was a public path. Everyone’s welcome to use it.
Did We Commit Assault?
No. Assault requires intentionally, knowingly, or recklessly causing a physical injury or putting someone in reasonable fear of physical injury. Most of the time we were moving too slowly to get close enough to anyone to even touch them. I doubt anyone thought we were trying to injure anyone. I think they figured out that it was all in good fun.
The only time we had physical contact with any runners was when they initiated contact with us with high fives, fist bumps, and one person jokingly threw water at one of us.
What About Intimidation? Unlawful Imprisonment?
No. That would require us threatening to cause physical injury, serious damage to property, or serious public inconvenience. Public inconvenience is things like forcing the evacuation of a building. Putting people in a situation where they have to run around us – an extra 5 steps to their run – hardly counts as a public inconvenience. Imprisonment requires restraining a person. We may have been in the way, temporarily, but we didn’t prohibit anyone from moving down the path.
It’s probably not a public inconvenience if the people are laughing about it while they’re doing it.
We did this flash mob to entertain our unsuspecting audience and everyone seemed to have a good time. We had a lot of people laugh and make jokes when they saw us.
We had to be more careful than zombies in an organized zombie race because at those events the racers know they will be navigating a course where there are zombies who try to attack them. They know and consent in advance to being approached and touched by those zombies so there’s little risk that those zombies will be accused of wrongdoing either.
You can check out the video from The Zombathalon here.
I was out walking my dog yesterday morning when I received a surprising and disappointing email. I responded with a pretty loud, “FUCK!” I think everyone within a half block of me who wasn’t wearing earbuds heard me. As I finished my walk, I started reflecting on the freedom of speech.
As a flash mobber and an outspoken blogger, I’m grateful we have the freedom of speech in the United States. When I have strong feelings about a topic, I get to express them. People in some other countries aren’t so lucky.
I’m also a big fan of the idea that you have to accept the consequences of what you do and say. Now, I like the word “fuck” as much as I like words like “superfluous” and “misanthropic.” Speech is a wonderful powerful thing. But not everyone likes what I have to say or the way I say it sometimes, but when I say something, I own it. And I completely accept it when people dislike me because I share my points of view. I may not like it when people disagree with me, but I accept it.
My mantra is “Don’t post anything online that you wouldn’t put on the front page of the newspaper.” The same concept applies to anything in public. If you say it, own it. If you realize after the fact that you said something you shouldn’t have, or you shared your view based on incomplete data, apologize for it.
Despite our right to share our feelings and opinions, the freedom of speech isn’t completely free. We accept restrictions on our First Amendment rights based on time, place, and manner all the time. We can’t yell “Fire!” in a crowded theatre where there are no flames present. We can’t threaten the life of the President. We accept that you must be 18 years old to purchase or create pornographic images. I won’t wear my shirt that says “Do Epic Shit” across the back to establishments where children are generally present, or at least I put a jacket over it. We accept these limitations as necessary for the betterment of society.
When we celebrate our right to the freedom of speech, we need to respect others’ right to express themselves too. There are times when I hear people who make my stomach churn and my blood boil and the only thing I can do is walk away, which is not always easy when you live in Arizona. But I respect their right to express their views.
A few years ago I was on a run and I encountered a group of people protesting in front of a Planned Parenthood. As I approached them I cheered, “Go First Amendment!” When one of them offered me a pamphlet, I declined and said, “Oh no. I support abortion.” If I want to dance in the streets and express my views in my forum, I have to respect their right to peacefully protest on public property.
Cholla Trail Landmark – Camelback Mountain by Dru Bloomfield – At Home in Scottsdale
Last week Pete Kosednar was hiking on Camelback Mountain when he saw a woman on the trail who didn’t have her dog on a leash. He turned on his video camera and asked her is she knew that her dog was supposed to be leashed. She didn’t appreciate being filmed and reacted by swearing at him and hitting him. Check out the video for yourself.
Was Pete Kosednar wrong to film this woman? No! She was in a public place where she had no expectation of privacy. As long as he wasn’t filming her to commercialize her image or filming her in a way that constituted any type of harassment, there’s nothing she could do to stop him from filming her. And now the video is on YouTube where everyone can see her behaving badly.
I understand that privacy is a hot-button topic for a lot of people. It is for me. However, you have no expectation of privacy for anything you do in view of the public so there’s nothing you can do to stop someone from filming you in most situations. Pete could probably strap a video camera to his head and tape most of his day-to-day activities without risk of penalty.
There are some places where you can expect to not be filmed like public bathrooms, tanning beds, locker rooms, and retail businesses that don’t allow you to take pictures or shoot video in the store. This woman was on Cholla Trail on Camelback Mountain. There are no special restrictions on shooting photos on video there.
It also amuses me when people make a scene about being filmed in public. We have surveillance cameras everywhere – in the stores and shopping centers, on courthouses, monitoring freeway traffic, etc. It’s funny when people accept those cameras as a part of every day life but freak out when someone turns on the camera in their phone when they’re standing on the sidewalk or in a public park.
The take-away lesson here is if you’re going to behave badly in public, whether you’re breaking the law, violating a social norm, or making an ass of yourself, don’t be surprised when you find out that someone videotaped it and posted it online.
This seems pretty messed up – policies have been enacted at John Jay High School and Anson Jones Middle School in San Antonio, Texas that require students to always carry their student ID cards that have radio-frequency identification (RFID) chips embedded in them. These chips are used for attendance with the goal of reducing truancy. The school hopes the chips will keep kids from skipping school which will result in the school district getting significantly more funding.
The problem is these chips broadcast the holder’s location 24-7. Anyone with an RFID reader can track them. According to my source, Heather Fazio of Texans for Accountable Government easily filed a Freedom of Information Act and was given the names and addresses of every student in the school district. It only cost her $30. That means if she has an RFID reader, she has all the information she would need to tract a student if she was so inclined if the person had their student ID with them. That’s frightening!
Some students are standing up to this invasion of privacy and refusing to carry their student IDs or only carrying their old ID cards that don’t have RFID chips. They said they’ve been tormented by instructors, barred from school functions, and not allowed into the cafeteria or library.
I don’t have a problem with requiring students to carry a student ID when they are on school property and I like the idea that schools could take attendance by having students swipe a card at the classroom door. I take issue with the school and others being able to track students when they are outside the school walls and on their own time. It’s a privacy issue and a safety issue.
The police need a warrant to put a GPS on your car to track you. Why should a school be able to mandate that students be trackable 24-7?
I agree that these students have no expectation of privacy when they are in public and they are required to be in school by law, but that doesn’t give the school permission to make them trackable wherever they go.
The policy in question requires students to carry their cards in their pockets or around their necks. If I were a student in one of these schools, I’d try to disable the RFID chip by punching a hole through it and putting it on a string around my neck. I’d be complying with the letter of the law while protecting my privacy.
I’m so excited to announce that my first ebook, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed will be released on Amazon next week!
I’ve been blogging since 2009 and I wanted to write a book by a blogger for bloggers about the legal issues that come with having a blog. This book is a combination of multiple research projects on the legalities of blogging that I’ve done over the last two years. This books combines the findings of those projects, dumps the legalese, and gives bloggers clear information about issues like copyright, privacy, and defamation.
My family and friends are participating in a collective book purchasing event (aka bum rushing the charts) to give my book a boost in Amazon’s rankings next Thursday, October 4th between 10am and 11am Pacific Time. If you’re planning on buying the book, you’re welcome to join us. And if you love the book, please leave me a review on Amazon.
I’m selling my ebook at $3.99, which is significantly lower than the price many other lawyers put on their books. I wanted my book to be accessible to my audience which is bloggers, not just legal bloggers.
I never could have pulled off this book by myself so I need to thank the people who helped make this possible.
Thank you to everyone else who helped me along the way. It’s been an incredible six months finishing this project. I also made a video about my book’s release here.
Will my newsletter have a shameless plug for my book? Of course! But I promise it will not be the main content. This newsletter is designed to offer helpful tips and suggestions to my subscribers, not to boost my book sales. If that’s a side effect, it’s just a bonus.
