Monster: M-80 - Credit: The Master Shake Signal on Flickr (CC BY-SA)

Hansen Beverage Company has sent a takedown notice to Desktop Nexus.  However, it is concerning trademark, not copyright.

They are asserting a trademark claim? They also said very clearly this was not a copyright claim. I suddenly regretted deleting those wallpapers, because I have a feeling what they’re doing is illegal. I did a little research on Continental Enterprises and turned up a number of horror stories involving their operation. To quote tabberone.com:

In our opinion, Continental Enterprises qualifies as the personification of a Trademark Extortionist. This Indianapolis-based company has taken trademark extortion to a new level.

They even went as far as filing a trademark infringement lawsuit against Tippman Sports a few days ago.

Desktop Nexus has over 600 new wallpapers being uploaded every day, making it impractical for us to manually moderate all the uploads. For this reason, sites like ours are protected under DMCA law, which requires us to take down content that violates copyrights in the event the copyright holder (or authorized agent) contacts us and makes a formal request. No problem. This however, is not a copyright issue. Continental Enterprises clearly stated they were not making a copyright claim. So I ask, does DMCA cover trademark issues as well, or are they trying to bully a smaller company into yielding to their whims? Did they have legal grounds to request we remove the wallpapers, and if so, did they approach it in a proper, legal way? Do we have any recourse in a situation like this? I want to remain legal in all of our actions of course, however I also feel large companies who abuse the legal system should be called out and have their ways exposed.

So I’d like to see these wallpapers.  I’m not sure how much it would affect the case here, but I wonder if they are actually portraying the drink.

• Desktop Nexus

The Electronic Frontier Foundation’s Deeplinks Blog reports that the Wikimedia Foundation has demanded that Wikipedia Art, a site commenting on art and Wikipedia, cease using the domain name “wikipediaart.org” on the grounds that the domain name violates the Wikimedia Foundation’s trademarks.

Last February, a pair of artists, working with several collaborators, created a Wikipedia article and invited the general public to add to it, following Wikipedia’s standards of credibility and verifiability. The work was intended to comment on the nature of art and Wikipedia. But Wikipedia editors did not take kindly to the project, and it was shut down within fifteen hours for being insufficiently “encyclopaedic.”

Fast forward a couple of months. The artists, Scott Kildall and Nathaniel Stern, have created a noncommercial website that documents the project, called Wikipedia Art. The domain name for the project: wikipediaart.org.

Yep, they used the term “wikipedia” in their domain name. “Wikipedia” is a trademark owned by the Wikimedia Foundation. And now the Foundation has demanded that the artists give up the domain name peaceably or it will attempt to take it by (legal) force.

I fail to see any trademark problems here. Trademark law exists to avoid confusion among customers with regard to brands, logos, and names. Based on the EFF’s article, it appears that all this site was doing was using the name to refer to the site itself, not host a faux Wikipedia or deceive Wikipedians into going to Wikipedia Art instead. The site itself even has a disclaimer at the top of the page denying any involvement with Wikipedia. I for one am grateful that the EFF has not overlooked their principles on free speech just because the site in question just happens to be Wikipedia. The Wikimedia Foundation should retract their accusations and apologize immediately (or at the very least provide an explanation for this action).

• Electronic Frontier Foundation

The New York Times and The Associated Press report that Hasbro has dropped its lawsuit over the popular Scrabble imitator Scrabulous (now Lexulous).

Hasbro, which owns the North American rights to the word game, sued Jayant and Rajat Agarwalla, brothers from Calcutta, India, this summer. The brothers developed the unauthorized version, called Scrabulous, after they couldn’t find an online version they liked.

The court documents did not specify a reason for the withdrawal of the case.

RJ Softwares, the Agarwalla brothers’ company, said in a statement that it has agreed not to use the term “Scrabulous” and has made changes to different versions of the game it created after the lawsuit was filed.

The article points out that Mattel, which holds the rights for Scrabble outside of North America, has not dropped its lawsuit.

• The New York Times [Print Version] (cookies required)
• Slashdot

The BBC News reports that a man named Oleg Teterin has trademarked the emoticon “;-)” in Russia and is expecting royalties for its use.

“I want to highlight that this is only directed at corporations, companies that are trying to make a profit without the permission of the trademark holder,” Mr Teterin said in comments on the Russian TV channel, NTV.

“Legal use will be possible after buying an annual licence from us,” he was quoted by the newspaper Kommersant as saying.

“It won’t cost that much – tens of thousands of dollars,” added the businessman, who is president of Superfone, a company that sells advertising on mobile phones.

But he said he does not plan on tracking down individual users of the emoticon.

This kind of insanity isn’t limited to Russia either.  Slashdot is quick to point out that Despair, Inc., creators of the Demotivator posters, had trademarked “:-(” years ago.

• BBC News [Print Version]
• Slashdot

The EU Court of First Instance ruled that the form of Lego’s signature bricks is not a valid trademark:

The decision, made by the EU’s Court of First Instance, can still be appealed and Lego will no doubt do so. The company has defended its trademarks in Europe for years, but the EU clarified some time ago that purely functional design elements (in this case, the size of holes, studs, and bricks) did not qualify for trademark protection. Canada’s Mega Brands, maker of the spelling-challenged “Mega Bloks” line of bricks, brought the case and now has the go-ahead to sell its products without problem across the EU.

Note to business owners: If your business model depends on being the legally protected sole provider of an object or service, be prepared to go out of business sooner than you think.

• Ars Technica

Groklaw reports that Mozilla, after the negative reaction from the community, has decided to forego having the next version of Ubuntu display an End-User License Agreement upon first use of the Firefox browser.

Here’s a screenshot of the latest language from Mozilla, and as you’ll see, they absolutely have listened to the community’s EULA concerns (if you click on the image, it gets larger). Instead of a EULA, the new page you get on install is a notices page with no “I agree” requirement, along with a link to an optional services agreement, and instructions there on how to avoid having to accept the services, if you don’t want them. The notices inform you about the license being the MPL, that Mozilla’s trademarks are theirs, not ours, and the link to the services offerings. I believe trademarks are important to protect, as you probably know from reading Groklaw.

This is far better than an EULA, especially because it both addresses the real issue at hand (trademarks, not copyrights) and because it exists in a human-readable short summary.

• Groklaw
• Slashdot

Firefox

Recently a subcommunity within the Ubuntu community became upset because Mozilla required that Firefox show an EULA on first startup. Mozilla has alterred their stance since then.

“There is a need for something, something to explain the license I’m not sure I would call it a EULA because that has a meaning to many people of adding restrictions to software and we won’t be doing that,” Baker said. “We’ll be having a license agreement much as Red Hat has a license agreement that says the software is available under the GPL and don’t use our trademarks etcetera. So we’ll have a license agreement but we won’t think of it as a EULA.”

The move away from a EULA to something more in line with other open source approaches to licensing on Linux is something that Baker noted has been in process for some time.

I really think that free licenses should consider adding a clause about trademark so that stuff like this can’t happen.

• Internet News
• Slashdot

Firefox

Mozilla is requiring that Ubuntu show the Firefox EULA to continue calling the browser Firefox.

I think it’s perfectly reasonable for Mozilla to have requirements and guidelines for the use of their trademark – we have the same for Ubuntu, and many other free software projects do the same. I would in fact consider it a best practice to have a good brand on a free software project, which means having trademark guidelines.

That said, I would not consider an EULA as a best practice. It’s unfortunate that Mozilla feels this is absolutely necessary, but they do, and none of us are in a position to be experts about the legal constraints which Mozilla feels apply to them. We had extensive conversations with Mozilla in order to find the best possible way of meeting their requirements while preserving the flow of use of the system for our users.

This trademark stuff is so sketch.  I’m not really digging Mozilla as of late.

• Launchpad (Shuttleworth’s response)
• Launchpad (EULA)
• Slashdot
• Wikipedia (Firefox)

Those two Scrabulous developers have done a bit to try to avoid trademark disputes, and rebranded the game as “Wordscraper.”

The return came less than two days after the creators of Scrabulous blocked their popular version of the word game from U.S. and Canadian users of Facebook, the online hangout. The Indian brothers behind Scrabulous had gotten sued in federal court by Hasbro Inc., the owner of Scrabble’s North American rights.

Now, the game has reappeared with the name Wordscraper. The change could help it avoid any brand confusion with Scrabble, a key point in trademark disputes.

The game itself has also changed. Instead of Scrabble-like square tiles, for instance, Wordscraper has circles. The tiles earning double and triple points have been rearranged, and tiles for quadruple points have been added.

Whether those design changes will protect the creators from claims of copyright infringement remains to be seen.

Ideas cannot be copyrighted, but expressions of ideas can. The case could turn on whether Wordscraper feels more like Scrabble or a generic board game based on words.

Smart move.

• Yahoo News

The EFF successfully has kept Lockheed-Martin from posting take-down notices concerning B-24 images.

Last month we told you about Lockheed Martin’s effort to use trademark infringement claims to cause the removal of digital images of classic military aircraft from TurboSquid, a stock images site. The central mark at issue was the term “B-24,” which Lockheed managed to register as a trademark for use in connection with scale models of airplanes. We sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections. We’re pleased to report that Lockheed has decided to withdraw its claim, and TurboSquid is putting the images back up forthwith.

It’s a shame we need the EFF for things like this, but we do.

• EFF