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Women, IP law and the panel-gender quota count

Likelihood of Confusion -

It started with a bit of typical Internet snark between lawyer-mindfulness guru Jeena Cho and your snarky blogger:

Go figure:  It ended up being a very interesting discussion, if not entirely pleasant as various wise guys and gals with different ways of, um, engaging weaved in and out.  You can read it yourself, though be careful; it branched out in a couple of different threads.  One of the things I was trying to get at was that, at least in the trademark (and copyright) practice, I have a hard time believing women are at any kind of disadvantage in the year 2017.  Indeed, my observation is that female attorneys are extremely well represented, if not dominant, in U.S. trademark law and trademark institutions and leadership in the U.S.

I even made these preposterous graphics based on that popular popularity contest, the WTR 1000, to “show” this a statistically meaningless, but not necessarily irrelevant (because we are to no small extent talking about perception) way:

OK, fine. Consider this the beginning of the inquiry. Anyway, it ended off with this challenge:

I would be curious. An experiment. Go back through the last 10 conferences you attended/spoke at and tally the numbers.

— Jeena Cho ??? (@Jeena_Cho) April 24, 2017

(That should have been “life,” not “lube.”  Blame Swype.)  I accepted Jeena’s challenge but modified it just so I could make some headway (it would be an impossible project for me otherwise): I drilled down to the last ten conference panels on which I myself have presented on topics relating to my practice, and came up with this.

Bottom line: Out of ten panels, only one — a two-person presentation presentation that was more like a tandem than a panel — had no women.  And that one was organized by the Trademark and Unfair Trade Practices Committee of the New York City Bar Association, a group which, though I have been blackballed from membership the last few years — go figure; they still asked me to do this presentation — I can confidently tell you is no bastion of male supremacy.  Everyone involved in inviting me to participate in that event and coordinating it was a female.  And indeed I can’t remember the last time it was chaired by a male in the last 20 years.

Go figure.

The wild card in music downloading

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Originally posted 2013-12-10 13:01:44. Republished by Blog Post Promoter

You thought college students were lawless about file “sharing”? Well, Russia is feeling its oats these days, what with oil prices up and dictatorship back in style. That’s bad for the music business, or at least from their point of view in the current downloading wars: The Russians really don’t care what the RIAA thinks.

Best of 2012: When brands let us down

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Originally posted 2012-12-20 14:00:14. Republished by Blog Post Promoter

Originally posted on February 21, 2012.

This was–I thought–my kind of blog post: a guest post on Duets Blog by graphic designer Ellie Drotning:

When I hear a well-known brand has redesigned its mark, I’m like a kid on Christmas morning. For a graphic designer with a particular penchant for logos and branding, a new logo is like a gift I can’t wait to tear open. But when I got my first look at J. C. Penney Corp., Inc.’s new logo, I was disappointed. If I had been a four-year-old, I’d have been wearing a big ol’ pouty face.

I don’t understand why the friendly, familiar name of JCPenney is gone, replaced by a set of cold, impersonal initials: jcp. Nor do I understand the American-flag imagery. Nothing about this brand, its products or services is any more patriotic than any other American company, but this logo screams “America!” With the new CEO, Ron Johnson (a former Apple Inc. and Target executive) and the new president, Michael Francis (fresh from his last position as CMO of Target) at the helm, I was hoping for a little more cleverness and sophictication. My designer-y prejudices took over and I decided the reinvented jcpenney (or should I call it jcp?) had not won me over.

Ah. So, this I like, especially because, while I had not been aware of the J.C. Penny makeover, I had had similar thoughts very recently about a couple of related minimalist repackagings.  One is the now-old-news “KFC,” the rebranding of the fast-food greasatorium formerly known as Kentucky Fried Chicken, now trying to make us forget about the fried, the chicken and probably the Kentucky, too.  The second one is the rebranding of Dunkin’ Donuts, evidently — I say this based on the radio ads I am hearing — into something stupidly called “Dunkin’.”

Now it turns out, on investigation, that Dunkin’ has been at work on a rebranding strategy (remember, we want to forget anything fried!) for quite some time.  They’ve only recently pushed the campaign into the implausible-sounding radio spots in which we are supposed to believe that real people are calling Dunkin’ Donuts “Dunkin,'” which is simply preposterous.  I can see “KFC,” see; people like abbreviations.  But “Dunkin’,” while shorter than Dunkin’ Donuts, sounds — what was that word again? — stupid.

And how’s that rebranding going?  Well, this article in UK The Economist actually answers that question unintentionally by mentioning Dunkin’ Donuts in the process of ignoring its rebranding while criticizing the ham-fisted rebranding efforts of tonier shops:

Why do people get so upset about such changes? An obvious reason is that so many logos and names are either pig ugly or linguistically challenged. Think of BT’s “piper” logo, which looked like someone drinking a yard of ale and disfigured all things BT-related for 12 years (admittedly, Britain’s incumbent telecoms firm was not too popular to begin with); or the SciFi channel’s decision to call itself SyFy—a name that raises the spectre of syphilis. . . .

The debate about logos reveals something interesting about power as well as passion. Much of the rage in the blogosphere is driven by a sense that “they” (the corporate stiffs) have changed something without consulting “us” (the people who really matter). This partly reflects a hunch that consumers have more power in an increasingly crowded market for goods. But it also reflects the sense that brands belong to everyone, not just to the corporations that nominally control them.

They want your opinion, as long as it’s positive

Companies have gone out of their way to encourage these attitudes. They not only work hard to create emotional bonds with consumers . . . They involve them in what used to be regarded as internal corporate operations. Snapple asks Snapple-drinkers to come up with ideas for new drinks. Threadless encourages people to compete to design T-shirts.

Starbucks has been in the forefront of this consumer revolution. It consults consumers on everything from the ambience of its stores to its environmental policies. It emphasises that it is not just in the business of selling coffee. It sells entry to a community of like-minded people (who are so very different from the types who get their coffee from Dunkin’ Donuts or McDonald’s) gathered in a “third place” that is neither home nor work.

Oh, yeah… Dunkin’ Donuts.  That clipping-service find (forgive me the anachronism) must have warmed the cockles of the Dunkin’ Brands hearts:  rebranding penetration, zero and counting.

But anyway, yes, there’s the substance of that Economist quote, and what I thought was a similar argument in Ellie Drotning’s post.  I’m not against rebranding, mind you. I’m against dumb-branding.

But that wasn’t the point (and admittedly, it would have been almost banal if it had been) of the blog post at all.  And now:  The rest of the story:

Then Ellen Degeneres made her appearance. As you’ve probably heard, jcpenney chose Ellen as spokesperson for their reinvented brand. Shortly after, a group called One Million Moms began demanding the company fire Ellen because she’s a lesbian. One Million Moms is a fairly small advocacy group, so I did not expect jcpenney to cave to that demand. But I did expect them to try downplay the controversy. That’s not what happened.

Instead, Johnson went on the CBS Morning News and unapologetically stood by Ellen and jcpenney’s decision to hire her, saying that keeping her was a “no-brainer”.

[I]n this case, a business decision was also a values-based decision that, personally, I support, I don’t think I’m alone when I say that I can’t help but feel a connection to a brand when it stands up for values I share. So even though that new logo makes the designer inside me pout, jcpenney’s conduct makes the citizen inside me smile.

Designers like me can self-importantly imagine that the logo is the most important part of a brand. And while it is a critical piece of the brand-puzzle, this chain of events reminded me that the most important piece of a brand is, in fact, the company itself. Duh, Ellie. Sometimes we all need reminders.

Jcpenney’s new logo might not have won me over, but their actions sure did.

So, if you’ll excuse me, I’m going to head over to jcpenney and pick up a new pair of slippers.

In other words, when it comes to logos, branding and graphic design, all is forgiven if a company makes the right politically-correct public noises when a “controversy” — so predictable and down-the-middle it almost looks concocted, which would make that the real “rebranding” story here — “erupts.”

I mean — seriously?  Ad Age:

Consumers Rally Around JC Penney, Ellen in Face of Anti-Gay Group’s Hate Campaign
One Million Moms Succeeds Mostly in Creating More Fans for Retailer

The hate campaign launched last week by One Million Moms against JC Penney for its pick of Ellen DeGeneres as the brand’s new spokeswoman seems to have backfired. The retailer is winning support from consumers who are taking to the social web to pledge that they’ll shop at JC Penney stores more than they ever have before.

What’s more, the comedian and talk-show host addressed One Million Moms’ campaign on her national TV show, poking fun at the activist group in a video that’s now viral.

Got “hate”?  I wonder what it cost J.C. Penney to set up One Million Moms.

Well, look, Ellie Drotning can buy her slippers anywhere she wants to, and for any reason she wants to shop there.  But I assume that when she’s advising clients about a new branding approach, she doesn’t tell  them to cook up whatever pops into their head and just go ahead and do “the right thing” by cashing in on some low-hanging-fruit “controversy” that will turn pouts into smiles.  She’s too good at what she does to do that.

Certainly Ms. Drotning’s comments about how the effect of a company’s values, at least as played out in marketing space, raise a very legitimate point.

But the new branding really does still stink, doesn’t it?

Fake IP news

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Fake IP news isn’t news. For years I’ve been expressing skepticism about the constant drumbeat by Big IP, its enablers and its vendors about the ridiculous figures bandied about as “the annual cost of IP theft.”  I’m not in favor of IP theft; not at all. But it shouldn’t be necessary to lie about it to make the point that’s it bad.

At least the government wouldn’t lie about stuff like that, though, right?  Not at all.  It did, and almost certainly still does.  Although at least it kind of admits it.

Well, social media changes everything, doesn’t it?  Now comes a report, revealed on Facebook by the formidable Mark Lemley, director of the Stanford Program in Law, Science, and Technology at Stanford Law School, that the G-Men and Women tried to recruit him for a Big IP tweet-up about the many fine features of IP protection — in the form of, get this, a “fake Twitter feud.”  No, but really, as Dave Kravets reports as Ars Technica:

The US State Department wants to team up with other government agencies and Hollywood in a bid to create a “fake Twitter feud” about the importance of intellectual property rights. As part of this charade, the State Department’s Bureau of Economic Affairs says it has been seeking the participation of the US Office of Intellectual Property Enforcement, the Motion Picture Association of America, the Recording Industry Association of America, the US Patent and Trademark Office, and “others.”

To make the propaganda plot seem more legitimate, the State Department is trying to enlist Stanford Law School and “similar academic institutions” to play along on the @StateDept feed on Twitter.

How hip!  How today!

How embarrassing.  More:

“We’re not going to participate,” [Lemley] told Ars in an e-mail. He recently received an e-mail (PDF) and a telephone call from the State Department seeking his assistance.

“Apparently there is not enough fake news for the US government,” Lemley told his Facebook followers. On the Facebook post, he redacted the name of the official who sent him the letter out of privacy interests. The RIAA declined comment, as did the trademark office. The MPAA said it is not participating.

Too ridiculous, unethical and tacky — even for the MPAA.  (As to the RIAA, well … what can I say?)  As the redoubtable Mike Masnick explains at TechDirt:

Everything about this is crazy. First, the State Dept. should not be creating fake news or fake Twitter feuds. Second, even if it were to do so, it seems to have picked one side of the debate, arguing that greater copyright and patent enforcement is obviously a good thing (how far we’ve come from the time when it was the State Department that fought back against SOPA and told the White House not to support it).

Separate from that, why are the MPAA, the RIAA and the Copyright Alliance agreeing to team up with the US government to create fake stories? That seems… really, really wrong. I get that they are obsessed with always pushing a misleading and one-sided message on copyright law, but creating out and out propaganda with the US government?

The only bright side about this is that the Foggy Bottom people were so naive about what’s wrong with this — “Who doesn’t like ice cream?  Let’s do a show about ice cream!” — that in recruiting what they assumed were high-value IP figures (you know, famous ones — trailblazer types!) they openly approached one of the people on earth least likely to play along and most likely to do exactly what he did.

Does that make you feel better?

Head of State

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Originally posted 2009-08-05 20:06:55. Republished by Blog Post Promoter

Sounds almost ordinary enough at first — this tweet from @EFF:

Another Obama image fair use controversy:

Oh, sure. Another vhWCk?!  What are you, stoned?

Whoah, no.  Much better!  No, no, no.

Oh, ma-a-a-a-a-a-a-n!.

Don’t worry, it’s only a cigarette! They were cheap back then!

It was only a matter of time before someone combined a certain memorable image of a young future president with a jokey twist on his campaign slogan … to come up with a message that Barack Obama definitely did not approve. The folks at the National Organization for the Reform of Marijuana Laws got there first. For their annual conference poster, they took an old photo of cool-dude college freshman Obama puffing away — on a regular cigarette, mind you — and tweaked it just ever so slightly to fit their message: “Yes We Cannabis.”

Think it might be a problem for the president (who opposes legalization)? It’s really a problem for the photographer. Lisa Jack, an Obama classmate at Occidental College, snapped the image in 1980, one in a series of photos that never saw the light of day until she debuted them in Time’s 2008 Person of the Year issue. She had no idea her photo had been appropriated by NORML until we told her Tuesday.

And… is it really a problem for NORML? Maybe. A copyright lawsuit could bankrupt them, so yeah, dude, bummerrrrr.

But the ten minutes of news interest in an organization you haven’t heard of since Sister Mary Elephant hung up her habit? Priceless!

UPDATE:  There’s still more Obama-likeness legal news?  No joke!  (HT to Glenn.)

HIGHER UPDATE:  Randazza with riffs on the spliffs.

When your brand means just about nothing…

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Originally posted 2013-01-10 16:01:05. Republished by Blog Post Promoter

Holiday Inn, Cleveland

Originally uploaded by Ron Coleman

… you’ll slap onto just about anything, I guess.

Or perhaps in a virtually abandoned district of a virtually abandoned city — in this case, Cleveland — it’s more along the lines of, If a brand is treated as valueless, does its crash to the pavement in a ghost town make a sound?

I didn’t realize it had gotten that bad for Holiday Inn.   Which is hard to explain, seeing as how I stayed in one once.


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