CFPB digs deep into American's personal financial affairs

[TigerD]

That tee shirt is great.

The creator could fight the infringement claim, if he had the desire, a lot of money or an organization like the ACLU assisting, and there is a good chance he would win his suit and the right to continue selling the shirts without interference.

The government has not been real successful in stopping trademark uses when the trademarks are used to espouse political views (see the "Smokey the Bear" trademark actions) or when used as parody.

I'm proud to say that Dan is a friend of mine. He plans on fighting and is working to assemble the necessary funds.

DC

 

[quincy]

http://www.theatlanticwire.com/business/2013/08/nsa-doesnt-mind-parody-t-shirts-after-all/68933/
The NSA said:


Shall we let them know this?
https://www.google.com/shopping/product/10637251584572618173

I forget who the author of The Atlantic Wire article is, but the article's headline is misleading and the conclusion drawn from the facts, that a person can use the NSA trademark without fear, is wrong.

Trademark law centers on consumer confusion. Good parodies will not confuse. Whether a parody is a good one or not can often be left for a court to decide, however, if the trademark holder is not fond of the use of the mark.

If an average consumer could mistakenly but legitimately believe that a tee shirt using a NSA seal was an official tee shirt of a NSA agent or sponsored or endorsed by the NSA, you can almost bet on the tee shirt maker (and, potentially, the wearer of the shirt, depending on facts) facing more than just a nod and a smile from NSA.

With the "Smokey the Bear" trademark disputes - one wound up in court with the parodist the victor; the other has resulted so far in a notice of infringement and a demand to cease and desist the use of the Smokey trademark on "anti-fracking" products, but no suit has been filed as of yet against the creator of the products (to my knowledge).

As to the use of the initials NSA for the National Shopping Association, there would be little chance of confusing one with the other - at least, I would hope - so the National Security Agency would have a hard time preventing the use (unless the shopping association made NSA products with the intent to deceive a consumer into believing there was a security agency connection). There are, for example, several ABCs that are used without problem.

Using the name "National Security Agency" on a product, on the other hand, could be a clearer no-no.

 

[TigerD]

The maker of the shirt, Dan McCall, has also received a CD from Homeland Security, for a parody of the old "Uncle Sam" image.

DC

 

[quincy]

The maker of the shirt, Dan McCall, has also received a CD from Homeland Security, for a parody of the old "Uncle Sam" image.

DC

Cease and Desists are routinely sent to anyone using a trademark without authorization, because it is important for a trademark holder to enforce their rights to a mark lest it become generic and they lose all rights to it.

That said, the government has not been shy in the past in taking perceived infringers to court. Having the financial and legal backing of an organization big on free speech rights can certainly be a help to any defendant who finds himself facing legal action from a large, prominent and attorney-heavy group.

Good luck to Dan.

 

[tranquility]

I forget who the author of The Atlantic Wire article is, but the article's headline is misleading and the conclusion drawn from the facts, that a person can use the NSA trademark without fear, is wrong.

Trademark law centers on consumer confusion. Good parodies will not confuse. Whether a parody is a good one or not can often be left for a court to decide, however, if the trademark holder is not fond of the use of the mark.

If an average consumer could mistakenly but legitimately believe that a tee shirt using a NSA seal was an official tee shirt of a NSA agent or sponsored or endorsed by the NSA, you can almost bet on the tee shirt maker (and, potentially, the wearer of the shirt, depending on facts) facing more than just a nod and a smile from NSA.

With the "Smokey the Bear" trademark disputes - one wound up in court with the parodist the victor; the other has resulted so far in a notice of infringement and a demand to cease and desist the use of the Smokey trademark on "anti-fracking" products, but no suit has been filed as of yet against the creator of the products (to my knowledge).

As to the use of the initials NSA for the National Shopping Association, there would be little chance of confusing one with the other - at least, I would hope - so the National Security Agency would have a hard time preventing the use (unless the shopping association made NSA products with the intent to deceive a consumer into believing there was a security agency connection). There are, for example, several ABCs that are used without problem.

Using the name "National Security Agency" on a product, on the other hand, could be a clearer no-no.

I agree. The headline editor punted it and, while the author wrote the correct facts up front, his conclusion...didn't seem to logically follow. But, remember, in addition to the trademark issue, we have the specific statute issue. Confusion is not a part of that statute. Just because you have a hammer does not mean every problem is a nail.

Sec. 15. (a) No person may, except with the written permission
of the Director of the National Security Agency, knowingly use the
words 'National Security Agency', the initials 'NSA', the seal of
the National Security Agency, or any colorable imitation of such
words, initials, or seal in connection with any merchandise,
impersonation, solicitation, or commercial activity in a manner
reasonably calculated to convey the impression that such use is
approved, endorsed, or authorized by the National Security Agency.

Now, I don't think either the National Shopping Association OR the parody T-shirt would violate that as neither give the impression the NSA had anything to do with it. That's why there is not going to be confusion either--at least until we have Google-Tee.

 

[quincy]

Threats of legal action can be a powerful motivator for a small-time business owner to cease what could potentially be a perfectly legal activity, especially when the legal threats come from a powerful group with experienced attorneys and lots of money. Hard for most people to do battle with that.

 

[TigerD]

Threats of legal action can be a powerful motivator for a small-time business owner to cease what could potentially be a perfectly legal activity, especially when the legal threats come from a powerful group with experienced attorneys and lots of money. Hard for most people to do battle with that.

Yup. Even if you win, you lose.

DC

 

[LdiJ]

Threats of legal action can be a powerful motivator for a small-time business owner to cease what could potentially be a perfectly legal activity, especially when the legal threats come from a powerful group with experienced attorneys and lots of money. Hard for most people to do battle with that.

The last time I was involved in that kind of battle (and the government was not involved) our company was completely in the right, but it took almost 30k in legal fees (and that was 20 years ago) to prevail. I cannot imagine what it would cost now. In our case it was a German company coming into the US market who produced products that were somewhat similar to ours, but with a different market. (we were residential, they were commercial) The first three letters of our company name and the first three letters of their company name were the same, and they challenged our 10 year established trademark.

 

[quincy]

The last time I was involved in that kind of battle (and the government was not involved) our company was completely in the right, but it took almost 30k in legal fees (and that was 20 years ago) to prevail. I cannot imagine what it would cost now. In our case it was a German company coming into the US market who produced products that were somewhat similar to ours, but with a different market. (we were residential, they were commercial) The first three letters of our company name and the first three letters of their company name were the same, and they challenged our 10 year established trademark.

Every lawsuit is costly, whether you are the plaintiff in the suit or the defendant in the suit, and so I am always a bit puzzled by people who think the best solution to a problem is a lawsuit. Perhaps it takes an experience like yours, LdiJ, to bring that fact home.

I have always thought the best solution to most problems is "talk," something people seem reluctant to do nowadays or, in this internet age, perhaps incapable of doing.

 

[LdiJ]

Every lawsuit is costly, whether you are the plaintiff in the suit or the defendant in the suit, and so I am always a bit puzzled by people who think the best solution to a problem is a lawsuit. Perhaps it takes an experience like yours, LdiJ, to bring that fact home.

I have always thought the best solution to most problems is "talk," something people seem reluctant to do nowadays or, in this internet age, perhaps incapable of doing.

Yes, talk could possibly have mitigated the costs for both of our companies. However, in our case the German firm had hired an NY law firm to aggressively root out any and all possible companies with similar names in a similar industry (and we were only one of many) and basically gave them a blank check to do it.

I wish I could remember the name...but around the same time there was some national news because a major computer retailer (who no longer exists) was rapidly expanding in the market and had a name that was a play on computers, and in virtually ever state in the country there was a small business who already had that name trademarked. That company managed to bankrupt small companies all over the country by their aggressive suits. I simply cannot remember the name. I just know that the major retailer went out of business after 5 years or so. I don't think that they even lasted two years in my city.

 

[TigerD]

Every lawsuit is costly, whether you are the plaintiff in the suit or the defendant in the suit, and so I am always a bit puzzled by people who think the best solution to a problem is a lawsuit. Perhaps it takes an experience like yours, LdiJ, to bring that fact home.

I have always thought the best solution to most problems is "talk," something people seem reluctant to do nowadays or, in this internet age, perhaps incapable of doing.

That and perhaps adoption of the British rule.
DC

 

[single317dad]

The last time I was involved in that kind of battle (and the government was not involved) our company was completely in the right, but it took almost 30k in legal fees (and that was 20 years ago) to prevail. I cannot imagine what it would cost now. In our case it was a German company coming into the US market who produced products that were somewhat similar to ours, but with a different market. (we were residential, they were commercial) The first three letters of our company name and the first three letters of their company name were the same, and they challenged our 10 year established trademark.

I wasn't directly involved, but my job and many others hung in the balance of the RIM/NTP patent squabble in the early 2000s. RIM, at the time, was poised to take over the smartphone world (they had a much stronger position than Apple currently has). The NTP suit cost them over $600 million + legal fees, and keep in mind that was an agreed settlement to avoid further expense. Between that and a few inopportune service outages, that was the beginning of the end for the Blackberry.

Back on topic: I hope the end result of all this spying and data mining is that we all decide that the best way to communicate with our friends and family is to go see them and talk to them.

 

[FarmerJ]

Single317dad when you wrote > Back on topic: I hope the end result of all this spying and data mining is that we all decide that the best way to communicate with our friends and family is to go see them and talk to them. < One other thing people seem to have forgotten is use of uncle cash is another tool of privacy, If you do not want companies like certegy to track what you buy and to do things like monitor your spending then when you do spend out of your normal ranges telling merchants to deny you when they have zero basis to do so USE CASH, beside that there are some places like gas stations that still give discounts for cash payments.

 

[tranquility]

Single317dad when you wrote > Back on topic: I hope the end result of all this spying and data mining is that we all decide that the best way to communicate with our friends and family is to go see them and talk to them. < One other thing people seem to have forgotten is use of uncle cash is another tool of privacy, If you do not want companies like certegy to track what you buy and to do things like monitor your spending then when you do spend out of your normal ranges telling merchants to deny you when they have zero basis to do so USE CASH, beside that there are some places like gas stations that still give discounts for cash payments.

Well, at least that would prevent the 80% of credit card transactions they plan on mining for data.

http://washingtonexaminer.com/cfpbs-data-mining-on-consumer-credit-cards-challenged-in-heated-house-hearing/article/2535726

 

[davew128]

I wasn't directly involved, but my job and many others hung in the balance of the RIM/NTP patent squabble in the early 2000s. RIM, at the time, was poised to take over the smartphone world (they had a much stronger position than Apple currently has). The NTP suit cost them over $600 million + legal fees, and keep in mind that was an agreed settlement to avoid further expense. Between that and a few inopportune service outages, that was the beginning of the end for the Blackberry.

What end would THAT be? Last time I checked, Blackberry OS was still the #3 smartphone OS in the US, and #1 OUTSIDE the US.