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posted by cmn32480 on Monday August 28 2017, @03:11AM   Printer-friendly
from the potty-training-targets dept.

From ArsTechnica

General Mills argued that it deserved to be awarded the trademark status because "consumers have come to identify the color yellow" on boxes of oats cereal with "the Cheerios brand." It has been marketed in yellow packaging since 1945, with billions in sales.

The board noted that "there is no doubt that a single color applied to a product or its packaging may function as a trademark and be entitled to registration under the Trademark Act." But that's only if those colors have become "inherently distinctive" in the eyes of consumers. Some of those examples include UPS "Brown;" T-Mobile "Magenta;" Target "Red;" John Deere "Green & Yellow;" and Home Depot "Orange." It goes without saying that anybody can still use those colors predominately in their marketing, but not direct competitors.

Regarding the box of Cheerios, however, the court ruled that consumers don't necessarily associate the yellow box of cereal with Cheerios, despite General Mills' assertion to the contrary. Consumers are confronted with a multitude of yellow boxes of oats cereal, the appeal board noted. By comparison, T-Mobile has only a handful of competitors, and none of them uses the magenta color as a distinctive mark, the appeal board said.

-- submitted from IRC


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  • (Score: 1, Insightful) by Anonymous Coward on Monday August 28 2017, @05:33AM (16 children)

    by Anonymous Coward on Monday August 28 2017, @05:33AM (#560069)

    Is that he immediately scrapped the TPP or Trans Pacific Partnership. Now that Obama failed to shove it through in the incredibly undemocratic fashion he was aiming for, we can finally read it. Here [ustr.gov] it is in all its glory. The section on intellectual property is particularly... 'fun.'

    In the US we have some absurd IP rules. I think many people find the whole issue thing you can't call champagne champagne unless it's from Champagne, France quite bemusing. Yet we do the exact same thing. For instance Florida, as in Florida Oranges, is trademarked. And we were planning on expanding this world wide. Another fun thing is the "well known trademarks" rules under the TPP. Even if a trademark is in no way used in a given nation, it would somehow nonetheless be trademarked if it was 'sufficiently' well known in that country anyhow. So for instance imagine Cheerio's got their trademark on the yellow color. They could sue businesses using that color even in nations where Cheerios are not sold. It required all countries fully criminalize all intellectual property violations, regardless of whether any competitive edge or monetary gain was involved. You downloaded a copy of a paper from sci-hub? TO PRISON WITH YOU! Oh and fair use? Yeah, that's was going out the window. According to the TPP, nations "may provide limited exceptions" but are not required to do so.

    And that's just scratching the surface of one section. The TPP has 30 chapters, numerous annexes, and addendums. It was one giant hand out to multinational corporations and a giant fuck-you to citizens around the world. In the grand scheme of things in politics, not much really affects your day to day life. But the TPP is something that would have had an enormous impact on the lives of individuals around the world. It probably would have a larger impact, in effect, than even the Patriot Act. And Hillary would have shoveled this through at the first opportunity, her public hypocrisy notwithstanding. Reading through this act and seeing how Obama left me, an extremely liberal individual, very jaded towards the party that I used to believe stood for my interests.

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  • (Score: 2) by JoeMerchant on Monday August 28 2017, @11:38AM (13 children)

    by JoeMerchant (3937) on Monday August 28 2017, @11:38AM (#560165)

    Well, calling an orange a "Florida Orange" because it grew from a graft of a tree that once spent 5 minutes in the Orlando airport cargo terminal would seem to be a stretch... what's wrong with global marketing of "Florida Oranges" - or "California Oranges" being restricted to fruit grown in those states?

    If you want to sell oranges grown in Brazil, or the state of Bahia, why should the consumer be confused with a big label like "California Navel Oranges" on the package?

    For that matter, BMW automobiles really should be labeled: "German engineering, assembled proudly in Louisiana, U.S.A." not the ambiguous, misleading "German Automobiles."

    --
    🌻🌻 [google.com]
    • (Score: 1, Interesting) by Anonymous Coward on Monday August 28 2017, @12:59PM (7 children)

      by Anonymous Coward on Monday August 28 2017, @12:59PM (#560208)

      There are already laws against fraudulent/deceptive/misleading marketing and advertising. Trademarking a location is absurd. It's again the reason that you cannot call champagne champagne, but instead are legally required to call it sparkling wine. Imagine "Tex-mex" was trademarked and suddenly you could not call something Tex-mex unless it was made in Texas, or you couldn't call a Chicago hotdog a Chicago hotdog unless it was made in Chicago, or New York pizza crust couldn't be called as much unless it was... so forth and so on to no end.

      Your defense of the system is optimistic. Trademarks in general have nothing to do with consumer protections. If they did, I would be the first to agree with you. In reality it always comes down to rent seeking and control.

      • (Score: 2) by JoeMerchant on Monday August 28 2017, @04:55PM (3 children)

        by JoeMerchant (3937) on Monday August 28 2017, @04:55PM (#560317)

        It's again the reason that you cannot call champagne champagne

        Not if you're from the Champagne region of France and have been marketing your grapes for centuries.

        Champagne got into the unfortunate position of becoming associated with a process, and actually a result of that process, that produces sparkling wine. They were the original and only their grapes reached the public as sparkling wine for long enough that the name association stuck. Now that any baboon can inject high pressure CO2 into a bottle and produce a sparkling wine, it isn't exactly right or fair to water down the Champagne brand (of grapes) by using the name inappropriately - but, lack of respect for the name-holders' rights has gone on long enough that it is perceived in the public consciousness as "absurd" that they should care.

        It would be like calling all gravelly vocaled basic guitar and drum rock and roll with vague references to Jersey "Springsteen" - at once unfair to the artists not-Springsteen who make the music, and also unfair to Springsteen himself associating his name with product of questionable quality that he did not produce.

        --
        🌻🌻 [google.com]
        • (Score: 1, Informative) by Anonymous Coward on Monday August 28 2017, @06:20PM (2 children)

          by Anonymous Coward on Monday August 28 2017, @06:20PM (#560373)

          Intuition would make you think what you just said is right. After all Champagne has the trademark so surely, surely that means something.

          Unfortunately, you are not right. Again, your view of trademarks is very "optimistic." No [wikipedia.org], Champagne did not invent champagne. It was invented and widely shared (the knowledge of that is) by an English scientist in the 1600s. And his invention in turn was a modification of an invention from some monks from Carcassonne in the 1530s. To be clear his recipe is what Champagne would rip off - exactly. Though that'd take a couple of centuries. Champagne, France produced 0 champagne until the 19th century.

          And it gets even better. There happens to be a village in Champagne, Switzerland that has made a popular wine called Champagne dating back to 1657 - hundreds of years before the first bottle of champagne was ever made in Champagne. Thanks to trademark law they've been forced to change the name of their wine because trademarks are completely and absolutely illogical. And this is all incredibly typical for trademarks and trademark law.

          • (Score: 2) by Joe Desertrat on Monday August 28 2017, @10:05PM (1 child)

            by Joe Desertrat (2454) on Monday August 28 2017, @10:05PM (#560550)

            Intuition would make you think what you just said is right. After all Champagne has the trademark so surely, surely that means something.

            Yes. It means only wine produced in the Champagne region as defined by France's appellation d'origine contrôlée laws can be called champagne in France. The same way only wines produced in the Burgundy region in France can be called burgundy in France. Many wine producers around the world used to usurp French appellation names for products that ranged from somewhat similar to almost, but not quite, entirely unlike wine products. Most now have stopped this practice and instead use somewhat more accurate varietal names and/or local or proprietary names, but other than in France (and perhaps throughout the EU now) I do not believe this is trademarked or illegal.

            • (Score: 0) by Anonymous Coward on Tuesday August 29 2017, @05:17AM

              by Anonymous Coward on Tuesday August 29 2017, @05:17AM (#560674)

              This is a very intuitive and logical view but once again completely inaccurate. Intuition and logic have no place when it comes to trademarks and trade agreements. The story of how France managed to make it illegal for the vast majority of the world to use the world champagne to describe champagne starts as far back as the Treaty of Versailles - yip, the treaty that ended World War 1. As mentioned now the EU even forced Champagne, Switzerland to stop selling its wine as Champagne even though it had been doing it for hundreds of years before Champagne, France had sold a single bottle of champagne. This [winesandvines.com] provides some information on the background of how Champagne came to own a worldwide trademark on champagne. It's lacking some details, like the Treaty of Versailles section 275, but it's a good overview! That article also covers the reason why a handful of champagne producers (particularly in California) are allowed to call their champagne... champagne.

      • (Score: 3, Interesting) by Grishnakh on Monday August 28 2017, @05:11PM (2 children)

        by Grishnakh (2831) on Monday August 28 2017, @05:11PM (#560331)

        This gets to be a pretty interesting argument really. But I do see one difference: a "Florida orange" sounds like it should be an orange grown in Florida. However, a "Chicago pizza" (usually called "Chicago style pizza") surely isn't a pizza actually made in Chicago if it's a fresh (not frozen) pizza and you're not in Chicago: it's a particular style, just like Tex-Mex, New York pizzas, Philly cheese steaks, Mexican food, Chinese food, etc.

        But unlike pizzas, tacos, cheese steaks, or lo mein, things like tomatoes and oranges aren't "made", they're grown. So why shouldn't a "Florida orange" be required to actually be grown in Florida? It does seem deceptive to label an orange that way if it was grown in Brazil. There's no such thing as a "Florida style orange"; oranges do have different species or cultivars, but these have their own specific labels not at all related to location (e.g., mandarin orange, naval orange, clementine, blood orange, tangelo, etc., and the industry probably has far more specific naming conventions than this).

        So for "champagne", the problem I see there is that that's a particular style of making something; it's not something you just grow, pick off the tree, and sell as-is, and the art of champagne-making has been copied by many other places, just like the art of making "port". And for many things, location-based name protection really doesn't make much sense, because it's not a guarantee of value at all (but rather the reverse): would I rather eat a pizza crust made in New York, or would I rather eat a freshly-made pizza crust made in New York style? The latter of course, because I don't live in or very near to NYC, so the former would mean a crappy frozen crust. Or how about a genuine made-in-Philly cheese steak? Again, I don't live that close to Philly, so it's not going to be very good since it'll be frozen, and there's no way with those highly different ingredients that it'll reheat very well.

        However, having any kind of protection does, as you say, reek of rent-seeking, so there really needs to be a good case for having such a law, versus having no law. Why can't orange sellers simply advertise "grown in Florida", and have that part protected (as it probably already is, by false-advertising laws)? "Florida orange" implies it comes from Florida, but a label saying "product of Florida USA" is very explicit. So in summary, I really don't see a good case for protecting these location names at all. If sellers want to make customers feel good about something based on its origin, they can proudly print that somewhere on the product or package, just like we already do for most manufactured goods.

        • (Score: 0) by Anonymous Coward on Monday August 28 2017, @06:40PM (1 child)

          by Anonymous Coward on Monday August 28 2017, @06:40PM (#560395)

          Mandarin oranges may have an etymology in location as well, though it looks like it's tough to know for sure due to their age. Another thing even more damning on champagne is that Champagne, France did not [wikipedia.org] even invent it. It was invented and the recipe/process widely shared and published by an English scientist hundreds of years before Champagne made their first bottle. And thanks to their trademark they've forced a village in Champagne, Switzerland to change the name of their local wine which they've been selling as Champagne since the 1600s - hundreds years before Champagne made their first bottle of champagne. It's all just so incredibly silly.

          • (Score: 2) by JoeMerchant on Monday August 28 2017, @11:49PM

            by JoeMerchant (3937) on Monday August 28 2017, @11:49PM (#560591)

            Nobody said that the French were Nice people (well, there is that town on the med coast, but they're almost as stuck up there as the Parisians.)

            --
            🌻🌻 [google.com]
    • (Score: 0) by Anonymous Coward on Monday August 28 2017, @01:49PM (1 child)

      by Anonymous Coward on Monday August 28 2017, @01:49PM (#560228)

      But what if the orange was grown from a graft of a florida orange tree in the ME? If the tree was a florida orange tree is the orange a florida orange?

      My spellchecker is reminding me that maybe there would be room for differentiating florida oranges from Florida oranges.

      • (Score: 2) by t-3 on Monday August 28 2017, @05:01PM

        by t-3 (4907) on Monday August 28 2017, @05:01PM (#560322)

        Well, that tree would be illegal in the first place (you are not allowed to export citrus plants from Florida), and if the government found out, they'd probably seize it so you couldn't possibly transfer citrus diseases to the precious Florida Oranges, even if your tree is in ME and you're not a commercial operation.

    • (Score: 3, Insightful) by LoRdTAW on Monday August 28 2017, @03:33PM (2 children)

      by LoRdTAW (3755) on Monday August 28 2017, @03:33PM (#560278) Journal

      For that matter, Apple products really should be labeled: "American engineering, assembled proudly in China" not the ambiguous, misleading "American computer."

      • (Score: 2) by JoeMerchant on Tuesday August 29 2017, @12:50AM (1 child)

        by JoeMerchant (3937) on Tuesday August 29 2017, @12:50AM (#560614)

        As far as that goes, if we must label our processed foods with nauseatingly detailed lists of contents and nutritional content estimates, it would seem equally appropriate to label luxury goods with clear information such as: source of materials, nature of labor used in assembly, and maybe even a cost breakdown for where the $120 is going in a $120 pair of shoes. If such information were accurate, it might help the consumers to make more informed choices about where their outsized discretionary purchases are going.

        --
        🌻🌻 [google.com]
        • (Score: 0) by Anonymous Coward on Tuesday August 29 2017, @05:32AM

          by Anonymous Coward on Tuesday August 29 2017, @05:32AM (#560677)

          I definitely would not mind seeing this. In the digital age it could even be reasonable to simply have a regulated derivative of qr codes to enable users to quickly access the exact information they're looking for without having to look through a novel, or have said novel printed on each and every label. The app could even be customized to do some cool things. For instance people could have it automatically alert the user if something contains peanuts, or whether it was outsourced, or contained genetically engineered products, or whatever their particular ethos holds as something be pursued or avoided.

          Alas, consumer information came back at a time when the people were more in control of the government than companies. Without anybody ever realizing it, it seems there has been a successful Business Plot [wikipedia.org]. Somewhere along the line apparently they discovered that there's no need for a coup. Instead they can simply buy congressmen. They come almost bizarrely cheap. Probably a result of the constant and effectively mandatory system of quid quo pro that leads them to power in the first place.

  • (Score: 0) by Anonymous Coward on Monday August 28 2017, @02:58PM (1 child)

    by Anonymous Coward on Monday August 28 2017, @02:58PM (#560263)

    Is that he immediately scrapped the TPP or Trans Pacific Partnership. Now that Obama failed to shove it through in the incredibly undemocratic fashion he was aiming for, we can finally read it. Here [ustr.gov] it is in all its glory. The section on intellectual property is particularly... 'fun.'

    Don't worry, the exact same process and results will happen again with NAFTA, this time under Mr. Trump's watch.

    • (Score: 0) by Anonymous Coward on Monday August 28 2017, @04:00PM

      by Anonymous Coward on Monday August 28 2017, @04:00PM (#560286)

      Trump is already actively bringing attention to NAFTA negotiations and he is rightly pointing out that, from the perspective of an average American these trade deals are awful. Agree or disagree with Trump he is making his case in public, and that puts him leagues ahead of what Obama tried to do. The reason Obama, and corporate media, did not bring attention to the TPP is because it would have caused a mass outrage if people understood what it actually entailed. I think that is, at the minimum, a subversion of democracy. Yes we are a republic, but we are also one where there are many protections in place to ensure the public can be informed of their representative's actions. What he did was actively work to subvert this accountability.

      Why is NAFTA is bad for average Americans? We have a growing trade deficit with Mexico alone that's already just shy of $50 billion. What that means is that we import about $50,000,000,000 dollars more of stuff than we export to them. Why does this matter? Imports in excess of imports means that work (producing products) that could be done domestically is instead being done in foreign countries. That $50 billion is hundreds of thousands of American jobs killed off. Now in cases where there is expertise or resources not available domestically then it's not necessarily a problem since it's not work we could be doing ourselves anyhow. In this case however the vast majority of our imports from Mexico are things that could be done in America - cars/car parts/machinery components/production furniture/etc. Most of these products are also completely untaxed thanks to NAFTA. That is a sort of double whammy since it doubly encourages companies to remove jobs from America.

      Free trade agreements massively benefit corporations who can use it to increase their margins dramatically through easier tax avoidance and access to cheaper labor. However, these perks to corporations have an inverse effect on the countries that lose these jobs. The economic defense of free trade is that the citizens of the country that suffers gain from cheaper products. Yet that's rarely how it works. More typical is company A sells makes an item for $20 and sells it for $100. Free trade enables them make it for $15. So they fire all their domestic workers, move everything over to e.g. Mexico where they make it for $15. And they ship it and sell back in the US for... $100. Free trade would be an incredible thing on the time scale of centuries as other countries develop and the US becomes to poor to afford to pay the prices we used to pay when we had these jobs. But I expect within a matter of decades we'll see a revolution in our economic system regardless (thanks to automation) so instead we're accomplishing very little other than screwing our country for the sake of letting corporations add a couple of points to their profit margins.