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Dealing with trademarks

Cory Doctorow writes about a corporate lawyer from Jack Daniel’s handling a trademark issue extraordinary well. It’s about a book cover, and the author of the book tells his own story in a post entitled The Whiskey Rebellion. The book cover mimics the look of the JD label. Owners of a trademark have no choice but to pursue infringements, otherwise they can lose their trademark. But they can choose how to approach it, and therein lies the difference.

This particular lawyer also made the effort to explain the “why” just as I described above. That too is important, as I’ve found that it’s not well understood. As the Community Relations person at an international corporation, I used to be the first one contacting people in case of a trademark issue – I generally had to explain the why, but other than that there was no hassle and we’d come to some sensible solution.

With knowledge of how trademarks work, it’s not hard to assist people in avoiding the trademark even while still using the name. An interesting recent example is “LEGO Workshop” (legoworkshop.com), created by two kids (15 and 11yo). LEGO contacted them for infringement of the LEGO trademark. Of course they’re the cutest underdogs and great for a media story, but LEGO was in the right and as I explained they have no choice if they want to keep their trademark. It does appear that LEGO played corporate bully in this case, and then got the public backlash. A simple solution would have been to suggest “Workshop for LEGO” as a name, and they could’ve even gone out and acquired the domain for use by these kids. If that’d hit the media, it would have been good publicity.

The short story (and remember I Am Not A Lawyer) is that trademarks are adjectives (“a LEGO brick”). They should not be used as nouns (“I own a Ford”) or verbs (“Just Google that”). Google was very unhappy about their name morphing in to a verb, but it’s a use by people rather than a product or site – impossible to police. I presume their trademark (that is, exclusivity on its use) is effectively lost although it’d have to get challenged in court by someone before that would actually be made official. Hoover (the vacuum cleaners) are a neat historical example of this, their name turned in to both a verb (“to hoover”, which in British English means “to vacuum”) and a noun (“hoover” being a synonym for vacuum).

So the proper trademark use is “<trademark adjective> <product>”, and that use needs to be protected by the trademark holder. Further, improper use as verbs or nouns can also weaken the trademark and must thus be prevented as well.

Avoiding trouble is not hard. Let’s say you want to create a fanclub for brand or product X. “X Fanclub” is not appropriate but “Fans Of X” should be fine. “<noun> for|of <brand|product>” is the general form that makes it safe. So if you build a supplementary product for a bigger brand, you could use the form “<yourproduct> for <brand|product>”.

The same applies to domain names. Admittedly, sometimes this naming restriction makes finding a nice looking domain name quite a bit harder. But still, you want to have fun or start a company/product, not get stuck in legalities. You could also ask (the owner of the trademark). In any case, having to change a name later can be both annoying and costly.

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Geek Girls, CEOs and Coffees

Female engineers (and other tech professionals) are awesome. Healthy companies should contain a good set not only for the great pool of talent and expertise but also because of the additional perspective and balance to the work environment that a diverse set of employees in a work place can create. I’ve worked in a number of technical organisations where the techs were all male and the admins were female, and it was just wrong. In others there was a mix, and invariably the more even the mix was, the better the environment. Correlation does not imply causality, but still…

From this week’s news: Marissa Mayer. She’s a 37yo software engineer, and (among many other things) responsible for that clean simple front page of Google. Formerly employee #20 at Google, now Yahoo’s new CEO. In addition, she and her hubby are expecting their first child, and those two facts were announced on the same day. She intends to only take a few weeks off and actually work while away – as a parent, I’m somewhat intrigued by that seemingly simplistic perspective (I am mindful it’s only the media reporting) on an event that’s going to turn one’s world up side down, but I do agree that becoming a parent does not by definition disqualify you from running a company! Who knows how they’ll arrange things… perhaps the father will stay at home, perhaps Marissa will bring the baby to work and breast feed on demand. Why not? In essence, none of what they decide is really our business, but I do believe openly discussing options (in general, for everybody) is good. It is relevant whether and how companies enable and support parenthood, should people choose to become a parent.

Of course these important choices and options are not restricted to women. As a father, I’ve chosen to arrange my work hours in such a way that I can often pick my daughter up from school and have plenty of time available to spend with her. Part-time work and flexible work hours are important factors, seriously enabling a huge extra group of people to work or even just maintaining a healthier lifestyle. I’ve found that some companies enable that kind of arrangement, while others effective make it impossible. And sometimes, it’s easier to just start your own business and organise things “right”.

But getting back to the “geek girls” topic… fellow Brisbanite Miriam Hochwald started Geek Girl Coffees some years ago, and her initiative has spread to global range since. It’s a great supportive network, encouraging young women to pursue and persist in technical studies and professions. Horay to inclusive and supportive study and work environments!

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Apple Abandons Environmental Certification

Apple has pulled its products off a U.S. government-backed registration of environmentally friendly electronics, see http://www.epeat.net/2012/07/news/wsj-cio-journal-apple-removes-green-electronics-certification-from-products/. EPEAT (created through funding by the federal Environmental Protection Agency and manufacturers, and Apple was one of its designers!), awards products a seal to certify they are recyclable and designed to maximise energy efficiency and minimise environmental harm.

Apple stated that its product design needs have diverged. Apple creates tightly integrated products (iPhone, iPad) so one could think that that might be a reason. For instance, the new Retina MacBook Pro has its batteries glued into its case. Naturally, that makes replacing as well as recycling more complicated if not impossible. So in that light, does Apple’s move make sense? I don’t think so.

Tight integration is a phase in the product cycle, suitable when separate components put together would not achieve a satisfactory whole. Certainly this approach made sense for some new products, but considering the market now of phones, tablets and laptops, the ones from Apple are not that far removed in specifications or engineering. Basically, others have caught up and at that point the tight integration works out more expensive.

For Apple, tight integration has always been a bit of a habit. Products have often been not particularly extensible. You’d buy a model and stick with it as-is, until you were ready for a new one. A similar story applies to its external interfaces. Some decisions made brilliant sense such as dropping disk drives (original iMac), a move which later enabled the magnetic lid and magnetic power plug. But apple also had digital DVI plugs while most monitors still used VGA, then for some laptops it went to MiniDVI, and most recently it’s shifted to a new media port. This is a nuisance for owners of such equipment even when they upgrade, as now they’ve also had to buy new adaptor cables which are not exactly cheap. Many owners do put up with it, even though the set of equipment turns out quite a bit more expensive while the specifications are in fact very similar to other brands.

The latter is no surprise of course, we’ve analysed before what people actually buy, and it’s generally not “a computer”. They can purchase convenience, efficiency, even lifestyle and status. If you fit within the toolset (of equipment and apps) that the Apple environment provides, it’s indeed convenient and efficient. It’s a niche, but actually a fairly large one.

So we are left with two questions… does tight integration preclude making components easily replaceable and recyclable? No. It’s a design choice. If you set specific targets, the design will work within those targets. A battery can be fixed by sliding into a casing, or use a sticky gel or other adhesive that’s easily removed (think along the lines of the 3M wall fixtures with their double-sided sticky tape). That’s just one example. When you set a bunch of requirements, you can find suitable ways to resolve the need. Swatch did this years ago by setting a strict limit on the manufacturing cost of its watches. The designers worked out ways to use fewer cogs, and the ones they did put in were made of plastic rather than metal. The objectives were achieved.

Does the target niche market care about the environmental credentials of the products? I reckon they do and increasingly so. Typically reasonably affluent, the demographics of Apple users has a large overlap with the group that care for environmental matters. The procurement processes of many government organisations are also reliant on EPEAT compliance, so there too Apple will lose out.

My rough guess is that Apple is repeating a past behavioural pattern, for dogmatic reasons. Previously the decision would have been made by Steve Jobs with no care for any factors other than the merits at the time. Therefore, merely repeating his past decisions would be unwise: they made sense in the context, which will be different now. Corporations are particularly good at repeating behaviour that was successful in the past, but that doesn’t mean that it’s always the best move now or even good for them (or its customers). And in this case, I reckon it’s going to bite.

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Vendor abuse of authority, lock-in, and non-judicial policing

Picture this:

“Sorry sir… yes, we sold you this hammer, but we really must insist that you only use brand X nails.
Oh you don’t agree? Well, with regret we render your hammer in-operable. Good day sir.”

Unlikely scenario? You’d think. A hardware vendor cannot expect to get away with that, except when they’re vendor of the kind of hardware that contains software. See http://boingboing.net/2012/07/03/cisco-locks-customers-out-of-t.html where Cory writes:

Owners of Cisco/Linksys home routers got a nasty shock this week, when their devices automatically downloaded a new operating system, which locked out device owners. After the update, the only way to reconfigure your router was to create an account on Cisco’s “cloud” service, signing up to a service agreement that gives Cisco the right to spy on your Internet use and sell its findings, and also gives them the right to disconnect you (and lock you out of your router) whenever they feel like it.

Unfortunately, Cisco is not the only one – I’m not even singling them out, they just happen to be this week’s occurrence. Each case is slightly different, but I presume you’re already at least vaguely aware that Apple can remove apps from your iPhone and also shut down those mobiles remotely, and that Amazon can remove eBooks from your Kindle device, to name a few examples with well-known names. Technically, similar things have been possible for a long time – the recent development is how vendors use this capability. What remains is for the vendor to regard it as justified and use it as a valid business practice, and for you to decide whether to accept it.

When you use a service you agree to adhere by the defined terms and conditions. From time to time those terms get updated and you can either agree or choose to not use the service any more. If you don’t like the way your bank changes its terms, you can take your business elsewhere and there is generally legislation in place to prevent you from getting charged nasty exit fees for making the transition for this reason. This freedom becomes rather more difficult to exert with some online services, where there is often no covering legislation, and either no equivalent service or no way to get your data out and across to a new service.

It’s even more of a mess when dealing with hardware. While you purchased a physical device, you are now no longer really the owner. That is, you hold the physical casing, but it it’s useless weight unless and only so long as the vendor allows you to.

In the European Union there’s just been a ruling that a vendor must allow a software license to be transferable (see http://www.zdnet.com/oracle-cannot-block-the-resale-of-its-software-in-europe-7000000189/) which of course also affects devices with embedded software and I presume other licensed material such as eBooks as the ruling refers to anything licensed by a copyright holder and not software specifically.

So now you can sell on your device at least, but if you keep it the vendor can make you jump at will. In Cisco’s case they require that you sign up for certain services, and they also reserve the right to shut down your device for uses they find undesirable. A key problem there is that what they find undesirable may be what someone else finds perfectly ok and the latter may be backed by the applicable law of the land – yet that won’t matter.

However, the vendor reserves the right independently from the law. That is, they don’t require a legal ruling in order to take action, they can do so at their discretion. The fact that they technically can is indisputable, but the fact that they now explicitly declare this is a very worrying development.

It’s non-judicial policing, and I believe it to be very wrong. In most countries, we have chosen to outsource such tasks to a criminal justice system (police and courts). These days, posses and vigilantes are generally frowned upon. But now they’re back, in the form of corporations. And so far, they’re getting away with it.