Mozilla Targets Spyware with Trademark Infringement Claims

Mozilla, the maker of the Firefox browser, is reportedly taking on a controversial surveillance company that has been accused of selling spyware to authoritarian regimes, by asserting trademark infringement claims.

Gamma Group, a British company, offers governments and law enforcement agencies spy Trojan programs that are designed to covertly infiltrate computers and gather data from hard drives, eavesdrop on Skype chats and other communications, and conduct "live surveillance through webcam and microphone," according to the company's marketing materials. 

The technology is supposed to be used solely to target criminals such as terrorists. However, a mounting body of evidence has linked it to attacks on activists or political opposition figures from countries including Bahrain and Ethiopia.

Last year, researchers had noticed that the spy tool had apparently been masking itself as Mozilla Firefox—tricking targeted users into thinking it was a legitimate application.

Mozilla has confirmed that it is planning to imminently issue a cease-and-desist notice to Gamma over what it alleges is a “misrepresentation of our copyright and trademarks.”

The development will come as another blow to Gamma, which was recently branded a “corporate enemy of the Internet” by Reporters Without Borders and is also currently the focus of ongoing legal action in the United Kingdom related to its spy tech sales. 

The company’s spokesman, Martin Muench, has previously stated that Gamma cooperates with export control agencies in Germany, the United Kingdom, and the United States, and “does not discuss its client base, its exports, or any of the operations which its clients may or may not be undertaking” on the grounds that doing so can “prejudice criminal or counter terror investigations and compromise the security of the members of the police or security services involved.”

The Seven Dollar Toaster - How Brands Decline in a Disposable Economy

In 2012, I purchased a Toro brand lawmower at Home Depot for $400.  This lawnmower was supposedly "guaranteed to start."  After only 3 uses in 1 month, the mower simply and inexplicably refused to start again.  

After sending a personal letter to the CEO of Home Depot (that he actually responded to, to his credit), the retailer decided to replace the unit with a new one.  I used the replacement lawnmower only 2 times so far in 2013.  Now, the second unit refuses to start.

A quick visit to Amazon.com reveals that this Toro brand lawnmower received 38 ratings, 24 of which were only 1 star, the lowest rating possible on that site. Customer comments such as "piece of junk," "buy anything else," "broke after 3 weeks," disgusted" and "definition of a lemon," can only lead to the conclusion that Toro may end up facing yet another class action lawsuit.

But, in all honesty, what mass market brands haven't demonstrated a notable decline in quality in recent years?  This dramatic drop-off in quality that almost all household brands are exhibiting is called the "Wal-Mart effect," essentially blaming the power of the massive discount retailer for the decline of all brands.

For example, Wal-Mart sells a toaster that retails for $7.84 — a price that an article on Grist points out effectively renders its longevity virtually irrelevant.  If it breaks, just buy another.  

If you are another toaster manufacturer, how can you compete by offering a high quality toaster for $50? No, instead, you lower your own quality dramatically and try to sell competing toasters for $20 or $30.

Consequently, since 1995, the number of toasters and other small electro-thermal appliances sold in the U.S. each year increased from 188 million to 279 million. The average household now buys a new TV every 2.5 years, up from every 3.4 years in the early 1990s. These changes exceed the pace of population growth.

We buy more than 2 billion bath towels a year, up from 1.4 billion in 1994. In general, prices on household goods have fallen by about one-third since the mid-1990s.  Since 1994, the consumer price of apparel as well, in real terms, has fallen by 39 percent.  Quality, like price, is a fraction of what it used to be. 

And as Grist points out, while there are certainly factors beyond Wal-Mart that have contributed to this ever-expanding avalanche of consumption, Wal-Mart has clearly been a major driver of the trend.  Its astounding growth and profitability rest on fueling an ever-faster churn of products, from factory to shelf to house to landfill.

In a paper that was released in 2010, three business professors illustrated how inducing manufacturers to cut product quality enhances Wal-Mart’s competitive position: “Because lower quality products are usually cheaper to produce, it is often argued that discount retailers induce lower quality in order to drive down prices.  Our model suggests, however, that the competitive and bargaining position effects provide incentives to induce lower quality regardless of changes in production costs,” the authors write.

In other words, because of the fierce competition with Wal-Mart, all brands have an incentive to lower their quality and production costs each successive generation, in a perpetual bid to increase profits.  
Brand equity suffers eventually, but only relatively, since other brands' quality will decline, as well.  Many brands seem to have succumbed to this desire to increase profits over the short-term, without any real vision for how to survive the onslaught of customer complaints. Only time will tell which brands will survive this march to mediocrity in a disposable economy.

Disney Offends Latinos With Bid to Trademark Traditional Holiday Name

On May 1, Disney filed an application with the U.S. Patent and Trademark Office to protect the phrase "Día de los Muertos," or "Day of the Dead," across multiple platforms. 

Disney subsidiary Pixar is apparently releasing a film -- with the working title "The Untitled Pixar Movie About Dia de los Muertos" -- this fall.

Here's the issue -- Día de los Muertos is a traditional holiday celebrated on November 1 and 2 in Mexico and across Latin America.

People honor the lives of lost family members or friends by building altars, holding processions, decorating gravesites and placing offerings for loved ones.

Based on its trademark application, Disney hoped to secure the rights to the title "Day of the Dead" and such themed merchandise as fruit preserves, fruit-based snacks, toys, games, clothing, footwear, backpacks, clocks and jewelry.

But the Latino community has raised serious questions about the application on social media.

On Tuesday, a petition was started on Change.org to stop the Disney effort, stating that the attempt to trademark Día de los Muertos was "cultural appropriation and exploitation at its worst." As of today, the petition has over 21,000 signatures.

In 2003, the Day of the Dead celebration was entered on the UNESCO list of the Masterpieces of the Oral and Intangible Heritage of Humanity.

"The Indigenous Festivity dedicated to the Dead are deeply rooted in the cultural life of the indigenous peoples of Mexico," UNESCO has said.

But after the backlash, Disney withdrew its application this week.

"The trademark [was] intended to protect any potential title of the movie or related activity," a spokeswoman for Disney said. "Since then, it has been determined that the title of the film will change, and therefore we are withdrawing our application for trademark registration."

Disney did not comment on whether social media reactions directly led to the decision to withdraw the application.  This isn't the first time Disney has sought to trademark a controversial phrase.

In 2011, it tried to secure "SEAL Team Six," the Navy SEAL team that captured and killed Osama bin Laden, seeking exclusive rights for use on items from video games to backpacks. However, after receiving an overwhelming response from critics, Disney withdrew the application "out of deference to the Navy."

The Declaratory Judgment Complaint -- Being Quicker on the Draw

As a routine practice, a brand owner's trademark lawyers send formal cease and desist letters to companies or persons who become accused of using a confusingly similar name or design without authorization.  

Such a letter is often sent before a lawsuit is filed.  
It is not legally necessary for a brand owner to send such a demand letter, but (depending on the circumstances) many brand owners believe that it is helpful to give notice before filing suit.


This process also allows the accused infringer to settle potential litigation for smaller (or no) damages, depending on the circumstances.  


For example, some infringers may agree to share their sales figures of accused products, and in doing so, deter the brand owner from seeking excessive damages.


Of course, there is never a guarantee that the brand owner will agree to settle, and these documents can have the opposite effect, and end up fueling litigation.


Trademark lawyers send out dozens, hundreds -- even thousands of such demand letters each year.  Most of the time, the recipients apologize, comply with the letter's demands and move on.
 In some cases, the unwise recipient just ignores the letter, leading to a second, usually more aggressive letter or a lawsuit.


But in some rare cases, if the recipient of a letter receives what could be interpreted as a legally baseless or overly aggressive threat leading to a reasonable apprehension of imminent litigation, he may opt for a highly aggressive strategy -- sue the brand owner first.  
In other words, he is quicker to the draw in gunslinger terminology.

This process is called invoking declaratory judgment jurisdiction.  The reason is that the plaintiff is seeking a "declaration" that he is not infringing.

Upon receiving a cease-and-desist letter, the recipient may seek a tactical advantage by instituting declaratory judgment litigation in a more favorable jurisdiction.
  The end result may require the sender of the cease and desist letter to appear in a distant court, at their own expense, in a case that it never would have actually brought.

The declaratory judgment plaintiff also could catch the overly aggressive brand owner off guard, and put it in the posture of being a defendant rather than a plaintiff.
  This tactic seems to have worked, at least initially, for the recipients of a cease and desist letter from the Subway sandwich chain's lawyers.


In 2011, Subway's lawyers sent a cease-and-desist letter to Casey’s General Stores, a midwest convenience store operator, demanding that it stop using the word “footlong” to describe its sandwiches.

Casey’s struck back with a declaratory judgment lawsuit against Subway, arguing that the chain has no trademark rights to what it considered to be a generic term.


The suit noted that Subway has tried to register the mark protection for “footlong,” but was refused by a trademark examining attorney who was skeptical of the distinctiveness of the term, noting that restaurants across the country use the word to describe submarine sandwiches on their menus.


Thus, Subway became the unwilling defendant in a declaratory judgment case brought by an accused infringer, putting the validity of its very trademark in jeopardy.