Trademarks for Cannabis, Hemp, and CBD Products

Hemp Forest.  Photo by Barbetorte. CC license.
Trademarks for Cannabis, Hemp, and CBD Products
by Susan Basko, esq.

Trademarks for cannabis and hemp products are extremely limited.  I have seen quite a number of applications for trademarks, even made by lawyers, that will surely be rejected as they are assigned to an examiner.  I saw an application today that has about 5 lawyers from one law firm listed; apparently none of them bothered to research the law before filing the application.  The application seeks trademark registration on CBD oil used as a dietary supplement; the Trademark Office has specifically stated it cannot register trademarks for any CBD product sold as a dietary supplement.  What will happen?  The trademark examiner will run the lawyers through a long series of inquiries and then will reject the application.  It will be about a year or more until the clients will find out they are not getting a registration.  That whole process will most likely cost the clients tens of thousands of dollars.  The whole thing is a shame because the Trademark Office has been very clear and forthright about how it is handling trademark applications on marijuana and CBD products.

These are the facts as they stand today.  It's not a pretty picture, but this is what it is:

US Trademarks follow federal law.  All cannabis and THC products are illegal under the federal Controlled Substances Act (CSA), and so trademarks are refused on any such products or services with regard to those products.  Even if medical or recreational marijuana or THC is legal in a State, it is illegal under federal law, and so the US Trademark Office will refuse to register a trademark. Trademarks are also refused on any goods that are considered "drug paraphernalia," which is interpreted very broadly.  Drug paraphernalia is defined and examples from the law are listed below.

The 2018 Farm Bill removed cannabis products from the CSA if they are considered hemp products, meaning they have less than 0.3% THC on a dry weight basis.  This means that CBD (cannabidiol) products that derive from hemp and have less than 0.3% THC are no longer illegal under the CSA -- however, they might still be illegal under the Federal Food Drug and Cosmetic Act (FDCA).  The FDCA prohibits CBD products that are food, beverages, dietary supplements, or pet treats from being in commerce, and therefore, trademarks are refused on these products - since they cannot legally be in commerce.

CBD products that are food, beverages, dietary supplements, or pet treats are illegal under federal law and so cannot get a US registered trademark.

The FDA states that it has only approved one CBD product as a drug treatment for two rare forms of epilepsy.  The FDA has not approved any other CBD product for treatment for any other illness or condition.  The FDA states it is inquiring regarding the safety of CBD products and lists liver injury and other potential hazards.

At this time (early 2020), the US Trademark Office WILL REFUSE to register a trademark on the following goods or services:
  • Marijuana, Marijuana extract, or THC as goods, even if the sale is legal in the State in which it is being sold and even if it is medical marijuana.
  • Goods related to marijuana, such as vaporizers, and any "drug paraphernalia," which is listed below.
  • Services related to these goods, such as a marijuana store or delivery services or growers,
  • CBD (cannabidiol) containing more than 0.3% THC 
  • Any CBD product containing less than 0.3% THC if it is a food, beverage, dietary supplement, or pet treat.  This would include such things as CBD gummies, drinks containing CBD, CBD capsules or oil to be taken as a supplement, or pet treats containing CBD. 
SO, WHAT CBD PRODUCTS ARE LEFT THAT CAN GET A REGISTERED TRADEMARK?  Possibly CBD oil that contains less than 0.3% THC that is not meant to be ingested and about which no medical claims have been made.  I do not know yet of any trademark that has been registered in this category, but that seems to be the only possibility.

Trademarks also cannot be registered on "drug paraphernalia," which is defined by the federal Controlled Substances Act as:

"The term "drug paraphernalia" means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—
(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2) water pipes;
(3) carburetion tubes and devices;
(4) smoking and carburetion masks;
(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;
(7) chamber pipes;
(8) carburetor pipes;
(9) electric pipes;
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.

(e) Matters considered in determination of what constitutes drug paraphernalia

In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1) instructions, oral or written, provided with the item concerning its use;
(2) descriptive materials accompanying the item which explain or depict its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the item in the community; and
(8) expert testimony concerning its use.

(f) Exemptions

This section shall not apply to—
(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

First, remember that it is not necessary to have a registered trademark to create and use a trademark.  USE of a mark to denote the source of a good or service is how trademarks are created.  You can do that without any registration! Therefore, while the US Trademark Office will refuse registration on trademarks on goods and services that are illegal under federal law, if you are in a State where it is legal to sell marijuana or CBD products, you can use the trademarks of your choice.  Be sure to create your trademark words or images/ logos that are creative and original and that do not infringe on anyone else's trademarks.  You may want to create a file of evidence of your use of the trademark, in case the federal law ever changes.  Then you will have proof you have been using your trademark, where and when you have been using it.

 It will be interesting to watch and see if marijuana and CBD-based businesses will try to prevent other such businesses from infringing on their unregistered trademarks using State law claims.   Within a State where marijuana and/or CBD sales are legal, it seems likely that businesses will try to prevent each other from "stealing" their names, logos, slogans, etc.

Second, some States register trademarks.  Illinois, where marijuana has become legal for medical and recreational use, has an Illinois trademark registry.  You can see the Illinois Trademark Registration application form HERE.

Some other States also register trademarks for goods and services being sold within their States.  These in-state trademarks seem ideally suited to the situation involving marijuana and CBD products, where the US Trademark Office simply will not register trademarks, even if the goods or services are legal in the State.  But, keep in mind, a State trademark provides protection from infringement from within the State, not in other states.  However, since marijuana businesses are State-specific, there is less likelihood that buyers will confuse similarly-sounding businesses in other states.  Still, you might want to choose your trademarks carefully to make them original and unique, even from those used by businesses in other states.

ALSO, you may want to choose trademarks that fit the general rules of the US Trademark Office, so that you will be able to register your mark with the Feds if and when the rules change.

I used to think of State trademarks as useless and foolish in this day of the internet.  I now see how the State trademark registries could be quite useful when a good or service is refused trademark registry by the US Trademark Office.

So, a solid trademark plan could be:

1. FEDERAL TRADEMARK?  Find out if your good or service is eligible for a US Trademark.  If it is a marijuana good or service, it is not eligible for a US Trademark.  If it is a CBD (with less than 0.3% THC) good or service, it is not eligible for US Trademark if it is a food, beverage, dietary supplement, or animal treat.  If your good or service is eligible, create a unique and original trademark that does not conflict with any existing trademarks and apply to register it at the US Trademark Office.  Keep in mind, registration is a process that takes about 18 months and has many facets to it.  A trademark registration for a CBD product will require a great deal of interaction between the trademark examiner and your lawyer.  The trademark examiner is required to engage in a series of inquiries regarding all applications for trademarks on CBD products or for other potentially illegal goods or services, where the potential illegality appears on the face of the application.

2. STATE TRADEMARK? If your goods or services are not legal under federal law, but if they are legal under State law, check and see if your State registers trademarks.  Create a trademark or service mark that is unique and original and does not conflict with any already-existing trademarks, and apply to register it with your State.  If you create a trademark that meets the other requirements of US Trademarks, then you will be set to apply to register with the US Trademark Office if and when the laws change.

3. USE IT ANYWAY!  If you find you cannot register your trademark federally or in-state, you can still use it!  You can create brand awareness with the name and/or symbol you use to denote the source of your goods and services, and you can do that without registering anything at all.  Just do a solid search to be sure you are not infringing on anyone else's trademark.

4. Get a trademark lawyer.  Don't try to do this on your own.  What I have written here is complicated, and it is the tip of the iceberg.  Trademark law is very complicated!  In the case of trademarks on marijuana and CBD products, a trademark inquiry involves not just the extremely complex trademark law, but also the Controlled Substances Act (CSA) and the Food, Drug, and Cosmetics Act (FDCA). 

5. Prepare in advance for changes in the law.  Keep pictures of your use of your trademark with your goods or services on products, on ads, on websites.  Keep a whole file of evidence as proof you have been using the trademark so you can register it with the US Trademark Office if and when the laws change.  It may take years for the laws to change, but they will likely change at some point, and you want to be prepared.  

Retzlaff v Van Dyke - Let the Wild Rumpus Start!

Let the Wild Rumpus Start - Maurice Sendak *
 Retzlaff v  Van Dyke hits the US Supreme Court
Let The Wild Rumpus Start!
by Susan Basko, esq.

Those two wild and woolly monsters, Thomas Retzlaff and Jason Lee Van Dyke, are off dancing under the moon in the shadows by the U.S. Supreme Court.   This saga involves, among many other things:  The Proud Boys, a $100 million lawsuit, death threats, violent racist tweets, stolen guns, more death threats, dueling websites and facebook pages, an amicus brief filed by 40 news organizations, more detailed death threats, and now a trip to the U.S. Supreme Court.  Don't kill me!  I'm just an innocent bystander blogging this stuff.

Thomas Retzlaff v Jason Lee Van Dyke. Motion for Stay of Mandate filed in anticipation of case being accepted by the US Supreme Court. Jason Lee Van Dyke, former lawyer for the Proud Boys, sued Thomas Retzlaff, alleging that Retzlaff caused him to lose a new job with TX prosecutor's office. The Texas Citizens Participation Act (TCPA) came into play, and the federal court decided that anti-SLAPP law did not apply in federal court. An amicus brief was filed by 40 news and journalism companies in support of Retzlaff's position that the TCPA should apply in federal court cases. The Appeals Court ruled that the TCPA did not apply in federal court. In anticipation of a petition to the US Supreme Court, this emergency motion for a stay of the Mandate was filed.  Van Dyke is counsel for himself, Jeffrey Dorrell of Hanszen Laporte in Houston, Texas, is counsel for Thomas Retzlaff.

The amicus brief filed in this case by the news companies and journalism organizations can be seen HERE. 

Please note that Jason Lee Van Dyke, the lawyer from Texas and a party in these proceedings, is not the same person as Jason Van Dyke, the former police officer from Chicago.

* Let The Wild Rumpus Start is copyright owned by Maurice Sendak as part of his book, "Where the Wild Things Are."  Fair Use here as parody.  You can buy the book on Amazon or at book stores.

Up Down Periscope!
Twitter's New Logo Not Creative Enough for Copyright

Up Down Periscope!  Twitter's New Logo Not Creative Enough for Copyright
by Susan Basko, esq

Back on September 9, 2016, Twitter applied for a trademark registration on the logo shown above, for use on its Periscope service.  The Trademark Examiner at the U.S. Patent and Trademark Office (USPTO) did a good deal of thoughtful work to change the wording and category of service to make it fit the international trademark being sought.  On October 3, 2017, the trademark received a certification for the following uses: 

Providing online entertainment and real time news information, namely, providing news, information and commentary in the fields of entertainment, sports, fashion, education, recreation, training, blogging, celebrity, culture, namely, entertainment, sports and popular culture, and current events via the internet and other communications networks; current event news reporting services; entertainment services, namely, providing audio and audiovisual programs featuring entertainment, namely, news, information and commentary in the field of entertainment, and real time news content delivered by streaming via the internet and other communications networks.

The Design Search Codes used to search the database for possible conflicting designs were:

01.11.02 - Moons, crescent
01.11.02 - Moons, half
01.11.02 - Partial moons, including half moons and crescent moons (not a moon with craters)
01.15.08 - Raindrop (a single drop)
01.15.08 - Single drop (rain, tear, etc.)
01.15.08 - Teardrop (a single drop)
26.01.21 - Circles that are totally or partially shaded.

Trademark protects a mark, which designates the source of a good or service. A trademark might be a word, a design, or even a sound. In this instance, Twitter registered a service trademark on both the word, "Periscope," and on the logo shown above.

Twitter also applied to register a Copyright on the logo, but the U.S. Copyright Office refused to register the design, saying it was not creative enough. Twitter asked for a reconsideration and was denied again. Twitter asked for a second reconsideration and was denied yet again.

Copyright law states that works of visual art made of standard geometric shapes cannot be registered.  That includes such shapes as circles, squares, ovals, parallelograms, cylinders, and all other common geometric shapes.  Copyright law also precludes other stock elements such as letters, numbers, punctuation marks, the marks on a keyboard, smiley faces, etc. However, arrangements of those elements that are sufficiently creative can have copyright. In denying a copyright for the Periscope logo, the Copyright Office stated that it “does not contain a sufficient amount of original and creative graphic or artistic authorship to support a copyright registration.”  The third refusal letter explains, "that there are no elements or features in the design, alone or combined, that are eligible for copyright protection."

The Copyright Board concluded that the logo was the same as a vector point on a map, with slight variation.  "Hence, the Board finds that the selection and combination of the Work’s design elements are not sufficient to render the Work original, because the Work is a mere variation of a standard map pointer vector."

The refusal letter continues, "Further, to the extent that the removal of a small portion of the red circle by placement of a white semi-circle causes the interior of the Work to represent an eyeball, the depiction is simplistic and does not exhibit sufficient creativity to render the Work copyrightable. Rather, the evocation of an eyeball in the Work does not amount to materially more than the layering of one uncopyrightable geometric shape upon another. See Feist, 499 U.S. at 359 (“There remains a narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”). Therefore, this basic and elemental rendering of an eyeball does not generate the necessary creative expression. Relatedly, the decision to center common and familiar shapes within a standard industry design does not exhibit the creativity to support a registration."  (The full refusal letter is shown below.)

Okay, so Twitter no doubt paid a small fortune for some designer to create this logo, it managed to pass muster at the USPTO, and the Copyright Office slammed it by relegating it to the “narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”

But aren't logos supposed to be simple but memorable?  This and other Copyright refusals on logos leaves me thinking there should be a Copyright category specifically for logos.  Trademark exists to protect logos, but Copyright has other protections.  

Years ago, I did tech work at one of the most famous art museums in the world.  As part of my work there, I attended hundreds of lectures about art, architecture, design, art conservation, etc.  The lectures about modern art works were especially enlightening for me.  There would be an incredibly simple design, or what looked like a sloppy smearing of paint.  The lecturer would explain the process and the meaning of the art work, and by the end of the lecture, I would have a much greater appreciation for the work of art.  

I think perhaps the Periscope logo fits into this same category of modern art.  I see it as simple, but elegant.  Maybe the Copyright Board lacks appreciation for modern art and design.  Have the people at the Copyright Board making these decisions had any formal training in art and design, or have they simply been educated in Copyright law and precedent?  Under the logic of their decision, a gaudy busy design, which could be considered very poor by logo design standards, would most likely be considered worthy of copyright protection.  

Copyright law does not allow several things to be considered in whether to grant Copyright on a work of art.  The amount of time, work, effort, and money it took to create the work cannot be considered.  The underlying meaning or connotation cannot be considered.  That rules out all those meanings explained by art appreciation lecturers.  To an art lecturer, the eyeball shape in the Periscope logo might represent the individual's view of the world around him or her, but at the Copyright Office, it is an eyeball shape, stock, and not protectible by Copyright.  

This might seem like a simple matter, but quite a few other logos have been denied Copyright, even if they have been given a Trademark certificate, which is no small feat in itself.  There is a bit of a logo crisis.

What protections does Copyright offer a logo that cannot be had by Trademark?  Try to think up examples.  The abuses that people can think up seem far-fetched, until they happen.  For example, someone could probably take the Periscope logo design shown above and print it on notebooks, clothing, umbrellas, or toys.  The Trademark only protects the logo in its use to designate the source of those online services in the description.  The logo in itself is not a protected design, does not have Copyright. 

I propose that the Copyright office and/or Copyright law create a new category of two dimensional visual art work specifically for logos.  Logos should be simple.  Logos should be memorable, and thus, should relate to images already known.  Logos will often consist of an arrangement of other elements that in themselves, cannot have copyright, such as letters and shapes.  I propose that a logo department of the Copyright office would be staffed by people who are trained in art and design, as well as trained in Copyright law.  They would be trained to understand and appreciate simplicity of design.

How to Be an Online Crackpot, Advanced Techniques

How to Be an Online Crackpot, Advanced Techniques
by Susan Basko, esq

See also:  How to Be an Online Crackpot, for basic techniques

You wish to be an online crackpot.  This is a noble goal. Hopefully, you have studied the basic lessons, which gave numbers 1-5 in the fundamental techniques. 

In this lesson, we move on to the advanced techniques, numbers 6-10.  You must master these to be a high level crackpot.

6. Sit in your car and make rant videos.  Inside your car is the perfect place to face the camera (your phone) and rant loudly about how the world is mistreating you.  You can also rant about your plans to get back at the world.  Good topics include:  Why you are an incel -- because women or men all suck and are too self-centered to admit how fabulous you are.  What your current fad diet is and a long list of things you do not eat (grains, fats, carbs, meat) and a list of substances you think are like magic (steroids, soy, magnesium, tootsie rolls, etc).  Whatever topic you pick is just fine, as long as you rant and fume about it and go on and on.

7. Run radio shows about nothing, as long as it's insulting.  A few years back, one well-known internet crackpot held online radio shows about me, every single week, sometimes twice a week.  He never spoke to me, knew nothing about me, and never invited me on the show as a guest.  Rather, he and his group of screeching weirdos gathered in his "green room," where they posted derogatory comments and insults.  He spent his two radio hours, week after week, lying about me and insulting me, a person about whom he knew nothing.  That man earned his wings as a total crackpot.  Recently, I heard an internet radio show run by a woman who spent her radio hour lamenting that she is no longer allowed by social media companies to call people "retard."  She went on a roll about how life is so boring and unfulfilling and unfair now that she can no longer call people retard.  She, too, earned her merit badge as a complete crackpot.

8. Write a manifesto.  Your manifesto should be between 3 pages and 40 pages long.  The sections should have headings.  You need to add quotes from infamous writers.  You should diss a wide number of racial or ethnic or social groups, and throw in a bit of misogyny, too.  You have to blame them for things and their opposites, at the same time  -- such as being lazy and taking all the jobs, not dating you and being sluts, being genetically stupid and taking up all the places in the elite colleges, being social justice warriors and not caring about anyone but themselves, etc.  Anything and its opposite.  Your conclusion should be that they all need to die, with the implication that you or your friends plan to help them along with this goal.  Then, post the manifesto somewhere it won't be removed too quickly, and post links to it all over the place. That brings you a full step closer to being a total crackpot. 

9. Run an army of sock puppets.  This works well on Twitter.  Have at least 8 accounts that you control.  When you post something, have them all post comments agreeing with you.  When you don't like what someone else wrote, have your little army post calling them names and detailing how horrible they are.  Persona management software works well for this purpose, but if you have to do it manually, you can wing it.  

10. Join an online group of trolls.  Nothing says "crackpot," like belonging to an online group that meets up in chat rooms or on IRC to discuss who they are going to hack or who is an idiot. There's nothing like being a grown adult and belonging to a group of online misfits and malcontents with an acronym name to show you are a crackpot.  If your group meets up at hacker conventions, even better. You and all your crackpot friends can meet up and have fun.

How to be an Online Crackpot

How to Be an Online Crackpot 
by Susan Basko, esq.

 If your goal is to be an online crackpot, here are 5 Easy Methods to achieve that goal:

1. Make screen shots of your emails, texts, and direct messages with others, and post them online, along with commentary.  This proves to those who risk communicating with you that you cannot be trusted, cannot keep anything confidential, are a drama queen or king, and a shit stirrer.  Abra cadabra, in one swift move, you are a crackpot.

2. Dox people.  You don't like the fash or the antifa?  Libtards got you down?  Homeschool moms irking you?  Dox them!  Research to find out who they are, dig up info on them, and post their pictures and their info!  Why leave them alone and live and let live, when you can name them and shame them and feel like your team wins? Now, you are officially a crackpot!

3. White Knight for someone else.  Got a sweet spot in your heart for some singer or actor?  How about for some presidential candidate, or a famous scientist, or maybe even a hip hop rapper?  Don't just be a pest and a fan, go all the way and be a White Knight!  Find out who it is that dares to say anything bad about your Goddess and get to work on destroying that person.  John Hinckley had his Jody Foster, and there is no reason why you cannot become a crazed stalker in the name of praising someone you admire.  Go for it!  Become a White Knight and you are truly a dangerous crackpot.

4. Buy up domains and emails in the names of other people.  Stalking someone?  Why stop there?  Go all the way and become them!  That's right, you can hustle on over to GoDaddy and buy up domains and emails in their name.  Then, you can make websites to show how much of a stalker you are.  And you can send out emails pretending to be them, and fool everyone.  This is one of the fastest and most certain methods to show you are a stalker, ruthless, unethical, and a crackpot.  Go for it, you clever crackpot, you!  We know of one man and his lawyer in California who have bought up over 1,000 domains and emails in the names of the people they stalk, harass, and lie about.  Those two have indelibly proven themselves as Total Crackpots.

5. Issue death threats.  What is the point of being online if you can't tell people you are going to kill them?  Right?  You know I'm right.  What is Twitter for, if not using a sock account to detail your plans to off the enemy?  Online comments, forums, facebook, emails -- all these can be used to satiate your desire to detail how you plan to bring about the demise of those you despise.  If you use your real name or an account traceable to you, you might get a knock on your door from the police or FBI, but hey, it will be worth it for the delight of being a crackpot.  Kill those motherfuckers, or at least say you plan to.  

falling through the crack.

Letter to 8Chan from Homeland Security

Letter to 8Chan from Homeland Security
by Susan Basko, esq.

The letter below was sent to Jim Watkins, the owner of the message board 8Chan, from  Bennie G. Thompson, the Chairman of the Committee on Homeland Security of the House of Representatives.  Notice, it was sent by mail, email, and Twitter.  The letter outlines how 8Chan has been used as a place to post white terrorist manifestos before at least 3 mass shootings in recent months. The letter then asks Watkins to come appear before the Committee to tell what steps he is taking to stop the "proliferation of extremist content on 8Chan."

Well, la ti da, finally... I have been singing a chorus for years about the predatory and dangerous hate-filled websites -- 8Chan, Encyclopedia Dramatica, Bullyville, Doxbin, Kiwi Farms, and online racist groups that promote online and real-life hate, such as those connected to Rustle League, Bullyville, GNAA, etc.  Other killings have been linked to Encyclopedia Dramatica and Kiwi Farms. Numerous people (including myself) have reported being terrorized, defamed, harassed, having their privacy invaded, and their safety endangered by the owner and denizens of Bullyville, a smear-extortion website.  Doxbin was closed down by the Feds, but a mirror of it is reportedly being used by Neo-Nazis to swat and endanger lives of journalists and many others. There have been reports for many years of peoples' lives being harmed or destroyed by the people who use the website and forum of Encyclopedia Dramatica to post defamation, sexual filth, and extortion against many victims.

In many cases, the users of these sites and members of the associated groups overlap with each other.  A lot of them consider themselves "edgy" or involved in the hacker - doxer - swatter scene. The overlay is one of misogyny, often hate for older people, white racism, antisemitism, often a promotion of swastikas, Hitler, and Nazism, and a continuous theme that the victims are to blame for the harm that has come to them.  The people from these groups often label their victims as "pedos" or "rapists," common terrorizing smears meant to harm their reputations while making the victims easy targets for others.  Other common denigrations include calling people "lolcows," "ni--er," and claiming that those who call for decency and civility must be crazy, stupid, or don't understand how the internet works.  When you see these things on websites, you know the sort of territory you have stepped into.  Another ongoing theme is that those who object to this sort of uncivilized terrorizing discourse are "thin-skinned" or even against the First Amendment or free speech. 

Swatting (fake emergency calls meant to get an emergency response sent to the person) or wellness calls (similar to swats, but claiming concern for the person as a way to harass them with a visit from police) are popular methods of harassment with the people from these groups.  It is all about endangering others, endangering lives, smearing reputations, harassment, stalking, invasions of privacy, and creating an overall environment of misogyny, racism, antisemitism, hate, and most of all -- danger to others.

The pattern of mass shooters and other criminals being radicalized among these groups and on these websites is finally being recognized.  Finally.  I have been hollering about this for years now and finally it is being officially recognized.  The internet should not be a dangerous place and should not be a breeding ground for crimes.

Jim Watkins reportedly lives in the Philippines, but his website is registered in Reno, Nevada.  Since his website appears to be used as part of crimes, it seems the U.S. probably has jurisdiction over him.  That could become a legal question.

Owners of such websites often rely on Section 230 of the Communications Decency Act to shield them from liability for torts, such as defamation.  They claim, sometimes truthfully and often not, that the harmful postings are made by third party users, not by the owners and workers on the sites.  However, Section 230 does not apply to criminal acts and there is no shield protection when a website is used for crimes, even by the users of the site.

It will be interesting to see what happens.  The internet should not be a breeding ground for stalkers, swatters, mass shooters, bombers, and on and on -- but it has become that.  It's good to finally see Homeland Security Committee stand up.

Trademark Office hammers down on fake uses!

Gas station and general store shack in the Wild West
 Trademark Office hammers down on fake uses!
by Susan Basko, esq.

The U.S. Trademark Office has just instituted two new procedures that are meant to weed out fake uses or non-uses of a trademark. These two changes are bound to leave a lot of people losing their trademarks.

First up, the trademark office has instituted new procedures for detecting fake specimens.  Up till now, the U.S.Trademark Office has been like the Wild West with trademark applicants providing fake specimens -- but there is a new sheriff in town now, or at least, there are new specimen examinations procedures.  A while back, the trademark office noticed that quite a few trademark applicants were submitting specimens that appeared to be digitally created or digitally altered specimens or mock-ups.  Specimens are supposed to be pictures of the real goods with the trademark on them or on the tags, etc.  The goods are supposed to actually exist, and some applicants were faking that or were submitting fake specimens because they thought they looked better or something.

For example, let's say a person wants a trademark on a certain saying or logo for use on t-shirts.  The person might go to a website that prints anything on anything, such as t-shirts, mugs, etc., and create a digital picture of their saying or logo on a t-shirt, mug, etc.  If that picture is submitted as a specimen, it is a a digitally-created specimen, a fake, and cannot be accepted.

Mock-ups are also unacceptable specimens.  That's when you create a picture that shows what something would look like if it was ever made.  That is not good enough for the Trademark Office!  To get a trademark, the goods must actually exist and you must actually be selling the goods in commerce, for real.

What's the problem here?  Many one-off printers have sprung up online. These companies print anything on any of a whole line of products.  They don't print the item until someone orders it.  What this means is that if a trademark applicant wants a trademark for each of those items, the applicant is going to have to get printed up and made at least one of each thing on which they plan to get a trademark.  You want to get a trademark for your logo on t-shirts, hoodies, and hats?  You cannot submit digitally-created pictures of your logo on a t-shirt, hoodie, and hat.  Instead, you have to have at least one of each of those printed and sent to you, take a picture of them, and submit those pictures as your specimens.

This is a situation created by trademark law not keeping up with real life.  There are many such examples of this lag time between the trademark rules and practices and the way things are done now.  With an online one-off printer, the items really are for sale.  Anyone can order any of the items, and the companies print them up and fulfill the order by shipping them to the buyer.  There is nothing fake or unreal about this.  But the trademark office exists in the olden days, when, in order to sell a t-shirt with a particular logo on it, you had to first have a batch of those printed up, have them in stock, and then sell them.

The only way to deal with this issue is by having at least one of each item you hope to get trademarked, take pictures, and use those pictures as your specimens.  If you try to use digitally-created specimens, your trademark application will be denied.

The booklet below, published by the U.S. Trademark Office, explains the procedures the examiners will use to weed out fake specimens. They plan to use such top secret tricks, such as using searching images in Google.

The second big thing being implemented by the Trademark Office is the Post Registration Proof of Use Audit Program. This is a program where some people who have been granted trademark registration are going to have to prove that they are actually using the trademark in commerce on all the categories of goods or services for which the mark is registered.

For example, some people or companies will register a trademark on many categories of goods or services, but are not really offering for purchase at least several of those goods or services.  Let's say a trademark owner registered a trademark for women's clothing, hats, wallets, bedsheets, linens, perfume, shoes, stationery, and dishes.  Maybe they are only actually using the trademark in commerce on clothing and perfume.  The audit will show that the other categories are not in use, and then those trademark categories can be cancelled, so the trademark is freed up so someone else can use it.

Always keep in mind, the main rule about trademark is that you must be using a trademark in order to have a trademark.  Using it is everything.

I'll be attending a seminar run by the Trademark office that will tell about the audit process.  After that, I'll let you all know more about it. 

This is the booklet that tells trademark examiners how to detect a digitally created specimen, a digitally altered specimen, and a mock-up.  If you would like to see the booklet full-screen size, click in the lower right-hand corner of the booklet on the "full screen" icon, which is four arrows pointing out.