Archive - IP

New Resource: Updates on Copyright Litigation in the 6th Circuit

February 16, 2012 in IP with 0 Comments

Copyright law is a rapidly evolving field.  And a surprisingly large portion of the country’s copyright litigation happens within the U.S. Court of Appeals for the Sixth Circuit.  This is the federal court that hears appeals from judges in Michigan, Ohio, Kentucky, and Tennessee.

I was once a law clerk for a Sixth Circuit judge, and today most of my IP litigation practice takes place within this jurisdiction.  So the way this court deals with copyright issues is a subject near and dear to my heart.

So I have added a new resource page to this site called “6th Circuit Copyright Updates.”  which you can see in the menu bar above.  On this page, I will summarize rulings in copyright cases from the Sixth Circuit Court of Appeals, the various federal district courts within Michigan, Ohio, Kentucky, and Tennessee, and even state courts that address these issues. These concise updates will provide a quick-glance guide to the state of copyright law within this important jurisdiction.

I hope you find this resource helpful and informative. Click here to check it out.

My Interview on the Emily Rooney Show

January 18, 2012 in IP, Social Media with Comments Off

Today I had the great honor of appearing as a guest on the Emily Rooney Show, a program on WGBH Boston.  I explained the current controversy over the SOPA and PIPA copyright bills, and discussed some of my predictions for social media law in 2012.  You can listen to a recording of the interview here.

Would SOPA & PIPA Violate the First Amendment?

January 18, 2012 in IP, Social Media with 2 Comments

Today, thousands of sites across the internet have voluntarily blacked themselves out in protest of two bills pending before Congress: the Stop Online Piracy Act (SOPA) in the House of Representatives, and its Senate version, the Protect IP Act (PIPA).  Although intended to serve the laudable goal of combating online piracy of copyrighted works , the consensus among these protestors (which include most of the largest companies in Silicon Valley) is that SOPA & PIPA contain at least the following flaws:

  • By using, or at least encouraging, the technology known as “DNS blocking,” the Acts would threaten the structural integrity of the entire internet, leaving users more vulnerable to hacking.
  • Its remedies are overkill. Instead of the current regime under the Digital Millennium Copyright Act, which permits copyright owners to send ISPs notice of particular infringing material and request its removal, the Acts would empower owners to demand that an entire website be blocked, links o them removed from search engines and other websites, and advertising and payment processing websites stop doing business with the site–all because the owner “believes” that the site is “dedicated to the theft of US property.”
  • Because the Acts allow owners to seek a court order requiring these steps as a first step, the allegedly infringing sites and the third-party linking sites targeted by the owner would need to defend themselves in court every time an owner makes a claim against the them.  The prohibitive legal costs involved would force websites to comply even with bogus or poorly supported requests.
  • The vague, broad wording of the Act would force search engines and other websites to self-censor their content, for fear of being held liable to infringing user-generated material.  Sites that rely on such content, such as YouTube and Facebook, might cease to exist.  The effort and expense of policing every single link on the site would be prohibitive, and many would choose simply not to host any content rather than risk liability.
  • By targeting software tools that would circumvent the DNS blocking solutions, the Act would jeopardize the political dissidents around the world who rely on such tools to fight oppressive regimes.

One question that I haven’t seen articulated very often, however, is whether these Acts would pass constitutional muster if they were ever challenged in Court.  That’s where renowned constitutional scholar Laurence H. Tribe comes in.  He has published a lengthy legal memorandum detailing several reasons why SOPA and PIPA violate the First Amendment’s protection of free speech.  Those reasons include:

  • The Acts amount to impermissible “prior restraint” of speech, because they allow private parties to suppress speech without a judicial hearing and due process of law.
  • The definition of a website “dedicated to the theft of US property” is impermissibly vague, and allows copyright owners to target entire sites when only a small portion of them contains infringing material.
  • The burden placed on websites to police their own content, under threat of strict liability for infringing content found there, will chill their exercise of free speech rights.
  • The sweeping remedies authorized by the Acts are so broad that they will inevitably affect “large swaths” of legitimate speech as well.
  • The Acts authorize the US Attorney General to blacklist sites suspected of infringement, under a process that is unlikely to ever afford most sites a realistic chance of defending themselves.  US citizens would then be deprived of information that they have a First Amendment right to access.

To this list, I would add the fact that neither Act appears to acknowledge or respect the defense of “fair use” protected by the Copyright Act.  Courts have explained that this defense is a “safety valve” necessary to ensure that First Amendment rights are respected in situations where their exercise may technically constitute copyright infringement.  In one recent, celebrated decision, a federal judge ruled that a copyright owner ran afoul of this defense by failing to consider a YouTube user’s potential fair use rights before demanding that her video be removed.  Under SOPA and PIPA, however, the owner could have simply demanded that the whole of YouTube be blocked because of that video.

Some of Tribe’s arguments overlap each other, and include policy considerations that go beyond the bounds of First Amendment case law.  Nevertheless, these are important considerations that raise issues at the heart of our constitutional democracy.  They also lay out paths to a legal challenge in the even that SOPA and PIPA become law.

[RESOURCE] The Right of Publicity in Michigan

January 10, 2012 in IP with 2 Comments

Sonny Landham as "Billy" in Predator, the subject of the seminal 6th Circuit case Landham v. Galoob

Just in time for my presentation today to the Michigan Intellectual Property Association, I’ve added to this blog some resources on Right of Publicity law in Michigan.  This new section contains summaries of virtually every Michigan and Sixth Circuit case on the Right of Publicity, copies of relevant bills from the Michigan legislature, and more.  This is the first of several resource pages I intend to add to this blog over the coming months, to make Wassom.com an increasingly valuable source of information on the law of social and emerging media.

Click here to view the new resource page, “Right of Publicity in Michigan.”

 

5 Predictions for Augmented Reality Law in 2012

January 3, 2012 in Augmented Reality, IP with 2 Comments

This could finally be the year that the public begins to see augmented reality as a serious, important technology.   Lance Ulanoff, the editor-in-chief at Mashable, certainly thinks so.  He listed AR as the first of “5 Tech Trends to Watch in 2012.”  “Trust me,” he wrote, “by 2013, you’ll be hard-pressed to find anyone who hasn’t at least tried augmented reality.”  On January 2, 2012, BBC News wrote that “augmented reality …  is beginning to take hold in the US.”

And with any new industry comes legal milestones.  As AR companies becomes more prominent, they will encounter the same legal issues that occur in every industry.  I’ve already told you about the first legal dispute over AR, which involved marketing to teens.  Here are five legal issues that I think at least one AR company will encounter sometime this year:

1.  The First Licensing Model for AR content.  Copyright law will always play a big role in AR publishing.  It is the law of creative expression, and AR is a medium through which some of the most creative content of our generation will be expressed.  In other media, those who author creative content give licenses (i.e., permission) for others to reproduce, distribute, alter, publicly display, or publicly perform that content–sometimes for free, sometimes in exchange for money.  AR publishing will work the same way.

Daqri has already announced its plans to be “the YouTube of AR,” where anyone can upload or download user-generated AR content for free.  Sometime in 2012, I expect to see at least one company monetize AR content–perhaps through an in-app purchasing feature, allowing users to download custom images that they could then see through their smartphones.

Personally, I’d love for Apple to offer downloadable AR skins for its Siri personal assistant.  That way, you could not only hear Siri give you directions, but actually see her (through your iPhone) pointing them out right in front of you.  (And you know that Apple will give her an entire digital body, but only charge you an arm and a leg.)

2.  The First Negligence Lawsuit.  “I couldn’t see that wet spot on the floor because the digital, two-headed dragon was in my way!”  I’ve already blogged about the risk that mobile AR users will become distracted by digital content and injure themselves on very physical objects.  As AR gaming, scavenger hunts, and the like take off in popularity this year, I see the first personal injury lawsuit being filed sooner than most people might think.  And the first augmented commercial for personal injury lawyers can’t be far behind.

3.  The Introduction of AR Eyewear Starts the First AR Patent Fight.  It might not happen exactly that way.  But two things seem to me not only inevitable, but imminent.  One is  physical eyewear with AR capabilities.  The other is a series of patent infringement lawsuits over AR technologies that rival the patent wars already underway throughout the mobile industry.  It seems only logical that such an innovative, ground-breaking, and immensely popular device would be the most likely to catch the attention of the patent trolls.

4.  The First Trademark Opposition.  There are only so many different ways to say “augmented,” “immersive,” and the other adjectives that suggest AR.  Many startups are not yet thinking about protecting their trademark rights.  They may be surprised when they apply to register their name, only to be accused by another company of coming too close to their own trademark.  That happens daily in other industries, and is likely to happen to an AR company soon.

5.  Porn Puts AR on the Radar of Family Groups and Law Enforcement.  You can always count on the military and the porn industry to push technology forward.  AR already has investors in both camps.  The porn industry is already investing heavily in AR.  If Apple really does put skin on Siri as I speculated above, we might see “alternative,”  user-generated versions soon thereafter.  And as Joe Rampolla (a law enforcement officer and consultant specializing in cybercrime, and one of the first people to publicly address the law enforcement aspects of AR) says, “wherever society finds pornography, child pornography is not too far behind.”

We may not see all of these events in 2012, but I’d bet that most of them will come to pass.  And I’m sure that we’ll see others that aren’t listed here.  I’ll revisit this post in December to evaluate my predictions.

Question:  Did I miss any?  What legal firsts do you think the AR industry will see this year?

How I’ve Used Social Media in Trademark Litigation

December 6, 2011 in IP, Social Media with 1 Comment

I never cease to be amazed at what people will write in social media–or at how useful some of those posts can be in court.  Click here to read my latest post, titled “Mining Social Network Sites for Evidence in Litigation,” which is guest-hosted on my friend Paige Mill’s blog, IP@Tennessee [& beyond].  Paige is co-chair of the Intellectual Property & Technology Group at Bass, Berry & Sims PLC in Nashville, and I’m proud to be her blog’s first “guest star.”

Question: If you are a litigator, how have you used social media, or seen it used, in your cases?

 

(Updated) Think There’s No Hurry to Patent Your AR Inventions?

October 4, 2011 in Augmented Reality, IP with 5 Comments

**Updated on Dec. 10, 2011 with patent numbers, hyperlinks, and more excerpts.**

Think again.

For one thing, the United States recently changed its approach to determining patent priority.  It used to be that even if someone else beat you to the punch in applying to register an invention, you could undo their patent by proving that you invented it first.  No longer, thanks to the America Invents Act that President Obama signed into law on September 16, 2011.  Starting in 2013, it will be the “first to file,” not the “first to invent,” who wins.

That, of course, is the system that Europe and virtually the entire rest of the world already uses.

For another thing, others are already patenting their augmented reality inventions.

The AR industry stood up and took notice a few months ago when Apple filed these AR-related patent applications for the iPad:

U.S. Patent App. 20110164163 (July 7, 2011)

But AR has been in the process of “emerging” for years now–plenty long enough for all sorts of companies and inventors to get their ideas registered.  Here are just a few examples culled from the public patent records:

U.S. Patent 7,979,877 B2 (July 12, 2011)

WO 2009/018139 A1 (Feb. 5, 2009)

U.S. Patent No. 6,297,853 B1

U.S. Patent No. 5,742,521

 U.S. Patent No. 5,566,251

 

U.S. 2011/0090252 A1 (Oct. 15, 2010)

U.S. 2011/0134108 A1 (Dec. 7, 2009)

U.S. 2011/0141254 A1 (Nov. 17, 2010)

U.S. 2011/0151944 A1 (Nov. 30, 2010)

U.S. 6,500,008 (Dec. 31, 2002)

U.S. 7,215,322 (May 8, 2007)

U.S. 2011/0065496 (Sep. 10. 2010)

These are just a few of the more visually interesting registrations and applications on file.   As of Dec. 10, 2011, a search for “augmented reality” in the Google Patents search engine on returned “about 11,100 hits.”

There is, of course, still plenty of room for innovation in the augmented reality field.  Just not quite as much room as some might assume.

And as anyone reading the tech headlines lately knows, patent litigation is all the rage nowadays.  Anyone and everyone with a patent, it seems, is suing or being sued by a competitor with a similar patent or product.  Especially with respect to smartphones and tablets–precisely the platforms on which consumer AR is just starting to take off.

If you’re serious about succeeding with your AR business plan–and especially if you hope to attract investors–it would be well worth your time to research the existing patent landscape in your field, and get your patent application on file as soon as reasonably possible.  You owe it to yourself  to at least consult a patent attorney.

Soon.

A Distinctive Touch: Augmented Textures and Haptic Trademarks

July 21, 2011 in Augmented Reality, IP with 3 Comments

Soon, technologies that augment our sense of touch may lead to a rush of trademark applications seeking to protect a wide variety of artificial textures.

The Dawn of Haptic AR?

A few days back, the @Augmentology Twitter account pointed out the website of an interesting Helsinki-based company called Senseg. Senseg advertises its “E-Sense” technology as “a wholly new way of creating a sophisticated sensation of touch.” Specifically, it “makes use of an electro-sensory phenomenon that replicates the feeling of touch. As very tiny electrical charges pass into the tixel elements, the individual tixels generate a controlled electric field which extends several millimeters above the surface.”

“The resulting effect,” according to the website,  is “a delicate, dynamic feedback that creates a range of sensations from vibration patterns and clicks to textures which run from rough to smooth and from sticky to slippery.”  The “tixels” are 99% transparent, Senseg says, and can be applied to “virtually any surface,” from clothing fabric to glass.

Senseg’s ideas are fascinating, but they are certainly not the only players in the haptic (i.e., “of or relating to the sense of touch”) market.  I have previously defined “augmented reality” (AR) as “technology that gives us more to see, smell, touch, taste, or hear in the physical world than we would otherwise get through our non-augmented faculties.”  I’ve also observed (and other Quora readers agree) that AR technology will never be fully realized until users can reach out and touch virtual objects with haptic gloves.  Therefore, I view haptic technology like this as a vital component of the AR industry.

One way this technology seems likely to (literally) get into the hands of consumers is, as Senseg’s website suggests, through retailers using haptic technology to further enhance the “feel” of their products.  When that begins to happen, I believe we’ll witness a resurgence of interest in haptic trademarks.   (Others have called these “tactile,” “texture,” or even “touch” marks, but I prefer the more definitionally sound and technologically consistent term “haptic.”)

A Primer on Haptic Trademarks

The law of trademarks and unfair competition aims to reduce the likelihood of confusion in the marketplace as to the source of particular goods.  It does this by granting a seller of goods and services the right to use indicators of source to identify his wares, and to stop others from using indicators of source that are confusingly similar to his.  An “indicator of source” is usually a logo, brand name, or slogan (e.g., the Golden Arches, the word “McDonald’s,” or “I’m Lovin’ It”).  But the law doesn’t artificially limit retailers’ creativity in coming up with things that can indicate source.  Therefore, we also have registered marks based on sound (e.g., the lion’s roar at the beginning of MGM films, or the tones at the end of an Intel commercial) and trade dress (i.e., the particular manner in which a product is packaged or a store is decorated).

The primary requirement for any of these things to serve as a trademark is that it be “distinctive“–in other words, that it can stand out as being associated with one, and only one, source of goods or services.  The opposite of “distinctive” in this context is “generic,” i.e., typical of a wide range of products.  That’s why McDonald’s can trademark the phrase “Big Mac,” but not the word “hamburger.”  A mark can either be “inherently distinctive,” as in such invented words as “Kodak,” or it can be distinctive by having developed “secondary meaning“–i.e., that the mark has come to be associated with its source over time.

Less-conventional marks are often difficult to protect because they incorporate features that perform a function rather than advertise the source of the product.  Functional aspects of a good cannot receive trademark protection.

Of the less-conventional trademarks, haptic marks are perhaps the least common.  Those commentators who have broached the subject in recent years have only identified a handful of such federally registered marks.  They include a registration by American Wholesale Wine & Spirits for “a velvet textured covering on the surface of a bottle of wine“–specifically, its Khvanchkara brand of wine.  In the course of convincing the U.S. Patent and Trademark Office to register this mark, American Wholesale distinguished its “velvety covering” from that of the more iconic Crown Royal bag by noting that Khvanchkara is “tightly encased within the fabric,” and that the “FEEL of a LIMP bag is quite different from the FEEL of a TURGID velvety surface attached to a wine bottle.”  Similarly, Touchdown Marketing has registered a trademark in the “pebble-grain texture” and “soft-touch feel” of its basketball-shaped cologne dispenser, and Fresh, Inc. has registered the “cotton-textured paper” that wraps its soap products.

Conceptually, a distinctive touch ought to be just as protectable by trademark law as any other unique indicator of source.  Indeed, in 2006, the International Trademark Association (INTA) adopted “a resolution supporting the recognition and registration of ‘touch’ marks.” (pp.10-11)  In practice, however, it is very difficult to separate the way something feels with the function that texture performs–and to come up with a texture that is truly “distinctive” of one product as opposed to other brands within the same category of products.

Breaking the Connection Between Feel and Function

That is where haptic AR technologies like the one proposed by Senseg and other companies comes in.  The ability to coat the surface of any product with a transparent layer of “tixels” capable of mimicking any arbitrary texture the manufacturer chooses would finally break the connection between a product’s feel and the function it performs. Consider, for example, a book cover that feels wet, or a plastic squirt gun that feels metallic.  There is no necessary correlation between what these products are, or what they do, and the way they feel.  There should, therefore, be no conceptual barrier to those manufacturers seeking trademark protection in those textures.

Of course, not every artificial texture will automatically be eligible for trademark protection.  Many haptic enhancements may still be chosen for functional reasons.  The maker of an automotive steering wheel or a baseball, for example, might choose to make their products artificially sticky to enhance performance.  A cell phone might be designed to get warmer in one’s pocket as it rings, in order to catch the user’s attention.  And it could be that certain haptic enhancements still do not rise to the level of being sufficiently distinctive of a particular source to serve as a trademark.

Still, by promising the ability to manipulate the sensation of touch independent from other aspects of a product, haptic AR technologies open up a new and exciting world of trademark possibilities.  Consumers may soon reach out and touch … whatever retailers want them to.

Brian Mullins of daqri: The Man Who Would Democratize AR

June 13, 2011 in Augmented Reality, IP with 5 Comments

 

Brian Mullins is not a man who dreams small.  On his to-do list? Launching a publishing platform on the order of YouTube and WordPress, creating a new mass market for 3D digital models, and democratizing the nascent augmented reality industry so that anyone and everyone can start adding digital content to their physical world.

And that’s just over the next year or two.  After that, he has in mind changing how the entire manufacturing industry operates, and reinventing the educational system by “presenting the sum total of human knowledge in the most effective way possible.”

Brian’s vehicle for achieving these goals is daqri, the Orange County-based AR startup where he is co-founder and CEO.  I got to hear Brian’s team announce daqri at last month’s ARE2011 Conference, and since then I’ve been part of its private beta testing.  I share Brian’s enthusiasm and wonderment about the future of augmented reality, and he kindly agreed to be the subject of Wassom.com’s first posted interview.  I’m publishing it today to coincide with the scheduled public announcement of daqri’s availability and features.

 

We spent some time talking about daqri and what it can do now, which is exciting enough.  But Brian has a long-term vision for the AR industry, and it’s clear that he intends daqri to be relevant for the long haul.

If you haven’t heard of daqri yet, you’re not alone. The company has been “in stealth mode for a year,” Brian says, “and trying to keep a low profile” while the product was under development.”  They wanted to get it right before going public.  ”We spent a lot of time building the technology from scratch.  It’s all our own algorithms.” But now the product is ready for prime time.

There are already a lot of exciting AR products and features on the market.  What makes daqri different is that it’s primarily a platform for user-generated AR content, rather than an app designed to present that content in any particular, structured manner.  Instead of partnering with one of the competing AR browsers already on the market, daqri built its own technology from the ground up.  While it’s in an app form today (on iOS and Android), daqri’s long-term strategy is to move into HTML5 working directly within mainsteam browsers like Safari.

“The analogy is to YouTube or WordPress,” says Brian–sites that give individuals the tools and space they need to create and share their own content, and then get out of users’ way. “Before YouTube, nobody had video on their website.  Now you can get the same level of service for home videos as you do for trailers for Hollywood blockbusters. That’s our philosophy for personalizing the AR medium.  If we can engage more creative people by separating the technology from the creative process, they’ll do more with AR than we can even imagine.”

At the moment, daqri relies primarily on QR codes to trigger its digital content.  (Enterprise customers also have the option of combining daqri with their Microsoft Tags and NFC codes.)  They chose the QR platform because it’s already established.  QRs may not be quite as mainstream yet as the old, familiar bar code, but they’re certainly starting to pop up everywhere.  Users, therefore, face “no complicated call to action,” Brian says.  Most smartphone users will see the code, and automatically recognize that they can scan it with a QR reader app to discover the content behind it.

That’s one way that daqri offers value to businesses already incorporating QRs into their packaging and printed materials.  ”If you’re going to use really valuable printed space for a QR code,” Brian says, “it should be augmented, too. We think that’s one of the really powerful parts of daqri–that you can use the QR without changing anything.”

But that isn’t to say that it wasn’t a technological feat to get QR codes to work as AR markers.  Most such markers, as I’ve discussed before, consist of thick black lines that are easier for mechanical sensors to discern.  Brian says that it “took a lot of refinement” before their software recognized the level of minute detail that the codes contain.

Still, he’s already looking beyond QR.  One of today’s announcements will be “FastFrame,” daqri’s custom marker generator.  ”You just upload the file, we create the marker, and then deliver it,” says Brian. “Then you can print that on your packaging, or poster or whatever, and just make a really cool, really personal augmented reality marker.”  QR codes will still remain part of that process, though, and can be incorporated within the FastFrame.

“We’re [also] working on markerless tracking right now,” he says.  Within next year of two, daqri anticipates using “natural feature tracking to supplement the markers.”  The app would “use the QR code to find the plane, then extend from that plane very easily to find the natural features.”  Ultimately, “we think that’s going to be the bridge to the no-marker transaction.”

To anyone familiar with the industry, it’s no surprise what’s keeping these dreams from becoming an instant reality.  ”It’s absolutely the hardware holding us back,” Brian says.  Mechanical vision technology just isn’t where it needs to be in order to bring out AR’s full potential–although there are some exciting products on the horizon (like the demonstration eyewear that Brian’s trying on in the picture below from ARE2011).

So I asked Brian: if you could design the ultimate AR hardware, what would it be?  ”To begin with,” he said, “a second camera for every headset.  The ability to triangulate with two cameras makes the algorithms simpler, faster, and more robust–more like the way the human eye does it.”

I’ve argued in this blog and elsewhere that AR won’t gain “mainstream adoption so long as it requires users to hold their video phones out in front of them, or to sit in front of a monitor. When seeing and interacting with virtual objects becomes as easy as looking at them (through eyewear) and touching them (through Minority Report-style handwear), then the potential of AR will begin to be realized.”

“I absolutely agree with you” on those points, Brian said.  ”The industry is already moving toward first-person AR, where you’re wearing a head-mounted display.  That technology’s a lot further along than most people realize.”  He cites Apple’s decision to hire the former head of MIT’s wearable computing project as a ”really telling acquisition.”  That will “change the way we consume data,” and “move apps into the first-person environment.”  Brian predicts “commercially viable products within the next two years” that are not just expensive toys, but products that are affordable and have “all-day wearability.”

“Gestural interfaces,” moreover, are the “natural way to interact with first-person data.”  And daqri is ”working pretty actively on gesturing, both on the mobile screen and in the AR environment.”

Legal issues on the horizon. Since this blog examines emerging AR technologies primarily from a legal perspective, I asked Brian what legal hurdles he sees in the near future.

In the near term, Brian’s concerned mostly with copyright issues.  ”3d objects and the images they’re textured with all have copyright associated with them,” he says, “and rights holders need to understand that and be careful.”  Brian sees YouTube’s experience with copyright infringement issues as a model to emulate.  daqri respects the rights of copyright owners, Brian says, and it has a policy and mechanism in place to remove infringing content from its platform.  But Brian also admires what he considers YouTube’s protection of fair use, and its resistance to overly zealous takedown demands.

When it comes to brand protection in AR, Brian hopes to see an evolution in the stereotypical thinking of rights owners. “To a certain extent it’s going to be incumbent on brands to embrace the new medium,” he says. “I think the ones that allow you to remix will have the most success in it.  If I can get a Coca-Cola can in 3d for my AR mashup, that can’s going to get a lot of exposure.”

He chuckled when I mentioned the recent Mashable article called “Who Owns the Advertising Space in an Augmented Reality World?”  ”That’s an interesting discussion that needs to be had,” he said, “but it got a lot more attention than it needed.”  In today’s AR environment, you only see the ads if you intentionally pull out your smartphone and look at the space through an AR app. “Ubiquity will change the discussion” once AR eyewear is commonplace.  But even then, Brian has a hard time seeing the harm.  I posed question of what happens if, every time I look at McDonald’s through my AR eyewear, I get coupon for Burger King.  ”What’s to stop someone today from putting up a Wendy’s sign in the lot next door to the McDonald’s?” he responded.  All of which will be fascinating questions for we IP lawyers to tackle in the near future.

Besides, Brian added, “the killer apps will be ad-blocked.  Then I won’t see any of that junk when I’m walking around.”

Revolutionizing Industry and Education. daqri is actually Brian’s third company.  His previous venture was in manufacturing, so the factory floor is an environment near and dear to Brian’s heart.

AR “on the factory floor will change the manufactuing industry forever,” he says.  Instructions for how to assemble things and run machinery “will not be language-dependent;” they will be entirely visual.  He cited studies suggesting that productivity would skyrocket in such an environment–a conclusion buttressed by the several examples of industrial AR that were presented at ARE2011.

He also sees the daqri platform as a catalyst for entirely new business models in the 3D digital imaging industry. There are ”currently no good outlets to get this content to the consumer,” he says.  Instead, modelers sell B2B, such as by providing objects for video game consoles–files that are too computationally complex for a smartphone. A YouTube-like platform for AR will presumably cause a surge in demand for affordable, consumer-grade 3D models, and therefore to new pricing models and a proliferation of mobile-ready content.  So far, Brian says, these content providers have been receptive to his ideas.  They’re a young industry, and have seen what the movie and recording industries have gone through in adjusting to online, B2C distribution models.

The idea that really fires up Brian’s imagination, however, is AR as the ultimate learning tool.  His favorite example is the scene in The Matrix where Trinity needs to learn how to fly a helicopter.  ”She just calls up the instructions,” he recounts, “and they’re delivered to her on the spot.  AR will also deliver instructions to you on the spot.

“AR will become a way to get knowledge in people’s heads much faster than any other way that we’ve done education,” Brian says.   “It could possibly allow the sum total of human knoweldge to be presented in the most effective way possible.  Everybody should have access to that.”  He draws inspiration on this point from his favorite books, Daniel Suarez’s novels Daemon and Freedom.  Without spoiling the plot, Brian says that the problem of how to preserve and communicate knowledge in exactly that way is a key element of the books.  (Brian is not the first AR expert to recommend these books to me.  The audio version of Daemon is therefore next in my Audible queue.)

Nevertheless, Brian doesn’t advocate throwing out all your physical textbooks. “We think AR brings relevancy back to print.  When that print can come to life, then you can experience it in AR and out of AR as well”–a concept captured brilliantly by this concept video by artist Sorin Voicu.

In sum, my conversation with Brian was not only a unique insight into the business model of one of the AR industry’s most promising startups, but also a fascinating brainstorm about AR’s future role in society with someone who knows what he’s talking about.  If Brian’s passion for this subject is any indication, then both he and daqri will be relevant players in this field for a long time to come.

 

Twitter Accounts as Brands: The OMGFacts Lawsuit

May 23, 2011 in IP, Social Media with 1 Comment

If they make a movie out of this lawsuit, they could call it The Social Network, Part Deux.  Less than a year after the Oscar-winning film about the struggle for control of Facebook hit the screens, a high schooler living a few hours’ drive from the social media giant’s headquarters filed this lawsuit against a college-aged entrepreneur for allegedly squeezing him out of his own Twitter account.

 

 

The Twitter account at issue is @OMGFacts.  It posts a steady stream of random trivia, from celebrity gossip to random world records to “weird news”-style oddities.  High schooler Adorian Deck created it one day in September 2009, reportedly when he was home sick from school.   The site took off, attracting over 300,000 followers in less than a year.

It also attracted 24-year-old entrepreneur Emerson Spartz, who by then had already created multiple successful websites.  In February 2010, the Indiana-based Spartz signed a contract with Deck to take OMGFacts to the next level.  He created a website, a YouTube channel, and merchandising, all branded with the OMGFacts brand.  The site’s readership skyrocketed to 1.9 million followers, making it at one point the 126th most popular out of more than 200 million Twitter accounts.  But Deck soon felt disenfranchised from his own creation and underpaid from its revenues.

On April 26, 2011, Deck filed a federal lawsuit against  Spartz, seeking rescission of the parties’ contract and alleging a variety of claims under the federal Lanham Act.  That is the statute that protects against infringement of trademarks (whether registered or unregistered), false advertising, false endorsement, unfair competition, and the like.  Deck alleged that “OMG Facts” is a common law trademark protectable under the Lanham Act, that Deck owns it, and that Spartz had recently and wrongfully asserted ownership of the mark. Spartz has posted a lengthy blog entry in his own defense, and it’s far too early to guess which of the youthful litigants will prevail.

There are several interesting legal issues at work in this dispute, but I want to focus on the notion of a Twitter account as a federally protected trademark.  Many observers seem amazed that this prospect.  They shouldn’t be.

Trademarks are the commercial identifiers that signify a business’s goodwill.  They are the symbol and shorthand for everything the public associates with the brand.  As such, it is critically important for businesses to protect the integrity of their marks.  As a company prospers, its trademarks can become incredibly valuable properties.  According to a recent survey, Apple recently surpassed Google as the world’s most valuable brand.  That little silver fruit with one leaf and a bite missing is worth more than $153 billion.

As money flows into social media, therefore, the urge to stake out and protect brand identities there will follow.  And the money is flowing, as LinkedIn’s recent initial public offering of stock and $8.7 billion valuation demonstrated.

Plenty of Twitter users before Deck and Spartz have used the platform to launch commercially successful brands.  Justin Halpern began tweeting under the name “Sh*t My Dad Says” to chronicle his father’s off-color and hilarious bon mots.  After attracting over 700,000 followers, Halpern landed both a book deal and a CBS sitcom of the same name.  (He now has over 2.3 million followers.)  Celebrity tweeters reportedly net over $10,000 per tweet to endorse a product.  Even existing brands can use Twitter to broaden and deepen their appeal.  Dell, for instance, has made more than $2 million in sales through its @DellOutlet Twitter account.

Not all Twitter account names will automatically become protectable trademarks.  There are several reasons that protection may not be available in any given case.  For example, many (perhaps most) accounts are used purely for personal, non-commercial purposes.   Trademark law, on the other hand, is concerned with uses “in commerce.”  Even if an account name is used commercially, it may be too generic or descriptive to serve as a distinctive signifier of source.  As a general rule, the mere title of a work is not, in and of itself, a trademark.

If a business uses its Twitter account name as a commercial identifier and the public begins to associate the business’s goodwill with that handle, however, the account name can conceivably gain protection under the trademark and unfair competition laws, just like any other identifier could.  It has become common to see website URLs branded as trademarks; Twitter account names serve an analogous purpose.  As mentioned above, although federal trademark registration is a useful precaution, it is not a prerequisite to protection under the Lanham Act.  Instead, what usually matters most is whether the “mark” has secondary meaning (i.e., goodwill) in the public eye, whether the mark has been consistently used in commerce, who used it first, and where.

The brevity of Twitter account names are no barrier to trademark protection. All but one of the marks on the above-cited study’s Top Ten list consists of either a single word or a simple logo.  That, too, is unsurprising; the easier a mark is to remember and recognize, the more likely it will be to stick in the minds of consumers.

Not long ago, I wrote about the Maremont v. Susan Fredman Design Group case, in which an employee sued her employer for posting on her Twitter and Facebook accounts.  As I explained, the “mark” at issue in that case was Maremont’s personal likeness and identity, which raises questions not only of a Lanham Act “false endorsement” claim but also the right of publicity–the state-law right to control the commercial exploitation of your own likeness.  The OMGFacts dispute is another variation on these themes.  The fact is that trademark infringement, stolen-identity, and similar cases are commonplace in other industries, and will become so on social media as businesses increase their activities in that realm.

What is not common elsewhere, though, is the youth of these particular litigants.  Deck is still only 17, so he had to get his mom to sign his contract and file his lawsuit for him.   Because social media accounts are so often opened under personal names, moreover, right of publicity issues are more likely to crop up than they would be in traditional media outlets.  The democratization of publishing that social media has ushered in will make the resulting litigation that much more complex.  Online businesses would do well to think of themselves as businesses from the beginning, and to govern themselves accordingly.

 
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