After more than a year of litigation and battling it out on social media, comedian and famed podcaster Adam Carolla has settled his case with Personal Audio LLC, the company that sued him in January 2013 for allegedly infringing on their patent for a “system for disseminating media content representing episodes in a serialized sequence.”  Personal Audio considers itself to be a holding company, with their main activities being asserting and licensing the patents which they own.  This very activity, coupled with the fact that they do not currently manufacture any products or services, leads many people to consider them a “patent troll.”  The nonpracticing entity had initiated lawsuits against several podcasters, claiming that their patent covers all “episodic content” and therefore, others’ online distribution and queuing-up of podcast content is in direct violation of it.  (Interestingly, the patent originated with Personal Audio founder Jim Logan’s decidedly less-modern mail-order cassette tape distribution model.)

The Electronic Frontier Foundation (EFF), also calling foul, filed an inter partes review back in October 2013, petitioning the US Patent and Trademark Office to invalidate the patent, pointing out, among other things, the existence of prior art which should have barred the patent from being granted in the first place.  Over the last few months, Personal Audio dropped the claim against the podcasting defendants named in their lawsuit, once they understood that even Carolla, holder of the Guinness World Record for most downloaded podcast, was not making enough money off of their patent to warrant pursuing litigation in this case.  At least…they tried to drop the case.  In what some might perceive to be a “man bites dog” scenario, Carolla refused the offer to dismiss the suit against him, and even spearheaded an effort to take down Personal Audio, enlisting the aid of his international fan base and raising over $475,000 to help offset the legal fees involved.  His stance was centered on the assumption that Personal Audio would not truly let go of this claim, but would eventually circle back if and when podcasting matures to a point of profitability. 

Fearing that this posed a looming threat to the development and future business model of this growing field, Carolla—together with the parallel efforts of the EFF—decided not to go down without a fight.  Brad Liddle, Personal Audio’s CEO, called Carolla’s campaign “ludicrous” and “a cynical exploitation of the publicity power he enjoys as an entertainer,” considering that he was fundraising for a lawsuit that he didn’t need to defend anymore; Liddle wondered whether Carolla was hanging on to the case just to have more fodder for his podcasts, generate sympathy and ratings, or simply to “get his fans to fund his future.” 

The parties reached an agreement over the last week, and though the terms of their settlement are confidential and will likely remain under wraps until their agreed-upon “quiet period” concludes at the end of September, a number of things may be safe to assume.  First, Carolla’s counterattack might just be enough to keep Personal Audio at bay (for now), and make them think twice before bullying podcasters in the future.  Their very own press release specifically states that their discovery found podcasters’ profits to be so insignificant as to make it not worth litigating “over the smaller amounts of money at issue.”  The existence of that documented evidence alone might be enough deterrence against would-be lawsuits targeting podcasters.  Not all parties on the receiving end of a patent troll’s attention may have the fame and resources that Carolla does, but his tenacity still provides an effective lesson to those who might face similar lawsuits in the future. 

 Second, and perhaps more importantly, the fact that this was settled out of court deprived Carolla of the chance to actually invalidate the patent in question.  Furthermore, unlike the EFF’s challenge of the patent—which, according to the USPTO, is limited to presenting evidence “based on prior art patents or printed publications”—Carolla would have had the opportunity to present a wider array of evidence to prove prior art.  All this now leaves an opening for Personal Audio to try asserting this particular (and broadly-written) patent again against other parties for the remainder of their approximately two-decade hold on the intellectual property.  A Carolla victory would essentially have meant a victory for the general public, who would then be able to freely use (or continue using) the technology without fear of litigation. 

In the meantime, EFF’s petition is being actively reviewed by the Patent Trial and Appeal Board, which has preliminarily found that there is a “reasonable likelihood” that they will “prevail in showing unpatentability” of the claims they are challenging in Personal Audio’s so-called “podcasting patent.”  Nevertheless, Personal Audio is not letting its latest dead-end with podcasters deter them from continuing their licensing efforts elsewhere. They are still targeting the big three television networks, ABC, CBS, and NBC, over their release of “episodic [video] content” on the internet.  Podcasters may not have been worth their time, but in light of their past victory over Apple and other technology giants (including Samsung, Motorola and SanDisk) who are now licensees to some of the company’s patents, it is clear that Personal Audio is not afraid of pursuing “bigger fish,” particularly when their previous results have been so lucrative.

Political satirist, writer, and comedian Stephen Colbert has taken to the airwaves, joining the uproar over a new patent that was granted to Amazon Technologies, Inc.  Even before things got personal recently between the pundit and the online bookseller, The Colbert Report host dedicated a segment on his show last month to expressing his incredulity about the long-winded claims in Amazon’s new “studio arrangement” patent.  While Colbert focused on the nutshell-version of the patent—namely, ownership of the idea of photographing something against a seamless white background—there is more to this patent than just the color of a studio backdrop.

Many believe that this patent is invalid altogether, claiming that the “white backdrop, shiny floor” technique has been employed for ages by photographers who wish to reduce or eliminate the need for post-processing and retouching.  To them, Amazon is illegitimately claiming ownership of an obvious and decidedly non-novel idea.  There are even grassroots efforts cropping up trying to prove the existence of such prior art, drawing responses from long-retired photography professors and more recent practitioners alike, in the hopes of overturning this patent that Colbert mercilessly satirized.

To be sure, Colbert oversimplified the perceived threat here, claiming that “if anyone displays something on a white background, Amazon could serve them with a lawsuit.”  It’s the very specific process of setting up that shot that is being patented here, not the aesthetic look of the resulting photograph.  However, the concern is still very real for some photographers and publishers who worry that the broad terminology used in the patent’s claims and disclaimer-heavy closing paragraphs will serve as a catch-all that could potentially be used against anyone suspected of infringing on the internet giant’s business.  Amazon hasn’t come after any photographers yet (as far as we know), so only time will tell if they’re planning on flexing their patent muscles in a potential anti-competitive manner.

In late January of this year, one of the leading interactive mobile entertainment companies in the world published an open letter on its website, addressing the debate that has been brewing about its intellectual property protection practices.  In this press release, King’s cofounder and CEO, Riccardo Zacconi, discussed his company’s belief that developers “have every right to protect the hard work they do and the games they create,” and pledged that King would continue to take “right and reasonable” action to defend themselves against those they believe are ripping off their IP.  One of the company’s most valuable assets is their immensely popular “Candy Crush Saga.”  Though the game itself is free to download and play, with millions of people playing it on their mobile devices every day, the virtual items available for purchase within the game reportedly helped the company earn over $450 million in revenue in last year’s December quarter.  Those figures are pretty remarkable, especially considering that the game launched less than two years ago.  An independent developer named Albert Ransom, however, is not impressed. Two years before Candy Crush Saga entered the marketplace, Ransom’s company, Runsome Apps, released a mobile game entitled “CandySwipe” in memory of his late mother.  According to Ransom, King’s flagship game is causing much consumer confusion and significant harm to his business.  Though many others have made the accusation, Ransom stops short of calling Candy Crush Saga a blatant copy of his work, for which he filed for trademark in 2010.  After King tried to register the Candy Crush Saga mark two years later, Ransom opposed their application and had been fighting it since.   King retaliated this February by adding a counterclaim for cancellation of Runsome’s CandySwipe trademark registration.  Their case was further strengthened by the fact that, earlier that month, they had officially acquired the rights to the “Candy Crusher,” a game that predated Runsome’s CandySwipe by two years.  As it takes five years of commercial use before the USPTO will consider a term “incontestable,” King’s ownership of the Candy Crusher mark—which was established in 2008—essentially outweighs their need to continue pursuing their US application for the “Candy” trademark, which Runsome had been opposing.  (King has no plans of abandoning their trademark of the term in the EU, however.)  Now that it has legal claim to the precedential Candy Crusher title, King can use it as ammunition in any future cases against companies trying to capitalize on a candy-related mark.

In his own open letter to King in response to this latest development, Ransom begrudgingly concedes defeat, saying “you win…I hope you’re happy taking the food out of my family’s mouth… your move to buy a trademark for the sole purpose of getting away with infringing on the CandySwipe trademark and goodwill just sickens me.”  (The original letter has since been taken down, leaving only a message thanking the public for their outpouring of support.)  Even the International Game Developers Association has issued a statement qualifying King’s recent conduct as “overreaching,” “predatory,” and contradictory to Zacconi’s own January statement, and vows to look into the matter more comprehensively.  Presumably, the folks at King are hoping that they can put all of these concerns to rest before their IPO, which is expected to debut later this year.  However, the disputes above—together with a separate case that they’ve brought against another developer over its use of the word “saga”—have been garnering the mobile entertainment giant a lot of bad press, particularly amongst the extremely vocal gaming community.  Social media channels and comment sections on articles about the ongoing trademark clashes have been flooded with people saying that they are uninstalling the Candy Crush game and pledging never to buy a King app again.  This does not bode well for King’s investment prospects if they are drawing the ire of the very demographic they claim to serve.

Coffee is coffee, and beer is beer, and never the twain shall meet.

It’s not likely that coffee giant Starbucks will be grabbing a cold one—or, sitting down for coffee, for that matter—with anyone from Exit 6 Pub and Brewery any time soon.  Jeff Britton, the owner of Exit 6 (a small craft beer nano-brewery in Cottleville, Missouri) received a cease-and-desist letter in mid-December from the law firm in charge of protecting Starbucks’ trademarks.  Apparently, a number of Exit 6 patrons casually dubbed one of Britton’s stout concoctions a “Frappicino” back in January of 2013, and three of them posted about it on Untappd, the social media network for beer enthusiasts.  The poorly-spelled moniker caught the attention of the Starbucks legal team, and they respectfully asked that the brewery discontinue use of the name that so closely resembled that of their trademarked Frappuccino frozen coffee drink.  Britton immediately complied, renaming his brew the “F-Word,” as per his sarcastic, yet remarkably good-natured response to the legal order.

None of this would have made the news, however, had Exit 6 not posted about the incident on its Facebook page on December 26th.  Along with a brief summary of the matter, Britton published copies of the cease-and-desist letter, his tongue-in-cheek reply…and a scan of the $6 check that he sent along with his response, indicating that it represented “the full amount of profit gained from the sale of those three beers.”  (He said they should put it towards the legal fees of the attorney who wrote him the letter.)  The story quickly went viral, and by the time 2014 rolled around only a few days later, Britton was being interviewed not only by local news stations, but by the likes of Fox and ESPN.  Online coverage exploded as well, with stories appearing everywhere, from NPR and The Huffington Post to legal blog Above the Law.  Most outlets also published the now-infamous correspondence in its entirety.

In this case, while Starbucks clearly had cause to be concerned about dilution of their trademark, their letter seems to have turned into a PR backfire.  With news and social media channels lighting up with people virtually high-fiving Exit 6 for putting Starbucks in its place, the strip mall brewery is reportedly enjoying an influx of new customers, thanks to all the free publicity, and online commenters are claiming to swear off Starbucks altogether.

Trademark infringement is a very real concern, and companies have the right and the responsibility to protect their registered marks, else they risk diluting—or even losing— them.  A few years ago, such a case would probably not have gotten much traction (if any) in the news.  The trademark holder would send its letter, the suspected infringer would either comply or go to trial, the two parties would “stand presently at the great judgment seat,” and the case would be fought, settled or won behind the closed doors of the courtroom.  Over time, however, the court of public opinion has become a lot more vocal; and thanks to social media, it’s very common that customers (or even the general public) are driving the perception of brands even more than the brands themselves are.  Furthermore, many people can’t resist taking the side of a small-business David when he’s facing off against a big ol’ corporate Goliath meanie.  For this reason, companies nowadays have to think long and hard about whether sending a cease-and-desist order to say, a small business in the boondocks, will be worth their while or too big a risk.

In yet another David vs. Goliath legal battle, online travel-planning startup Pintrips filed a motion earlier this month to dismiss a case brought against it last October by social bookmarking site Pinterest.  Pinterest claims it has monopoly rights on certain contextual uses of the word “pin” online, and says that the defendant has been encroaching on that monopoly by utilizing the term on some of the pages of its site.  Pintrips, in turn, is now fighting back, asserting that the word “pin” is too generic to be claimed solely by one entity, and is fair game for anyone to use.  As one means of support for its argument, Pintrips lists numerous other major companies that use the “pin” term in various places within their products, without incurring the wrath of Pinterest.  Besides, claims Pintrips, they are a price-comparison tool, and “not a social media platform” in the business of sharing visual images, which differentiates them even more from Pinterest.  Furthermore, a court in Europe recently found that Pinterest doesn’t even hold the trademark for its own name—London startup Premium Interest claimed it first.  Thus, Pinterest seems to be on rather shaky ground lately, when it comes to the strength of its brand.The main theme of Pintrips’ appeal appears to be an accusation that “specious claims” are being relied upon to strong-arm a “hard-working startup” as a result of Pinterest’s presumed frustration at not having done their due diligence at the outset to register the marks of some of their key terms.  Pinterest, however, claims that it has successfully applied for registration of the “pin” mark (though, they have yet to register it), and that the burden of proof now lies in the hands of the defendant to provide evidence that the term is already used so ubiquitously elsewhere, so as to be considered “generic.”  Pinterest has won six previous trademark infringement cases related to attempted registrations using the “pin” prefix, so perhaps they are cautiously optimistic about prevailing in this case, as well.

Considering the potentially daunting legal fees looming for small startup Pintrips, and the threat of losing ground on the branding front for heavily venture-funded Pinterest (not to mention taking a big hit when it comes to their market valuation and any IPO hopes they’ve been harboring), both sides have something to lose here.  As a rule, judges’ decisions on cases such as these tend to involve highly subjective interpretation, particularly when it’s difficult to determine or prove whether there exists any actual consumer confusion between two similar marks, or whether the defendant intended to ride the coattails of the plaintiff’s brand or not.  Given this subjectivity, the fate of this case may even ride on whether or not the judge (or eventual jury) is familiar with either or both of the sites in question.  With the “pin” term currently being used freely in other, more high-profile contexts both online and offline, it will be interesting to see whether this turns out to be a fight well-picked for the social bulletin board–sharing site…or whether the motion to dismiss is granted, nipping this case in the bud.