Are Trademarks a Data Security Alternative to Sad, Weak, Outdated Copyrights?

If you’ve been on the web for a while, you’ve seen an advertisement that looks like the user interface of the website you’re viewing- or maybe an ad that has a false close button, and clicking it just navigates you to the advertised page. These are blatant ways to trick consumers into taking actions they don’t want to take. Sometimes, these inadvertent actions can create security vulnerabilities such as malware.

Despite all of the focus on applying copyright law to the internet, I wonder if there are hints of trademark and trade dress protections that could become relevant to data privacy issues. I will cautiously, even timidly, explore a few of those possibilities (which several others have explored over the last few years).

I. Trademarks: When it Comes to Data Privacy, Accept No Imitations.

Trademarks have a simple purpose: to let consumers know the origin of a good or service. Trademarks are often a word, phrase, or image (logo), but can also be a sound or smell (on rare occasion, it can get a bit more abstract ).

A major category of trademark infringement is counterfeiting. That $20 “ROLEX” watch from the guy in the alley? That’s a counterfeit (sorry), and one of the legal issues involved in the sale of that watch is the use of a trademark without the legal right to use it. There haven’t been a lot of counterfeit websites on the internet, especially since SSL and other authentication processes got better. However, there are plenty of imitation apps and games. One of the reasons such apps and games fail and are quickly removed from distribution is that they infringe trademarks.

However, some countries do not have the same standards regarding trademark (or copyright) enforcement. Consider an imitation League of Legends game, lampooned here. At the end of the video, the player says “Oh, and it’s also a virus,” as his security software reports malware after playing the game. This humorously underscores the point that many infringing* products pose a security and privacy threat. Using trademark law to limit the proliferation of readily accessible, easily confused programs is a valuable practice in maintaining computer security for consumers.

II. Trade Dress: No One Really “Owns” That Icon… But You Know Who Owns That Icon.

Trade dress is a sort of sub-category of trademarks. It’s rarely talked about or used, but it can be thought of as the totality of design and aesthetics that go into a product, place, or service that make consumers identify the source. Color palette, patterns, shapes, and other factors go into the evaluation of trade dress. Crucially (and perhaps fatally), elements of a trade dress must be considered “non-functional.”  For example, the major case in trade dress concerned a Tex-Mex restaurant that used the same colors and layout of another Tex-Mex restaurant.

Here’s the controversial idea I think deserves consideration: Could misleading, camouflaged web content be considered an infringement of trade dress? (Think of the kinds of ads that make you believe you’re not clicking on an ad, but rather some piece of actual content on the site- especially regarding navigation buttons that match the navigation icons of the site.)

The reason I look to trade dress for a solution is that icons and interfaces, even stylized ones, are not subject to trademark, copyright, or patent protections. Furthermore, websites are increasingly treated as the digital equivalent of stores and offices of businesses- so much so that designs and layouts can come to be the trade dress of that business. Thus, there is a gap in the legal protection of user interfaces, and a need to cover that gap.

(Treating websites as subject to trade dress might have the added benefit of discouraging UX and UI designers from fiddling with the location and arrangement of navigation tools every other month just to justify their paycheck. And that’s the kind of change this world really needs.)

Conclusion: Trademark Protection is Already Working, Trade Dress is Still Vague and Untested

Trademark law is already quietly making the digital ecosystem a little bit safer by eschewing threatening knock-off games and apps. I think there’s a case to be made for applying trade dress to websites and UIs, but it would be a novel application and courts may be hesitant to apply the law so creatively.

 

* “300 Heroes” Infringes both copyrights and trademarks, but it’s the funniest example.

 

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Explaining Myself Through Mini Metro: Making Lots of Connections

I’ve always been a fan of the minimalist art style. As an art style and a category of interior design, it gets a lot of adjectives like “clean,” “crisp,” “pure,” “uncluttered,” and “bright.” I’d have to agree that Mini Metro is a game with a minimalist art style. But the aesthetic isn’t the only thing that appeals to me. The game mechanic is about connecting: making a metro system that is as efficient as possible as a city places ever-increasing demands on the network.

I love the concept of connection. I love to connect ideas and words, and I have spent most of my life studying and forming such connections. Careful, structured explanations of connection and disconnection are at the heart of the practices of both philosophy and law. Like most humans, I also cherish my close connections with others. At every level, and in every sense, connection thrills and amazes me.
Mini Metro is a game that is a design model for making connections— So it’s fitting that I use it as a model to connect the areas of law in which I am interested.

The railway network itself is the telecommunications infrastructure. The people that travel on the network are the entertainment content of the digital age: text, pictures, audio, movies, games—almost all of it subject to copyright law. The signage around train stations tells people about the places: it helps people make choices based on comparative information. I admit this is the biggest stretch in the analogy, but I’m comparing that to trademarks because of the informative function that aims to dispel confusion. And of course, there are safety concerns around all public transportation. Cybersecurity, by and large, is the safety structure for the internet: it is the area of law that tries to get everyone to navigate the system without tragic injury. And just as trains are regulated, this digital structure enjoys some oversight by the FCC (in the form of general regulatory rules) and FTC (in the form of consumer protection enforcement).

One of my favourite moments in Mini Metro is when a station appears on a line I have already built. I don’t really know if this is just the RNG-gods smiling down upon me, or if there is a definite structure and these moments are signs that I have designed optimally. In the effort to connect law and technology, sometimes a new device or idea appears that can force a re-drawing of the legal lines. Part of me wants to think that a law can be created with the future in sight, but the speed and direction of technological developments are so amazing that I don’t know if policy design can do better than hope for luck.

Mini Metro can be used to explain how my areas of interest relate to one another. It can also explain why I love these things, too. In the abstract, the game is about making it possible for people to go places. It is about how large-scale design decisions affect humble individuals. Technology and law are connected to each other—and both are connected to individual lives and to society, generally. The magic of connection is that it makes each individual node matter to the other nodes with which it connects. A single idea, or law, or device, or person—nothing is all that interesting, meaningful, or exciting until it is connected to other things in the world. Then both the connector and the connected affect and transform one another as they interact. In this way, the relationship between law and technology is like a relationship between people. Whether they are friends or enemies, they will shape each other because they are connected.

 

I never said I was super good at the game. But it's still fun.

Just trying to help the Parisians get through the day.

The Bitter and Sweet Saga of Trademarks

I am not a lawyer and this is not legal advice. (If my blog was more legally-themed, I might have given it this title.)

TL;DR/WR: Trademark law is more complex than the angry mob imagines. Candy Crush can only get limited protection (if any), but there are reasons to protect the name of your product. Trademark law isn’t “broken” just because someone may have tried too hard.

I was ready to give up on ever blogging about law and videogames again. I thought there might opportunities for broader technology-and-law issues, but I felt that my posts on videogames and law were inorganic, forced, unclear, and boring.

     Then, the makers of “Candy Crush Saga” decided to file for a federal trademark registration. And lo, the analysis by the critics and journalists was poor. Not that I blame them- but I’m happy to write about something I’ve actually studied and grasped and is based on existing law. Most emerging videogame law issues are just massive question marks with no prior cases or statutes to guide an analysis. Trademark law still has its wrinkles and questions, but it has a lot of established material to consider.

     THE ISSUE, as I understand it, is that developer King has decided that its product “Candy Crush Saga” is valuable enough to protect as a trademark. Accordingly, it has filed for a federal trademark registration (currently pending and open to comment) and has opposed the trademark registration of “Banner Saga” by developers of the recent release “Banner Saga” for use of the word “Saga” in a videogame title on the basis of likely consumer confusion.

     Few people in the games journalism world seem pleased about any of this. Leading the angry pack, as always, is a profanity-laced rant by Jim Sterling, with Penny Arcade in strong agreement. Kotaku doesn’t like it, and neither does Joystiq  or Rock, Paper, Shotgun. Lots of gamer resources are taking note of the trademark dispute. Some have looked at a broader scope than others, but I have not seen any serious measure of support for the protection of the intellectual property of a product raking in approximately one million dollars per day in revenue. After reading a few emotionally charged reports, I am not so sure people fully grasp what trademark law is or why we have it.

      There are lots of interesting parts of trademark law, but the role of language is one of my favorites. The Penny Arcade comic hits at what I love about Trademark issues- they are wrapped up in language, and I love philosophy of language and linguistics. (I love copyright issues because of their relationship with metaphysics, but that’s for another day.) One of the tangles trademark law must face is to avoid allowing words to become property in a way that gets in the way of competition (or, more jokingly, everyday speech). But, as with other IP areas, trademark law is about more than words. It is about the effort that has gone into making an abstract into something valuable. Ten years ago, how many t-shirts could you sell with the words and logo of what we now know as the Candy Crush Saga logo? Maybe a few to some hipsters who treasure the obscurity? Would you rather own a store selling Candy Crush Saga merchandise today or try to sell the same merchandise 10 years ago? Trademarks have little market value until they are known. No one knows a trademark until a lot of work has gone into marketing, branding, and making a product that people like and care about.

     THE ANALYSIS is straightforward, once trademark law is rightly understood. All property law is an effort to sort out competing claims about ownership. While the subject of intellectual property law can’t be physically touched like the subjects of personal property or real estate can, it is still rooted in some Lockean  notion of “I worked hard for this and it isn’t fair for you to just take it for yourself.” Trademark law can be understood in this way: “A company works very hard to make the public associate its mark with its quality product. No one else is entitled to reach out and benefit from that effort for their own gain.” Trademark law allows a company like King to to prevent other companies from using the goodwill built up by King to promote other company’s products. (What if Coca-Cola tricked you into buying a Coke when you thought you were getting a Pepsi, or vice-versa?) Many of the journalists have pointed out that no one is going to confuse Candy Crush for Banner Saga, and consumer confusion is at the core of trademark law. If the court (or trademark examiner) finds that there is no risk of consumer confusion, King’s complaint will almost certainly be thrown out. But the fact that King can bring this kind of complaint does not mean trademark law is entirely broken or obsolete. There are other factors at play as well, such as whether “Candy Crush Saga” is a suggestive mark or even a descriptive mark (which is a very weak kind of mark, compared with fanciful or arbitrary trademarks, which are prone to enjoying easier protection). So the tension in this case is understood this way: King has a valuable product they want to protect according to their right, but protecting their product may clash with the efforts of others to promote their products. (And I think that describes at least a third of trademark law.)

     We notice the law most when it doesn’t work the way we want or expect. When a jagged corner of the law fails to match our intuitive understanding of justice and fairness, we can become disturbed that our system is inappropriate or inadequate- and maybe we have noticed a particular part of the system that is exactly that. But the law is always an effort to balance the multitude of possible competing claims that might be brought into a legal contest. We should always keep in mind how a solution to one problem will affect other parts of the law. Even writing this makes me feel that trademark law can be a bit like a blanket that doesn’t quite cover you right: when you pull it over your toes, your shoulders get cold, so when you pull it up to your shoulders, your toes get cold. That means the blanket is really bad and should be destroyed- it just means we need to figure something out to cover everything we need to cover at the same time.

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EDITORIALIZING:

Maybe if King didn’t just make a knock-off of Pop Cap’s Bejeweled (which was itself preceded by a game called Saint-Tropez, which can probably be traced all the way back to the strategy game “Go”) with a really unimaginative and descriptive name, none of this would even be a problem. But hey- I’m not making a million dollars a day. No one pays that much for understanding language or law.