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Texas A&M Wins Trademark Suit Against Soap Company In Washington State By Playing Six Degrees Of Trademark Licensing

Readers here will likely be aware of the tortured history of Texas A&M’s “12th Man” trademark. If you’re not, the term describes the fans of the team and their tendency to make so much noise to effect on-field play during games. A&M, which holds a trademark for the term, has made a name for itself as a trademark bully, going around and threatening basically anyone that uses anything remotely like that term, even as it has in the past infringed on the IP of others. The school has been so successful in locking down this term for use in anything sports related that the Seattle Seahawks, the NFL team that also refers to its fans as its “12th Man”, pay a licensing fee to the school to do so.

And now that licensing arrangement appears to be part of the reasoning A&M’s legal team used to sue a soap company based in Washington State for using the “12th Man” term as well. In the school’s filing, embedded below, it argues that because the soap company resides in the same state as the Seahawks, and because the company’s soap product “12th Man Hands” includes an image of a football on the packaging, this makes it an infringement on its trademark, despite soap and athletics not being in related marketplaces. The USPTO somehow actually bought this six-degrees-of-licensing-separation argument.

According to the trademark board, the soap company was trying to call to mind the Seahawks’ 12th Man thing when designing the soap. There’s even a football on the “12th Man Hands” soap bar, and the company acknowledged it was trying to reach Seahawks fans, which makes sense because it’s a Washington-based company.  But according to the board, the soap-makers didn’t clear their use of the 12th Man mark with A&M specifically. That appears to have hurt their case.

And the board ruled against the soap company. That’s ridiculous for several reasons. First, no linkage in geography, nor the company’s desire to reach Seahawks fans, creates confusion on its own in the public. Other than the image of a football, there is no other linkage to the Seahawks at all. It’s just a puck of soap with something of a stock image of a football being held by a hand. Nobody is going to look at that and think it was soap branded by the Seahawks.

Secondly, even if the above weren’t true, the confusion would be between the soap company and Seahawks, not Texas A&M. Whatever the licensing agreement between the Seahawks and the school, there is absolutely zero chance for anyone in the public thinking that Texas A&M has anything to do with this soap company. That, I’m confident saying, is completely inarguable. If anyone should have sued here, it should have been the Seahawks, and even that suit would have been ridiculous. A&M included information about past licensing deals for soap with other companies, but none of them were for “The 12th Man” use, and all of them were instead for university-specific terms and imagery, such as its logo.

How in the world the Trademark Board ever bought into this is beyond me.

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Again, Algorithms Suck At Determining ‘Bad’ Content, Often To Hilarious Degrees

A few weeks back, Mike wrote a post detailing how absolutely shitty algorithms can be at determining what is “bad” or “offensive” or otherwise “undesirable” content. While his post detailed failings in algorithms judging such weighty content as war-crime investigations versus terrorist propaganda, and Nazi hate-speech versus legitimate news reporting, the central thesis in all of this is that relying on platforms to host our speech and content when those platforms employ very, very imperfect algorithms as gatekeepers is a terrible idea. And it leads to undesirable outcomes at levels far below those of Nazis and terrorism.

Take Supper Mario Broth, for instance. SMB is a site dedicated to fun and interesting information about Nintendo and its history. It’s a place that fans go to learn more weird and wonderful information about the gaming company they love. The site also has a Twitter account, which was recently flagged for posting the following tweet.

For the sin of tweeting that image out, the site’s entire account was flagged as “sensitive”, which means anyone visiting the account was greeted with a warning about how filthy it is. What Twitter’s systems thought was offensive about the image, which comes from another video from a costume company that works with Nintendo, is literally anyone’s guess. Nobody seems to be able to figure it out. My working theory is that the Princess Peach’s lips resemble too closely a more private part of the female anatomy and, when coupled with the flesh-colored face surrounding it sent Twitter’s algorithm screaming “Aaah! Vagina!” leading to the flagging of the account. But this is just a guess, because although the “sensitive” flag was eventually removed, SMB never got any response or explanation from Twitter at all.

SMB went as far as to test through dummy accounts whether the image was the entire problem. It was. After posting the image several times from other accounts, each account was flagged within minutes of the posting. It’s an algorithm doing this, in other words, and one which seems ill-suited to its task.

What we have here is two related problems. We have a company designed to let speakers speak employing an algorithm to flag offensive content, which it is doing very, very badly. We also have a company with a staff insufficiently capable to correct the errors of its incapable algorithm. This would be annoying in any context other than current reality, which sees rising calls for internet sites to automagically block “bad” content and do so with literally inhuman speed.

That means algorithms. But the algorithms can’t do the job. And with sites erring on the side of over-blocking to avoid scrutiny from both the public and governments, that means open communication is the loser in all of this. It’s hard to imagine an outcome more anathema to services like Twitter than that.

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