National News

Trademark law: Why Disney is fighting a Canadian DJ

Marketplace - American Public Media - Wed, 2014-11-05 02:00

Deadmau5 makes dance music. But he also sells hats, pint glasses, t-shirts—all featuring the eerie, circles-for-ears cartoon "mau5head" that is his symbol. 

"He's in gaming and mobile apps and music and producing and imaging and movies," says his attorney, Dina LaPolt. "He's in every space imaginable."

Under U.S. law, the use of his "mau5head" on all this merchandise has trademark protection, just by existing. But last summer Deadmau5—real name Joel Zimmerman—applied for something stronger: trademark registration. 

The implications of registration are significant but limited. "It's a little bit easier and cheaper to sue others," says Jeremy Sheff, law professor at St. John's. 

“There are various side tweaks in the process that a registration is helpful for,” says Rebecca Tushnet, law professor at Georgetown. 

The legal costs, on the other hand, were clear. 

"We always knew Disney would oppose it because that’s what Disney does," says LaPolt. 

Disney is notoriously protective of its intellectual property, especially when it comes to Mickey Mouse. To pick a trivial example, in 1981, Disney successfully got a bar in Colonie, NY called "Mickey's Mousetrap" to change its name, even though it was owned by two men named Mickey.

"We're giving in,'' Mickey Colarusso told the New York Times, ''because we don't have the time or money to battle an organization as big as Disney."

In part, this may be because you need to exercise trademark rights in order to retain them. "Trademark owners often feel they need to take symbolic actions," says Tushnet. 

But despite the certainty that it would bring about a battle with Disney, LaPolt strategized to apply for registration. "I like to change things and battle people," she says. "That’s why I’m a lawyer."

Disney did file to block Deadmau5's registration, arguing that despite the creepy grin and vacant eyes, the "mau5head," with its round head and round ears, "so resembles Disney's prior use and registered Disney's Mouse Ears Marks" as to be likely "to cause confusion, or to cause mistake, or to deceive." 

"There are a number of thing that’ll confuse people," says Jack Jacoby, professor of marketing at NYU's Stern School of Business who says he is involved in 30 or 40 trademark disputes per year.

In the case of Disney vs. Deadmau5,  Jacoby says the confusion case boils down to what’s in the mind of the person who picks a mau5head t-shirt off the rack-and whether they'll think the Deadmau5 item was made by, affiliated with or allowed by Disney.

"Disney’s saying 'Wait, people may think that this comes from us,'" says Jacoby.

Outside a mall in Queens, New York, I put this to the test by showing a picture of a Deadmau5 shirt to various fans of electronic music. 

Among his fans, everyone knew the symbol immediately, and had no confusion about Disney's involvement. 

Jacoby wrote, or at least edited, the book on doing more scientific versions of these surveys for the American Bar Association, and says such a survey could help Deadmau5 if Disney sued for infringement. But although the current battle over registration rights at the Patent and Trademark Office concerns the same questions—Does the use of the Deadmau5 mark cause "confusion" of Disney's mouse ears mark—it won't admit this kind of survey. 

"Most of the action is in the federal courts. And the federal courts, they want you to simulate reality as closely as possible," says Jacoby. "But the PTO only wants to look at the mark in isolation. So the silhouette, in this case, of the ears."

This lack of real-world context could hurt Deadmau5's chances. The choice to take on Disney anyways could be to seek a settlement or for PR—Deadmau5 has been known for publicity stunts in the past. Or it could be sheer stubbornness. 

"Sometimes people get very committed to their symbols, almost like their children," says Tushnet. 

The Patent and Trademark Office wouldn’t comment on timing, but observers say a decision from the PTO on these warring parents could take years.

Voters decide U.S. minimum wage landscape for 2015

Marketplace - American Public Media - Wed, 2014-11-05 01:30

On Tuesday, voters in four states decided whether to raise the minimum wage starting in 2015.

Voters in Alaska, Arkansas, Nebraska and South Dakota all decided to approve the increases. Illinois voters approved a non-binding ballot initiative to raise the state's minimum wage.

The measure in Illinois was placed on the ballot by that state's legislature, while the measures in the other states were added by citizen initiatives. A number of other states, including New York, Massachusetts and West Virginia, are also set to increase their minimum wages in 2015, in accordance with previous legislation.

When states put minimum wage increases on the ballot, voters tend to be supportive. But voters this week also flipped the balance of Congress in favor of Republicans, many of whom say they don’t want to raise the minimum wage.

Mixed message?

“Don’t ever make assumption that voters are consistent in the way they think,” says Jeffrey Berry, a professor of political science of Tufts University. “When you go into the ballot booth, and cast your vote, there’s here’s no sign that says, ‘You’re required to be consistent in the way you vote. Please proceed.’”

He says voters who supported the increase in minimum wage may still have wanted to convey a desire for change in Washington – the two messages don’t have to be mutually exclusive.

But the popular support for these increases likely won’t push Republicans to embrace raising the federal minimum wage, says Berry, because that’d be too big a win for President Obama.

“That’s the last thing this new Congress wants to do,” he says.

While the state-by-state approach feels chaotic, it also kind of works.

“You might say that it makes more sense to have a $10 minimum in California and a $7.25 minimum in Mississippi than to have a $9 minimum in both,” says David Neumark, a  professor of economics and the director of the Center for Economics & Public Policy at the University of California, Irvine. He notes that outliers like Seattle and San Francisco which have voted for $15 per hour minimum wage are the exception.

Even before these elections, nearly two dozen states – plus District of Columbia – had set their minimum wages above the federal level.

Newly Released 'Fast And Furious' Documents Include A Slam On Issa

NPR News - Tue, 2014-11-04 20:43

Several details already have become the center of conversations, including one email in which outgoing Attorney General Eric Holder criticizes Rep. Darrell Issa, R-Calif., and his "idiot cronies."

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Governors' Races: Scott Beats Crist; Quinn Loses In Illinois

NPR News - Tue, 2014-11-04 18:38

In Illinois, Republican Bruce Rauner is projected to beat Democratic incumbent Pat Quinn. And in Wisconsin, Gov. Scott Walker has won re-election, defeating Democrat Mary Burke.

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Marijuana Votes: Oregon And D.C. Legalize; Florida Says No To Medical

NPR News - Tue, 2014-11-04 17:16

Florida's medical marijuana ballot measure fell short of the 60 percent approval required. Oregon voters approved Measure 91, allowing legalization. Alaska also has a legalization ballot measure.

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Fight For The Senate: Republicans Take Control, Adding 7 Seats

NPR News - Tue, 2014-11-04 17:00

The Republicans will control both chambers of Congress next year. And in Virginia, a race between Democratic incumbent Mark Warner and Republican Ed Gillespie is coming down to the wire.

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Incumbents Who Lost Seats Tonight

NPR News - Tue, 2014-11-04 16:07

We track all the incumbent candidates who lost the midterm election

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How To Follow NPR's Coverage Of Tonight's Midterm Elections

NPR News - Tue, 2014-11-04 15:40

Here's a guide to keeping up to date on the night's events, on NPR and its member stations.

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2015 Emoji Update Will Include More Diverse Skin-Tones

NPR News - Tue, 2014-11-04 15:00

The Unicode Consortium had previously backed only one skin color, a yellow-orange tone it considered generic. But the group threw away that approach after a wide call for more variety.

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Federal Judge Overturns Kansas Ban On Same-Sex Marriage

NPR News - Tue, 2014-11-04 14:30

Today's injunction takes effect in one week, depending on whether the state appeals. The judge in the case said the state's ban on marriage between people of the same sex violates the 14th Amendment.

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It's Still Too Early For Tanking Oil Prices To Curb U.S. Drilling

NPR News - Tue, 2014-11-04 14:00

The U.S. is now the world's largest oil producer, and some worry that falling prices could mean an industry slowdown. But with production costs also falling, drillers are unlikely to cut back soon.

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What Makes Kenya's Marathon Runners The World's Best?

NPR News - Tue, 2014-11-04 13:57

Kenyan distance runners won both the men's and women's divisions of Sunday's New York City Marathon. A Harvard evolutionary biologist suggests some possible reasons why.

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We Are Not Slaughterers: An Iraqi Village Rejects Islamic Militants

NPR News - Tue, 2014-11-04 13:57

A Sunni Muslim tribe in central Iraq braves nightly shelling and threats from the Islamic State, refusing the group's orders to join its movement. But they say they need help.

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GOP Takes Control Of Senate With Wins in N.C., Iowa, Ark., Colo.

NPR News - Tue, 2014-11-04 13:48

Republicans needed to pick up just six seats in Tuesday's midterm elections to wrest control of the Senate. In the House, the key question was how big the GOP majority would be next year.

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Why Farmers Aren't Cheering This Year's Monster Harvest

NPR News - Tue, 2014-11-04 13:11

Farmers will haul in a record-breaking harvest of soybeans and corn this year, but they could be victims of their own success: Prices for these crops, falling for months, are at five-year lows.

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Researchers Tap Web Chatter To Figure Out Who's Sick

NPR News - Tue, 2014-11-04 12:59

With the help of online data, doctors and public health officials are tracking the spread of illnesses and predicting where they might strike next. The analyses also provide clues for prevention.

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Massachusetts Food Waste Ban Gains Broad Acceptance

NPR News - Tue, 2014-11-04 12:48

Massachusetts law now says that if you throw out more than a ton of food waste a month, it can't go to a landfill. But many institutions had already begun composting waste or turning it into energy.

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Low oil prices could hurt drillers carrying high debt

Marketplace - American Public Media - Tue, 2014-11-04 11:00

Oil prices are down a whopping 28 percent since mid-June.  That’s great if you’re a consumer, not so much if you’re a driller.

During the boom, drillers that fracked for what’s called shale oil spent more money than they brought in. And they made up the gap by borrowing. Which was fine when oil sold for a high price.

Now, crude is down. Earnings are down. And lenders are fidgety.

“Many of the bankers, they’re very, very concerned about their loans to companies that are exclusively into shale formations,” says Ed Hirs of oil and gas firm Hillhouse Resources. He also teaches economics at the University of Houston. “These companies may not have the management expertise or the technical expertise to continue production and pay off these loans.”

And oil companies can be credit risks. Standard & Poor’s rates three out of four energy firms below investment grade.

The big question for lenders and investors is: how long will low prices persist?

“If oil were $80 for the next year or go even lower, cash flow is lower,” says James Burkhard, head of oil market research at IHS CERA. “And external finance would be probably lower as well, or more expensive.”

Of course, all oil companies are not the same. Those mostly in fracking in the more expensive formations are most at risk. More diversified companies and those invested in lower-cost conventional wells are less exposed. And if prices surprise analysts and rise quickly, the debt issue becomes less crucial.

For now, though, analysts and credit analysts are revising their expectations in a hurry, and fortunes are changing quickly in the oil patch. It’s nothing new.

“Look, having grown up here and seen what’s happened in this Oklahoma, Texas area, I’ve seen the booms and busts,” says Jake Dollarhide, co-founder and CEO of Longbow Asset Management in Tulsa. “I’ve seen companies go underneath overnight. Most of the time it was a two-headed monster: lower commodity prices, high debt. That’s a dangerous and scary scenario. And oftentimes it’s a recipe for insolvency."

With gas prices down, we're buying more SUVs

Marketplace - American Public Media - Tue, 2014-11-04 11:00

Falling gas prices have given American consumers some extra pocket money. So, how are we celebrating? According to one economist, we tend to blow some of it at Starbucks— which - bonus! - means more jobs for baristas.

And it appears that some of us run out and buy trucks and SUVs. New automobile sales reports are out, and Chrysler’s Jeep line and Ram pickup trucks had a great month.

We wondered: Doesn't that seem like kind of a big spend for an impulse buy? Do people really just decide to go for it when gas prices drop? 

"Yeah, that's definitely the case," says Jessica Caldwell, an analyst with the car-shopping site  She thinks some of today's SUV buyers may be people who ditched their gas guzzlers in 2008, when the economy tanked and gas prices spiked. 

"They traded into something smaller, they didn’t like it, and they want to go back," she says. "And now that gas prices are low, it gives them that push — or even that excuse — to say, ‘I’m going to have something bigger.’"

So, yes: Car buyers are sensitive to gas prices, and they've got a hair trigger.

And: People often do not do the math on fuel economy. Tom Turrentine, from the University of California at Davis Energy Efficiency Center, interviewed people from 60 households about this very question. He and his colleagues picked bankers, college professors — people he thought would be good at math.

"Nobody knew how much they spent on fuel in a year," he says. "People don't keep track of it." When he asked, they looked confused. 

There was one exception: A guy who built a spreadsheet to figure out the best car for him.  The spreadsheet told him to buy a used Honda Civic.

But he wanted a new Ford Escape, and that's what he bought.  "Despite making all the rational calculations, he went with his heart," says Turrentine.

So — whether we never look at the data, or maybe just ignore it — are we making dumb financial decisions?

Remember, this could work in either direction. When gas prices go up, people don’t just buy more fuel-efficient cars, they pay more for them. MIT energy economist Christopher Knittel wondered: Are they overpaying

Answer: Nope. "What we find is that consumers more or less get it right," he says.

Even without a spreadsheet, the average consumer didn’t pay so much for a Prius that the price increase was more than they could expect to save on gas. 

So: Yes, we’re a little impulsive. But we’re not dumb.

Verizon, AT&T and the new supercookies

Marketplace - American Public Media - Tue, 2014-11-04 11:00

The Internet browsing history of more than 100 million Verizon and AT&T smartphone customers has been made trackable. 

That's the upshot of the recent revelation that both companies have been running advertising programs that use "supercookies" that can't be evaded by any of the means available for ordinary cookies.

But to understand these "supercookies," it's helpful to start with the old-fashioned kind. 

"For nearly twenty years now, the cookie has become the standard way to track people online, for better or worse" says Jacob Hoffman-Andrews, the senior staff technologist at the Electronic Frontier Foundation who first brought attention to the Verizon program. 

"The metaphor I use when I teach is I say a cookie is like a name tag," he says.

Browsing a website is like entering a room and being handed a name tag.  It might have a fake name or a series of digits written on it, but it's an identifying label that everyone in the room--each of the many entities that serve content on a given webpage--can see.  If you leave it on, anyone watching--and there are many companies watching--can see where you go. 

"But you also have the option to take off that name tag," says Hoffman-Andrews. "When you clear cookies in your browser that's like ripping off all your name tags." 

"On mobile we don’t have the cookie," says Jenny Wise, mobile marketing analyst at Forrester. "And so the industry is sort of cobbling together all these different solutions."

Advertisers want to track users and target ads on the mobile Internet, and across multiple devices.

"That’s sort of the holy grail for advertisers," says Wise. "And ad tech is on the case." 

Those solutions range from GPS data to Facebook log-ins to device ID numbers--but it's much more fragmented than following a single cookie. And Wise says most of them are opt-out. "That's one of the key things that Verizon and AT&T are running into," says Wise. 

"Supercookie" is a generic term, which can refer to any of a number of ways of getting around the limitations of cookies. But Verizon and AT&T's version aren't easily evaded--in fact it's very difficult to tell that the tracking code is being applied in the first place.

Referring to Verizon's program, Hoffman-Andrews says: "The [supercookie] is  inserted after it leaves your phone, so there’s nothing you could do on the phone to detect that it’s going on."

In Verizon's case, while users can opt out of the advertising program that makes use of the data Verizon collects, the company has said that there is no opting out of the supercookie itself, which security researchers say can be easily used by third parties. 

"One possible analogy that comes to mind here is a license plate," says security researcher Jonathan Mayer. "It's a lot like throwing a license plate on your web browser. And Verizon's position is 'Hey we're the DMV, if anyone wants information about someone with that website they have to come to us.'"

"But that doesn't mean you can't follow a license plate around," he says.

"That’s a very good metaphor, but so much of our intellectual and political life takes place on the Internet now, it would amount to a license plate for your brain," says the EFF's Hoffman-Andrews. "Every question you have, every news article you read would be attached to this one identity."

Verizon says those "license plates" are changed "frequently," and that that their supercookies don't "provide any information beyond what [ad tech entities that have a presence on many websites] have by virtue of [other permanent and longer-term identifiers... already widely available] and other already existing IDs."

"What Verizon and AT&T are doing--and why they might have the leg up here, if there's no backlash from privacy concerns-- is that their network goes across devices," says Forrester's Wise. "So not only do you know what I'm doing when I use my mobile phone, I'm also using that same network when I'm on my tablet, or when I'm on my TV."

"That opens up the door."

For more "targeting" or more "tracking," depending on your perspective.