Chicago Mix redux

Back in August I noted that several companies other than Minnesota-based trademark holder Candyland were using "Chicago Mix" for a blend of caramel and cheese popcorn, and argued that the term was generic.  Most of these companies have renamed their products since then, presumably after receiving a demand letter from Candyland:

• Utz - changed from "Chicago-Style" to "Midwest-Style" (described as "freshly popped Chicago-style popcorn")
• Nuts on Clark - changed from "Chicago Mix" to "Caramelcorn & Cheesecorn Mix" (with "Chicago" on the tin)
• Brooklyn Popcorn - changed from "Chicago Mix" to "Windy-City Mix"
• Popcorn Haven - changed from "Chicago Style" to "Cheese & Caramel Mix"
• The Popcorn Fanatic - changed from "Chicago Mix" to "Windy City Mix"
• Great American Popcorn Co. - changed from "Chicago Mix" to "CR Mix"

But a few companies either didn't get the memo or decided to stand up for Chicago-style popcorn connoisseurs:

• Popilicious - "Chicago Mix"
• Popcorn Palace - "Chicago Chic"
• Pittsburgh Popcorn - "Chicago Blend"

The three companies that Candyland sued were Garrett Popcorn Shops, Cornfields (G.H. Cretors) and Snyder's-Lance (O-Ke-Doke). Of the three, only Garrett has changed the name of its Chicago Mix product, and claims it was planning to do that anyway. (It's now "Garrett Mix.") As far as I can tell, Cornfields and Snyder's still use the "Chicago Mix" name.

Chicago Mix, fresh from Minnesota???

Candyland, a small chain of candy stores in Minnesota, holds the federal trademark registration for CHICAGO MIX, which it uses for its mixture of salted, caramel, and cheese-flavored popcorn. (The trademark registration issued in 1992 and states a first use date of 1990, although Candyland's owner claims the company has used it since 1988. Interestingly, Candyland does not appear to claim any trademark rights in CANDYLAND, a mark which happens to be owned by Hasbro, Inc.)

Unfortunately for the Minnesota Candyland, many other companies also use CHICAGO MIX or related terms to describe their similar products, including Chicago-based Garrett Popcorn Shops, which claims to have been selling CHICAGO MIX popcorn "for decades" (and therefore, presumably, before Candyland acquired its trademark rights). (Garrett's CHICAGO MIX omits the salted popcorn, combining only caramel and cheese-flavored popcorn. It would be interesting to compare them side-by-side, but Garrett's popcorn is best eaten fresh from the store, and I imagine the same is true for Candyland's.)

Ironically, Candyland's own website contains a long list of competitors that use CHICAGO MIX or related terms. It's easy to find many more that aren't on Candyland's list (e.g., Utz Chicago-Style, Nuts on Clark Chicago Mix, Popcornopolis Chicago Style, Brooklyn Popcorn Chicago Mix, Popcorn Haven Chicago Style, The Popcorn Fanatic Chicago Mix, Popcorn Palace Chicago Chic, Great American Popcorn Chicago Mix, Popilicious Chicago Mix, Pittsburgh Popcorn Chicago Blend, Kettle Boys Chicago Mix, and Chicago Gold Popcorn Windy City Mix). It seems to me that CHICAGO MIX is likely a generic term for a mixture that includes caramel and cheese-flavored popcorn. The CHICAGO MIX term is widely used around the country, but I wonder how many people outside Minnesota have ever heard of Candyland.

Candyland recently filed lawsuits against Garrett's and two other companies (Snyder's-Lance and Cornfields) for infringing upon its CHICAGO MIX trademark. (One of the allegations in the lawsuit is that Garrett's use of the CHICAGO MIX mark is likely to deceive consumers as to the origin of Garrett's popcorn, apparently making them think that CHICAGO MIX popcorn comes from Chicago rather than Minnesota.)

• Complaint, Candyland, Inc. v. CaramelCrisp, LLC, d/b/a Garrett Popcorn Shops, No. 0:14-cv-03122-PJS-FLN (D. Minn. filed Aug. 7, 2014)

Get your cheap Redskins gear here!

The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office today canceled the Washington Redskins' trademark registration, on the grounds that the name is disparaging to Native Americans. The NFL is expected to appeal the order in court, and if they lose (and perhaps even if they don't), the team may eventually adopt a new name.

In the meantime, however, what this means is that anyone can freely use the Redskins name and logo without paying royalties or getting permission from the NFL. As a result, I think we're likely to see a glut of bootleg Redskins apparel -- including items that the NFL would never have approved, some of which will probably be much more disparaging than the name itself. (Granted, some of the most outrageous items might have been permissible as parodies anyway.)

Top-secret cereal arbitration

General Mills recently revised the terms posted on its website, adding a provision that requires disputes between consumers and the company to be brought in binding arbitration. The interesting part is this: The arbitration provision says it applies to "all disputes or claims arising out of this Agreement or your purchase or use of any General Mills product or service for personal or household use." In other words, if you want to sue General Mills because there weren't enough marshmallows in your Lucky Charms, you have to bring the claim in arbitration rather than in court (assuming that the amount of your claim exceeds the small claims court maximum -- and if you're really going to sue over something like this, you might as well aim high).

The New York Times is understandably troubled by this -- see When 'Liking' a Brand Online Voids the Right to Sue -- but the requirement to arbitrate doesn't bother me nearly as much as the confidentiality provision:

Any arbitration will be confidential, and neither you nor General Mills may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.

That strikes me as overreaching and contrary to public policy.  It's common for companies to agree that they will keep arbitration proceedings confidential (in many cases, including financial service providers, they're probably required to do so anyway), but prohibiting a consumer from disclosing information about the dispute is a very bad idea, and one that seems likely to backfire.

Update (4/21/14): General Mills has retracted the policy.

Some of Netflix's best customers are pirates

TorrentFreak is reporting that Netflix has thousands of paying subscribers in Australia. Since Netflix doesn't allow Australians to access its service, these folks are accessing Netflix via VPNs and similar services to conceal their location, paying monthly subscription fees to both Netflix and (in most instances) a VPN service as well.

TV networks are calling these people "pirates," but perhaps a more accurate term would be "customers."

Another loony lawsuit

Eric Goldman tipped me off to a defamation lawsuit filed yesterday against Google and the anonymous bloggers behind Encyclopedia of American Loons by Uri Dowbenko, described in a blog post as a "batshit insane tinfoilhatter."

Google presumably will have little trouble getting the claim against it dismissed under 42 U.S.C. § 230(c), despite Dowbenko's as yet unsubstantiated assertion that the bloggers are "Google employees and/or blog writers." Assuming Dowbenko goes forward anyway and seeks to subpoena the bloggers' identities, it will be interesting to see which of the statements in the allegedly defamatory blog post are claimed to be false statements of fact. The post includes some statements that are clearly mere opinions (albeit insulting and perhaps gratuitous), and others that are factual but apparently accurate (at least based upon the sources that they link to, including this). The complaint does contain a general claim that the blog post falsely attributes some statements to Dowbenko, but it's not clear to me precisely which of the statements in the post are asserted to be defamatory.

A very quick read

Take 15 seconds to read this fascinating DOJ memo re: GPS tracking. I wouldn't recommend printing it out, at least not unless someone else is paying for your printer toner/ink. (More at Ars Technica.)

Privacy symposium

The John Marshall Law School presents a two-day symposium, The Development of Privacy Law from Brandeis to Today, September 27-28, 2012. Symposium proceedings will be published in The John Marshall Journal of Computer & Information Law, published by John Marshall's Center for Information Technology and Privacy Law.

Olympics are stupid

The Olympics are stupid. And the London 2012 Olympic Games are especially stupid. Their terms of use prohibit linking to their site if the link portrays them in a derogatory manner (CNET News.com, July 14, 2012). (Does that mean I shouldn't put anything derogatory in the link itself, as in "stupid Olympics"?)

They also don't want people to use their logo as a link to their site, like
this	or	this	or	this.

It's all so confusing. How am I supposed to tell if they would object to this?

Job seeker sues Google, Microsoft, and Yahoo

Jason L. Nieman, an Illinois resident, sued his former employer, Nationwide Mutual Insurance Company, in 2009. Various public documents from that litigation are available on the Internet, and are accessible via Google and other search engines by anyone searching for Nieman's name.  Nieman recently filed a pro se lawsuit against Google, Microsoft (Bing), Yahoo, and others, alleging that other potential employers are conducting such searches and then unlawfully declining to hire Nieman, even though he "was obviously the most qualified person for the position" (Complaint ¶ 17).  (Hat tip to Eric Goldman, from whom I learned of the case.)

I wonder how Jason Nieman's job prospects will be affected by the fact that potential employers searching for his name will now learn of his lawsuit against search engines for linking to his lawsuit against a former employer.  (And this information, unlike the information about his litigation against a former employer, is probably a perfectly legal basis for an employer not to hire him.)

Additional coverage:  State Journal Register