Wednesday, November 26, 2014


This article originally appeared in the 11.26.14 issue of Metroland.

Last week, Price Chopper made the beguiling announcement that it was changing its name to “Market 32”, apparently a reference to the company’s first store (the chain was originally called Central Markets) which opened in 1932.  This is a little sad. Price Chopper is one of those quirky brands that helps define the Capital Region.  I really liked the old logo with the ax in the lady’s head, but the current logo is still plenty weird and wonderful.  And now Price Chopper (which we gleefully refer to as “Prick Chopper” or the Frenchy derivative “Prix Shoppez”) is going the way of the buffalo, to be replaced with a generic, antiseptic-sounding name.  As my friend Doug commented on Facebook, they should call their fish department Catch-22.  Sheesh.

            Anyway, in middle of this, a controversy broke out concerning a t-shirt  featuring a Price Chopper look-alike logo that said “Ghetto Chopper” with a silhouette of a gun in the place of the ax in the (now lady-less) coin.   The shirt was the creation of local artist Chip Fasciana and notwithstanding considerations of taste and propriety, it looked great. 
            Social media blew up; bloggers and commentators were alternatively decrying and praising the shirt.  Apparently Price Chopper sent Fasciana a C & D letter demanding the shirts be pulled from the market.  I was tagged in several Facebook posts from people wondering what I thought of all of this, which was really cool!  Thank you, my people!  Here we go!

            Welcome to the wacky world of trademark parody.  We usually talk here about parody and fair use in copyright law, when you can copy somebody else’s creative work without it being an infringement; it’s messy, and involves the juggling of a bunch of factors like how much is taken, how it’s used, and whether the new work is “transformational”, whatever that means. 

            For trademarks it’s a little different.  A trademark is a commercial name, a designation of the source of a good or a service.  A trademark can be words, a logo, even a color or sound, almost anything that functions to identify where a product comes from. 
Trademark infringement occurs only when there is a likelihood of confusion as to the source of a product.  No confusion, no infringement.  Did any of you think for a second that the Ghetto Chopper t-shirt was produced by Price Chopper?  No?  Well, OK then.  End of story, right?

            Not quite.  Look at this from Price Chopper’s perspective (for the record, I am a fan of Price Chopper, a devoted customer, I think it’s a great company, etc.).  They naturally would like this shirt to go away.  Hence the lawyers huffing and puffing and sending out C & D letters.  You’d do the same thing if your name were Golub.  Oh yes you would.

            They can try to argue confusion.  Years ago a court ruled that t-shirts saying “Things Go Better With Cocaine” infringed the famous Coke logo, because some outraged citizens’ group had organized a boycott of Coca-Cola based on what they thought was the company’s pro-drug t-shirts.  I suspect the citizens’ group was a front for Coke; I mean, are people really that stupid?  OK, outside of large swaths of the mid-west and south?

            This was one of numerous cases where a tormented judge tried to be the guardian of good taste. But considerations of taste should hold no sway in trademark law, and increasingly, they don’t.  Trademark parody is an accepted thing now; I’ve done some work with the Phish-fan art community, which has generated hundreds of logo parodies that insert cryptic song lyric references into major corporate logos.  Heck, a few years ago one t-shirt company sued another for stealing corporate logo parodies.  The corporations being parodied weren’t even involved.

            But what about taste?  A number of folks have said the Ghetto Chopper shirt carries racial overtones and is generally disgusting.  Is it?  (I recommend you to the always-brilliant Amy Biancolli’s discussion of this on her Times Union blog) For better or worse, the downtown Delaware Ave. Price Chopper has been commonly known as Ghetto Chopper since forever.  Does the gun push it over the edge?  Does it matter legally?

            No, it shouldn’t.  In fact, the more tasteless the parody, the less likely anybody’s going to think that the target of the parody is responsible.  A few years ago, a guy in Georgia was selling t-shirts with the Wal-Mart logo twisted into words like “Walocaust” and “Wal-Queda”; Wal-Mart, predictably and understandably, went batshit and sued.  The court, correctly, was unmoved:  “Indeed, the more outrageous and offensive the parody, the less likely confusion will result... [T]rademark owners, like public figures who seek the public spotlight, must accept the concomitant risk of public ridicule...” 

            There’s a couple of twists that I don’t have room to talk about, like the parody/satire continuum or the fairly new federal law outlawing famous mark “tarnishment”, but these things don’t change my basic view: the Ghetto Chopper shirt is entirely legal. 

            In the end, as you probably already know, taste won out; Fasciana pulled the shirt.  Which is totally his prerogative, it’s his baby.

Paul Rapp is a Berkshire backwoods barrister who hopes you all will tune in to “Paul and Ted’s Christmas in Hell” holiday radio extravaganza, which should air on WEXT 97.7 sometime in December.

Wednesday, November 12, 2014

11.12.14 NUTTIN' BUT NET

This article originally appeared in the 11.13.14 issue of Metroland.

Did anybody see this coming?  In the aftermath of the disastrous mid-term elections, leaving us ashamed of our country and fearful of the future, President Obama issued a startling call for pure, clean net neutrality.

            For those of you not playing the home game, a court decision several years ago rearranged the Federal Communication Commission’s presumed jurisdiction over the internet, leaving the web subject to the whims of the several monstrous corporations that control our access to it.  The results have been disastrous. We have some of the slowest and most expensive internet services in the civilized world.  Broadband comes to us through two lightly-regulated duopolies: cable (Comcast and Time Warner) and wireless (AT&T and Verizon). These duopolies are squeezing us dry, providing crap service, and shaking down big users like Netflix for preferential treatment, which has the double whammy effect of driving up Netflix prices while making it all but impossible for any Netflix competitor that can’t afford the bribes to compete.

            The FCC has been considering its reaction to the emasculating court decision.  The simplest fix is for the FCC to simply reclassify the internet as a “telecommunications service” and a “common carrier” like it does with telephones.  But the FCC has been wavering on this, afraid of being sued again by the likes of Verizon and Comcast.  Instead, the FCC has been floating trial balloons for various measures that fall short of what’s called “Title II classification”, none of which would prevent internet service providers from favoring some customers at the expense of others.  Over the past several months, the FCC has received an unprecedented 4 million messages from consumers, demanding that it do the right thing.

            The White House has been equivocating, saying a lot nice sounding things laced with what we in the legal business call “weasel words” that can be interpreted all kinds of ways, rendering the White House statements meaningless.

            Until now.  On Monday, Obama called for the FCC to reclassify the internet as a Title II common carrier, which would allow the FCC to bar ISPs from blocking, speeding up, or slowing down particular internet traffic.  Remarkably specific and wonky, Obama also suggested that the FCC “forbear” on various Title II regulations that don’t neatly apply to the internet.

            This is big.  It calls for a level playing field for anyone using the internet.  It is utterly sane.  And while it wouldn’t immediately cure all of our internet ills (things like universal service and data caps still need to be addressed), Obama has for once put himself in the voice-of-the-people position, the position he campaigned on, and is standing up to the corporate behemoths who would otherwise hijack the internet and a big chunk of our future.

            The reactions to Obama’s statement have been all too predictable and depressing.  It’s the sound of money talking.  The ISPs trotted out the same tired arguments that Title II classification was overbearing “government regulation” that would inhibit investment and innovation and competition.  Never mind that these companies’ investment in the internet drastically declined over the past five years and that innovation likewise slowed as a result.  Why?  Because there is no real competition in the internet service industry!  Duh!  Never mind that these companies have delivered to us a level of internet service that is the laughing stock of the rest of the world.

            Then there are the paid whores masquerading as elected officials and policy experts.  Some phony business analyst at Fox News used the word “Orwellian”.  Ted Cruz, who has reeled in a ton of campaign money from Comcast, etc., got headlines saying that net neutrality is the “Obamacare of the internet.”  Which, if we didn’t already know it, reveals Ted Cruz as a lying, pathetic, pandering, cowardly, racist, fascist little douchebag, an embarrassment to us all.

            What happens now?  Well, we wait for the FCC to issue a ruling, which may happen in December.  The FCC is an independent agency, so Obama’s prodding only goes so far.  And “independent” is a relative term.  Tom Wheeler is the chairman of the FCC, but he is the former chief lobbyist for cable and wireless industry, a position currently held by Michael Powell, a former FCC commissioner.  See how that works?

            Wheeler, who has been alternatively strident and spineless through this debate, is reportedly skeptical of Title II classification and wants everyone to know that the FCC is independent and can make up its own mind about these things.  The latest is that he’s considering a hybrid plan that will deem the internet as a Title II telecommunication service in its dealings with content providers, but keep it virtually unregulated in its dealings with consumers.  Huh?

            Which is a puzzling position for a guy who’s afraid of getting sued.  And it’s another way of saying “OK, we’ll protect the corporations with regulations, but you little people?  You’re on your own.”  Sigh.

Paul Rapp is a local IP and art and entertainment attorney who is getting ready to renew his call for the northeastern United States to secede from the Union.  And to take Austin, Texas, Asheville, North Carolina and New Orleans along with it.