WYNGZ are not made of wings. Or trademarks.

For the odd trademarks file: Stephen Colbert mocks DiGiorno’s new product: PIZZA and WYNGZ. Shockingly, Wyngz are not made of chicken wings. (Ok, maybe not so shockingly.) According to Colbert, the name was chosen because of laws regulating non-chicken wing products. As Colbert puts it, the term WYNGZ is “a government-mandated way of getting around the fact that it’s not real wing meat.”

On closer inspection, DiGiorno does not claim trademark rights to “WYNGZ.” A closer look at the package shows that the symbol next to “WYNGZ” is not the TM or (R) symbol, but instead an asterisk to a disclaimer stating “WITH NO WING MEAT.” Nor does DiGiorno appear to claim rights to the equally dubious “PIZZA & WYNGZ” (with or without the “BONELESS” that appears in smaller type).

But more fundamentally, DiGiorno probably couldn’t claim trademark rights to “WYNGZ” at all. Colbert points to the U.S. Food Safety and Inspection Service (“FSIS”), which states that:
Section 381.170(b)(7) [found here in the Code of Federal Regulations] defines a poultry “wing.” The use of the term “wing” cannot be used on any poultry product unless it complies with this standard of identity. In comparison, FSIS allows the use of the term “wyngz” to denote a product that is in the shape of a wing or a bite-size appetizer type product under [specified] conditions in which the agency considers its use fanciful and not misleading[.]

As a term coined and pre-approved by the U.S. government for a specified product, I have little doubt that WYNGZ is generic in this context (despite the odd statement by FSIS that the term is “fanciful”). Accordingly, DiGiorno could not claim trademark rights in the term at all, because “wyngz” is the term used for the genus of this type of non-wing product, and was created with the intention that all vendors selling this type of product could use the term.

wyngzSo give DiGiorno’s one point for not asserting trademark rights, two points for putting together two tasty snack foods for the game, and deduct ten points for the cholesterol you’ll build up eating PIZZA & WYNGZ during the Super Bowl.

Or, I should say, during “The Big Game.”

Cross-posted to Infoglut Tumblr.

Samsung’s Super Bowl ad, IP enforcement, and feedback loops

So let’s talk about the SUPER BOW…[SHHHHHH!!!]

Samsung has posted a really funny video of a Super Bowl ad where a fictional Samsung executive cautions two ad writers that Samsung may not use trademarked terms such as SUPER BOWL, BALTIMORE RAVENS, or SAN FRANCISCO FORTY-NINERS.

The video is a hoot, starring Seth Rogen and Paul Rudd as the young admen, and the incomparable Bob Odenkirk (the lawyer “Better Call Saul” from Breaking Bad) as the executive who lives in deathly fear of an IP lawsuit.

Perhaps the video is only funny to me because of my IP background. But I doubt that the humor is just for IP profs: after all, why would Samsung make a commercial just for me? Sadly, in our “IP licensing” culture, overblown IP claims are ubiquitous, and I have little doubt that the general public will immediately see the absurdity in the video’s “conclusion” that Samsung may only refer to the game as “THE BIG PLATE” (watch the video, you’ll see), and to the teams as the “BALTIMORE BLACKBIRDS” and “SAN FRANCISCO FIFTY-MINUS-ONE-ERs.”

You have to love the fact that Samsung — which lost a $1 billion IP suit to Apple (for patent and trade dress, the latter a variety of trademark) — is now professing a fear of overblown IP claims. Kudos to a company that can laugh at itself after it’s been told it committed a billion dollars worth of IP infringement.

Sadly, the real-world use by some of “THE BIG GAME” to refer to the Super Bowl is an example of an all-too-common feedback loop: overblown claims by IP rights owners, leading to third parties who self-censor out of fear of suit, leading to additional overblown IP claims. These feedback loops require little real-world litigation, instead relying primarily or solely on private IP enforcement. I wrote about similar feedback loops arising from private enforcement of IP rights in this article.

The video ably underscores the importance of doctrines such as nominative fair use, which when met, allows others to refer explicitly to the “Chicago Bulls” rather than having to use tortured phrases such as “the professional basketball team from Chicago.” Or for that matter, the need to talk about the “San Francisco Fifty-Minus-One-ers.” So, shame on you, NFL — or should I say, shame on the “premier professional football sports league in the United States.” Of course, this wouldn’t be the first time somebody’s pointed out the NFL’s seeming habit of overstating its IP rights.

On to The Big Game: I wish I could say I’m excited about the game, but it’s between the Forty-Niners (meh) and the hated Ravens (grr-argh). I’m a Steelers man through and through. As one joke said, I’d rather root for an asteroid, but I think host city New Orleans has seen enough woes as of late.

Thanks to law prof Michael Risch for bringing this nominative fair use example to my attention. Cross-posted to Infoglut Tumblr.

Updated 6/10 – video link was broken, changed to another location.

Get out of jail free: how the WWII Allies used the game Monopoly to help POWs escape

Most of us think of Monopoly as a board game. Intellectual Property folk also think of it as a source of IP issues: trademarks in the name, trade dress of the game, copyright, and even patents. But how about this: a POW escape kit?

Megan Garber writes in the Atlantic about how the WWII Allies used the board game Monopoly to help POWs escape. Turns out that the U.K. manufacturer and licensee of Monopoly, Waddington, had perfected a method of printing on silk, which is in turn an extremely useful way of making maps that can be easily hidden and which make no noise when pocketed or used. (Again patent issues in the method of making the silk!)

The games/escape kits were sent via fake charities:

Posing as “charities” . . ., [the Allies] sent packages to their POWs that featured clandestine escape kits — kits that included tools like compasses, metal files, money, and, most importantly, maps.

And: They disguised those kits as Monopoly games. The compasses and files? Both disguised as playing pieces. The money, in the form of French, German, and Italian bank notes? Hidden below the Monopoly money. The maps? Concealed within the board itself. “The game was too innocent to raise suspicion,” ABC News’s Ki Mae Heussner put it — but “it was the ideal size for a top-secret escape kit.”

As someone who grew up watching Hogan’s Heroes and movies such as The Great Escape, this is fascinating stuff. Although numerous maps were made and helped prisoners to escape, unfortunately, none of the Monopoly escape kits remain.

For more info, see the story Garber links to at ABC News.

Cross-posted at Infoglut Tumblr.