Monday, September 20, 2010

This post commits a crime: another case of patent (mis)use by scamy trolls

So it seems that there's a new twist to the patent troll industry. In what appears to possibly be the first case of such silliness, Dr. Ann de Wees Allen, a supposed nutritional researcher with a Ph.D (unverified) and over 25 years experience, has successfully trademarked her own name and is threatening to sue anyone using it with out her permission. That means, of course, that this blog post has violated the law twice already just by mentioning Dr. Ann de Wees Allen (three times!) and that these stories all do so as well, putting us all in 'serious risk' of being sued.

Yes, I realize how absolutely stupid what Dr. Ann de Wees Allen is doing actually is, but the scary thing is that there are many people so confused by the workings of the patent system and why it exists that this kind of thing isn't really unexpected. It's just as much a testament to Dr. Ann De Wees Allen's ignorance of the system as it is one to the brokenness of that very system.

But it gets even better.

The patent isn't actually registered to Dr. Ann De Wees Allen but to a company called NutriLab Corporation, Inc, of which we can probably assume Dr. Ann De Wees Allen holds either a full stake in or possibly is one of many stakeholders. The problem with this, and something her law firm should have told her, is that since it's a corporation and, thus, a living entity run by a board of directors, Dr. Allen could be ousted from the company and they could continue to use her name without her permission. Worse still, since she doesn't own the patent herself, it would then become illegal for her to use her own name without the permission of NutriLab.

See how silly it gets? See why it's broken? See why it needs change?

The American patent system was never meant to be this way. It was not created to stop people from mentioning your trademark, but to stop brand confusion. A good example is a recent case where Microsoft Corporation brought suite against Mike Rowe Soft Corporation, run by one Michael Rowe. Someone wanting a product from Microsoft could easily be confused by the name Mike Row Soft and, thus, Microsoft's litigation was valid. It's all about preventing consumers from getting confused by similar names which could bring about problems for both the consumer and the legitimate trademark holder.

But Dr. Ann de Weese has no such intent. She's not worried about anyone calling themselves "Dr. Ann de Wees Allen" and selling competing products. She's worried about someone criticizing her product and mentioning her by name. She's trying to control what people write and say about her product by claiming a trademark that is inapplicable in this case. Courts have long held the right of consumers and journalists to use a trademarked name when they are reviewing, discussing, or, especially, criticizing, a company or individual. A site called WalmartSucks.com is a good example of that. Walmart sued, got smacked down by the court, and ended up offering the site creators boatloads of money to buy the site from them. Walmart obviously owns the trademark to their name but they could do nothing about the walmartsucks.com website. Other companies like GM, AT&T, and Ford Motor Company, have tried similar actions that all ended in the same disappointing result for them. Bottom line is you can't shut up criticism by claiming a trademark violation.

Personally, I love this situation. By claiming trademark violation, Dr. Ann de Wees Allen has guaranteed that her trademark will be 'violated' and, thus, provide an excellent new test of patent law. Unfortunately for her, she's also brought even more ridicule upon herself and definitely beefed up the image that many have of her as a quack. I guess we're just going to have to add 'patent troll' and 'trademark land grabber' to the list of names.

I don't know Dr. Allen and have never tried her products. In fact, I'd never heard of her before I read the story on Slashdot yesterday. But I can tell you this: after reading her ridiculous claims on using her name, I will never try her products. They might be fantastic and work exactly as described or better, but her greed and protectionist measures have shown me that she is potentially someone who can't be trusted as a curator of truth. How can I know if her stuff does what she says it does when I know she's trying to use patent law to shut up her critiques? Are there that many that she needs a cadre of lawyers to protect her? If so, why are there that many critiques if the products are so great?

So, in the end, Dr. Ann de Wees Allen has succeeded in getting my and a large part of the market's attention. Unfortunately, it was only to show us that she is not to be trusted and could be a total loony quack.

Number of times I've broken the law in this post: 11.

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