Happy Lunar New Year!

Today (Feb 18, 2007) is The Lunar New Year (aka Chinese New Year, Spring Festival, etc)). The Chinese "zodiac", like the western one, has 12 aspects to it, but rather than being monthly, they are associated with years. This year is the Year of the Pig or Boar. More specifically, this year is also associated with Fire, so it's the Year of the Fire Pig.

This is a HUGE deal in China because it's the only major holiday of the year - everyone gets it off, and it's like your birthday, new years eve and xmas all rolled into one. If you were hoping to do any business with the Chinese for the next, oh week or so, or last few days, fuggedaboutit. That's probably why your emails are not being answered ;)

Some facts about Chinese Year Year

Fireworks are traditional because the loud noises and red colors are said to scare away evil. Plus, it's fun!

The Dragon Dance is also common, and in the East dragons are considered good luck. If you look closely at most dragon dances, you will see people throwing cabbage to feed it - yes, that's part of the ceremony - most westerners miss it.

There is more information about Chinese New Year in wikipedia.

Happy New Year - Gung Hei Fat Choi

Many people don't say "Happy New Year" (新年快乐 - Sun nin fai lok), but rather say "Congratulations and be Prosperous" (恭喜发财 - Gung hei fat choi). If you have to remember one, I'd choose "Gung hei fat choi." (A close English pronunciation for US and Canada: "Gung Hay Fat Choy").

I always think of it as the Chinese equivalent of Spock saying "Live long and Prosper", but then I'm a geek...

The Pig or Boar

The Year of the Pig (Boar): the Pig represents Fertility and Virility - it's considered a good year to have a child. The Pig zodiac person is considered to be a honest, straightforward and patient, who tend to avoid the limelight and work behind the scenes. They are quick to offer support to others. They tend to be ethical and trustworthy.

The Pig type is seldom vengeful and usually very tolerant of other people's views and opinions. Like the boar, although they do not seek a fight, they will defend themselves and their friends/family fiercely. They tend to be good students and excellent friends.

Of all the Chinese Zodiac personality types, the Pig or Boar is the most universally admired.

Chinese Zodiac Predictions for 2007 - Year of the Pig

(Keep in mind I'm not an astrologer nor particularly psychic (I actually don't believe in zodiac influences - I just think it's interesting sometimes)- the following is based on traditional methods, rather than any particular skill or insight of my own.

Since this is the year of the Fire Pig, the normally easy-going nature of the Pig takes on some more fiery and passionate aspects. Here are some predictions from around the web for this year:

• This is a great year to work on or complete existing projects - not such a good year for starting new ones. This is a bad year for taking a lot of risks.


• It's an excellent time to start a romance or to take an existing one to a new level.


• A lot of money can be made this year.


• If you are a student or in acedemia, this could be a very good year for you.


• The Pig is a go-with-the-flow type - if you focus on enjoying life's pleasures and heating up your relationships, this will be a very good year for you!

Your Chinese Zodiac Sign

If you were wondering what your Chinese Zodiac sign is, you can look it up here:


Of course, it's a lot more complicated than this for true believers, but this is usually good enough for most westerners.

The Twelve Animals

RAT: People born in the Year of the Rat are noted for their charm and charisma. They are perfectionists and work very hard to achieve their goals. They are very thrifty with money yet like to acquire many possessions. They get angry easily and love to gossip. They have high ambitions and are quite often very successful. They are most compatible with people born in the years of the Dragon, Monkey, and Ox.

OX: People born in the Year of the Ox are patient, quiet yet inspire confidence in others. They are eccentric and temperamental. They speak little but when they do they are quite articulate. Mentally and physically alert, they are generally easy-going but can be very stubborn and they hate to fail or be opposed. They are most compatible with Snake, Rooster, and Rat people.

TIGER: People born the Year of the Tiger are deep thinkers, very sensitive and can have great sympathy for others. They are powerful and courageous. However, they can be extremely short-tempered and don’t respond to authority, especially if it’s from older people. They are sometimes indecisive and have poor judgment. Tigers are most compatible with Horses, Dragons, and Dogs.

RABBIT: People born in the Year of the Rabbit are articulate, talented, and ambitious. They are virtuous, reserved, and have excellent taste. They are admired, trusted, and are often financially lucky. They are fond of gossip but are tactful and generally kind. They are clever at business and often make the correct choices. They are most compatible with those born in the years of the Sheep, Pig, and Dog.

DRAGON: People born in the Year of the Dragon are healthy, energetic, excitable, short-tempered, and stubborn. They are also honest, sensitive, brave, and they inspire confidence and trust in others. They are the most eccentric of any in the eastern zodiac. They never borrow money, are very straight forwarded and tend to be soft hearted which sometimes gives others an advantage over them. They are compatible with Rats, Snakes, Monkeys, and Roosters.

SNAKE: People born in the Year of the Snake are emotionally and spiritually deep. They say little yet possess great wisdom. Snake people are often selfish and vain yet can show tremendous sympathy for others. They tend to rely on themselves because they have serious doubts about other people’s judgment. They hate to fail and are determined in whatever they do. Appearing calm on the surface, they are intense and passionate creatures. Usually very good-looking in appearance, they sometimes have relationship problems because of it. They are most compatible with the Ox and Rooster.

HORSE: People born in the Year of the Horse are very popular. They like to be entertained and like being around large crowds. They are wise, talented, and very good with their hands. They are cheerful, skillful with money, and perceptive, although they sometimes talk way too much for their own good. They are very independent and don’t listen to others advice. They are most compatible with Tigers, Dogs, and Sheep.

GOAT/SHEEP: People born in the Year of Goat are elegant and highly accomplished in the arts. They are wise, gentle, and compassionate On the surface they appear better off than those born in the zodiac's other years but are often shy, pessimistic and often puzzled about life. They are very spiritual yet timid. They are sometimes not well spoken but are always passionate about what they do and what they believe in. Their abilities will always make them prosperous so they are able to enjoy all the comforts of a good life. They are compatible with Rabbits, Pigs, and Horses.

MONKEY: People born in the Year of the Monkey are the erratic geniuses of the zodiac. Clever, skillful, and flexible, they are remarkably inventive, original in thinking, and can solve the most difficult problem with ease. They are sometimes impatient and must do things immediately and if they cannot, they become discouraged and give up easily. Although good at making decisions, they tend to look down on others. Having strong common sense, they have excellent memories and a deep desire for knowledge. They are very strong willed yet do not stay angry long. They are most compatible with the Dragon and Rat.

ROOSTER: People born in the Year of the Rooster are deep thinkers, very capable and naturally talented. They are very devoted and like to keep busy but are deeply disappointed with personal failure. They can be eccentric resulting in troubled relationships with others. They always think they are right and usually are. Being loners, they sometimes give the outward impression of being adventurous but are actually timid. They can be selfish and too outspoken, but are always interesting and can be extremely brave. They are most compatible with Ox, Snake, and Dragon.

DOG: People born in the Year of the Dog possess the best traits of human nature. They are great leaders, have a deep sense of loyalty, and are honest. They are very trustworthy because they can keep secrets. They can be very selfish and stubborn at times and can be emotionally cold and sometimes distant. They always have money but care very little for wealth. They are easy to criticize other and are noted for their sharp tongues. They are compatible with those born in the Years of the Horse, Tiger, and Rabbit.

PIG/BOAR: People born in the Year of the Pig are gallant and always give their best effort. They have tremendous fortitude, great honesty, and are very optimistic. They have few friends but the relationships they do have are lifelong. They are extremely loyal so their friendship is very prized by others and they are very kind to love ones. They have a great thirst for knowledge and study a great deal so they are well informed. They are quick tempered yet hate to argue. They are most compatible with Rabbits and Sheep.

Chinese Culture

Chinese culture is a hobby of mine, and a fascinating subject (sinology). One of the best ways to learn about it, of course, is to actually visit China. If you are a search marketer, I'd like ot remind you that time is running out to sign up for the China Search Marketing Tour. As a matter of fact, if you sign up before MARCH 5, you can get a $500 DISCOUNT!

The tour price now includes an SES Platinum Pass at no charge! I hope to see you there.

Ian

Now THAT'S a Super Proposal!

Rand Fishkin, of SEOmoz, proposed to his girlfriend Geraldine (aka Mysteryguest, now fiance) yesterday in a rather unique and spectactular way.

He created a website called MySuperProposal.com and then made a commercial that aired during the Super Bowl and her favorite show, "Veronica Mars", that contained the proposal.



Her response was mostly confined to shock, hugs and, eventually, "Yes!"



My favorite funny part was:

Rand (holding out ring): Will you marry me?
Geraldine (bearly able to breath): Oh, my god, I think I'm gonna puke...

Ahhh, love and romance.... ;)

Seriously, a big congrats to both of you! You can now begin introducing each other as "my fiance", which is a nice feeling....

Between Barrys proposal on Ask, and this one, you guys are setting the bar pretty high in the search community for marriage proposals!

Ian

Copyright, Trademarks and Pork Milk?

Reading the comments in Jennifers Lactivist blog about her pork problems is almost painful. Actually, it is painful.

In the old days, no one knew what the law was (so the government actually had to pass a law saying that they were deemed to know). Today, probably due to too much television, it seems that they now think they do, but don't.

Having a legal background, it's a pet peeve of mine to see people make statements that are outrageously false or at best on extremely shaky ground as if it were the absolute truth. You'd never hear a lawyer talk like that. Why? because they know better.

Some Examples (usually from anonymous posters):

...you knowingly and flagrantly infringed upon their copyright and trademark...

...Jen, you did violate trademark law.... Derivative works are *not* protected under the law...Trademark law exists to prevent people from cashing in on other people's work. ..

..You women are acting ignorant. This is just a simple case of copyright infringement. It doesn't matter if you are humorously promoting breast feeding infants, or if you are selling auto parts. I have nothing to do with the pork industry, but I am in advertising...You just can't use that phrase, even if you replace a word, because of U.S. Copyright laws...

There are a few common misconceptions here I'd like to clear up.

The Copyright, Creativity And Hard Work Issue

There is a lot of difference between a copyright and a trademark. One difference is, you can't have a copyright on a short sentence or phrase (like "The Other White Meat") because it's not long enough to have a significant amount of creativity to warrant it.

It doesn't matter if they had a team of professional marketers and spent a 100 million, or someone came up with it for free while half asleep after eating too many donuts during a meeting. It's not long enough to be creative enough to fall under copyright law.

To quote the US Copyright Office (which has jurisdiction):

What's Not Protected?

..

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.

...

So this isn't a copyright issue. That also means it's not a creativity issue. If there was enough creativity to be protected, then copyright would apply.

So pronouncements about "fairness" or "stealing hard work" and so forth are not relevant. A trademark is a trademark, and it doesn't matter if it's creative, boring, free, expensive or any of that stuff. Talking about it just muddies the waters and tells people you don't actually know what you are talking about. Same with talking about derivatives - it applies to copyright, not trademark.

Trademark law does concern itself with fairness, but only related to trade (commerce). You can spend almost no time or effort on a trademark and it's not suddenly "worth less", and if you spend a bunch of money to hire someone to make one for you (or buy it, like these pork.org did), it's not "worth more".

It's a trademark, and it's either valid or not. The amount of work or money you put into it is not an issue. There is an exception to this, related to "world famous brands" which I'll get into later on.

The "You Have to Protect Your Trademark" Issue

This one has more substance to it. The idea behind a trademark is to identify the holder of the trademark clearly. That's pretty much it. All of the other rules revolve around this concept.

Therefore, if someone other than the holder of the mark begins to use it, there may be confusion as to who the source is. Further, if a trademark holder fails to prevent others from using it, they may be deemed to have abandoned the mark.

So it's serious business and you need to protect it. Zipper, yo-yo, aspirin, and escalator all began as trademarks that were deemed abandoned because of a failure to protect the mark. You also have to use it, or it may be deemed to be abandoned.

It's pretty clear that pork.org are using it, since they have an entire website called http://www.theotherwhitemeat.com/ and the registered trademark symbol is all over it. I can't imagine anyone contesting this in good faith. Since they are apparently sending out C&C's to everyone they can find, I'm not about to argue they have abandoned it due to failure to protect it.

There is one other issue with Trademark law that is relatively new to the US (1995), and is the concept of dilution. Up until then, you'd have to show that there was a possibility of consumer confusion in order for trademark law to kick in.

One thing none of the posters quoted above seemed to realize is that trademark is exclusive to a TRADE and a TERRITORY, not a mark. You can have "Fred's Garage" properly and legally trademarked in 2 different States by two different people. It this was about creativity or hard work or whatever, then that could not happen. That's the territory.

Further, until Apple computers decided to get into the music business, they had little to fear from Apple Records, being in 2 very different industries back in the 80's. That's the trade.

Unless the Lactivist went into the pork-promoting business, traditional trademark law would not have been an issue.

But with the concept of dilution, the issue becomes fuzzy again. The idea behind dilution is to protect not only the trade and territory use, but also the distinctiveness of a mark. The idea is that if enough people use marks similar to yours, even through fair use and so forth, that the value of your mark would be diminished, and therefore should be protected. This brings us back to that "hard work and fairness" exception I mentioned earlier.

I won't get into whether I think this is a good idea or not right now, but this is where we are.

• It's not a copyright issue.
• It's not a creativity issue.
• It's not a money or hard work issue.
• It's not a traditional trademark issue (wrong trade)

But it could be a trademark dilution issue. So let's look at that. In this case, it doesn't matter if there is a geographic overlap or competition, what matters is the value of the mark itself (a departure from previous laws and rulings).
You can fall afoul of this if it can be shown one or more of:

1. Blurring - the removal of the brands distinctiveness
2. Tarnishment - use on poor quality products or in a unwholesome or unsavory context.

Any lawyer making a case creates a checklist for what triggers the act and goes through the list, trying to show something for each item on the list, which is probably where the claim, as weak as it is, about the "tarnishment" of their reputation came from.

In order to comply with the First Amendment in the US, there are some exceptions to this. Note that these are NOT DEFENSES - they are EXCEPTIONS. I noted that at least one poster said something to the effect of, "you broke the law, even if you think you have a defence".

The difference between a defence and an exception in this context is that a defence says that you broke the law, but there is a special punishment (which can actually be a lack of punishment).

An exception is an area where the law doesn't apply, period. There is no breaking of the law, and no defence necessary (assuming you can show that the use is excepted).

I know this sounds like almost the same thing, and in practice it pretty much acts like it, but since this whole case is about words and their use, there is little room for sloppy use of them.

So, what are the excepted areas?

First, you need to show that the mark is considered to be "famous" for the dilution concept to apply.

Since very few people outside of the US have heard of it, you could argue that. On the other hand, they sure paid a lot for it, so someone must have thought it was well known enough to be worth millions. I'd lean towards it being famous, myself.

Once you have done that, these are the exceptions:

1. "fair use" of a mark in the context of comparative commercial advertising or promotion;
2. non-commercial uses, such as parody, satire and editorial commentary; and
3. all forms of news reporting and news commentary.

So *I* can use "The Other White Meat" because I'm reporting and commenting. Bully for me!

The National Poultry Association, I suppose, could probably use it to compare whether or not pork really counts as "white" meat compared to chicken.

The Bottom Line

So that leaves the Lactivist, with everything else pared down to this:

Does the shirt/quote in question trigger the dilution act, and if it did, does it fall under a non-commercial use, such as parody or satire?

That's it. That's the issue. All the other copyright, trademark, yadda, yadda means nothing, and it boils down to the following:

1. Does the use trigger the Federal Trademark Dilution Act of 1995 - ie does it cause blurring or bring disrepute to the brand holder?
2. If the act is triggered, was this a non-commercial use such as parody or satire?

If it fails either, then there is no issue. If it passes both, then there is a big problem.

One thing blurring things here is the "non-commercial" part of the second part, since the shirts were being sold through CafePress. Does the fact that the funds were donated to charity make it non-commercial, or does the fact that money is changing hands make it commercial? Does the fact that CafePress make money off it matter?

This post is getting long, so I'm going to go look up some more case law and finish this later.

Ian

Pork, Porn and Shirtless Moms

How on earth does an organization promoting something as lascivious-sounding as "pork" (as in porking, getting porked, etc) decide that it would be a good idea to tell a woman to remove her shirt immediately because the promotion of breastfeeding using "the other white milk" was so naughty sounding it might make them look bad?

See, a colleague of mine, Jennifer Laycock, started a website (The Lactivist) a while ago for two reasons: 1) to promote a cause she believes in, breastfeeding, and 2) to demonstrate to new SEO's how to promote a website from start to finish.

Through the use of savvy marketing and very clever marketing and slogans, she did quite well.

Then along came the National Pork Board with a C&D that claimed she was violating their trademark with one of her (very funny) t-shirt slogans: "The Other White Milk".

Ok, I might be able to write this off as institutional auto-pilot (sue everyone and sort it out later), but as part of the C&D the claimed the following:

"In addition, your use of this slogan also tarnishes the good reputation of the
National Pork Board's mark in light of your apparent attempt to promote the use
of breastmilk beyond merely for infant consumption..."

So, apparently, if a breastfeeding site makes any reference to breasts, it's pornographic and likely to "tarnish the good reputation of the National Pork Board's mark".

I guess it's only OK to feed your kid breast milk if your breasts are not involved in the process.

I have a better idea. Maybe it would be better to only feed your kid if pork is not involved. Myself, I'm banning pork from the house for as long as this goes on.

On a related note, let's take a look at pork's reputation, shall we? You can't claim your reputation has been harmed unless your reputation is good enough to be harmed in the first place.

I was recently involved in a case where someone sued a blogger regarding comments, claiming that the comments hurt their reputation. The problem is, they had such a bad reputation to start with it would not have been likely the comments would have had any effect at all!

Let's start with an early example - God prohibiting pork because it's unclean in the Bible. I'm not religious, but I would tend to think that kind of thing is more likely to harm pork's reputation more than a breastfeeding kid, but that's just me.

Maybe they should sue God! Or serve a C&D on current Bible publishers to remove that part. If it works, I'm sure other people have other parts they would like to remove too, because it makes them look bad.

Oh, wait, we are only talking about the trademark "The Other White Meat". I can imagine that they are sensitive about this, since they just bought the rights to it for $60 million and probably want to protect it.

Fine, so they want to protect their investment. The value of the investment is based on it's reputation.

Therefore, they are attacking a breastfeeding site. Ummm....

Thing is, because of this incredibly ham-handed (pun intended) attempt at protecting their reputation by besmirching the reputation of others, they have almost certainly irreparably damaged it. Certainly with me and many others.

Pick a fight between moms trying to promote healthy kids VS a polluting, chemical laced product that constitutes the main ingredient of spam and, well, you get what you deserve, frankly.

Ian