Step Back From That Toy, Ma'am

Reader RDale sends along this charmer about the day when Stephanie Cox, owner of a toy store in Oregon, got the call from two Homeland Security agents:

"I was shaking in my shoes," Cox said of the September phone call. "My first thought was the government can shut your business down on a whim, in my opinion. If I'm closed even for a day that would cause undue stress."

What did they want? For Cox to remove a Rubik's Cube knock-off called the "Magic Cube" from her shelves. Quote of the day comes from Virginia Kice, spokeswoman for Immigration and Customs Enforcement (yes, that's "Kice from ICE," and I can testify personally that she looks and acts the part):

"One of the things that our agency's responsible for doing is protecting the integrity of the economy and our nation's financial systems and obviously trademark infringement does have significant economic implications."

Comments

[RandyAyn]

I?m confused by what Cox said after the encounter:

‘Aren’t there any terrorists out there?’

Hadn’t she just met them?

[Skeptikos]

I like to think of things these days in terms of how the history books will see it. It’s amazing how much of a seamless slide from freedom to…well, whatever form of horrific statism it is we are rolling towards.

Amazing that it only took one successful strike from Osama to achieve the main goal he iterated in his (first?) videotape. Take away our freedom. Did you ever think we had so many people ready to do just that? I did.

On one level you have to hand it to them, the shift away from freedom to this has been seamless. When it’s all over, and the constitution is gutted, and when we all have to answer to homeland security agents who know pretty much everything about us, and have no limitation on their power, how many will act surprised?

Talk about writing on the wall.

[chthus]

When’s the patent on that damn thing up anyway? Though this and the magic eight-ball knockoff I saw the other day may be an explanation for the slower than expected growth in the third quarter.

[rst]

I think it’s terrifying and hilarious. Terrifying because the government would without shame or embarrassment use Homeland Security to enforce IP, but then ask us to believe that the Patriot Act and Gitmo detentions won’t be tools of similar scope creep. Hilarious because in their customary clueless fashion, they acted without regard to the fact that the Rubik’s Cube patent – granted in the late 70’s – would have expired no later than ’99.

[Pavel]

I see you’ve turned the Friday Fun Link into the Friday OhGodPleaseKillMe Link.

[Psion]

It is my understanding that Customs is now under the direction of Homeland Security. See this page for an overview of ICE. As such, it is within the jurisdiction of Homeland Security, through ICE, to investigate intellectual property violations.

Chthus, please keep in mind that this wasn’t a patent issue. The patent on Rubik’s cube has expired … the trademark has not.

[Lowdog]

So Psion, just because Homeland Security has the jurisdiction through ICE to do these kinds of things, you think it’s a good idea?

Just wanna be clear.

[Mark S.]

So Customs’ officials get a complaint about a trademark infringement and they inestigate it. Do you believe that they should no longer do their job since they are under Homeland Security?

[Psion]

Lowdog, if it were a case of Homeland Security usurping and misusing those powers from another Federal Agency, then I’d be outraged. In fact, the previous Federal agency responsible for this has been integrated into Homeland Security. So if ICE doesn’t do it, which agency does?

That is, what Mark S. said.

[chthus]

Psion, thanks, I wasn’t making that distinction. Still, do they have the trademark for the word cube? It seems a bit stringent.

[Adam]

Assuming jurisdiction for trademark and other IP questions falls to Kice from ICE – why the hell is she bothering this lady in Oregon when here in New York the streets are absolutely littered with people selling knock-offs?

[Jennifer]

True story: in 1994, less than two blocks from the White House, I paid $20 for two watches: one “Gucci” and one “Rolex.” If knockoff sellers are terrorists, shouldn’t Homeland Security work on eradicating the ones in DC first?

[thoreau]

Actually, Jennifer, the person to arrest first is you. You were sponsoring terrorism and undermining national security by purchasing those knock-offs near the White House.

As to jurisdiction, yes, yes, I understand that Department of Homeland Security now has jurisdiction over this. I still think it’s kind of creepy. Many people are willing (however rightly or wrongly) to give Homeland Security a little more leeway and power than we’d give other law enforcement agencies. When that extra power is also available for missions other than fighting terrorism, well, I think we can all see how slippery that slope is.

[Jennifer]

Thoreau-
Ten years ago. Statute of limitations. The government can kiss my magnolia-white ass.

[thoreau]

Jennifer-

There is no statute of limitations on national security. Don’t you know we’re at war?!?!?! :->

[gaius marius]

lol thoreau — wake me when it starts. until then, if there’s trouble, call the cops.

what a sad state of affairs. 9/11 = pompey’s pirates.

[John M. Joy]

Um, actually, arent’t most trademark issues typically resolved via attorneys (i.e. Ms Cox getting a nastygram on fourteen inch paper from the Rubik people) and court orders? And… if the thing came from a company in Washington (and thus wasn’t imported)… why would Customs be involved?

JMJ

[Jason Bourne]

cthus,

This is not a claim of patent infringement, but a claim of trademark infringement. And a trademark never, ever dies unless the trademark holder gives it up (in one of varying voluntary and not so voluntary ways).

Adam,

For the Rubik’s folks to keep the TM they have to police the use of their TM fairly robustly in order to keep their TM (otherwise it may become “generic” through a process called “genericide”); I imagine the lawyers for the Rubik’s folks are just trying to create evidence of their continuing robust enforcement of their TM.

[RDale]

The thing that got me when I found that story (on slashdot :o)) was not so much the issue of jurisdiction (and it’s true that customs falls under DHS), but that it still seemed to be overkill, as well as some disregard for due process.

Even if they got the complaint, and even if it was a valid trademark issue, the normal (and appropriate) response would be a cease and desist order, not an invasion of a small retail shop. And also given that the manufacturer of the product was stated as being located in Washington state, then Customs should either not have been involved at all, or they should have focused their efforts on the manufacturer or point of entry.

Even if we argue that the whole affair was completely legitimate (and it may well have been), it seems to me that the act is the equivalent of stopping a jaywalker while ignoring the murder taking place across the street.

[thoreau]

I’m no lawyer, but my understanding as a (somewhat) informed citizen has also been that in trademark issues the company enforces it by having their lawyers send a nasty letter to the manufacturer, and then it goes through various stages of court battles, etc. Sending homeland security agents to threaten a store proprietor in what should really be a civil case strikes me as overkill.

Then again, much of what is done in the name of “Homeland Security” strikes me as overkill. Which, in my opinion, is an excellent reason for limiting the purview of the Dept. of Homeland Security. We can debate what their exact mission should be, but hopefully we can agree that trademark enforcement shouldn’t be part of it.

So, even if trademark issues are indeed part of their portfolio, that doesn’t mean that they handled it very well. Then again, is anybody surprised?

[Jason Bourne]

thoreau,

It depends; but the U.S. Customs Office does get involved with such issues quite regularly. Furthermore, TM & Copyright law has criminal aspects to it as well.

[Gene Berkman]

Maybe Virginia Postrel can do a blog entry on how this shows the Bush administration really, really cares about intellectual property rights.

[John M. Joy]

I dunno… this still sounds to me like there are more than a few rather pertinent details missing from the story. Without some court of competent jurisdiction ruling that a trademark has been infringed, and that Ms. Cox (among others) should cease and desist selling the offending objects and immediately remove them from the shelves, loose-cannoning into her store and bullying her into pulling the product sounds me as potentially actionable (if not by Ms. Cox than by the manufacturer).

Perhaps one of the Reasonpeople can don an “investigative reporter” hat with the press credentials tucked into it…

JMJ

[Jason Bourne]

Gene Berkman,

Yeah, she does bend over backwards in that regard.

[jc]

At least they had the decency to call it Homeland Security (HS) instead of State Security (SS).