Digital media is an interesting thing. While most mainstream sites do not actively partake in the facilitation of fake news, a term with a very specific definition (i.e., entirely fabricated stories put forth for political or monetary gain), that is not to say that the information put forth by some of our "trusted" media sources is accurate. If ex-FBI Director James Comey’s recent testimony before the Senate Intelligence Committee is correct, even some of the country’s esteemed publications are not always putting forth entirelyaccurate info – at least not when it comes to classified information.
Kylie v. Kylie
With this in mind, this past winter, a widely-reported story involving Kylie Jenner and Kylie Minogue recently garnered widespread attention in connection with a bitter trademark war involving their names. “Kylie Minogue Wins Legal War with Kylie Jenner Over Name Trademark” read an array of headlines coming from mainstream media outlets after legal counsel for Kylie Jenner, the 19-year old reality television star and budding cosmetics mogul, filed to appeal an unfavorable trademark ruling in connection with her name.
The reporting surrounding the like-named stars’ legal debacle was arguably quite indicative of the state of media and reporting in the digital space.
Some background: The trademark proceeding between Jenner and Minogue got its start in the spring of 2015 when Jenner filed to federally register her full name, as well as variations of it, including “Kylie” and “Kylie Cosmetics,” with the U.S. Patent and Trademark Office (“USPTO”) in a number of classes of goods and services. While federal registration is not required to claim rights in a trademark, a registration – if granted – gives its owner the exclusive right to use the mark on a nationwide basis in connection with the goods/services listed in the registration and accordingly, to prevent others from using confusingly similar marks.
Before a mark is registered, any party who believes it may be damaged by registration of the mark may file an opposition, which is exactly what Minogue did. In February 2016, the Australian pop star, who already holds an array of federally registered marks in the U.S., initiated oppositions with the Trademark Trial and Appeals Board (“TTAB”), a USPTO administrative tribunal, arguing that Jenner’s “Kylie” and “Kylie Cosmetics” marks were too similar to her own already-registered marks and were likely to confuse consumers and damage her brand if registered.
The stars were able to settle the matter between themselves, and as a result, the matter was dismissed in January, and Jenner’s trademark applications were left intact.
In the meantime, Jenner was embroiled in an unrelated matter involving an application for one of her “Kylie Jenner” trademarks in the class of goods that covers clothing and accessories. She was, until recently, in the midst of a back-and-forth with the USPTO over the registrability of that mark, which the USPTO ultimately held was too similar to existing marks to be registered.
The USPTO, which examines every application for registration, initially refused to register Jenner’s “Kylie Jenner” mark in December 2015, stating that it is too similar to California-based Mimo Clothing's registration for “Kylee” in the same class of goods. The USPTO also held that the “Kylie Jenner” mark clashed with the “Kendall and Kylie” registration that Jenner also holds.
Jenner’s counsel was able to convince the USPTO that there was not a likelihood of confusion between Jenner’s proposed mark and the “Kendall and Kylie” mark due to her joint ownership of the two marks. However, the USPTO issued a subsequent decision in July 2016, stating that Jenner’s proposed mark is, in fact, likely to cause confusion in connection with Mimo Clothing's 2012 registration for “Kylee.”
Jenner’s legal team filed to appeal the USPTO’s finding, and when the international media moved to quickly cover the news, an interesting narrative emerged. A flurry of reports was led by the Daily Mail, a British publication, which published an article on February 4th, entitled, “Trademark our shared name? You should be so lucky, Kylie Minogue tells Kylie Jenner.”
Formulating a mix of the two separate trademark matters, the article read: “She may have lost her man but devastated pop princess Kylie Minogue has one small consolation – she has hung on to something else close to her heart, her name.” The article continued on to state that in connection with the Minogue vs. Jenner trademark battle, “The Patent Office rejected Ms. Jenner’s application [and] Jenner, who wants the name for her clothing and beauty empire, has lodged an appeal.”
The race to publish what Slate has characterized as one of the most “contentious … trademark dispute[s] in recent memory,” led well-known media outlets, ranging from People and Mashable to Forbes, Fox, and CNBC, to quickly parlay the Daily Mail’s flawed account of the trademark matter into articles of their own.
In addition to entangling the two distinct legal matters, most publications uniformly opted to highlight one of the more scandalous excerpts from Minogue’s February 2016 opposition. In arguing that registration of Jenner’s “confusingly similar” marks would damage her brand, Minogue asserted: “Jenner is a ‘secondary reality television personality,’ who has received criticism from disability rights groups and African-American communities” and is best known for her "photographic exhibitionism and controversial posts” on social media.
Such striking excerpts coupled with bait-y titles turned what could have otherwise been considered a run of the mill trademark matter into widely reported media fodder. W Magazine’s Kyle Munzenrieder, who penned an article on the matter on February 6th, noted in successfully distinguishing the two matters: “The reality is slightly more boring … Once you get beyond the tabloid-baiting drama angle, the details are excruciatingly boring and technical.”
The fashion magazine’s digital news editor appears to have done a bit of research before publishing his article, entitled, “Kylie Minogue and Kylie Jenner's Trademark Dispute Is Almost Over, Thank God.” Most notably, journalists for the BBC reviewed the official documents in connection with the trademark proceedings at issue, all of which are publicly available on USPTO’s website.
Samanthi Dissanayake, the Asia editor of the BBC News website, who oversaw the publication’s report, which was published on February 7th, said: “We found the whole story very interesting but while reading, we quickly realized that the reports seemed rather misleading. We noticed that all of the articles cited a single media report, which did not cite its source.”
As for whether she feared losing the first-on-the-scene advantage by devoting time to doing additional research, including reaching out to the parties involved, she noted: “We didn’t worry that we would be later. We wanted to provide the most accurate account that we could, given all of the publicly available information.”
A Larger Issue at Play
The Kylie v. Kylie is a rather innocuous example of the prevalence of inaccuracies in reporting largely outweighing any factually-sound offerings, a byproduct certainly of the first-is-best mentality inherent in breaking news coverage and digital media in general.
While the resources available to reporters and journalists, and the ease with which they can be accessed, are greater than ever before, the shift to digital media has not uniformly resulted in better cited articles but of a vastly sped-up publishing cycle that often lacks transparency. “There is pressure on everyone to be first and to correct later, if at all,” according to Dartmouth College professor and columnist Brendan Nyhan, who has written extensively on the accuracy of breaking news coverage.
This lack of balance between speed and accuracy runs rampant in part because “the disincentives of being wrong are so weak,” according to Nyhan. “Most inaccurate stories are never corrected or removed, and even if a correction is made, it rarely attracts the same audience as the initial sensationalized article.”
With this in mind, one of the more striking aspects about the pace of breaking news reporting is that while the first articles to be published are often the least accurate, “the initial stories shape the perception and coverage of those topics thereafter,” says Nyhan. And this appears to be exactly what occurred in connection with the trademark matter at hand.
The Kylie vs. Kylie articles come in the midst of a larger discussion of the publication of misinformation, largely in the political sphere, but also in fashion and entertainment, as well. A key element of this discussion is how the desire to attract clicks and viral sharing is often winning over careful reporting, at least when it comes to breaking news.
While Nyhan asserts that some outlets have tried to reduce the pressure to always be first, “the competitive pressures to produce new content are so strong. There a news holes you have to fill 24 hours a day, and there are armies of 20-somethings that don’t have time to do real reporting, who are encouraged to write up whatever is new, as fast and as cheaply as possible.”