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Taser International Sues Second Life Creator Over Virtual Replicas 119

Posted by Soulskill
from the wait-what dept.
Massively is reporting on a lawsuit filed by Taser International against Linden Lab, the company behind Second Life, over in-game sales of virtual replicas of Taser's products. Quoting: "Basically, a few people in Second Life make some digital replicas of Taser's products that do not have the same function as Taser's products, or props that have the Taser name, but do not have any functions or resemblance similar to Taser products. Some of these content creators also manufacture/sell material that Taser describes as pornographic, or offensive, and they feel that their brand is being linked with these prurient materials, and that they're losing business and sales to Linden Lab. ... Normally you'd just have the content creators named as defendants. Taser's complaint doesn't show much (if any) understanding of what's going on, but it does seem as if they have inadvertently hit a nail on the head. Since Linden Lab's acquisition of Xstreet SL, the Lab is no longer mediating transactions between buyers and sellers. Xstreet SL arguably retails on behalf of sellers, and takes a commission. It's going to be difficult to argue that the Lab/Xstreet SL is not selling these items. That potentially places the Lab in the liability loop."
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Taser International Sues Second Life Creator Over Virtual Replicas

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  • second life? (Score:5, Insightful)

    by Turiko (1259966) on Sunday April 26, 2009 @06:30AM (#27719957)
    when you register, linden labs clearly states that what the people make is their work, and linden labs doesn't interfere... so why does taser try this? They need to contact the maker, but of course it's easier to get linden labs.
    • Re:second life? (Score:5, Insightful)

      by shentino (1139071) on Sunday April 26, 2009 @06:47AM (#27720037)

      Some nutcase judge is probably going to rule against LL.

      Judicial ignorance of modern technology is at an all time high these days after all.

    • Re:second life? (Score:5, Interesting)

      by jamesh (87723) on Sunday April 26, 2009 @07:43AM (#27720199)

      when you register, linden labs clearly states that what the people make is their work, and linden labs doesn't interfere... so why does taser try this?

      Because having that disclaimer there doesn't (necessarily) mean squat.

      If you have a sign in your shop that says "we don't give refunds", and a court orders you to do a refund, then you give a refund.

      If you have a sign in your playground that says "enter at own risk. we are not liable if you hurt yourself", and someone hurts themselves, and a court deems that you were negligent, then you will be liable.

      Forget about the "right thing" here because Taser don't care.

      They need to contact the maker, but of course it's easier to get linden labs.

      I think you've answered your own question there. Not just because it's easier, but because it's more likely to succeed.

      It could be an interesting court case though...

      Taser: Someone is making Taser branded dildo's in your game. Make them stop and give us some money for damaging the image of our products.
      Linden: You can't sue us, you have to sue the person playing the game who is responsible for infringing on your trademark.
      Taser: Okay then, who is that?
      Linden: We're not going to tell you, without a court order.

      time passes...

      Taser: Here's a court order, give up the details
      Linden: Hmmm... all we seem to have is a name "I. P. Freely" and a post office box in Sweden. Maybe you should contact their ISP?
      Taser: What is their ISP?
      Linden: We can't give you that information without a court order

      and so on.

      • by jamesh (87723) on Sunday April 26, 2009 @07:45AM (#27720209)

        Taser: Someone is making Taser branded dildo's in your game.

        Actually instead of suing, maybe Taser should start making them in real life?

        Taser - Electrify your love life!

      • by KDR_11k (778916)

        However AFAIK the DMCA absolves providers of services that allow user uploads of legal trouble as long as they obey the whole DMCA claim/counterclaim procedure.

        • Re: (Score:3, Insightful)

          by Bigjeff5 (1143585)

          This is trademark infringement, not copyright infringement. The DMCA doesn't apply at all, trademark law does.

          There would be little to no case if the items hadn't been branded "Taser". I believe there are cases for trademark infringement on the design of the device, if the original is distinct enough and the immitator is close enough.

          If it were a copyright case it would be pretty open and shut - Taser doesn't sell a digital version of their device, so recreating the device in the game is fair use. Sellin

          • by u38cg (607297)
            A trademark can be a 3D design, just as it can be a word or a logo. The classic Coke bottle shape was one of the first such trademarks IIRC. But there's no legal difference between these and any other.
          • by rtb61 (674572)

            Trademarks are also bound to product types for example http://www.purax.com.au/products/microsoft-quilts [purax.com.au] versus http://technet.microsoft.com/en-gb/default.aspx [microsoft.com]. So the trademark for a product that clearly has nothing to do with other companies holding the same trademark name but for completely different products can also pass. So unless Taser is also manufacturing range of dildos in addition to it's range of lethal weapons, then it has a fair complaint otherwise it is completely invalid and that is not eve

        • by jonbryce (703250)

          DMCA is the Digital Millennium Copyright Act. This issue relates to Trademarks.

          The only issue here is whether or not Taser's trademark extends to virtual gadgets in online games. Different people can own the same trademark in different product lines. Lotus for example is a range of software sold by IBM, a range of Sports cars, a range of shoes, and a type of fruit.

        • by uncledrax (112438)

          That requires they adhear to the DMCA's Safe Harbour guidelines (Wiki Sez.. [wikipedia.org].

          Unfortunately I don't know enough about the actual legalese of the provision or Lindon Labs to know if they qualify as Safe Harbour, but just because I'm a middle man doesn't automajickly grant safe-harbour protections.

      • How relevant is that to these idiotic claims from the article?

        and that they're losing business and sales to Linden Lab. ...

        It's going to be difficult to argue that the Lab/Xstreet SL is not selling these items. That potentially places the Lab in the liability loop."

        Who cares? These are virtual products, right? So, if I buy a virtual Tesla, I can drive it in real life? And my virtual taser will work too?

        It's not loss of sales, it's exposure of their product - which will doubtfully be harmful in any way.

        Not even by their "Gee, some of these places also sell pornographic or obscene stuff" - so does my local gas station. I've never felt a connection between the fact that they sell gas, and porno mags/DVDs a

        • Honestly, think about it, if someone cant tell the difference between a taser, a dildo, and a carton of eggs - or create some imaginary relationship between the various companies that make the above; then they are definitely not people we want buying a taser anyway.

    • by Z00L00K (682162)

      They are only trying to get free commercial time on TV for their products.

      This is a case where all publicity is good publicity - even if the case fails in court it may be cheaper than buying commercial time on TV.

    • Well, some lawyer needs to justify his retainer and outrageous salary to Taser International. Remember, there's (almost) nothing stopping you from filing a lawsuit just because you feel like it. And quite often, just filing a lawsuit is just like winning one: all it takes is to make contesting the lawsuit more expensive than just caving in.

    • Because

      - It's easier to do that than to try to find out who actually sold the goods.
      - Judges don't know the difference either.

      In a nutshell, they just sue someone and hope for an incompetent judge. Experience tells us it works far too well.

    • by JWSmythe (446288) *

      That, and most other disclaimers are completely worthless.

      What if you had signs around the perimeter of your property at 6' intervals, written in a dozen languages to help insure it can be read by anyone, which says "Warning: Trespassers will be shot."? When someone walks past the sign, you can't just shoot them. Well, you can. You will also go to jail for premeditated manslaughter, to which you provided the evidence for.

      Prosecution: So you had planned to mur

    • when you register, linden labs clearly states that what the people make is their work, and linden labs doesn't interfere... so why does taser try this? They need to contact the maker, but of course it's easier to get linden labs.

      You're missing the point... Linden is $worth$ $going$ $after$, the (probably) tweenage kid selling these things on 2nd Life isn't.

  • Trademark Scope (Score:5, Interesting)

    by maroberts (15852) on Sunday April 26, 2009 @06:34AM (#27719981) Homepage Journal
    Trademark scope is narrowly defined and may not be recognised in a virtual world...
    • by Jurily (900488)

      Trademark scope is narrowly defined and may not be recognised in a virtual world.

      Duh. Has anyone ever got in jail for killing someone in WoW? Why should trademark work differently?

      LL should put up a splash screen saying "This is not the U.S. Its laws do not apply here, motherfucker". Then again, most Americans wouldn't understand it, and everyone else already knows.

      • by tomhudson (43916)

        LL should put up a splash screen saying "This is not the U.S. Its laws do not apply here, motherfucker". Then again, most Americans wouldn't understand it, and everyone else already knows.

        They'd need to move the servers to another country to be able to do that ...

      • Duh. Has anyone ever got in jail for killing someone in WoW? Why should trademark work differently?

        Because there may be some slight difference between criminal law and tort law? How about this for a better analogy: has anyone ever got in trouble for selling online copies of books that they didn't write or publish? Uh, yeah.

        LL should put up a splash screen saying "This is not the U.S. Its laws do not apply here, motherfucker". Then again, most Americans wouldn't understand it, and everyone else already knows.

        Linden Labs is in the US. Its servers are in the US. I think most Americans would agree that that puts them under American law, even if you don't understand that. The rest of us realize that virtual worlds aren't real.

        • by MaggieL (10193)

          LL should put up a splash screen saying "This is not the U.S. Its laws do not apply here, motherfucker". Then again, most Americans wouldn't understand it, and everyone else already knows.

          Linden Labs is in the US. Its servers are in the US. I think most Americans would agree that that puts them under American law, even if you don't understand that. The rest of us realize that virtual worlds aren't real.

          Virtual worlds aren't outside reality; they are contained within it. The content of the Second Life grid

      • Duh. Has anyone ever got in jail for killing someone in WoW? Why should trademark work differently? LL should put up a splash screen saying "This is not the U.S. Its laws do not apply here, motherfucker". Then again, most Americans wouldn't understand it, and everyone else already knows.

        Uhhh. I don't think you really understand how this works. There is dividing line between offline (real) life and online (virtual) life. Virtual worlds are part of the real world and have to obey the same laws. This can get confusing at times, with virtual property and virtual identities which are not the same as their real life counterparts. basically you can easily get confused by word games. It also gets difficult because of the easily crossed borders and anonymity.

        A virtual person is not the same as

        • by tsm_sf (545316)
          A virtual person is not the same as a real person. That's why you don't go to jail for killing someone in WOW. If you infringe on a trademark you can get in trouble, no matter in what way (using what medium) you did it.

          I don't think anyone would argue w/ the accuracy of that statement, but it's interesting to note that we consider some virtual actions "real" and others "fake". If selling a Taser branded torture device online is considered harmful to an entity, you're already making a ton of assumptions
    • Re:Trademark Scope (Score:4, Interesting)

      by julesh (229690) on Sunday April 26, 2009 @08:41AM (#27720443)

      Trademark scope is narrowly defined and may not be recognised in a virtual world...

      Forget for a moment the entire virtual world aspect of this, as its legal ramifications are (at present) totally unknown.

      Ignoring that, what we have is a company (Linden Labs) selling data which when loaded into software that runs on client PCs causes that screen to display an image of something that looks like one of Taser's products. When selling this data, they are explicitly stating that it is modelled on one of Taser's products.

      Frankly, I don't see the difference here to somebody selling a stock photo of one of Taser's products [corbis.com], for example. What Corbis are selling in that link has no significant differences that I can see from what Linden are selling. Except that Corbis's looks better, while Linden's is more useful because you can view it from any angle.

      • Frankly, I don't see the difference here to somebody selling a stock photo of one of Taser's products [corbis.com], for example. What Corbis are selling in that link has no significant differences that I can see from what Linden are selling. Except that Corbis's looks better, while Linden's is more useful because you can view it from any angle.

        Yes, and depending on how you use that picture, you could be infringing the trademark. If you use it for educational purposes, as you have here, you're fine. If you use it along with a news article, you're fine. If you use it as marketing materials for selling your taser-knock off... then you're engaging in unfair competition and trademark infringement. It's your use that's the issue, not the mere fact that Corbis sells a picture. Trademark infringement isn't about using the mark itself - I could put up a w

        • by walt-sjc (145127)

          A Taser in SL is - well, not real - in any sense of the word. It's like a cartoon. The ONLY claim Taser has is trademark, and about the only thing they could do is get an order for LL and content creators in SL to stop using the Taser name. It will be nearly impossible to show that they were financially or reputation damaged, in any way.
          Cartoon people role play with these fake cartoon devices. They are not selling a "Taser Knockoff" since it is not a physical object you can touch.

          SL is loaded with people ta

          • So here's an off-topic hypothetical for you (not meant as a counter-illustration, I think you're mainly right). What if Taser (or Rolex) decided to sell virtual models of their real products in SL? And to bring things closer to the actual topic, do you think a claim by Taser that they would have greater difficutly entering that virtual market, or in the alternative that the value of their virtual products would suffer because of the dilution of their brand, would have any weight? I don't pretend to have an

            • by walt-sjc (145127)

              As I said (or implied) I think they do have a right to ask (demand) that their name not be used in someone's cartoon object. As for whether they would have difficulty entering the market, I seriously doubt they would bother when you can only get a dollar or two at the most per sale, and their expenses would be 50 times that.

              I would bet that MOST content creators (with a few exceptions) don't make a dime really, or find that their work is valued at something like 5 cents an hour.... A lot of them are just do

        • by julesh (229690)

          It's your use that's the issue, not the mere fact that Corbis sells a picture.

          You missed my point. Linden Labs' use is analogous to Corbis's use. They're just selling the data that shows what it looks like, which is the same as selling a picture. It's their users that decide what to do with that data.

      • by rcamans (252182)

        Trademark is about protection from imitators in the real profits world. If LL is doing sales, then trademarks work there.

      • Re: (Score:3, Insightful)

        by zappepcs (820751)

        There is a difference. Imagine all that you said, but replace Taser with Mercedes. The virtual world part cannot be ignored. What LL is doing is 'selling' something that when combined with the virtual world has the ability to look like someone's product. LL did not create this 'something' nor do they promote it any differently than they promote any other products being virtually sold to virtual people in a virtual world.

        The DMCA (w/s)ould apply.

        BTW, I can create something that is modeled on anyone's produc

      • by JWSmythe (446288) *

        Have you ever noticed that in some TV shows, and many B movies, the logos on cars are removed? Pay attention. Usually they are slick about keeping them out of the frame, but sometimes they do really ugly obvious things to hide the logos.

        I saw something on TV a few weeks ago, where the lead character was driving a Mercedes. It was obvious that it was a Mercedes. I had no doubt that it was a Mercedes. But, the grill logo had been removed, and a black blank had been put in it

        • I think the logo removal is more about keeping viewers from thinking that the company is paying for product placement, especially if another brand is paying them.

        • But, the grill logo had been removed, and a black blank had been put in it's place. They hadn't acquired rights to use the Mercedes logo in their show.

          You do not need any rights to use a product bearing a logo in a film or TV show. Trademark protection covers the use of a mark in commerce in a certain field, not all use everywhere (as much as various litigious bastards would like it to be otherwise).

          However, if your show is sponsored by BMW, they may not want you to show the Mercedes logo. And even if y

      • by Dreben (220413)

        LL is selling a 'gaming experience', not photos and particularly not of photos of TM products. 2nd, I would think some element of 'fair use' would come into play here. At what point will park bench designers, fashion designers, civil engineers, etc., not want a piece of LL's profits? I see a USSC ruling all over this one. Perhaps even a constitutional amendment addressing virtual worlds.

    • Not only that:

      props that have the Taser name, but do not have any functions or resemblance similar to Taser products.

      Taser would be OK with actual Tasers being made and sold in SL?

      WTF?

      • by hedwards (940851)

        What they're complaining about is trademark dilution. They might very well be fine with virtual actual Tasers as that could possibly serve as advertising.

        But in this case I really don't see how Taser is wrong, somebody is using their trademark to refer to something that isn't a Taser and apparently doesn't even function in the SL the way that a Taser would in real life.

        • Re: (Score:1, Informative)

          by Anonymous Coward

          If I make a new gun mod for Quake, call the gun McDanks and put a small McDonalds logo on the side because it shoots lard balls instead of Rockets in not was has anything to do with Trademark. Here's why (in laymen terms):

          You can call a new product by another companies old product name, so long as there wouldn't be any confusion. For instance, you cannot call your new clothing line by the same name I've given my clothes brand. But you /can/ call your new ice cream the same as my clothing brand -- there i

      • Brand name and quality association. Think of someone selling low quality Rolex watches. An unsuspecting victim buys one (let's assume not from a "genuine rolex vendor" at some beach, where common sense should tell you you're buying an imitation) and the watch fails to work.

        What will the victim think? "Rolex ... big name and shoddy quality".

        Taser would probably also prosecute people selling "working" Taser products, maybe they would not (because they don't care and there is no "real" market for them). They a

        • But if they "do not have any functions or resemblance similar to Taser products" then they're not diluting a brand.

          Remember the whole Apple Computer/Apple Records spat?
          They decided there was no chance for confusion, as computers and music were completely different products, so Apple Records left Apple Computer alone, and allowed them to keep the name. Can't remember whether that was a court decision, or not.

          But then, iTunes comes along, and all of a sudden Apple Computer, and Apple Records (the older compa

          • The difference is that the "products" sold in 2nd life are virtual electrical tools, and that's well within the range of "real" Taser products. If they sold, say, Taser Ice Tea (and made sure the logo doesn't even remotely resemble the original one, also an important factor), the real Taser company would probably not have a case. Although, IP laws have changed a lot since the original Apple Records vs. Apple Computers struggles, so I wouldn't rule it out that Apple vs. Apple doesn't mean a lot anymore.

        • They are certainly interested, though, in having their product being associated with quality products.

          Assuming, that is, that a potentially lethal torture device is a "quality product".

    • Trademark scope is narrowly defined and may not be recognised in a virtual world...

      Why not? Trademark is not about the mark itself... Trademark is about the association that it creates in a consumer's mind between the mark and the manufacturer. If I mention "Chicken McNuggets", the strength of the McDonald's trademark is such that the "McFooditem" is instantly associated in your head with the manufacturer. Likewise, if I was to say "Windows for Workgroups", you instantly think of Microsoft.
      The fact that I've said both these things on an electronic message board doesn't mean you didn't ha

    • So obviously Taser's lawyers need to create characters inside the game, and virtually sue the offending persons I'm very surprised they have not already though of this.....
  • I think it pertinent (Score:4, Interesting)

    by Starmengau (1367783) on Sunday April 26, 2009 @06:37AM (#27719993)

    ....that I had absolutely no idea there was such a company, and have thought for at least 15 years that "taser" was a generic term.

  • does not compute (Score:5, Insightful)

    by ChienAndalu (1293930) on Sunday April 26, 2009 @06:42AM (#27720015)

    Is it my hangover or is the sentence?

    Basically, a few people in Second Life make some digital replicas of Taser's products that do not have the same function as Taser's products, or props that have the Taser name, but do not have any functions or resemblance similar to Taser products.

    So... what did those few people do?

    • Re: (Score:2, Funny)

      by asdfx (446164)

      I like that the sentence begins with the benignly presupposing phrase, "Basically...", as if the material following it is set to simplify and clarify the content of the article. Then it goes on to make things more incoherent, with poor use, of punctuation, in, the explanation,. comma, comma, period.p

      In other words, "blarf grrblle grble, lasne en fragne, rabble rabble rabble, chuck norris."

      • The word "basically" is horribly abused, and is generally used at the beginning or end of sentences to indicate that 1. the speaker is really super-intelligent and understands things at a far deeper level than the listener ever will, and 2. the speaker is an insufferable dork. Basically.

    • by Ant P. (974313)

      Basically, a few people in Second Life make some digital replicas of Taser's products that do not have the same function as Taser's products, or props that have the Taser name, but do not have any functions or resemblance similar to Taser products.

      relevant part in bold

  • by Anonymous Coward
  • ...is another man's advertising. I mean, people pay good money to get their brands into games. I wonder how much Taser would have to pay to get an "authorized" virtual product into 2nd life now.

    • by will_die (586523)
      That is probably the biggest reason that Taser will win. SL is filled with advertisement from actual companies so now you have Taser branded stuff mixed in with that so what is an actual product with approved advertisement and what are fake items.
      • by argent (18001)

        SL is filled with advertisement from actual companies

        It is?

        • by will_die (586523)
          Yea you have companies from American Apparel and Red Bull who have hired people in their marketing departments who work in SL.
    • I'm fairly sure taser would not be so outraged if those items actually worked. If you could get a taser to get rid of a stalker by putting it to him and he's stunned for a minute or ten, I guess they might be happy about the quite nifty ad.

  • by dohzer (867770) on Sunday April 26, 2009 @08:34AM (#27720421) Homepage

    Just the other day I was wondering why the Taser was called a 'Teaser' in the Nindendo DS game 'GTA: Chinatown Wars'. Now I know. :)
    I was thinking it was just a joke.

  • Taser International is about as close as you can get to the kind of evil portrayed in SciFi flims without going to the theatre. I hate those pricks.

  • by RogueWarrior65 (678876) on Sunday April 26, 2009 @11:12AM (#27721137)

    This seems pretty cut and dried to me. This is not like Monster Cable suing a mini-golf place. Monster is a word that existed in the English language long before it was ever used to describe cables. Taser on the other hand is an invented word and is therefore trademarkable and should be protected. It no different than somebody trying to pass off a Zune as an iPod, virtual or otherwise.

    • by DragonTHC (208439)

      agreed. trademarks are 'defend it or lose it'

      Taser has a right to defend their trademark. On the other hand, it will be interesting to see if they can defend a word that has become synonymous with stun gun.

      • by SL Baur (19540)

        Taser has a right to defend their trademark. On the other hand, it will be interesting to see if they can defend a word that has become synonymous with stun gun.

        Merriam-Webster gives as a definition:

        Function:
        trademark

        --used for a gun that fires electrified darts to stun and immobilize a person

        http://www.merriam-webster.com/dictionary/taser [merriam-webster.com]

        Contrast that definition to another (real) common word that has been trademarked (windows). Neither Microsoft nor trademark appear at all.

    • The problem is they are suing the newspaper for the classified ads (the exchange website) that someone else is using to sell the item that violates their trademark.

      And for the record SLX is super fast on responding to trademark violation in removing the item from the listings, and if Taser filed a proper DCMA request LL would respond as well in world.

      It's Taser's job to file the proper paperwork and work with the system, since LL does not vet any content the users create. (There does... and look at how well

      • by bersl2 (689221)

        And for the record SLX is super fast on responding to trademark violation in removing the item from the listings, and if Taser filed a proper DCMA request LL would respond as well in world.

        Only this is a trademark issue, which I don't think the DMCA regulates. However, I think that a save haven for service providers over trademark would be a good idea in light of this incident.

        • by jonbryce (703250)

          They can't file a DMCA notice because they don't own the copyright. The creator of the virtual taser owns the copyright.

          They own the trademark, and that's what this complaint is about.

        • Same thing, really. file a trademark complaint and SLX pulls it in a hearbeat. they did it for Ford, Jeep, NFL, etc...
      • Somehow I think that the Taser legal team doesn't spend a whole lot of time surfing for Second Life stuff. My guess is that it was brought to their attention from outside the company and they're taking the action of not wanting their brand being associated with unflattering uses. Imagine if Xerox were in danger of becoming only known for body part artwork. I'd think they'd sue an entity that was promoting such activity using the Xerox name. In addition to which, if the New York Times was advertising som

        • Re: (Score:2, Informative)

          by Hellershanks (1315357)

          Here is the thing: It is more akin to youtube than the classifieds

          If someone on youtube uses trademark or copyright materials, youtube as a corporate entity knows nothing about it because they do not vet or veto any content uploads.

          They have no hand in the content creation at all (unlike say There where everything has to go through corporate governance)

          So till the corporation brings it to LL/SLX's attention they can't act because they know nothing about it (a good example was during the superbowl there was

    • This seems pretty cut and dried to me... Taser on the other hand is an invented word and is therefore trademarkable and should be protected.

      Not necessarily. As another response pointed out, the name has become synonymous with stun gun devices to the point that the vast majority of people don't know it's a brand name. See: Kleenex.

      • All the more reason for Taser Intl to keep it from becoming part of the lexicon. Taser spends a lot of money dealing with litigation. Last I checked, all but one case were thrown out. If a company comes along selling stun guns that are blatantly lethal and people think they're Tasers, trial lawyers would love to sue Taser Intl. in class-action fashion.

  • Long-Arm statutes were bad enough when they let one state reach into another state. Or one country into another country. Now they're trying to extend this to whole new worlds - and not even real worlds, no less. This is not a good direction to be going because it means all our current problems are just going to be ported into any new worlds we find, create, or discover.
  • I mean, the RIAA only go after ISPs to get the *identity* of violators. This is like the RIAA suing TWC and SWB to recover the money from file sharers.

  • Someone took my idea for a red colored car! I'm suing the state of washington for providing the roads they drive it on!
  • If they're that concerned about protecting their brand name, they should sue those police officers who've been using their products to torture and kill people IRL.

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