Roca rocked; Randazza revels

Are we thin yet?

You may have already read the previous post, only from yesterday, about the Roca Labs v. PissedConsumer follies.

If you have, great.  If you haven’t… maybe you want to come back to it after you read this — in which our dashing hero, well… dashes some brains against some rocks, or some … Roca:

Roca Labs vs. PissedConsumer Report and Recommendation

Bottom line: Suing consumer review sites is just getting stupider and stupider.

“I don’t even own a TV”—Aereo (Part Two)

Originally posted 2013-04-12 12:20:01. Republished by Blog Post Promoter

aereo-logoFamiliarity of the reader with Part One is presumed.

As I read the Second Circuit decision, I was pleased—for reasons I can’t quite, and won’t bother trying to, articulate—that the appellate court was affirming the denial of a preliminary injunction in part, at least, because the granting of the injunction would probably have “severely harm[ed] Aereo, likely ending its business.”

Yet I was at the same time bothered by something I couldn’t quite put my finger on, until I did, and it was nothing other than the acknowledgment by the Second Circuit (immediately preceding the one just quoted) that “the [district] court concluded that the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction.” Which means, of course, that right now—and since March 14, 2012, when Aereo began providing its service to subscribers… and through tomorrow, and the day after, and the day after that… until such time as the plaintiffs prevail in the two lawsuits pending in the Southern District of New York (and are awarded a permanent injunction), an eventuality Judge Nathan has deemed unlikely as a matter of law, which ruling the Second Circuit has affirmed… the plaintiffs, every broadcast network in New York City, are being irreparably harmed.

How, exactly? The appellate decision doesn’t discuss the harms to the plaintiffs, because it doesn’t need to. The Second Circuit agreed that the plaintiffs “are not likely to prevail on the merits,” so its discussion of the harms claimed by each side of the dispute are minimal. “Plaintiffs do argue that any harm suffered by Aereo should be disregarded in the balance of hardships analysis because Aereo’s business is illegal,” the Second Circuit decision reads, “…[b]ut this argument hinges on the conclusion that Aereo’s business infringes the Plaintiff’s copyrights,” which the court concluded it does not, at least “on the limited question before us… whether Aereo’s transmission of unique copies of recorded programs to the Aereo users who directed that they be created are public performances.” So we must seek our answer elsewhere. Perhaps in the district court opinion.

But before we look there, let’s think about this like regular folks. Regular folks don’t read court opinions. Regular folks ask whether something feels right or wrong. And this feels at once both right and wrong.

Imagine that you live in New York City. As a NYC resident, when you’re not at a Yankees game or ice skating at Rockefeller Center or having lunch with, say, Michael Bloomberg at Ray’s Famous Original Ray’s Pizza, you might watch some broadcast television, which you don’t pay for, since you have an antenna attached to your top-of-the-line widescreen HD set in your 350-square-foot studio apartment that you share with a roommate and a cat. But when you get home from your pizza date your roommate and his girlfriend and her friend are using the TV to play video games (only ironically, though)… but you’re not out of luck, since you’re an Aereo subscriber! So you take your iPad to your freecycled futon in your corner of the room and you log in and request that the new episode of whatever show everybody likes that’s playing right now be streamed to your Internet-capable device.

Where’s the harm in that? Read More…

Channeling Mr. Rogers

Originally posted 2009-05-27 13:54:45. Republished by Blog Post Promoter

“I have always wanted to have a neighbor just like you,” crooned Mr. Rogers for all those afternoons.

Well, evidentially it’s mutual, and then some.  Michael Kinsell, it seems, has always wanted to be a neighbor, just like — I mean, just like — Mr. Rogers:

PBS is accusing a San Diego teenager of “falsely claiming association” with the network and Mister Rogers’ Neighborhood. He is selling tickets for a May 31 gala event where, according to a news release by his publicist, he will present himself as successor to the late Fred Rogers.

Managing to be even creepier than the original

Managing to be even creepier than the original

Michael Kinsell, who told Current he is 18, said he has produced six episodes of a new show, Michael’s Enchanted Neighborhood.

Kinsell described the benefit event, to be held at the California Center for the Arts, Escondido, as a tribute to Rogers that will raise funds for “children’s public television” and, he hopes, for his own new show.

He said he invited members of Rogers’ family to receive a Children’s Hero Award in Rogers’ honor and said he will give $10,000 in mid-June to Family Communications Inc., Rogers’ production company in Pittsburgh.

In a complaint this month to the California Attorney General’s office obtained by Current, PBS says that Kinsell, with event publicity falsely associating himself with PBS and Rogers, could divert funds to his nonprofit from the network and Rogers’ company.

“Kind of our way,” huh?  The juxtaposition of Eddie Murphy and a Mr. Rogers wannabe is odd enough, but his tossing out of various names best known for TV fame in decades past is odder still.

Actually, let’s go back to “odd enough.”

Reached over the weekend, PBS spokesperson Jan McNamara said, “PBS has no affiliation with Michael Kinsell.” The network’s complaint states that both PBS and Family Communications have “spoken personally” with Michael Kinsell and sent him cease-and-desist letters.

“This event may set a record of the biggest celebrity turnout in the history for San Diego,” said the event’s website.Kinsell said that he was “not at liberty” to say who would appear at the gala, but “foundation supporters” include Bette Midler, Tom Hanks, Sally Field, Barbara Eden and Eddie Murphy. “That’s kind of our way of saying they will be on stage that night, but scheduling stars is difficult,” he added.

Not in my neighborhood, thanks.

UPDATE:  Sadly, no.

Roca Labs: Until someone puts out an eye

Roca Labs:  Are we confused yet?

Are we confused yet?

It has just been all too, too much to follow, especially from the distance I’ve had to keep from the whole thing — a small distance, mind you,  as I’ll explain.  But really, all the fun is taking place in Florida, a somewhat larger distance, excepting by email, see, and —

Well, as I said.  It’s almost too much to follow.  The “it” is the rollicking litigation carnival brought to our good friends at by the world-famous Roca Labs.  And yes, it is too much too follow, but by the grace of the Internet there’s Popehat, and he’s done the hard work for me, to wit:

[D]uring the month that I was consumed by trial, a case arose that appears scripted — a case that seems intelligently designed with stock characters, movie-villain behavior, and hilarity.

I speak of Roca Labs vs. anyone who speaks ill of them.

Roca Labs is in the weight-loss business. As near as I can tell from its website —check it out yourself — Roca markets an alternative to various weight-loss surgeries: a substance that you consume to fill your stomach, thus reducing appetite and available pizza space. The graphics of the Roca Labs substance remind me of the psychomagnotheric slime from Ghostbusters II, but I want to emphasize that I know of no evidence that Roca Labs’ product has any supernatural properties.

Yet the arcane and unnatural plays a role in Roca Labs’ approach to the market — in the form of an unnaturally ridiculous approach to criticism.

Roca Labs apparently has a clause in at least some of its purchase contracts that forbids customers from criticizing it or its products. Here’s how they describe it, openly, in one of their filings:

In exchange for a significant discount (discounts average $800) customers contractually agree that, regardless of their outcome, they will not speak, publish, print, blog, or write negatively about Roca or its products in any forum.

Now, I think you’d have to be quite stupid to agree not to criticize the person who is providing you with medicinal substances, but then we are talking about a population that has decided to consume large volumes of pink slime to lose weight.

Those “I won’t criticize” clauses rarelyendwell. But Roca Labs is optimistic, to put it mildly. They’ve sued on a theory that I will call “novel” because “bat&#@! crazy” is rude. Roca Labs says that is interfering with their contractual relations with their clients by allowing the clients to post complaints about Roca Labs. That’s their attempt to evade the protections of Section 230 of the Communications Decency Act, which generally immunizes sites from suits over what their visitors post. Roca Labs is even seeking a preliminary injunction to force to take down the critical posts, a classic case of unconstitutional prior restraint.

Marc Randazza is representing As you would guess, that is not a happy development for Roca Labs. Randazza kicks the &#@! out of Roca Labs’ ridiculous demand for prior restraint, and in the course of doing so provides a swarm of BBB complaints, declarations from unhappy customers, and a rather unflattering review by a doctor.

But wait — there’s more! Read More…

Fair Googling a la Mode

Originally posted 2005-03-24 09:37:00. Republished by Blog Post Promoter

Via the In the Agora blog, an update, with useful links, on the suit against Google by Agence France-Presse. Best link is to this article by the ubiquitous Professor Eric Goldman. (Note to self and 100 closest friends: Must read Goldman’s blog more often.) Most interesting, Europhobic (that’s me) angle: France itself is cooking up a project to rival Google’s announced plan to “scan millions of books and periodicals into its popular search engine over the next few years.”

Well, nothing like one of those Eurostate-financed boondoggles to suck the wind out of what’s left of that economic juggernaut. If I weren’t buying Google for the incredible up-side, maybe I’d buy it to beggar France!

UPDATE:  The French… let’s not say “surrendered.”  They worked something out with Google, in June of 2012.  But, of course.

New blawg for Oregon law

Originally posted 2007-03-30 11:08:27. Republished by Blog Post Promoter

Of course it’s called the Oregon Business Litigation blog!

Twick or tweet?

... and there it went.


No, it’s not quite October 31st — that scary, creepy night when you’re so afraid of what’s out there that, if you’re LIKELIHOOD OF CONFUSION®, you close all the blinds …  lock the door…  and stay out of the house and somewhere absolutely else until at least 10:00 PM.

But yes, it is time — well past time, in fact — for that semi-occasional roundup of recent topical tweets via the official LIKELIHOOD OF CONFUSION® Twitter account, @likely2confuse.  Which, if you’re on Twitter but you’re not following, you’re simply just not serious about this.

Oh, and also:  It is time for candy!

OK, yeah; it’s always time for candy.  So let’s go to the tweets:

Read More…

Twisn’t it rich

Originally posted 2009-09-14 14:47:57. Republished by Blog Post Promoter

Here is the latest roundup of topical re-tweets that were tweeted to followers @roncoleman in the last week or so:

OK, gotta fly!

Cui?, Bono?

Originally posted 2007-03-05 14:33:49. Republished by Blog Post Promoter

Advertising Age reports: “Costly Red Campaign Reaps Meager $18 Million.” Walking around New York City, I was impressed with the brand-development demonstrated by this $100 million campaign. Famous, beautiful people in Red Gap stuff, telling us to “Buy Red.” Fantastic simultaneous investment and expenditure of brand equity, utilizing not only Gap but Motorola and Apple — great brands building a new, greater brand for something even greaterly greater!

Okay, one slight problem.

Looking at the ads — on billboards, bus shelters, phone booths — I had no idea what they were for. What Red? Red what?

No message. No content.

In fact, even reading the Advertising Age article linked to above, you still have no idea what the point of this campaign was until five or so paragraphs down into the article! Evidently it’s something to do with AIDS. Or Africa. I still don’t know. Guess what: They — it — he — who? — doesn’t even tell you on the RED homepage.

It’s an arrogance thing, I think.

Tell Yes artist: “No. No. Fifty million times no.”

Originally posted 2013-07-02 21:44:01. Republished by Blog Post Promoter

Avatar lawsuit - Comparison with Yes album covers 2If the federal copyright complaint that you file on behalf of your client includes an assertion that “[the d]efendants… knew or should have known that they were violating [the p]laintiff’s rights,” then you probably want to be sure that you’re not bringing an ill-conceived lawsuit, because what copyright law does cover in this country—and what it doesn’t—is something a lawyer should know.

Avatar lawsuit - Comparison with Yes album covers 1The lawsuit brought this week by the world-famous English visual artist Roger Dean against the world-famous moviemaker James Cameron alleging, principally, infringement of Dean’s original works by Cameron’s Avatar is making me angry. (It’s here.) And it’s not at all because I think either Cameron or Avatar is untouchable. In fact, I thought Avatar was nothing special, and I haven’t really liked a Cameron film since Aliens (although his work as special effects director for Piranha Part Two: The Spawning is exemplary).

Hasn't seen Titanic.

Hasn’t seen Titanic.

No, I just think that Dean’s lawsuit is gold-digging of the worst kind. The “critically-acclaimed and highly lucrative” Avatar has—according to the complaint, anyway—to date grossed $2 billion… and Dean wants $50 million of it.

The only thing standing in Dean’s way, however, is that his own complaint hints at his (and his lawyers’) misapprehension of American copyright law. Read More…

Frivolous copyright claims don’t automatically merit fee awards

Originally posted 2006-06-19 12:49:37. Republished by Blog Post Promoter

The New York Law Journal reports that my old friend Southern District Judge Denise Cote has turned down Fox Entertainment Group’s attempt to recoup almost $280,000 in attorney’s fees (pursuant to the copyright statute) it spent staving off a copyright suit that Fox had demonstrated was frivolous (it involved an allegation that a Fox TV program was a “ripoff” of another program). Judge Cote has an interesting take on the issue:

Although both sides agreed that the U.S. action should be dismissed with prejudice, Fox moved for an award of attorney’s fees, arguing that Ninox sued even though it knew that “The Complex: Malibu” was not substantially similar to “Dream House.”

“A compensatory fee award in these circumstances also encourages the defense of future meritless actions,” attorneys for Fox wrote in a letter to Judge Cote. “Like the gambler who raises the stakes in poker while holding no face cards, a litigant who loses this type of bet should bear the expenses incurred by the adversary in calling the bluff.”

Most IP litigators, especially those of us, ahem, “involved” in the defense side, recognize those cases that, once their merits, or outcome, are resolved, still chug along, powered solely by the gleam in someone’s eyes (woe to the ‘s attorney who puts it there!) that there could be an attorney’s fee award at the end of the rainbow. Judge Cote isn’t going to encourage that.

I’m not sure I get the next part, however. Judge Cote also writes,

“[A]lthough Ninox’s copyright claim is frivolous under the prevailing law, because this litigation would have applied copyright principles to a relatively new field of intellectual property, format licensing, as a matter of discretion, the Court will refrain from awarding attorney’s fees.”

Which is odd, because that sounds like whatever finding of frivolousness was made — the Court calls the claims “frivolous and objectively unreasonable” — is pretty much being taken back and defrivolized by that last quoted bit. What is it, exactly, that judges want?

UPDATE: The decision is here. A chilling excerpt from the lawyering point of view: Read More…

Sarah Palin trademark thing

Originally posted 2011-02-09 12:06:19. Republished by Blog Post Promoter

I try not to blog about the trademark stories that are all over the place.  There are a couple of reasons for this.  One is that I am a snob.  I always knew that if “everyone was going” to see some movie, I was not interested in going unless some other reason could balance out the inherent flaw of popularity.  This is not a particularly meritorious quality of mine, but this is just between us.

Even less meritorious, when you have one of these popular trademark stories — like the Palin trademark situation — I figure if everyone is all over a story, well, it’s covered, right?  Let me find the story everyone else isn’t writing about.  Plus, why risk blowing it?  Lots of people know this stuff better than I do.  (UPDATE:  Here too — excellent comprehensive treatment.)

And then I take a look at what everybody’s saying because people are poking me about it and I realize maybe they’re missing something, perhaps.   That happened with the Politico trademark thing.

So here everyone’s talking about Sarah Palin trying to “trademark her name.” Of course regular readers already know that “trademark” is not a verb and that what Sarah Palin is trying to do is register her name as a trademark.  That’s not even low-hanging fruit any more around here.

My main take on this, looking at the application and the reporting, is that the law firm that filed the application should be very embarrassed, and certainly is.  As everyone knows by now, the application — here’s a PDF of the Office Action — was not properly authorized (“signed”) by the applicant, Governor Palin.

That is a tip-off that a lawyer who doesn’t really do trademark work was doing “trademark” “work.”

And indeed, running down the bio of the attorney of record, I see an accomplished generalist / litigator who is not a trademark lawyer — but who still exercised poor enough judgment not only to handle this himself with little more insight into the process than a well-focused layman, but with the full knowledge that he would subject himself to this level of scrutiny if anything went wrong.  Or even if it went right.  That same office has not continued to cover itself with glory as of this “Notation to File” only yesterday.

Trademark law does not get respect from the judges who “wing it” regarding other people’s businesses, from journalists and even law bloggers who by their misuse of the word “trademark” demonstrate a fundamental misunderstanding of American trademark law (by which trademarks are earned by use, not a process called “trademarking”), from outfits such as Legal Zoom that have non-lawyers file trademark applications for fees or from the lawyers who think of it as such a meatball area of practice that “anyone can do it.”

It’s all fun until someone puts out an eye, you know?