“The Endless Summer”: The king of bar review and copyright sense

Originally posted 2011-06-20 17:38:02. Republished by Blog Post Promoter

Endless Summer Graphic[Note:  This was first published in June of 2011, but if I’m going to recycle anything once a year, it’s this.  And this is the right time, in view of all the graduating and bar reviewing around here.  Slightly edited for better goodness. — RDC]

In 1989, when I was still a contributing editor to the ABA’s Student Lawyer dead-tree magazine, I wrote an article describing, in somewhat purple hues, the experience of preparing for the New York bar exam after law school.  The article was called “The Endless Summer,” because the summer of bar review felt like one.

Much of the piece focused on the brilliant preparation course taught by John “Pieper People Pass” Pieper (particularly well suited to students from out of state law schools), and how I — uncharacteristically — completely deferred to someone who knew better than I did (i.e., John) and was glad to have done so.

Someone eventually showed the article to John, and, in a fit of over-enthusiasm, someone in his organization then ran off a bazillion copies of the thing to be distributed to participants in the course.  No one asked.

“Not for your notes: Concept!”

That was copyright infringement!

But, really, so what?

So.  I was a hungry married rabbinical student at the time.  (Yes, after law school but before starting work.  Long story.)  So when I learned about this, I asked the the publisher, ABA Press, to handle it, because it had responsibility for copyright filing for the magazine. (As was common in magazine writing in those days, at least, I sold the ABA Press only the right to first publication and, of course, retained copyright myself.)  So I think I got a little money, and Pieper (the company) agreed to stop photocopying and distributing the work.

A lose-lose.

This time I should not have deferred. I lost what could have been a friendly relationship with John himself, and the chance to have thousands of people read the article, benefit from my experience and build some name recognition as a writer.  John lost a chance to benefit from the article and to allow his students to benefit from the article.  I got less than a month’s rent.

It was a dumb way to handle the situation, I didn’t know better, and I have been regretting it for over 20 years.

Time to make amends. Here is the article again, right on time for bar review season.  (Here’s a PDF of how it appeared in the magazine.)

John, I’m sorry.  It was the wrong thing to do.  I was young and dumb.  And I probably really did need the $500 at the moment. I’m sure everything’s changed with the bar exam and your course (thank God, it has changed regarding the $500) — but if there’s any use you want to make of this article, it’s yours for the copying, as long as you properly attribute it.  (Be careful with that!)

Stay cool, people!

Confusion ascendant

Jewish tradition teaches that on Tisha B’Av (the Ninth day of the month of Av) — which begins tonight — five national calamities occurred:

  1. During the time of Moses, Jews in the desert accepted the slanderous report of the ten spies, and the decree was issued by God forbidding them from entering the Land of Israel. (1312 BCE — traditional Jewish dating)
  2. The First Temple was destroyed by the Babylonians, led by Nebuchadnezzar. 100,000 Jews were slaughtered and millions more exiled. (586 BCE)
  3. The Second Temple was destroyed by the Romans, led by Titus. Traditional sourcest teach that two million Jews died, and another one million were exiled. (70 CE)

Read More…

In your head

Originally posted 2008-02-27 23:49:29. Republished by Blog Post Promoter

Rebecca Tushnet:

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that “Kodak soap” was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. . . .

Though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. Moreover, the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law should be held unconstitutional under current First Amendment commercial-speech doctrine.

Tell it, Rebecca! This is from the abstract of an article in the Texas Law Review called — bless her! — “Gone in 60 Milliseconds: Trademark Law and Cognitive Science.”

confusion.jpg

So in the article itself, does Rebecca at least suggest we apply this reasoning to the utterly bogus concept of “initial interest confusion”?! YES!! I have been saying this for years: The concept of initial interest confusion is utterly unsupported by anything remotely looking like empirical evidence. So will judges addicted to this nonsense care now that a scholarly article has been written to make this argument? Uh…. um…. maybe. Some day.

I’ll certainly give them the opportunity.

So there is hope, no? Always bright-eyed hope. Hat tip to the Neuroethics and Law Blog.

Court rules against Yahoo in Nazi speech case

Originally posted 2006-01-13 12:51:43. Republished by Blog Post Promoter

This Reuters report is important news:

A U.S. appeals court declined to intervene on Thursday on behalf of Yahoo Inc. (Nasdaq:YHOO – news), the world’s largest Internet media company, saying U.S. courts have no jurisdiction in a case pitting free speech against a French law barring the sale of Nazi memorabilia.

In a case that pitted U.S. freedom of speech rights against European anti-hate group statutes, the U.S. 9th Circuit Court of Appeals reversed a lower court ruling that had rejected French plaintiffs attempts to enforce French laws against U.S. companies in U.S. courts.

See here for some background, and a prediction by at least one wise guy attorney that — at least in the Ninth Circuit — turns out to be wrong.

THE SLANTS trademark appeal: The other side

The Slants 2I posted the en banc Federal Circuit brief of Simon Tam for the Slants, and those of the amici curiae in his support shortly after they were filed.

Well, of course there’s another side to this, and it has been heard.  Here is the brief of the PTO seeking affirmance.  Then came the brief of amicus curiae, and in particular friends of the PTO, the South Asian Bar Association; and here is the submission of Richard L. Stanley.

Amanda Blackhorse — adversary of the Redskins in that litigation — has also filed in support of the PTO, which makes sense, considering that the Redskins (i.e., the NFL) filed a brief in support of The Slants.  As soon as the clerk-approved brief is released for publication, I will add that too.  Here’s the Blackhorse amicus brief.

Wait — Richard L. Stanley?  Who?  Unlike some people, Richard is not a big Internet personality.  No website, no blog.  Richard doesn’t talk the talk but, as set out in this article (and, I assume, in his brief; I haven’t read it yet) he does walk the walk.

Let Richard explain himself here, though, as he does in the first section of the filing.  It’s at least as interesting as anything in any of these submissions: Read More…

More Legal Tsuris for Google

Originally posted 2005-04-01 15:42:00. Republished by Blog Post Promoter

Google-Logo-SquareIt’s not even funny any more. If it ever was.

I’m just saying.

Here’s the latest on the Google v. American Blinds case:

The suit claims Google’s practice of selling text ads related to keyword search terms infringes on American Blind’s trademarks, because competitors’ ads can appear on results pages delivered to users searching for the company. American Blind asked that Google be permanently barred from selling keywords.

In fact, the suit claims, Google makes it worse with its AdWords Keyword suggestions feature, which “actively and deliberately encourages American Blind’s competitors to purchase… virtually every conceivable, though indistinguishable, iteration of those marks.”

They make that sound like a bad thing. The good news for Google is that the judge granted Google’s motion to dismiss the (usually bogus) tortious interference with economic advantage counterclaim by American Blinds. The bad news is that the rest of the counterclaims are staying in the case, at least for now. Not what you’re looking for when you bring a declaratory judgment action.

Here’s the full text of the decision. By the way, in the classically California way, this is an “unpublished opinion” that everyone’s reading now. It says right on top, NOT FOR CITATION. Is there any hope for the common law?

Update: More from Kevin Heller, as usual.

New brew for Starbucks and trademark?

Starbucks Amended Drawing green dotI’ve written so much, for so long, about the branding and trademark adventures — overwhelmingly unhappy ones — of Starbucks that I’ve pretty much run out of ways of starting blog posts such as this one.  (See what I did there?  — Ed.)  Maybe that (not my blogging, but the facts on the, er, ground) is why, according to Steve Baird, Starbucks is trying to roll out something new and exciting on that score:

We’ll soon see whether coffee truly goes hand in hand with closers, at least in one famous brand owner’s quest for registration of a non-verbal, non-traditional color trademark at the USPTO. I’ve been noticing Starbucks focus on green straws lately, with the door signage shown below, offering a pretty creative use of “look-for advertising” without using those clunky words:

Starbucks Green StrawSo, my search of filings at the USPTO was expected to find at least one supporting a claim of ownership to it, but what I found instead is a brewing battle over the green dot on a white cup . . .

Read the post.  As Steve explains, it’s, well — no big surprise — not going great for the great-coffee-markup people.

Given Starbuck’s track record with its trademarks and its recent demonstratively tin ear with respect to marketing initiatives, you’d think I’d say Starbucks’ initial disappointment (which hardly means anything at this stage, of course) on this initiative is unsurprising.  But, really, how fair is this?  Starbucks is actually a brilliant marketing success at its core, building a multi-billion-dollar empire on really expensive variations of pretty good coffee sold in paper cups in cafes where the only people who can sit down are the first 20 customers and their laptops.

In other words, Starbucks is all about brand: Read More…

American Brandstand

Originally posted 2005-01-10 16:10:00. Republished by Blog Post Promoter

Marty Schwimmer (who is a brand unto himself) links to the “American Brandstand” report published by an interesting outfit called AgendaInc. The report runs down last year’s top musical questions last year to be answered by well-known brand names. This report is most useful for interpreting some of the lyrics that you’ve heard a million times but never quite “got” (“I got the Rolly on my arm and I’m pouring Chandon / And I roll the best weed ’cause I got it goin’ on” — these kids today and their nutty lyrics!). The list includes four present-or-recent clients of ours (can’t say who, but look on my site under “published cases” for a hint) and about that many “brands” we’ve litigated against over the years.

The references seem overwhelmingly to come from the gritty “urban” music sector. I am reminded, though, of a kinder, gentler era when Paul Simon sang about Kodachrome. (It’s slide film.) (Film — it’s what used to go in cameras.) Well, maybe not quite so innocent, thinking of Lola and her — his — uh, Lola’s Coca-Cola

I don’t remember Pepsi getting a pop music mention until much later.

Canadian Trademark Blog

Originally posted 2006-08-15 21:33:01. Republished by Blog Post Promoter

Neil Melliship, Larry Munn and Karen Monteith of the IP department at Clark Wilson LLP, which is the finest in British Columbia that I am aware of, has unveiled its new Canadian Trademark Blog. It has an excellent blogroll, I’ll tell you that.

Canadian Trademark BlogGood luck to the new kids on the block, and if you have any business on the northern side of things, by all means send them it to them! They never lose. Their composure, I mean, of course. Good lawyers, too.

The law on initial interest confusion: Interestingly confusing

Oh joy, 9th Cir. embraces initial interest confusion again http://t.co/3Zaqg3DuQd Bad ruling over Amazon’s internal search. I’ll blog soon

Ah, my old friend initial interest confusion. How far back we go! I don’t remember anyone screaming about the way I was when I wrote this piece in 2003, though this article preceded mine by a couple of years.   Everyone in the academy who thinks about how trademarks work on the Interne “has to despise” IIC (the law profs call it IIC); the trademark plaintiff’s bar, on the other hand, is addicted to it.  There are those who seek a less black-and-white approach, too — which, to be fair, includes INTA per that last link — but it seems that most courts that accept IIC use it without the surgical level of focus that INTA suggests is appropriate.

 

But no one has been eagerly awaiting its demise more than Eric Goldman, who has pronounced it all-but-dead too many times for his own taste — and, again, mine, since the ups and downs have involved a lot of my own cases. Memories, memories.  Some people can just delete them, toss them away like an old rag, but not me.  They burn forever!

Sometimes they burn brightly, such as when the Eastern District of New York rejected the doctrine, though without ringing declaration of death, in Ascentive v. Opinion Corp. and Devere v. Opinion Corp.  Other times the burn was harsh, as when the Third Circuit relied on it, in part, to keep the complaint of Amerigas against the same defendant just alive enough.

It wasn’t even so long ago that Eric, who has a special obsession with the use of IIC to find a basis for liability in the unauthorized use of metatags by competitors Read More…

Congressman loses appeal

Originally posted 2006-03-28 17:40:31. Republished by Blog Post Promoter

How’s that for a setup line? No, it’s another story about the use of “chilling effects” and the First Amendment in defense of illegal, usually political, acts — and this time, again, it didn’t work:

Here’s the story— remember this one?

A federal appeals court ruled Tuesday that Rep. Jim McDermott violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago.

In a 2-1 opinion, the U.S. Court of Appeals for the District of Columbia upheld a lower court ruling that McDermott violated the rights of House Majority Leader John Boehner, who was heard on the 1996 call involving former House Speaker Newt Gingrich. . . .

A lawyer for McDermott had argued that his actions were allowed under the First Amendment, and said a ruling against him would have “a huge chilling effect” on reporters and newsmakers alike.

Lawyers for 18 news organizations _ including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post _ filed a brief backing McDermott.

But Boehner’s lawyers said McDermott’s actions were clearly illegal.

Here’s the, er, “money quote,” by the way:

The lower court had ordered McDermott to pay Boehner more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and at least $600,000 in legal costs.

Now, who is going to pay thatWalter Olson, phone your office!  Someone just might earn a legal fee here!  (Via Drudge.)

I Read Dead People’s Email

Originally posted 2005-01-06 22:42:00. Republished by Blog Post Promoter

When you reach a certain age you begin to wonder… what happens to my hard drive when I… you know. How do my Internet buddies find out that it’s, er, nothing personal that I didn’t respond to their IM — no, I’m just… you know. Not living any more.

And my email? Yale Law’s LawMeme blog has a great item about Yahoo!’s refusal to accede to the demand of the parents of a marine — who was killed in Iraq — that they be provided with his Yahoo! email password. (I found this blog on Instapundit’s blogroll. He doesn’t need another link.) They say they want more to remember him by. Yahoo!’s terms of service pretty clearly address this, and the company is sticking to it.

According to the item, it’s possible that the parents could get the password via a subpoena or, more likely in this case I think, a court order. Should a court grant such an order? It will have to consider California law on inheritance, contract and privacy. And those “public policy” factors that find their way into decision in any number of ways? I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

UPDATE:  More on the topic.