Personality disorder

Ms. Streisand call your office tweet

When will we ever learn?  The story here is about a lawsuit by lawyer Moira Bernstein, who complains, on behalf of a purported class, that by listing her plain-vanilla attorney name and address and regular old directory information on while festooning her unremarkable data with competing profiles, she’s been wronged.  Actionably.

Streisand EffectJ. Michael Keyes from Dorsey & Whitney, the guy who clocked those clowns in the Southern District of Florida on behalf of Angry Birds and who blogs at (and a Friend of Simon), has been watching the Avvo-suing-lawyer business for a while.  “Avvo has been sued at least twice before over its lawyer rating system–and it prevailed both times. In one of those cases the court ordered the plaintiff to pay fees to Avvo,” he points out.

Courts are loathe to silence the rating of professionals and reduce the flow of information to consumers of legal services, Michael notes, and he’s right — not only regarding professionals, of course, as we demonstrated here, for example, in our own unique way — in fact, the claim linked to there, reported as Boarding Sch. Review, LLC v. Delta Career Educ. Corp., 108 U.S.P.Q.2d 1785 (S.D.N.Y. 2013) is almost identical to the one being made by Bernstein in Illinois, although it is not based on the right of publicity; it is still every bit as silly.

“It’s hard to see how a lawyer’s right of publicity–the right to control the commercial use of one’s name, image, or likeness–could trump the right of the public to have access to this information,” Michael says.  Obviously, it can’t, even if Avvo’s ratings are a little goofy.  Hey, it’s a free country! Read More…

Free speech for hosers

Originally posted 2013-05-13 23:08:58. Republished by Blog Post Promoter

The headline: “Canada to trademark [sic] ‘winter’ for 2010 Olympics.”
The funny thing is I thought they already had a pretty good monopoly on winter!

S&L v. Australian Gold: You, the Jury

Originally posted 2009-01-08 21:34:29. Republished by Blog Post Promoter

Its all about the coin.

It’s all about the coin.

Here’s S&L Vitamin’s Trial Brief for the trial scheduled for next week in the above-entitled cause.  (Or you can read it at the bottom of the post).  We pick a jury on Monday, and after a day “off” for stuff I don’t even want to mention, opening statements are Wednesday morning.

Oh, all right.  Here’s Australian Gold’s trial brief.  I’m sure our distinguished adversaries are at least as proud of this work product as we are of ours.

I will not comment on the prospect of this trial, of course, at least not at this juncture.

But others have, more or less. And now, you can too!

Knockoff News

Originally posted 2009-10-05 14:36:54. Republished by Blog Post Promoter

Counterfeit Chic’s 69th edition of the karnival of kounterfeits was posted last week!

Welcome back to winter, confusion

Originally posted 2014-07-22 13:14:41. Republished by Blog Post Promoter

Now that the Macy*s Thanksgiving Day Parade ® — yes, that’s a registered trademark — has completed its mawkish coup de grâce on the warm season, perhaps in return we will merit a thaw in the stream of IP-related news that has settled over my little piece of Gotham for the last week or so. Get on a warm sweater and hunker down for the big-dog weather, and welcome back to your cubicles and corner offices.

That offensive Internet

Originally posted 2014-10-26 19:37:41. Republished by Blog Post Promoter

My  one-year-off college classmate, former document review colleague, oddly cheerful ultra-left-wing nut and bona fide genius (yeah, I know!) Brian Leiter has a short post full of useful resources about one of my favorite topics, “The Offensive Internet: Speech, Privacy, and Reputation”.

Read it while you can!

Holy copyright baloney, Batman!

Batmobile 1966

This Batmobile?

It’s not as if I’ve got a problem with DC Comics or something, but, well, here you go.  They’re just being like that!  And I’m just catching up with the fin-fendered fun.  First, per the Autoblog, on September 22, 2015:

Judges in the 9th US Circuit Court of Appeals upheld an earlier ruling about the copyright ramifications of selling replicas of the Batmobile. According to an Associated Press report in the Detroit News, the unique appearance of the Caped Crusader’s car was found to make it a character in the story and therefore couldn’t be copied without permission from DC Comics.

The legal battle between Mark Towle and DC Comics goes back years. Towle’s business, Gotham Garage, offered replicas of the 1966 Batmobile from the Adam West TV series and the 1989 film version. They were priced around $90,000, according to AP. The original sold for $4.62 million at auction in 2013.

LA Larry Zerner

LA Larry Zerner

Towle’s lawyer argued that the Batmobiles were simply cars and couldn’t be protected by copyright. In the earlier finding against Towle, the US District Court judge disagreed and defined the Dark Knight’s ride as more than just a vehicle but as a character in Batman’s tales.

Can it be?  Now, per my friend Larry Zerner, who doesn’t think so — well, no; he would agree, in fact, that it can, and that it is, but that it shouldn’t.  Here’s what he says, in a post dated January 23rd of 2016: Read More…

When counterfeits are serious business

Originally posted 2010-06-25 00:38:19. Republished by Blog Post Promoter

The New York Times writes about counterfeit drugs, the tragedies that follow in their wake and the reality of enforcement.  Via the NCPA website.

How important is copyright registration?

Originally posted 2007-12-28 10:31:49. Republished by Blog Post Promoter

This important  (pdf). As a New York Law Journal article (sub. reqd.) puts it,

The Second Circuit’s decision in In re Literary Works substantially limits the use of class actions as a vehicle to settle copyright infringement cases. Survey evidence cited by the parties in the case showed that freelancers register less than one percent of their works, rendering more than 99 percent of potential claims incapable of resolution in a class action settlement. This likely will pose obstacles for both plaintiffs, who will be forced to sue individually if they failed to register their copyright, and alleged infringers, who will be unable to effect a global settlement of potential infringement claims.

Interestingly, the majority conceded that copyright protection “generally begins at the time of a work’s ‘creation,'” regardless of whether the material is registered. It argued, however, that the issue of whether a work is entitled to copyright protection is quite different from whether a copyright holder is permitted to institute an action in federal court. Nevertheless, the Second Circuit’s holding could make the protections offered by copyright law a virtual dead letter for those plaintiffs who did not register and cannot go to court on their own.

It doesn’t matter if everyone in the room, including the judge, wants to adjudicate a case involving the infringement of an unregistered copyright.  The courts are not available for that under the statute.  No registration, no enforceable rights — even by consent.
Is that really what Congress wanted to do?  Should it have wanted to do that?

Here, by the way, is how you register a copyright.  You don’t need a lawyer.

Knock it off!

Originally posted 2012-01-30 15:50:24. Republished by Blog Post Promoter

And if you do, you just might make the next Counterfeit Chic “Knockoff News.” (I did!)