OFF TOPIC: Hey, wait a minute!

Originally posted 2006-03-24 17:02:04. Republished by Blog Post Promoter

(NB: I blogged this on the conservative political blog Judge and Jewry: Above the Din, which, when it’s not judicial confirmation season, gets a little less traffic than LOC. But it’s so terribly clever I had to repeat it here.)

Mickey Kaus writes, criticizing David Brooks for an expression of realpolitik on the immigration issue, “Brooks offers a noble reason of principle for sneering at the bill: He says it ‘will lose [Republicans] Florida and the Southwest for a generation.’ Under this moral standard Democrats would have opposed civil rights in the 1960s.”

Hey, wait a minute. Democrats did oppose civil rights in the 1960′s! It’s good to be in the bubble, I guess.

Another blow to religious freedom

Originally posted 2005-01-06 17:52:00. Republished by Blog Post Promoter

Did I tell you I’m a muckety-muck on the Religious Liberties Practice Group of the feared Federalist Society? Yeah, well. I am, and let me tell you, this is going to get us all burning up the phone lines on the private extension to John Ashcroft:

The drifter and self-proclaimed prophet accused of kidnapping Elizabeth Smart showed up to his competency hearing 90 minutes late Thursday and was kicked out after he started singing a Bible verse.

Exactly: In my faith, at least, showing up 90 minutes late is a religious obligation.

When do we start flexing those mandate muscles, Mr. President?

Cover me

Originally posted 2010-05-18 13:02:18. Republished by Blog Post Promoter

Photo Attorney Carolyn Wright writes:

Rebecca Tushnet over at the 43Blog reports on a recent case in New York where the court determined that the use of a woman’s photograph for a fiction book cover required a model release.  This ruling creates an anomaly with other NY cases where the court ruled that a photograph of a person used for a news article does not require a release.  The lesson?  It’s always safest to get a model release when using a photograph of a person.

Good pickup.  Good advice, too.  Although, now that I think about it, the facts in this case and the publishing sector in which it occurred sound eerily familiar to me

Magnesium ad nauseum

Originally posted 2009-04-27 07:57:57. Republished by Blog Post Promoter

Ryan Gile reports that it’s Coke vs. Pepsi on behalf of their sport-drink proxies, Gatorade and Powerade:

Coke’s advertising . . . makes the claim that Gatorade is “missing two electrolytes” – calcium and magnesium – that are found in Powerade. According to the complaint, the trace amounts of calcium and magnesium found in Powerade are so minute that it really has no nutritional benefit.

Pepsi’s causes of action are for false advertising, unfair competition, trademark dilution, deceptive trade practices, and injury to business reputation.

Believe it or not, the second paragraph refers to the lawsuit brought as a result of the allegations in the first paragraph.  Well, those claims do scan, mostly, but — what does advertising puffiness have to do with trademark dilution?  Hey, it’s in the magnesium!  Or not, it appears.

Underneath Their Robes

Originally posted 2005-03-23 08:59:00. Republished by Blog Post Promoter

Stumbled onto the fascinating and well-written Underneath Their Robes blog this morning, before the phones start ringing and those detestable faxes start slithering in. If you’re in federal court as often as we are you will want to bookmark this one.

DC Circuit: Press Not Shielded

Originally posted 2005-02-15 11:44:00. Republished by Blog Post Promoter

Another red hot AP story: The Circuit Court of Appeals for the D.C. Circuit has ruled that Time magazine’s Matthew Cooper and The New York Times’ Judith Miller have to testify before a federal grand jury about their confidential sources in connection with the Plame Affair:

“We agree with the District Court that there is no First Amendment privilege protecting the information sought,” Judge David B. Sentelle said in the ruling, which was unanimous.

That makes four of us. As I blogged last month, press shield laws, even where they are on the books — there isn’t a federal press shield law; the journalists here were asserting a constitutional right, not one based in legislation — are a bad idea. Journalists are no different from you and me. Not any more. Right, Jordan?

UPDATE: Welcome, fellow Instapundit readers. You too, Mom. Knew you’d hit my blog sooner or later. Via the How Appealling blog, linked to by Instapundit, here’s a link to the decision. My favorite part is exactly the point I have been making, to wit:

Appellants counter that Justice Powell could not have meant what the United States argues, as this would have given reporters no more protection than other citizens. However, they never make it clear why they are convinced that Justice Powell must have intended to give reporters more potection than other citizens. The Constitution protects all ctizens, and there is no reason to believe that Justice Powell intended to elevate the journalistic class above the rest. Cf. Branzburg at 690 (“the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.”).

“Could not have”!? Indeed.

UPDATE: Speaking of Instapundit, he adds this link to Volokh’s website, which focuses on one conconcurring opinion that asks the musical question we all have been asking: What about the blogs? — as well as another concurring opinion that endorses a common law-based press privilege.

UPDATE: Via Coyote Blog, see the full and definitive analysis here at Beldar.

Aereo, FilmOn, and the “Shimmer” of maybe-unlawfully-clever digital entertainment delivery

Those of you of a certain age will remember the classic SNL parody commercial for “New Shimmer“:

New Shimmer

It’s kind of the same thing with Aereo, isn’t it?  As I said in my now-legendary-in-my-own-mind multi-part post, every next judge presented with the relevant inquiries in the Aereo case — i.e., the application of terms in the Copyright Act to technological facts not remotely anticipated by its drafters — takes a different run at judicial legislating, while contemptuously dismissing the last guy to touch this digital hot potato as the dimmest of stooges.

Yes, it’s a lot like Shimmer.  Is this digital mini-stream time-place-concept-shifting business stuff a floor wax, or is it a dessert topping?  Or, as Chevy Chase urges, could it really be both?

The latest comes in via an email from Owen Phillips , who writes as follows:

Hi Ron, I like your blog! I work with FilmOn and you’ve probably seen it’s involved alongside Aereo in a major test of Copyright Office rules. Late last week the Office turned down Aereo’s request for Compulsory License under Section 111—provisionally. At the same time it put out a request to the public to comment on the issues surrounding these decisions over 30 day period.

I think your readers would be interested to hear about this—and we’d like to maximize the public’s right the be heard in all of this.

He included this Copyright Office link for public comment.  Why wouldn’t I post that?  It’s not a spam link or something.  It’s the government!  Why wouldn’t we want to help the gummint figure out whether FilmOn is a delicious addition to the end of a special meal, or the perfect way to keep that linoleum looking great?

Well, let’s see.  What do we know? We know that Owen really likes my blog.  We don’t dismiss that as flattery intended merely to smooth the way for my consideration of his pitch, for it is entirely credible that one would like my blog, and that one would say so, too, at the slightest provocation.

What’s FilmOn?  Go look for yourself at the FilmOn website.  And before we go any further with what Owen wants you to hear about, here’s what is, more precisely, going on with FilmOn — an item from  yesterday, July 21, 2014: Read More…

INTA thoughts

Originally posted 2010-05-26 12:48:30. Republished by Blog Post Promoter

On the tail end of the annual meeting of the International Trademark Association in Boston, which I’ve used as an excuse not to post much or any new material, some thoughts:

  • I’ve heard widespread unhappiness about the quality of the programs, which in my experience seems to be largely justified.  Information is doled out as if by an eye dropper; many presenters are not competent public speakers or, in some cases, English speakers; no printed materials are distributed; and, if you haven’t been following my tweets on the subject, an inordinate amount of time is spent by panel “chairs” reciting the boring bios of panel participants to an audience that really could not care less.
  • Also on the negative side, the “exhibition” part is getting harder and harder to understand.  If you’re signed up for a full complement of programs, there’s very little time to check out the exhibitors.  Yesterday they chased us away at 4 PM.  On the other hand, maybe it doesn’t make that much difference:  It seems to be the same cats every year, or if it’s not, it still, as I said, seems to be.  Is there any commercial relevance to these hire-pretty-girls-and-set-up-a-colorful-display-and-get-business-cards-in-a-bowl things any more?
  • On the up side:  Boston!

Boston at night

Beautiful city, amazing conference center (yes, it’s a bit too sprawling perhaps, but they seem to really have thought out how space like this is to be used), just always a great experience visiting here.

  • Also, as usual, the execution of every conference-planning aspect of the annual meeting by INTA is well-neigh flawless.*  Shuttle buses worked great.
  • Trademark lawyers are mostly fun and interesting.  I’m amazed how many are “dressing up” in this unseasonably hot weather, though.  I opted for biz-cazh, myself.
  • No real excuse for grownups to go to the disco parties at night.  Certainly not if they’re married and traveling alone.  But I’m told there were fewer such parties this year, a reflection perhaps of competitive  and financial issues, or maybe a realization of how pointless these things are.

At the end of the day, INTA’s okay.  I like INTA.  Naturally it’s mainly the property of Big IP.  Committee membership, much less leadership, is mainly–mainly–about corporate and big-firm hierarchy, not thought leadership or anything scary like that.  But what do you expect?  The rest of us are treated courteously and as professionals deserving of a voice as long as we have “game.”  And, hey, we’ve got game, no?

*  One niggling exception:  Every year I indicate–on INTA’s own form–my “preference” for a kosher meal at the Table Topics luncheon meetings, and every year I end up having iced tea for lunch.  If you can’t deliver it, folks, don’t offer it!

Feeling his oats

Originally posted 2007-02-12 15:58:36. Republished by Blog Post Promoter

TMBrandingcap.com brings this quote from John Stuart, former Quaker Oats chairman:

If this business were to be split up, I would be glad to take the brands, trademarks and goodwill and you could have all the bricks and mortar – and I would fare better than you.

Sounds right to me.

Defending the trademark infringement defendant

It’s an art, not a science — like all litigation — and despite the best advice, well… there are some things, many of them in robes, you just can’t account for.

But still, why not at least get the best advice?

Right. So here (below) are excerpts from the Lawline program I recorded on this topic in May of this year (2014).  The excerpts are free; for the full-hour CLE program and relatively less free advice (hence worth relatively more than the cost of these excerpts), click here.

Marty Schwimmer’s blog

Originally posted 2005-01-03 21:02:00. Republished by Blog Post Promoter

By the way, let me be very clear about this:  The definitive blog on the topic of trademarks is my friend Marty Schwimmer’s Trademark Blog.

It’s funny also.