A certain NFL team is on the warpath

Sorry about the pun — but then again, I’m not the PTO; then again, too, my attitude toward “scandalous and offensive” ethnic marks is different from that of lots of people, too. This one, in particular, has long rubbed me the wrong way.

Regarding the Redskins appeal of the REDSKINS cancellation, here, courtesy of The Trademark Blog, is the complaint in Redskins v Blackhorse:


Unsurprising:  Great reliance on the issues raised by the dissenting TTAB judge regarding the serious evidentiary problems with the TTAB ruling.  This is the core argument in our Federal Circuit brief on behalf of THE SLANTS.  Also interesting:

  • There’s a cause of action for a determination that Section 2(a) is void for vagueness, which we also argue in the SLANTS brief;
  • The Redskins claim that the ruling, coming so late in the historical game in terms of the history of the REDSKINS trademark, did not merely err in terms of laches, but that due to the long use of the trademark by the team violates the Due Process Clause and the Takings Clause of the Constitution;
  • Particularly interesting:  It’s de novo review by the District Court in Virginia, not an appeal to the Federal Circuit.  A party appealing from a TTAB ruling can, in most circumstances, do either of these.

Did the Redskins take the appeal to the District Court approach due to a perception that, based on its recent track record, the Circuit is inclined to approve 2(a) determinations of scandalous ‘n’ offensive as a rule? Probably not. It probably has more to do with the fact that, unlike in THE SLANTS case, the REDSKINS case is premised on an unusually rich factual record.  The team’s argument is that, given every opportunity imaginable to prove its case, the plaintiffs Blackhorse failed.   Remember that the burden on the  particularly onerous one:  Proving that the REDSKINS marks were disparaging to American Indians at the time they were registered, i.e., 1967-1990.

Trademark lawyer Ron ColemanI don’t have much trouble guessing, even assuming, that the marks were, in fact, disparaging to that group.  Doesn’t it make sense that it would be?  Anyone can see it.

That’s a very different kettle of fish, however, from proving it by a preponderance of the evidence.

On reading the REDSKINS decision, I was not surprised to find that the nature of the “proof” relied on by the TTAB was, as it admitted in its opinion, highly “inferential.”  Given the burden on the plaintiffs, and the profound interests, including bona fide commercial ones premised on a very reasonable presumption of the correctness of an agency’s repeated administrative decision, the idea that the TTAB would be swayed by so much inferential evidence is pretty surprising –

Suprising… Read More…

Authorized?

Originally posted 2009-01-22 16:48:55. Republished by Blog Post Promoter

This better be, because The Force isn’t going to cut it for you these days!

Ain’t she chic

Originally posted 2007-05-13 21:51:12. Republished by Blog Post Promoter

Counterfeit Chic, that is, with another knockout Knockoff News!

Google Stock, Credibility Tumble

Originally posted 2005-07-28 21:21:00. Republished by Blog Post Promoter

Bias.jpg

We blogged on this a while ago — the question of whether Google News is the sort of fair and balanced you’d like to see in a service that in some sense is driven by a search engine.

The Confederate Yankee blog brings the story up to date: And, like the recent “profit taking” in my favorite issue on Wall Street (well, I’m diversifying a little!), it isn’t pretty. (H/T to the Pretender.)

Of course, we conservatives don’t go and divest our stock holdings over every little thing. Yeah, I’m holding

RIAA defenders directory

Originally posted 2006-08-27 09:56:16. Republished by Blog Post Promoter

I’m not so sure the RIAA isn’t on firm legal ground. In fact, I think they mostly are. Information may want to be free but so does crude oil; that doesn’t mean you can just set up a pump on my front lawn. But I do think their strategy and execution are stupid. So for what it’s worth I’m passing along this directory of attorneys defending RIAA defendants, put together by New York lawyer Ray Beckerman (who’s one of them). Hat tip to aTypical Joe.

Ingenious, fair thoughts on fair use

Originally posted 2006-05-10 17:25:16. Republished by Blog Post Promoter

The Fire of Genius, a new blog by Joseph Scott Miller (no, it’s not about any particular genius), a professor at Lewis & Clark Law School in Portland and an alumnus (as I am) of one of the top ten law schools in the country (oops!), asks and points to possible answers (which sound right to me) about the profound cultural significance of fair use — a once-respected legal doctrine that is on the ropes in the courts and, in light of recent developments, in Congress these days. Add this one to your blogroll!

Kimberlin v. All the bloggers — The Patterico / Liberty Chick Motion to Dismiss

Read about the case here and here.

Prejudice in a good way?

Originally posted 2009-07-06 13:22:25. Republished by Blog Post Promoter

Can a company name be “prejudicial”?

My friend Rob Holmes — he of the purportedly prejudicially-monikered “IPCybercrime” firm — is, quite reasonably, going to finish his coffee rather than worry about that too much.   (As Glenn Reynolds queries in an unrelated post, “Is there anything it can’t do?”)

But it is a pretty interesting question.

Death By Lawyer

Originally posted 2007-06-13 20:42:40. Republished by Blog Post Promoter

They make that sound like a bad thing. Now, I wouldn’t agree with each and every little thing Stan Schroeder, the author of this article on Mashable, says — such as this about MP3.com of blessed memory:

In 2000, the owners started a new service – My.MP3.com – which enabled users to register CDs they legally own and make online copies on MP3.com’s servers. Although this about as legit as you can get, the record industry managed to sue them (!) and win (!?), and MP3.com had to settle the lawsuit, paying 200 million dollars in damages, which turned out to be a blow from which they would never recover.

“About as legit as you can get”? Yes, well, that’s what Cooley Godward thought, too. Judge Jed Rakoff didn’t see it that way, and — in his inimitable matter — he didn’t suggest there was a lot of doubt about the right answer, either. We never got a second opinion (i.e., one that mattered from an appellate court), so just don’t come away from this article with the wrong impression.

Still and all, a good piece, and food for thought. Hat tip to Overlawyered.

Infinite loop (updated and bumped)

Originally posted 2011-09-20 18:09:02. Republished by Blog Post Promoter

Essex County historic courthouse detail(Originally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around: Read More…

Secret defrauder ring (UPDATED)

Originally posted 2010-02-15 13:15:54. Republished by Blog Post Promoter

I want one, too!

What is the FRAUD-O-METER™?  Its creator, John Welch, explains:

Some say that a picture is worth a thousand words, and that is certainly true with regard to the TTABlog FRAUD-O-METER™ brand legal indicator. We all know that the CAFC in In re Bose Corporation jettisoned the TTAB’s “knew or should have known” standard for fraud set out in Medinol v. Neuro Vasx, ruling that the Board had “erroneously lowered the fraud standard to a simple negligence standard.”  The appellate court also held that proof of intent to deceive is required to establish fraud and it indicated that even “gross negligence” is not enough, but it declined to address the issue of whether “reckless disregard for the truth” would suffice.

The FRAUD-O-METER™ illustrates the current state of trademark fraud jurisprudence: the now defunct Medinol standard is depicted by the grey arrow resting in the “Negligence” wedge, while the white arrow, representing our post-Bose uncertainty, unsurely leans toward the “Reckless Disregard” wedge.

If the chart looks a bit blurry, then I suggest that you (1) move closer to your computer screen; (2) check your eyeglass prescription; or (3) double click on the chart for a larger version that you can print out or save as your computer wallpaper.

Or, kids, you can collect the whole set!

This is very clever.  Yet I have the sneaking feeling that John…  he is not to laugh from this PTO fraud, so much.

UPDATED:  The Beta for version 2.0 is out!  John explains:

The Board has yet to decide whether “reckless disregard for the truth” is enough to support a fraud ruling. There are some suggestions (including a recent article by TTAB Judge Lorelei Ritchie [TTABlogged here]) that “willful blindness” may be enough. With that in mind, I have created Version 2.0 of the Fraud-O-Meter, still in beta testing.

Louisiana’s lawyers’ guild

Originally posted 2008-11-26 00:28:26. Republished by Blog Post Promoter

Last year we screamed and shouted along with a bunch of other people and prevented New York from passing “ethics” rules that would have essentially shut down New York lawyers’ blogs by regulating them out of existence.  Unfortunately all the noise didn’t make it down to Louisiana, which did go ahead and pass a similar set of restrictions under the guise of “consumer protection” but which should be understood as an attempt by established bar-association types to keep the bogeyman of blog- and Internet-savvy lawyers away from their cozy courtroom concessions.

Now a Louisiana law firm is taking on the regulations and has filed suit in federal court. Look, here’s their press release — we’re allowed to copy that (but links added by LOC):

This morning, Wolfe Law Group, L.L.C. filed a suit in federal court challenging the constitutionality of Louisiana’s new rules governing lawyer advertising. The lawsuit seeks to prevent the enforcement of Louisiana’s new advertising rules, scheduled to take effect on April 1, 2009. The Louisiana advertising rules are some of the most aggressive in the nation, and Wolfe Law Group’s suit argues that the rules go too far and restrict an attorney’s right to freely speak about its trade.

Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s AdWords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums.

The law firm that practices in the area of construction law out of its offices in New Orleans, Louisiana and Seattle, Washington, is actively engaged in the Internet marketplace, posting daily on sites like wolfelaw.com, Twitter, Facebook, Avvo.com, and similar Web 2.0 services.

The suit argues that Louisiana’s new advertising rules would subject each of the firm’s posts to an “evaluation” by the Louisiana State Bar Association, with an evaluation fee of $175.00.

According to a letter sent to Wolfe Law Group’s colleagues and clients, “The new rules would stifle our firm’s ability to continue talking with you about the legal profession, the construction industry and the evolution of construction law across the nation.”

To continue commenting upon the progress of the action, the firm launched a blog titled “Blogging is Speaking,” at the Web address http://www.protectspeech.com.

Get that?  According to this, everything posted online by a Louisiana lawyer — and God help a Web 2.0-oriented shop such as Wolfe or, say, LIKELIHOOD OF CONFUSION® — has to be run past a Louisiana oldlaw censor at $175 a pop!  Even assuming it isn’t bounced, that’s a lot of pops per pixel.  It’s prior restraint on the First Amendment axis, a restraint of trade (sorry, it’s a profession, but in economic terms a trade) on the antitrust axis, and just plain piggy on the obnoxious axis.

This effort by the Wolfe Law Group deserves the support of blogging and online-networking lawyers, their clients, their prospective clients… everyone who isn’t getting a cut of that $175 per, basically.

UPDATE:  Kevin O’Keefe thinks it’s a tempest in a teapot:  “Lawyers get paid to be creative”!  (Via Overlawyered.)

MORE:  Here’s the preliminary injunction amicus brief filed by Public Citizen.