He’s the genuine item, all right

Originally posted 2009-02-04 14:00:37. Republished by Blog Post Promoter

He’s already the most sincere, if not the swiftest, trademark counterfeiting defendant* of 2009, and though it’s only early February it may be hard to top Poynette, Wisconsin’s Vincent Konicek for a certain kind of earnestness and, well, um, some other sort of special quality that you just can’t … replicate:



Rolex … filed a federal lawsuit in Madison Wednesday against Vincent Konicek, accusing him of infringing on the company’s trademarks by selling knockoff Rolexes over the Internet. . . .

It also accused Konicek of violating the federal “cybersquatting” law by using the Rolex name in his Web site, “toprolexreplica.com,” in order to profit from the company’s name.

Konicek said Wednesday that he started selling the fake Rolexes after a trip to China, where they were being sold on the street for $10. Konicek sells his own Chinese-made Rolexes for $99.

The lawsuit states that Rolex found out about the site in October and wrote to Konicek. He faxed back a letter five days later, saying that when they finish “suing all of the following merchants listed on Google search pages, call me and let me know you are going after me next.”

He attached two pages of a Google search that used the terms “Rolex replica.” Rolex concluded that Konicek is “fully aware” that what he is doing is illegal and willful, the lawsuit states.

But Konicek didn’t sound all that certain.

“I didn’t know I was going to run into copyright infringement,” he said. “I guess I’ll have to talk to an attorney and see what I can do.

Well, don’t be hasty or anything, Vincent.  Copyright, trademark, replica, counterfeit, legal, schmegal, whatever.  Talk to an attorney when you have a chance, for sure.  But certainly don’t hesitate to talk to any reporters first.

*Disclosure: Plaintiff here is a some-time LOC client, though not so much in Wisconsin. Lately.

Response of Simon Shiao Tam to the Government’s Request for Certiorari in Lee v. Tam

Freedom to blawg

Originally posted 2014-06-25 01:28:21. Republished by Blog Post Promoter

Blawg Review #85 is up, down under.  It’s one of the most thorough and “dense” blawg reviews ever.  I mean that in a good way.

The new fuzzy logic of copyright damages

What’s all this about the Supreme Court and copyright damages?

So we got that part over with.  Now, I have written a bit about the first-sale aspects of prior iterations of the Kirtsaeng case, and a bit about copyright damages, myself.  Now, however, thanks to the Supreme Court, it’s two great tastes in one candy bar!  So here’s part of what Rajit Kapur of Banner & Witcoff has to say (footnotes omitted):

KapurRajit-53433-4414_CYesterday, the U.S. Supreme Court ruled in Kirtsaeng v. John Wiley & Sons, Inc., No. 15-375, that it is appropriate for a court to give substantial weight to the reasonableness of a losing party’s position when deciding whether to award attorney’s fees in a case brought under the Copyright Act as long as “all other relevant factors” are taken into account. In delivering this opinion for a unanimous Court, Justice Kagan essentially adopted a more flexible and expansive version of the approach advocated for by Wiley (the copyright owner), which primarily turned on whether a losing party’s arguments were objectively reasonable. . .

After Kirtsaeng lost at trial, the case ultimately reached the Supreme Court, which ruled in a 6-3 decision that Kirtsaeng’s actions did not constitute copyright infringement because Wiley’s exclusive rights in the textbooks that Kirtsaeng obtained abroad were exhausted under the “first sale” doctrine. In the three years that have passed since the Supreme Court’s previous ruling, the case has returned to the district court, where Kirtsaeng is now seeking an award of attorney’s fees from Wiley.

Under U.S. copyright laws, a “court may […] award a reasonable attorney’s fee to the prevailing party as part of the costs.” The Supreme Court previously addressed this section of the copyright laws in Fogerty v. Fantasy Inc., 510 U.S. 517, 29 USPQ2d 1881 (1994). In Fogerty, the Court held that “[p]revailing plaintiffs and prevailing defendants are to be treated alike, but attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.” The Court also discussed in Fogerty several “nonexclusive” factors that “may be used to guide courts’ discretion” in deciding whether to award attorney’s fees, “so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner.”

In the proceedings below, both the district court and the Second Circuit denied Kirtsaeng’s bid for attorney’s fees. In doing so, they followed Second Circuit precedent that places “substantial weight” on the “objective reasonableness” factor — which asks whether the non-prevailing party’s claims were “objectively reasonable” — relative to the other factors discussed in Fogerty.

Read More…

Little McCain Feingolds and Their Allies

Originally posted 2013-04-12 12:20:03. Republished by Blog Post Promoter

Via Instapundit, Ryan Sager writes about what happens when “campaign finance laws” (including state law versions of the McCain-Feingold Anti-Sedition Act) are used to literally shut down the exercise of First Amendment rights in free political speech — typically when the speaker is on the right.

Sager has been on this story for a while. Where are all those self-described civil libertarians who are obsessed with every kind of acid test for the upcoming Supreme Court nominees except whether the new Justice is at least an even bet to restore the First Amendment? Indeed, where are the self-described First Amendment defenders? From the looks of it, their concerns are everything on God’s green earth — Ward Churchill, “academic freedom,” the right to public obscenity, “global resistance to the war in Iraq,” the Patriot Act — everything but what is really happening to the actual First Amendment.

Enjoy this blog while you can.

What the hey is going on Section 230, you guys?

Prof. Eric Goldman

What’s gonna be, Eric?

That’s my version of the less family-friendly-titled, but extremely important, question asked by Eric Goldman in this post, which I excerpt, to wit:

It’s been a tough year for Section 230. In one case after another, I’ve had to “explain away” Section 230 losses:

* Doe #14 v. ModelMayhem. The 9th Circuit embraced a dubious “failure to warn” exception to Section 230.
* E-Ventures v. Google. “Bad faith” allegation overcomes Section 230(c)(2) motion to dismiss.
* Adblade v. RevContent. Allowing a lawsuit to proceed that would potentially hold an ad network liable for third party ads.
* Tanisha v. Chandra. “Conspiracy” allegations overcome Section 230 dismissal.
* Diamond Ranch Academy v. Filer. Summaries of third party content isn’t protected by Section 230.
* Maxfield v. Maxfield. Email-forwarding screenshotted tweets isn’t protected by Section 230.
* Vision Security v. Xcentric. Section 230 denied because Ripoff Report isn’t a “neutral publisher” (sorry, I can never write that term without pointing out it’s an oxymoron).
* J.S. v. Village Voice. Section 230 dismissal denied when plaintiff alleges the defendant “did more than simply maintain neutral policies prohibiting or limiting certain content.”
* General Steel v. Chumley. Section 230 denied if defendants selectively edited content to create a desired meaning (a variation on the oxymornon of neutral publishers).
* Xcentric v. Smith. Allegations that content was created by someone acting like an agent defeats Section 230.
* AdvanFort v. Maritime Executive. How content is bylined might affect Section 230.
* Song Fi v. Google. No Section 230(c)(2) defense for removing video as “objectionable content” if Google’s underlying concern was view count inflation.

(Whew, collecting these defense losses into a single post was exhausting!)

Remind of this, and the time professors have to put stuff like it together, next time I grumble about the academy. Thank you, Eric!  He goes on to discuss Cross v. Facebook, CIV 537384 (Cal. Superior Ct. May 31, 2016) (complaint) in which the following awfulness goes forth: Read More…

All you need is what he’s got

Originally posted 2011-04-26 21:41:29. Republished by Blog Post Promoter

Randy Barnett, enjoying a new authorized remix of a bunch of Beatles music, frets that we can’t have more of the same because of bad old “intellectual property”:

IP is supposed to create incentives for innovation. Here, as elsewhere, it is suppressing innovation. I know the counter arguments: The Beatles songs would not exist in the first place if not for IP; nor would this mix. And they deserve recompense. And they should be able to control the quality of derivative uses lest the value of their property be diminished, etc. I know the drill.

I also know the responses. The Beatles would not have created music unless compensated untold millions? Cirque Du Soleil would not have need a sound track for their show? Unlikely. They would not have created music unless their decendents were made millionaires many times over? Hardly. They deserve to control all derivative uses? What about the writer of the poster on which “For The Benefit of Mr. [Kite]” was based and his or her deserving descendants?

He then goes on to criticize the abuse of IP, especially copyright, with which I certainly agree. But he doesn’t really wrestle with what the right to make derivative works really is all about.

Barnett also puts himself in the position of “price second-guesser” as to what he thinks the proper price for owners of original works “should be” before they authorize the creation of derivative works. I suppose his rationale for that is that intellectual property isn’t “really” “property” at all, and perhaps he’s right.

I don’t believe, however, that this means the price mechanism is to be uncoupled merely so we can innovate utilizing other peoples’ creative works. Perhaps the Beatles wouldn’t have needed untold millions to write their brilliant music; but perhaps they would have, before, for example, making the massive investment, for its time, that the production of the Sgt. Pepper’s Lonely Heart’s Club Band album entailed. Where do we draw that line? And since we’re asking how much the Beatles really “need” in order to be the Beatles, how much do we “need” in order to listen to remixes of “Good Day Sunshine”?

DMCA – Dumb Management of Copyright Accusations?

Originally posted 2012-05-30 14:31:31. Republished by Blog Post Promoter

Fleet week! 26

 Not every big stick makes sense in every context.

Idiotic DMCA takedown notices:  They’re all the rage.  Tim Bukher links to this item from Mike Masnick, riffing on some of the “best of” DMCA takedown notices published by Google and initially combed through for brickheadedness by TorrentFreak.  Meanwhile, Jonathan Bailey anoints GoDaddy.com “DMCA Overreactor Extraordinaire.”

Follow that?

Tim notes that this may be the by-product of “automated” or otherwise outsourced-to-non-lawyers IP enforcement programs or firms.

That’s giving lawyers a lot of credit for non-dumbness, wouldn’t you say?

INTA’s magic kingdom

This year’s annual meeting of the International Trademark Association was held in sunny Orlando, Florida, which in many respects is a very appropriate place for an association of trademarks to meet.  Orlando, of course, is the world’s epicenter of theme parks.  And the theme of themes is joyful, real-time, three-dimensional interaction with “intellectual property,” which for present purpose mostly means stuff born of copyright but transmogrified through the wonderful process of “branding” into trademarks.

Such undead creatures, of course, once so transformed can live forever as long as they justify their existence by bringing forth gold.  If so, they will be nurtured, grown and tended forever, and any threat to their health, or to their sustenance, will be brutally interdicted.  (Only in the event of a horrible accident of mutation — where, as a result of some regressive, non-adaptive feature, because of which their continued existence threatens the survival of the entire colony, will one of these creatures not only be allowed to die but, in fact — well, it is better not to speak of such things at all….) Read More…