Thanks to nothing?

Originally published at Dean’s World, Thanksgiving 2006:

Thanksgiving_1900A million essays and blog posts will explore the topic of “being thankful” in the next 24 hours.

I’d say, based on a perusal of a Google search I just ran, that at least 80% of these pieces talk about “being thankful” with no reference whatsoever to Whom (or even whom) one should be thankful.

It is an utter logical dead end. You cannot, by definition, have “thanks” without an object of thanks. It is meaningless.


thanked , thank·ing , thanks

1. To express gratitude to; give thanks to: He thanked her for the gift.
2. To hold responsible; credit: We can thank the parade for this traffic jam.

You can’t have free-floating thanks. You can thank her for the gift, you can thank the parade for the traffic. You can’t just thank, however.

You can eat turkey. You can watch football. You get together with family and you can call it Thanksgiving. But that won’t make it thanksgiving.

Whom are you thanking this Thanksgiving?

Wal-Mart pushed back on dubious trademark threats

Originally posted 2006-03-08 13:33:28. Republished by Blog Post Promoter

MarketWatch reports this story about an opinonated gent who’s suing Wal-Mart for a declaratory judgment:

Smith said he was making a point by comparing the giant retail company to the Nazis by creating T-shirt designs that played off the Bentonville, Ark., firm’s familiar logo, including “I (heart) WAL*OCAUST. They have family values and their alcohol, tobacco and firearms are 20% off,” the newspaper reported.

Wal-Mart launched a legal battle by writing a cease-and-desist demand that led Smith to file suit Monday in federal court in Atlanta. Former presidential hopeful Ralph Nader’s legal aid group, Public Citizen, is helping Smith, the report said.

Smith should be ashamed of himself for comparing a damned variety store to the Third Reich. It demonstrates a real lack of moral judgment on his part.

But the stupid party here is Wal-Mart, which should get its clock cleaned and which has given a platform for publicity to a bitter, if morally blind, adversary. Whether it will in this trademark-owners-take-all environnment is, however, anyone’s guess.

UPDATE: Hm. Maybe Wal-Mart had it coming?

UPDATE: The Pierce IP News Blog has it that Wal-Mart will claim its trademark is being besmirched by Smith. In other words, its claim will probably hinge on a trademark dilution count. You know, dilution — the infringement that never has to say “I’m confused.”

Well, yes, I do have fun (UPDATED)

Yes, it looks like a lot of fun, doesn’t it?Sometimes it is.  I recognize that I am very fortunate in that regard, considering how seldom it is (fun) for many of my colleagues.  Which, I’m pretty sure, is very seldom.

I always want to recall the time an older colleague and sometimes-mentor said to me, as we sat as co-counsel in the well before a jury trial in federal court, “Can you believe we get to do this for a living?”

I say I want to recall this because that trial was an unmitigated disaster.  (Frankly it was his disaster, not mine, artistically speaking.  But a flame-out all the same.)  That week in Brooklyn was not one of the fun times at all.  But at least the judge got to finish his charming book about himself.

Anyway, I did end up getting involved in something unusually fun, but at the same time deathly serious, recently.  And actually — because this blog is a law blog and deals with freedom of expression, as well as the way courts handle those things — it is also a topical thing, especially given my old “media bloggers” persona:

The filing, in which we represent investigative reporters Sharyl Attkisson, Steve Emerson, and Edwin Black, is discussed here too.  And the PLO’s brief in opposition is here.

We will be filing a reply on Monday, and will update then.

As promised, the reply brief:

Read More…

The ultimate license

Originally posted 2008-08-07 12:51:35. Republished by Blog Post Promoter

We’ve written before about the preposterous concept of asserting that stuff you buy and put into the trunk of your car and stick in a closet at home is really just a “license” to use that stuff.  Well, here‘s something even “better” — and while it may make users fume, it may be completely legal, and it doesn’t require judges, statutory damages or even any kinds of lawyers to work:

Apple apparently can disable App Store software remotely on your iPhone 3G. The iPhone calls home and poof the application is nuked.

Needless to say that this has caused a bit of a blog ruckus (Techmeme). MacRumors notes that Apple has come under fire for removing App Store software without notification and the ability to simply deauthorize apps already installed on an iPhone is worrisome. iPhone Atlas points out that Jonathan Zdziarski found Apple’s blacklist in a forensic analysis of the iPhone 3G.

Yeahbut.  We can understand why zap-ees would find this annoying, though we kind of like the self-help aspect of it.  From a DRM prospective, though, it’s absolutely progressive.  Or, alternatively, intolerably regressive.  One of those things.

The obvious questions, of course, will come up when someone, or more likely a class of someones, sues Apple for the tort of wrongful nuking.  Will that sound in breach of warranty?  Breach of contract?  Some new and exciting cause of action?  Either way, of course, the lawyers win.  That’s what IP is all about, right? (Hat tip to Instapundit.)

Lego my Trademark

Originally posted 2005-03-22 11:11:00. Republished by Blog Post Promoter

Europe just keeps generating stories. Their IP system is different, you see, though the march toward harmonization in a global market continues apace. Evidently, Lego – that incredible, creativity-inducing toy that made us ’60’s kids (and makes our own kids) such geniuses – had a “trademark” in Germany for “a 2×4 stud block design.” Now, crows Lego’s chief competitor, Mega Bloks, it doesn’t.

Could it ever? Since the decision by the U.S. Supreme Court in Traffix Devices , it has been clear that a trade dress claim cannot be made for “product configurations,” such as “a Lego,” but only for packaging. (Not always an obvious distinction.) This issue has been on the minds of more than a few global practitioners.

Anyway, it appears that Lego had found some way to protect — monopolize — its European business using trademark (whereas the appropriate protection would have been — and, for a time, was — patent). If the Mega Blok people are right, that’s history — as it is in Canada, too, since 2003, though they seem to have made some progress in China, which, however, is quite a Pyrrhic victory.

The good news for Lego: Their blocks still work a heck of a lot better than Mega Blok’s blocks. (Believe me, I know — my basement floor is coated with Legos and Duplos.) Sometimes you just have to compete on quality and value, Lego. It’s not so terrible.

UPDATE: Lego loses.

Fishy business

Originally posted 2008-02-10 23:19:28. Republished by Blog Post Promoter

Funny things happen to trademarks in the Casbah.  John Burgess at the Crossroads Arabia blog has a story about a recent incident of Saudi Arabia’s religious police overplaying their considerable hand in connection with the arrest of a Saudi woman for having coffee with a colleague at Starbucks.

Not our topic.  But this aside did grab me, considering the special attention Starbucks and its trademark adventures have gotten on this blog over the years:

Starbucks and the religious police have a bit of a history. When the company first arrived, its logo of a mermaid caused some consternation because some thought they could see breasts beneath all that hair. To avoid problems, Starbucks came up with another logo, a seahorse. [I do wonder how the police reacted when they learned that male seahorses give birth! Talk about ‘gender bending’!!] By 2003, however, the mermaid was back on the signs, cups, and napkins. What happened to occasion that, I haven’t a clue.

Perhaps she swam her way into their hearts, or their coffee cups.  Or, more likely, the heat was off — at least for a while.

Now the heat is back, albeit on questionable grounds.  You can be sure we will milk the story here for all it’s worth.

UPDATE:  Oddly enough, this story has perked up once again.  According to the And Far Away blog, the 1992-2010 Saudi Starbucks logo was not a seahorse, but this “a crown swimming in the sea” — here, you take a look:

The real story, though, says Roba Al-Assi, is the “chadorable” logo Starbucks al Saud is about to switch to — or, which, as she says in the post, she can only imagine….

I’m not sure all her commenter’s “get it” — maybe they hadn’t had their first cup yet.

Spicy IP

Originally posted 2009-10-16 16:39:44. Republished by Blog Post Promoter

Spicy IP
Care for curry in your copyright?  Take tatri in your trademark?

Then you might just love this group blog, Spicy IP, on intellectual property developments in India. Start out with the hot haleem roundup here — turns out it’s still monsoon season, for as the post says, “It’s raining trademark tidbits today”!


Originally posted 2005-01-05 20:48:00. Republished by Blog Post Promoter

If you’ve got a modem, you might get a link: It doesn’t get any better for a blogger on his third day in business. Now I feel a little guilty, though.

It will pass. Thanks.

NFL punts in “Big game”

Originally posted 2007-05-25 13:34:06. Republished by Blog Post Promoter

The NFL is a lot of things, but I never thought it was stupid. It turns out that it isn’t. The Sports Blognfl.jpg reports:

Remember that stupid effort by the NFL to trademark the phrase “Big Game,” even though everyone knows the phrase has, for more than a century, been used referring to the Cal-Stanford rivalry?

Well, the NFL has dropped its bid.



Admit it:

Originally posted 2007-05-05 23:34:26. Republished by Blog Post Promoter

You have nothing better to do. If you did, you wouldn’t be reading blogs. So, please take my blog reader survey!

Eiffel Tower “copyright”: I didn’t

Just saying:  If you thought I fell for that spin last week that went along the lines of “it’s against the law to take a picture of the Eiffel Tower at night” — well, no, I didn’t.

Let’s first get things first here, first.

A good summary of the case being claimed is this:

Although the Eiffel Tower was built in 1889, placing it in the public domain by virtue of its age, the light show was added to the tower later and is subject to copyright laws. As such, it’s technically illegal to share pictures of the tower’s light show on Facebook, Instagram, Flickr, and other platforms, even if it’s your own, original photo. The same rules apply for other famous landmarks in Italy, Belgium, and France. The Atomium in Belgium, for example, is also protected under copyright.

That is pretty consistent with what the folks over at the “Tour Eiffel” (as they call it in Canadian) say as well.

But okay, that — the claim of right — was really not first things, then, right?  First things was, if you read very closely, that the article above refers to places with names like “Italy, Belgium and France.”  I don’t know what the law is in Italy, Belgium or France, or even how copyright in these faraway lands differs from regular American copyright.  (Evidently, this Tour Eiffel is actually located in one of these foreign countries.)  But based on how I’m seeing this story treated, it appears to be comparable enough to what we know about regular (American, that is) copyright that, being Americans, we can blow right past that and start poking around at this story.

This is, first of all, not so much news.  Here’s a post from that very fine poker of the pokable, Mike Masnick at TechDirt that is almost ten years old (February 2005):

Is The Eiffel Tower Copyrighted?

from the wait-a-minute… dept

Well, here’s the latest in a series of bizarre stories about intellectual property concepts gone ridiculous. Apparently, the city of Paris retook possession of the Eiffel Tower in 2003 and decided that they’d had enough of its likeness being in the public domain. So, what do you do? You change the lighting on it, copyright the new light display and voila, all nighttime photos of the Eiffel Tower are now illegal without a license. This serves what beneficial purpose exactly? It’s hard to see how a photograph of a building that can be seen for miles around could be copyrighted in any way or what that could possibly serve any legitimate intellectual property purpose. It certainly sounds too bizarre to be true.

And it pretty much is.  But I am saving the punchline for a minute. Read More…

Tattoo Me ®

Originally posted 2006-01-09 21:20:36. Republished by Blog Post Promoter

Eric Goldman has an interesting piece about an issue that has actually come up in my practice: Trademarks and tattoos, and specifically the concept of people selling “space” on their bodies to act as “human billboards.” “People appear willing to brand just about any part of their body for the right price,” he says. He also notes, however, that — just as you’d think — that price isn’t usually forthcoming.