Archive by Author

Farewell to Cox & Forkum

Originally posted 2007-10-03 15:23:57. Republished by Blog Post Promoter

John Cox did that great caricature of me on the right navigation bar.  

Now Cox & Forkum have given up editorial cartooning, to our loss.  Their work together is how John’s talent came to my attention — that and a referral from Chris Muir, who can sure draw pretty girls but not, he told me, super hunky lawyers.

Thanks for a good run, guys!

Patent jobs

Originally posted 2007-07-10 23:04:09. Republished by Blog Post Promoter

Dennis Crouch has them now, if you like that sort of thing.

Law blogs and legal recruitingperfect together!

Organization for Transformative Works

Originally posted 2007-12-13 18:00:05. Republished by Blog Post Promoter

Organization for Transformative Works

This is very interesting:

The Organization for Transformative Works (OTW) is a nonprofit organization established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms.

It’s a copyright thing. Via Boing Boing.

UPDATE:  Some background from Glenn Reynolds.

Must-read IP

Originally posted 2007-12-17 17:46:21. Republished by Blog Post Promoter

The TTABlog designates as “Recommended Reading” Scot Duvall on the The Trademark Dilution Revision Act of 2006.  From John’s description, he makes the Act all kinds of “balanced” and stuff.  Maybe I’ve been too harsh.

The latest on 47 USC 230

Originally posted 2008-03-12 10:25:17. Republished by Blog Post Promoter

Catchy title, eh? Well, I’ll leave it to Eugene Volokh to explain:

This statute immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won’t be liable for it to the defamed party, though you would be liable, and though we would be liable for content we ourselves originate.

The statute, though, exempts “intellectual property.” That clearly means the provider or operator could be liable for copyright infringement by its users (subject to the separate rules provided by the Digital Milennium Copyright Act, 17 U.S.C. § 512), and likely for federal trademark infringement. But it’s not clear whether it covers state law rules that are sometimes characterized as intellectual property laws, for instance the state law right of publicity. The Ninth Circuit [has] held that the § 230 exemption covers only federal intellectual property laws, not state ones.

Got it? Good. So now you can enjoy “47 USC 230 Day” at Eric Goldman’s Technology & Marketing Law Blog — a “hat trick of recent 47 USC 230 opinions.” I know I did.

Octs in their heads

Originally posted 2007-10-21 22:27:08. Republished by Blog Post Promoter

The Colorado Rockies are “trying to trademark [sic]” the expression “Rocktober.”

Speech still free for bloggers

Originally posted 2007-11-01 11:49:29. Republished by Blog Post Promoter

Though in most cases, litigation isn’t. The decision, reported by Eric Goldman, is not remarkable. Unfortunately, neither is the fact that under the American Rule, there is for all practical purposes no downside to suing someone on the most preposterous of grounds and losing — hence making the bringing of meritless litigation a part of every large company’s toolkit for silencing criticism and destroying smaller competitors. As Eric says:

Meanwhile, I’m not clear what, if any, of Smith’s counterclaims are still outstanding. Perhaps Smith will get some additional remedy beyond the moral vindication and $1,000 in sanctions. But even if he does, there really is no way to correct the fact that the plaintiff consumed the last year and a half of Smith’s life, forcing him to defend a lawsuit that was ridiculous and ill-conceived from the outset. (The court declined to award Rule 11 sanctions, saying it was a close call).

Credit card companies get green light to profit from, enable Internet piracy

Originally posted 2007-07-04 23:59:37. Republished by Blog Post Promoter


Reuters reports that in Perfect 10, Inc. v. Visa Intl. Serv. Assn., 494 F.3d 788, 793 (9th Cir. 2007) the Ninth Circuit has affirmed (opinion here), 2-1, a ruling that there is no third-party copyright or trademark liability for credit card companies such as Visa and MasterCard or the banks that process their transactions, arising from their central — essential, really — role in the sale of counterfeit merchandise (including, as in this case, unauthorized copies of dirty pictures) on the Internet:

Writing for the majority, Judge Milan Smith Jr. said credit card processors, unlike Web search providers, do not direct online traffic. “They in no way assist or enable Internet users to locate infringing material, and they do not distribute it,” Smith wrote.

“Here, the infringement rests on the reproduction, alteration, display and distribution of Perfect 10′s images over the Internet,” Smith wrote.

If you didn’t guess from the title, I disagree with this. Why do judges keep missing this? The credit card companies are very much in the profit chain of infringing websites — websites that do nothing but sell counterfeit goods — and they make no serious effort, even when notified, to prevent this activity from occurring.

I am not just shooting from the hip here. I researched this issue extensively for a Very Important Client, and came to the conclusion that, under the right circumstances, liability should, indeed, attach. I cannot understand, for example, why the Ninth Circuit spends so much time focusing on the fact that the credit card companies do not themselves operate the infringing websites the way flea market operators (who have been held contributorily liable) operate the markets where counterfeit items are sold. That is besides the point. I find this language particularly frustrating:

[T]he ability to exert financial pressure does not give Defendants the right or ability to control the actual infringing activity at issue in this case [as would be required to find liabilty]. . . Defendants can only refuse to process credit card payments to the offending merchant within their payment network, or they can threaten to do so if the merchant does not comply with a request to alter content. While either option would likely have some indirect effect on the infringing activity, as we discuss at greater length in our analysis of the Grokster “stop or limit” standard below, so might any number of actions by any number of actors.

Since when is the fact that other things would also work mean that the law will not require a party in a position to prevent illegality — and which is profiting from the transactions — to do what is in its power?

I’m not alone; not by a long shot. The dissenter? Read More…

Blawg Review # 126

Originally posted 2007-09-17 20:13:01. Republished by Blog Post Promoter

Blawg Review continues its recent conceptual bent with Anita Campbell!

Bringing big IP plaintiffs down a peg — or two

Originally posted 2007-06-01 01:13:36. Republished by Blog Post Promoter

Mike Atkins is paying attention to Microsoft’s IP docket, as a Seattle Trademark Lawyer will do. He’s reporting about a default judgment and award the software maker achieved in California, with a rather surprising anticlimax in the dollars-and-cents category:

Microsoft sought more than $3 million in statutory damages. However, the court only awarded $12,500 in damages and $2,000 in fees and costs. The court explained its decision by stating: “Plaintiff asks for the maximum enhanced statutory damages for the infringement of each of seven copyrights and two trademarks. At $150,000 per copyright and $1,000,000 per counterfeit trademark, the tab comes to $2,050,000. Plaintiff has identified a grand total of three units of counterfeit software that defendant sold. It is true that Microsoft could not conduct discovery to determine its damages, but that in itself does not support levying a statutory damages award in excess of three million dollars. … Statutory damages are intended to serve as a deterrent, but that does not justify such a windfall.

Well. True enough, when we got the judgment for seven (theoretical) figures in Louis Vuitton v. Veit, which was a counterfeiting case (and thus also implicated statutory damages), we could point to a major online counterfeiting operation, from which the court could deduce not only massive sales but the sort of massive wrongdoing that those huge swinging statutory damage options are meant to punish. Even then the court wanted as much proof as we could get our hands on of what was going on there.

But only $2,000 in fees and costs? That doesn’t sound right. The attorneys’ fees provisions of the Copyright Act are supposed to make a successful plaintiff at least whole in terms of the cost of enforcement — regardless of the number of units sold. Two thousand dollars doesn’t even cover scribes and sealing wax.

Sounds like something else was going on here. Any suggestions?

Blogger libel suit! Blogger libel suit! Woohoo!

Originally posted 2007-04-11 18:34:43. Republished by Blog Post Promoter

Is this really newsworthy any more?

UPDATE: Okay, maybe a little.

Putting trademark in the corner

Originally posted 2007-08-25 22:45:49. Republished by Blog Post Promoter

Catchphrases such as THREE-PEAT with no coherent secondary meaning and no meaningful trademark identity are one of the really galling misuses of trademarks these days.  Nick Daly sends along this story (link added):

Lionsgate Film Studio has sued 15 companies for allegedly selling their merchandise featuring its trademarked [sic] phrase “Nobody puts Baby in a corner” from the 1987 hit movie “Dirty Dancing.”. . .

The suit, filed in Los Angeles last week, alleges that the use of the phrase by the companies wrongly sends the message to the consumers that the merchandise was authorized for sale by Lionsgate.

This is silly. Not every “good line” from a movie that’s silk-screened onto a trinket lures consumers into thinking that the merchandise has to do with the movie in any formal way. To the contrary, consumers recognize this as a mere cultural reference. But cleverness should not be not a basis for granting trademark rights. This is no more than trademark as cultural rent seeking, an old topic around here, and it’s despicable regrettable.

“Good lines” used to be their own reward. The late Phil Rizzuto was known by millions for his “trademark” use of the phrase “Holy Cow” in calling baseball games. This “trademark” benefited “the Scooter” without recourse to the Lanham Act: It was something that projected his reputation, enhanced his career and the demand for his services, and gave joy and pleasure to his fans.

Contrast THREE-PEAT — a registered trademark of basketball coach Pat Riley, meant to describe a thrice-repeating professional sports championship. Beaucoup clever. But a trademark? For what? Some junk that his company sold around the time he registered the mark, solely for purposes of establishing bona fide trademark use? I’d love to see the survey that could establish any good or service consumers associate with this coinage. That survey will never be taken, because the kinds of companies shut down by lawsuits by the likes of Riley and Lionsgate typically can’t afford to litigate (a survey alone can easily cost six figures of money).

Thus the abuse of the Lanham Act continues. Ironically, it’s unnecessary. I’ll bet you dollars to donuts that NOBODY PUTS BABY IN THE CORNER isn’t making Lionsgate a dime today, because it is essentially worthless as anything but a lever over other peoples’ use.

Trademark blogger Ron ColemanBut you ask: Wait, why shouldn’t Lionsgate be rewarded for its clever phrase (I guess it was clever; I did not see the movie) or the “artistic” moment or recollection it evokes? But it has been! This line presumably made their movie better, and a better movie made them over a fifth of a billion dollars in box office receipts.

And that’s what — and all that — a good catchphrase should be. You know: Its own reward.

UPDATE:  Brett Trout points out there isn’t even a registration for this phrase.  Lots of other good stuff in his piece.  Hat tip to Blawg Review.