Archive by Author

Famous marks doctrine dunked again

Originally posted 2008-03-03 11:13:08. Republished by Blog Post Promoter

Las Vegas Trademark Attorney reports that the Second Circuit has taken the “advice” of the New York Court of Appeals and rendered a final decision in the BUKHARA “famous marks doctrine” case.  Writing about the original Second Circuit opinion from last year, he says:

The court even acknowledged that its decision to reject the “famous marks” doctrine conflicts with the Ninth Circuit’s decision in Grupo Gigante S.A. de C.V. v. Dallo & Co., 391 F.3d 1088, (9th Cir. 2004) which recognized the “famous marks” doctrine with respect to federal trademark rights, and goes against famed trademark treatise author J. Thomas McCarthy, who has apparently called the decision “embarrassing” (see write-up by Seattle Trademark Lawyer and contrasting write-up by Likelihood of Confusion). This circuit conflict alone leads some (myself included) to believe that a grant of certiorari from the U.S. Supreme Court is in the future.

Yeah, contrasting! It would be great if the Supremes would take this up.

Public Citizen pushes IP overreach back

Originally posted 2007-05-25 00:29:52. Republished by Blog Post Promoter

Greg Beck of Public Citizen writes in with litigation news (I’ve added the links):

Public Citizen filed a motion to dismiss a lawsuit in Florida by two affiliated informercial companies that are attempting to shut down negative reviews of their day trading software on the websites InfomercialRatings.com and InfomercialScams.com. The companies claimed that running a website where consumers can post reviews of their products constitutes trademark infringement and a variety of other wrongs, and sought triple damages and attorneys’ fees against the site’s owner. In its motion to dismiss, Public Citizen argues that the Arizona-based website operator is not subject to jurisdiction in Florida, that the websites are protected by the First Amendment, that posting reviews is not trademark infringement, and that the Communications Decency Act protects a website owner from liability for what users post on the site.

Well, yeah.  Especially these two:  “the websites are protected by the First Amendment, [and] posting reviews is not trademark infringement.”  Motion to dismiss?  I hope there’s a motion for sanctions in the pipeline.
It’s not infrequently possible to blind judges to what’s really going on by flashing a bunch of trademark registrations in front of them, usually in a big fat Exhibit A to a complaint.  Small businesses can’t keep up with the cost of defending their litigation activities, and are getting hammered by IP overreach.  This is one right-wing nut saying, thank God for Public Citizen on this issue.

We make those?

Originally posted 2007-05-17 10:52:29. Republished by Blog Post Promoter

Manufacturing

When is too much quality control over licensees a bad thing? When a trademark licensor gets sued for a defective product with its trademark on it. The trick, according to this article by two Chadbourne attorneys, is to exercise enough to quality control to appropriately manage your goodwill, without having liability imputed to you because of your supposed hands-on involvement.

Damaged China

Originally posted 2008-02-09 22:30:28. Republished by Blog Post Promoter

Michael Atkins looks at how China now calculates trademark infringement damages.

“I didn’t make him for you”

Originally posted 2007-03-01 14:25:14. Republished by Blog Post Promoter

Google is not a utility. Or an agent of the state, or a thing that owes anyone anything except to the extent they pay for it. At least for now. Eric Goldman has the decision from the U.S. Court for the District of Delaware, and the writeup.

UPDATE: Unrelated, but related:  the Google Censorship FAQ.

Major League Baseball steals from customers

Originally posted 2007-11-07 22:14:24. Republished by Blog Post Promoter

“If You Purchased MLB Game Downloads Before 2006, Your Discs/Files Are Now Useless; MLB Has Stolen Your $$$ And Claims “No Refunds”

Compelling blog post title, no?

So typical of the bloated steroid brains running that business. Yes, guys, you’ll always be able to do just whatever you want to fans, because your product is in unceasingly great demand. Just ask the record companies.

Billed hat tip to TechMeme.

Uplifting blog post on trademark protection

Originally posted 2007-05-20 13:14:04. Republished by Blog Post Promoter

How to get that ® to rise above it all in Microsoft Word.

No more free ride

Originally posted 2007-11-06 12:53:29. Republished by Blog Post Promoter

Attributor is a new program that online publishers can and do use to trace their verbal content across the Internet and see who is using how much of their stuff without paying or attributing.

Reading the articles (this one sent to me by my brother, software engineeer Glenn Coleman) it seems clear that most media outlets are interested in getting credit, and links back to their sites, for typical use of their materials, i.e., use that is defensible as “fair use” under the Copyright Act:

CEO Jim Brock gave me a demo of Attributor last week in the lobby of the Waldorf Astoria. Attributor is already indexing 100 million Web pages a day (15 billion total so far), but it is not a keyword index. It looks for bigger blocks of content. Right now, it can handle only text. Images are in beta. And video matching will go into beta early next year. If you are a publisher that is a customer of Attributor, it ingests all your content and comes up with matches. Attributor splits up the world between sites that exhibit extensive copying (more than half of an article, for instance) and just some copying. It shows which sites have linked back to the original source and which have not. “Often, that’s all they want—a link,” says Brock.

That last sentence is key, and tracks the advice I give inquirers in my professional role (including my job as general counsel of the Media Bloggers Association): If you help generate traffic to the media site that produced content that you’ve excerpted, you far more often than not have inoculated yourself against an infringement claim, if only from a business (as opposed to legal) point of view.

Now Attributor is here to enforce that eminently reasonable deal. It would be eminently reasonable, if you’re a blogger or other Internet publisher utilizing other people’s content, to be very aware of it.

Mesh Media Strategies

Originally posted 2007-07-18 18:04:57. Republished by Blog Post Promoter

Bill Hobbs has a new blog!

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!

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.

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.