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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.

Judge: “Go after your distributors, not free enterprise”

Originally posted 2007-11-27 14:59:05. Republished by Blog Post Promoter

Quality KingJudges — especially in the Eastern District of New York — are picking up what’s going on in the “elite salons” end of the trademarks-as-distribution-method-enforcement scam.  Ever hear of Quality King?  Says Forbes:

Quality King Distributors has grown from a small shop in Queens, New York to a large distributor of pharmaceuticals and health and beauty care products. The company re-imports exported U.S.-branded over-the-counter pharmaceuticals and personal care products and sells them at deep discounts. Clients include drugstore and supermarket chains, grocery distributors, wholesale clubs and mass-merchant discounters. Glenn Nussdorf and his wife started Quality King in 1961, and the Nussdorf family still owns the company.

That can’t stand, can it?  Well, maybe it can:

A federal judge has blasted the L’oreal company, and former federal law enforcement officials it employs, for trying to bolster what he said was a very weak civil case by attempting to get former Justice Department colleagues to prosecute criminally a longtime business opponent. …

U.S. District Judge Leonard Wexler in Central Islip recently ruled against Paris- and New York-based L’oreal in a 2004 civil lawsuit brought by the company against Ronkonkoma-based Quality King Distributors, a $3-billion-a-year distributor of hair-care and other products, as well as its spinoff company, N.J.-based Pro’s Choice. The suit was the most recent round of an ongoing 17-year legal battle between L’oreal and Quality King.

L’oreal sought in its suit the enforcement of a 1990 injunction that barred Quality King and Pro’s Choice from buying and reselling an upscale line of hair shampoos and conditioners, sold by L’oreal under the names Matrix and ARTec.

That should be good enough, right?  Well, not if Judge Wexler smells baloney: Read More…

Online use of trademarks and copyrights by “unauthorized distributors”

Originally posted 2007-10-06 20:57:56. Republished by Blog Post Promoter

LIKELIHOOD OF CONFUSION does not generally comment about active cases in which we are directly involved. But a very important and detailed (61 pages!) summary judgment decision came down in the U.S. District Court for the Eastern District of New York last week, in the case of S & L Vitamins, Inc. v. Australian Gold, Inc., 2:05-cv-1217 in which I represent the plaintiff. And while we will not comment on the decision, for obvious reasons, any reader of this blog involved in trademarks and the Internet will want to read it. So here it is. Credit to David Nieporent, co-author on the plaintiff’s brief!

UPDATE: Cogent commentary from Eric Goldman and Matthew Sag; now comes Rebecca Tushnet.

“Consumer fraud”: The new online speech control law?

Originally posted 2008-03-19 13:10:44. Republished by Blog Post Promoter

CONFUSION picense plateGet this:

New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students.

Language on the site ranges from catty to hateful and offensive. One thread, for example, on the “most overrated Princeton student” quickly dissolves into name-calling, homophobia and anti-Semitism.

JuicyCampus may be violating the state’s Consumer Fraud Act by suggesting that it doesn’t allow offensive material but providing no enforcement of that rule — and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday.

What a load of baloney! I have litigated the New Jersey Consumer Fraud Act frontwards, backwards and sideways, and believe me — this would be an unbelievable stretch. If Milgram’s interpretation were to fly, it would make that statute an omnibus be-a-good-person-online law with essentially no meaningful limitations. Not that I doubt that the Attorney General would love to have such power, but that would certainly be beyond anything contemplated by the New Jersey Legislature when it was passed.

Of course beyond what the Act itself provides, such an application of it would be unconstitutional too.  Unfortunately, neither of those are giant concerns to some judges in the Garden State.

By the way, this is not an endorsement of online defamation, especially when done anonymously. On the contrary. But please, let’s call a fraud a fraud.

UPDATE here from Overlawyered.

A theory of likelihood of confusion

Originally posted 2007-08-24 08:02:28. Republished by Blog Post Promoter

The Legal Theory Blog excerpts from a recent article on the the back story of trademark litigation, by one Michael Grynberg:

The plaintiff effectively represents two parties. She defends her trademark and simultaneously protects consumers who may be confused by the defendant’s behavior. The defendant, by contrast, stands alone.The resulting “two-against-one” storyline gives short shrift to the interests of non-confused consumers who may benefit from the defendant’s purportedly infringing behavior. Ignoring these consumers is especially problematic given the ease with which courts apply pejorative labels, like “misappropriation” and “free riding,” to the conduct of trademark defendants. As a result, courts are too receptive to non-traditional trademark claims, like initial interest and post-sale confusion, for which the case for consumer harm is questionable.

More rational results are available by appreciating trademark litigation’s parallel status as a conflict between consumers. This view treats junior and senior trademark users as proxies for different consumer classes and recognizes that likely confusion among one group of consumers may affirmatively harm others.

I like anyone who tries to push back harm-to-the-plaintiff-free trademark lawsuits based on “non-traditional trademark claims,” and I have not read the whole article (I don’t think it’s available on line), but I don’t quite think this works. As a practical matter I do not believe that this “two against one” burden is a meaningful one for defendants; on the contrary, it is a burden the plaintiff has to carry: He has to convince the courts that not only he, but consumers, are being harmed by the alleged infringement.

Well, that’s how it’s supposed to work. The problems is the opposite one from what it seems Grynberg is saying: Judges ignore the consumer-harm burden placed on the plaintiff, and treat trademarks as rights in gross. Or at least, some do; and the corporate trademark bar most certainly wants them to.

Thus the problem is the mirror image of the one posited.  The solution: Don’t add a factor to the defendant side; merely recognize it on the plaintiff side. It’s been there all along, feeling lonely, judges.

Starting ‘em out young

Originally posted 2007-02-11 19:43:15. Republished by Blog Post Promoter

Counterfeit Chic looks at tomorrow’s counterfeiters. Well, that’s how Susan looks at them, anyway. When you’re a carpenter everything looks like a nail, you know?

The seven horsemen of the Ablawgalypse

Originally posted 2008-01-06 16:55:13. Republished by Blog Post Promoter

I hadn’t picked up on this — as part of its “ABA 100” story, the ABA Journal published brief profiles of the seven “revolutionaries” of law blogging, as they see it:

All good choices. One thing I find noteworthy: Only one of them (Goldstein) works for a major law firm (though probably most or many of them have, at one time or another). I wish I had the time to run down the whole ABA 100. I suspect the big firms are way under-represented, especially considering the obsession with Big Law at publications such as American Lawyer.

Why? It’s not just because running a good legal blog is time-consuming. It’s because blogging well on a real topic requires independence of mind, a distinct style, strong opinions and willingness to stick out — not a good combination at all for success in institutional corporate law firms. Believe me.