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Roca rocked; Randazza revels

Are we thin yet?

You may have already read the previous post, only from yesterday, about the Roca Labs v. PissedConsumer follies.

If you have, great.  If you haven’t… maybe you want to come back to it after you read this — in which our dashing hero, well… dashes some brains against some rocks, or some … Roca:

Roca Labs vs. PissedConsumer Report and Recommendation

Bottom line: Suing consumer review sites is just getting stupider and stupider.

Goldman Sachs, those big losers!

Originally posted 2009-07-17 00:01:51. Republished by Blog Post Promoter

Remember Mike Morgan, the flaky sort who dast challenge the mighty Men of Gold?   Now it’s over, like just another paid-back multi-billion dollar loan, and here’s how it all ends (via @walterolson):

Mike Morgan, a Florida-based investment adviser who started the controversial blog, has prevailed in a case he brought against the investment bank in April.

Goldman . . . quietly agreed to several stipulations last month in order to dismiss the case. . . .

[H]e appears to have emerged victorious in the Goldman matter provided he maintains a prominently displayed disclaimer on his Web site disavowing any affiliation with the investment bank.In turn, Goldman agreed to refrain from interfering with Morgan’s use of  [Chadbourne & Parke IP practice co-chair John] Squires [(Goldman's former chief in-house IP counsel)] Squires and Chadbourne IP litigation counsel Peter Bucci represented Goldman in the litigation.

That’ll teach those Goldman guys.  They must feel just rotten.  See, look:

Squires declined an Am Law Daily request for comment.

Imagine.  Well, maybe back at Goldman they’re not feeling all that rotten.  Here’s what goes in the ellipses:

Goldman, which exceeded expectations by reporting $3.4 billion in second quarter profits this week, quietly agreed to several stipulations last month in order to dismiss the case.

As I was saying:  This just proves that even having literally all the money in the world doesn’t always win cases, see!

Yeah, that’s the ticket.

Channeling Mr. Rogers

Originally posted 2009-05-27 13:54:45. Republished by Blog Post Promoter

“I have always wanted to have a neighbor just like you,” crooned Mr. Rogers for all those afternoons.

Well, evidentially it’s mutual, and then some.  Michael Kinsell, it seems, has always wanted to be a neighbor, just like — I mean, just like — Mr. Rogers:

PBS is accusing a San Diego teenager of “falsely claiming association” with the network and Mister Rogers’ Neighborhood. He is selling tickets for a May 31 gala event where, according to a news release by his publicist, he will present himself as successor to the late Fred Rogers.

Managing to be even creepier than the original

Managing to be even creepier than the original

Michael Kinsell, who told Current he is 18, said he has produced six episodes of a new show, Michael’s Enchanted Neighborhood.

Kinsell described the benefit event, to be held at the California Center for the Arts, Escondido, as a tribute to Rogers that will raise funds for “children’s public television” and, he hopes, for his own new show.

He said he invited members of Rogers’ family to receive a Children’s Hero Award in Rogers’ honor and said he will give $10,000 in mid-June to Family Communications Inc., Rogers’ production company in Pittsburgh.

In a complaint this month to the California Attorney General’s office obtained by Current, PBS says that Kinsell, with event publicity falsely associating himself with PBS and Rogers, could divert funds to his nonprofit from the network and Rogers’ company.

“Kind of our way,” huh?  The juxtaposition of Eddie Murphy and a Mr. Rogers wannabe is odd enough, but his tossing out of various names best known for TV fame in decades past is odder still.

Actually, let’s go back to “odd enough.”

Reached over the weekend, PBS spokesperson Jan McNamara said, “PBS has no affiliation with Michael Kinsell.” The network’s complaint states that both PBS and Family Communications have “spoken personally” with Michael Kinsell and sent him cease-and-desist letters.

“This event may set a record of the biggest celebrity turnout in the history for San Diego,” said the event’s website.Kinsell said that he was “not at liberty” to say who would appear at the gala, but “foundation supporters” include Bette Midler, Tom Hanks, Sally Field, Barbara Eden and Eddie Murphy. “That’s kind of our way of saying they will be on stage that night, but scheduling stars is difficult,” he added.

Not in my neighborhood, thanks.

UPDATE:  Sadly, no.

Roca Labs: Until someone puts out an eye

Roca Labs:  Are we confused yet?

Are we confused yet?

It has just been all too, too much to follow, especially from the distance I’ve had to keep from the whole thing — a small distance, mind you,  as I’ll explain.  But really, all the fun is taking place in Florida, a somewhat larger distance, excepting by email, see, and —

Well, as I said.  It’s almost too much to follow.  The “it” is the rollicking litigation carnival brought to our good friends at by the world-famous Roca Labs.  And yes, it is too much too follow, but by the grace of the Internet there’s Popehat, and he’s done the hard work for me, to wit:

[D]uring the month that I was consumed by trial, a case arose that appears scripted — a case that seems intelligently designed with stock characters, movie-villain behavior, and hilarity.

I speak of Roca Labs vs. anyone who speaks ill of them.

Roca Labs is in the weight-loss business. As near as I can tell from its website —check it out yourself — Roca markets an alternative to various weight-loss surgeries: a substance that you consume to fill your stomach, thus reducing appetite and available pizza space. The graphics of the Roca Labs substance remind me of the psychomagnotheric slime from Ghostbusters II, but I want to emphasize that I know of no evidence that Roca Labs’ product has any supernatural properties.

Yet the arcane and unnatural plays a role in Roca Labs’ approach to the market — in the form of an unnaturally ridiculous approach to criticism.

Roca Labs apparently has a clause in at least some of its purchase contracts that forbids customers from criticizing it or its products. Here’s how they describe it, openly, in one of their filings:

In exchange for a significant discount (discounts average $800) customers contractually agree that, regardless of their outcome, they will not speak, publish, print, blog, or write negatively about Roca or its products in any forum.

Now, I think you’d have to be quite stupid to agree not to criticize the person who is providing you with medicinal substances, but then we are talking about a population that has decided to consume large volumes of pink slime to lose weight.

Those “I won’t criticize” clauses rarelyendwell. But Roca Labs is optimistic, to put it mildly. They’ve sued on a theory that I will call “novel” because “bat&#@! crazy” is rude. Roca Labs says that is interfering with their contractual relations with their clients by allowing the clients to post complaints about Roca Labs. That’s their attempt to evade the protections of Section 230 of the Communications Decency Act, which generally immunizes sites from suits over what their visitors post. Roca Labs is even seeking a preliminary injunction to force to take down the critical posts, a classic case of unconstitutional prior restraint.

Marc Randazza is representing As you would guess, that is not a happy development for Roca Labs. Randazza kicks the &#@! out of Roca Labs’ ridiculous demand for prior restraint, and in the course of doing so provides a swarm of BBB complaints, declarations from unhappy customers, and a rather unflattering review by a doctor.

But wait — there’s more! Read More…

Fair Googling a la Mode

Originally posted 2005-03-24 09:37:00. Republished by Blog Post Promoter

Via the In the Agora blog, an update, with useful links, on the suit against Google by Agence France-Presse. Best link is to this article by the ubiquitous Professor Eric Goldman. (Note to self and 100 closest friends: Must read Goldman’s blog more often.) Most interesting, Europhobic (that’s me) angle: France itself is cooking up a project to rival Google’s announced plan to “scan millions of books and periodicals into its popular search engine over the next few years.”

Well, nothing like one of those Eurostate-financed boondoggles to suck the wind out of what’s left of that economic juggernaut. If I weren’t buying Google for the incredible up-side, maybe I’d buy it to beggar France!

UPDATE:  The French… let’s not say “surrendered.”  They worked something out with Google, in June of 2012.  But, of course.

Twick or tweet?

... and there it went.


No, it’s not quite October 31st — that scary, creepy night when you’re so afraid of what’s out there that, if you’re LIKELIHOOD OF CONFUSION®, you close all the blinds …  lock the door…  and stay out of the house and somewhere absolutely else until at least 10:00 PM.

But yes, it is time — well past time, in fact — for that semi-occasional roundup of recent topical tweets via the official LIKELIHOOD OF CONFUSION® Twitter account, @likely2confuse.  Which, if you’re on Twitter but you’re not following, you’re simply just not serious about this.

Oh, and also:  It is time for candy!

OK, yeah; it’s always time for candy.  So let’s go to the tweets:

Read More…

Twisn’t it rich

Originally posted 2009-09-14 14:47:57. Republished by Blog Post Promoter

Here is the latest roundup of topical re-tweets that were tweeted to followers @roncoleman in the last week or so:

OK, gotta fly!

Sarah Palin trademark thing

Originally posted 2011-02-09 12:06:19. Republished by Blog Post Promoter

I try not to blog about the trademark stories that are all over the place.  There are a couple of reasons for this.  One is that I am a snob.  I always knew that if “everyone was going” to see some movie, I was not interested in going unless some other reason could balance out the inherent flaw of popularity.  This is not a particularly meritorious quality of mine, but this is just between us.

Even less meritorious, when you have one of these popular trademark stories — like the Palin trademark situation — I figure if everyone is all over a story, well, it’s covered, right?  Let me find the story everyone else isn’t writing about.  Plus, why risk blowing it?  Lots of people know this stuff better than I do.  (UPDATE:  Here too — excellent comprehensive treatment.)

And then I take a look at what everybody’s saying because people are poking me about it and I realize maybe they’re missing something, perhaps.   That happened with the Politico trademark thing.

So here everyone’s talking about Sarah Palin trying to “trademark her name.” Of course regular readers already know that “trademark” is not a verb and that what Sarah Palin is trying to do is register her name as a trademark.  That’s not even low-hanging fruit any more around here.

My main take on this, looking at the application and the reporting, is that the law firm that filed the application should be very embarrassed, and certainly is.  As everyone knows by now, the application — here’s a PDF of the Office Action — was not properly authorized (“signed”) by the applicant, Governor Palin.

That is a tip-off that a lawyer who doesn’t really do trademark work was doing “trademark” “work.”

And indeed, running down the bio of the attorney of record, I see an accomplished generalist / litigator who is not a trademark lawyer — but who still exercised poor enough judgment not only to handle this himself with little more insight into the process than a well-focused layman, but with the full knowledge that he would subject himself to this level of scrutiny if anything went wrong.  Or even if it went right.  That same office has not continued to cover itself with glory as of this “Notation to File” only yesterday.

Trademark law does not get respect from the judges who “wing it” regarding other people’s businesses, from journalists and even law bloggers who by their misuse of the word “trademark” demonstrate a fundamental misunderstanding of American trademark law (by which trademarks are earned by use, not a process called “trademarking”), from outfits such as Legal Zoom that have non-lawyers file trademark applications for fees or from the lawyers who think of it as such a meatball area of practice that “anyone can do it.”

It’s all fun until someone puts out an eye, you know?

Turn the other one? Or liberty? Or death?

Originally posted 2009-04-23 11:46:26. Republished by Blog Post Promoter

“Trademark” is not a verb.

Right — we will resolve these all here and now.  Key issues.  Fish or cut bait.  Or we most assuredly will all hang separately!

The Daily Mail reports, ” Cheeky team applies to use ‘Obama’ as a European trademark“:

A group of enterprising Spaniards is set to win the European trademark rights to a word with instant global recognition – OBAMA.

EU trademark rules once stopped opportunists turning the names of heads of state and other prominent figures and celebrities into branding gold.

But now, unless the use of an instantly identifiable name is deemed to be an act of deception, little else prevents the first-comer grabbing the rights.

Trademark is Not a Verb, Mr. Hart

Trademark is Not a Verb, Mr. Hart

This item stands for two key points which we all must know; nay, knit unto our very hearts.  Permit me some down-the-middle pedantry here.

1.  Trademark is NOT a verb.  Why do I refuse to give up my hopelessly-outnumbered position against the use of the word “trademark” as a verb?  This usage is everywhere, even on the INTA discussion list.  The reason is not only because I am a reactionary.  (Not only.)  It is because the whole point of U.S. trademark doctrine — that trademark rights are, and by the grace of God and Senator Lanham ought to be, earned by use.  First comes secondary meaning, then comes “rights.”

As I have said before, just as you cannot be “bar mitzvahed,” you cannot “trademark” something.  The “Trademarking” is not “done” via the filing of some paper or granting of a registration.  And this fact is obscured by the awful neologism “trademarked,” which suggests you can … well, it suggests you can do exactly what we’re reading this “cheeky team” did in the Daily Mail piece, and which a decent respect to the opinions of mankind requires that we all acknowledge they should not be able to ought to be do.  Ing.

Trademark is Not a Verb

Trademark is Not a Verb, or Give me Death!

2.  Speaking of self-evident truths, we solemnly publish and declare that even it had not become necessary for one people — Amur’ca — to dissolve the political bands which had connected it to another — England, of course — the injury imposed on the American language by the latter by the jarring, ugly and sick-making term “cheeky” as in the Daily Mail headline would make it necessary now.

And if I have to live with “trademarked” to never again see “cheeky,” may the Supreme Judge of the world, in recognition of the rectitude of my intentions, so grant me.

Thus endeth the lesson. Trademark is not a verb.

As to “European trademark” — “sheesh!

Likelihood of enthusiasm

Originally posted 2008-12-09 17:12:21. Republished by Blog Post Promoter

Here’s a notice regarding our lust for life from C.C. Holland at

The litmus test for whether you should start a blog boils down to passion, says Kevin O’Keefe, CEO of professional blog service LexBlog and a blogger himself. “I think every attorney should consider blogging, [but] if you don’t have a passion for the subject, that shines through.”

Your enthusiasm might align with your area of practice or be completely tangential. For example, Ronald D. Coleman, a commercial litigator with Goetz Fitzpatrick who focuses on copyright, trademark and unfair competition, blogs about those topics on Likelihood of Confusion.

Nice to be mentioned in connection with enthusiasm.  A man becomes preeminent, he’s expected to have enthusiasms.

Preeminent man

Reflecting Fool

Originally posted 2009-04-03 09:54:09. Republished by Blog Post Promoter

George M. Wallace, better known to law blog readers by virtue of his Declarations and Exclusions blog, moons us all and has published an “extra” April Fool’s Blawg Review Appendix on the first of the month.

Extra, meaning there was another one already, right?  Right — the moon, after all, only reflects the greater glory of that brighter star whose own anniversary is nearly upon us.

Shine on!

Blogging is hard

Originally posted 2011-03-16 11:20:15. Republished by Blog Post Promoter

Just a week or so ago I apologized for blogging about blogging, and here I am again — soon it’s going to be like Twitter around here, where all the social media gurus tweet about how important Twitter is.

The good news, however, is that no one thinks blogging is important any more anyway, so we’re good.

Here’s the “content”:  I have this very good WordPress plugin on LIKELIHOOD OF CONFUSION® called “Old Post Promoter” that recycles old posts.  It actually changes the date stamp so it’s not just republishing it (duplicate content is a big SEO no-no); you can set the plugin to disclose the original date of posting, which of course you want to do.

Entrancing subway entrance, NY City Hall Station“Hot” stories in the news or blogosphere seem to make into the rotation at a rate too frequent to be coincidence, but they say the rotation is random.  And I feel quite comfortable doing this because I set the interval to ensure that nothing fairly recent will be republished, and I do after all have six years of content here that in many cases would remain even more obscure than if I give some of these items a little air.  It also enables me to clean up old posts by removing junk code, broken links or graphics and updating items substantively.

What I have found, though, is that more and more of these old posts are, when they link back to new blogs I am telling readers about, linking to blogs that no longer exist.  If I ever have time to check on the status of blogs on my blogroll, too, I always find expired ones.I

Yes, blogging well is hard.  We all have dry spells, busy spells, hating blogging spells.  But as I said in that recent post, what people have to really do in terms of gut-checks before they launch a new blog is ask themselves if they’re interested in succeeding with it.  If they are, that means they’re prepared to do this forever, or until some rational point comes to stop.

Oh, don’t worry — this is not a j’accuse.  It’s no skin off my back if I promote a blog that flops due to a lack of commitment.  I still bought myself a post for that day and burnished my deserved reputation for bloggy generosity.

And maybe there’s a business plan to a short-term blogging career that makes sense.  Probably there is.  It’s… just too late for me, though.