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Starbucks, we hardly know you

I’ve been writing about the brand and trademarks adventures and misadventures of Starbucks for years.

Sometimes, however, a picture is worth a thousand posts.

A little bit of this, a little bit of that

A little bit of this, a little bit of that

OK, this might not necessarily be one of those times, because Starbuck’s branding problems — mainly the problems of the very, very rich, for its brand equity is phenomenal — do not all percolate down to one messy display in one kosher bagel shop in New Jersey which, from the look of it, appears to be doing everything required in the manual, or whatever it is they make you sign for and read when you get one of these.

This picture, however, is at least worth one post of about a thousand words.  I am just not sure what they are.  But I do know that when they ask me to teach a course on branding and brand management, I will probably devote at least a third of it Starbucks.  It’s the poster child for what can go right, what can go wrong, what can be avoided, and what probably just can’t when you’re trying to manage and maximize a truly great brand.

And the coffee was good.  (Bagels too.)

Franchise quality control finds its own level

Originally posted 2010-01-20 10:21:31. Republished by Blog Post Promoter

Glatt Kosher Subway Store ... not

Avenue J's Glatt Kosher Subway Store ... not

Well, I told you I had some serious questions

UPDATE:  This is the story.

THE SLANTS trademark: The CAFC reply brief

If you’re following the excitement, you’ve already bookmarked and, presumably, shared with all your friends our initial Federal Circuit brief filed in support of the appeal from the PTO / TTAB’s refusal to register the trademark THE SLANTS to The Slants (in the person of their front man, Simon Tam).

You may have missed the PTO’s response, however, in which case that omission has now been made good with the foregoing link.  And it’s been made even better with this (below) — the reply brief we filed in the Federal Circuit yesterday on behalf of Simon and the other Slants:

Shout outs and huzzahs are more than slightly appropriate regarding my colleague, Joel MacMull, who — as he does so often — did the hard part.  And a little of the fun part, too.

Getting the timing right on copyright registrations

Originally posted 2009-09-10 21:42:19. Republished by Blog Post Promoter

Marty Schwimmer:

IDEA v PETA (SDNY August 298 2009): Plaintiff, no doubt aware that statutory damages are only available for post-registration copyright infringements that are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged by defendant prior to the effective date of registration, alleged in its amended complaint that “Upon information and belief, PETA has commenced new infringements, and prepared and exploited new and materially different Infringing Materials since the effective date of registration of copyright in the Work…”

There were no factual allegations to support this conclusory assertion, and thus dismissed plaintiff’s claim for statutory damages and fees. Note that had plaintiff come up with some factual allegations pre-motion, it may have been granted leave to amend, but didn’t, so wasn’t.

My comment:  I had this issue in a case in the SDNY where we did an expedited copyright registration prior to filing… and it was BOUNCED for lack of originality! That doesn’t happen every day. Other side moved to dismiss; we opposed, natch, as set forth here.  Judge Rakoff agreed with us and denied the motion to dismiss.

Originally posted as a comment
by Ron_Coleman
on The Trademark Blog using DISQUS.

Defamation nation

Originally posted 2008-11-26 11:48:32. Republished by Blog Post Promoter

We know a little about defamation law, but Adrianos Facchetti appears to be the go-to man in the blogosphere, so from now on, ask him!  He writes the California Defamation Law Blog, which does not appear to be limited, topically, to California law, and which includes pages called Defamation Basics and Blog Protection 101.  Wow!  Hat tip to Carolyn Elefant via Twitter.

UPDATE:  Never mind.  I think it’s gone — gone as so many of them are

Democrats seek to institute government monitoring of media

Originally posted 2008-11-04 13:08:58. Republished by Blog Post Promoter

Already giddy with the power they expect to be delivered to them today, Democrats are promising to reinstate government control of public communication to insure what political appointees determine is “fairness” and balance:Here to help with fairness

Asked if he is a supporter of telling radio stations what content they should have, [Sen. Charles] Schumer used the fair and balanced line, claiming that critics of the Fairness Doctrine are being inconsistent.

“The very same people who don’t want the Fairness Doctrine want the FCC [Federal Communications Commission] to limit pornography on the air. I am for that… But you can’t say government hands off in one area to a commercial enterprise but you are allowed to intervene in another. That’s not consistent.”

Talk about consistent?  Schumer says he is “for” regulation that prohibits pornography on the air, but that “the very same people” who favor that regulation — but not him, just the other “very same people” — oppose mere “government intervention” to insure “fairness.”  Of course, the comparison is also inapt:  Pornography is not protected by the Constitution.  Political speech is.

Senate Rules Committee Chairwoman Dianne Feinstein (D-Calif.) last year said, “I believe very strongly that the airwaves are public and people use these airwaves for profit. But there is a responsibility to see that both sides and not just one side of the big public questions of debate of the day are aired and are aired with some modicum of fairness.”

We have a feeling she isn’t talking about the “fairness” with which the networks covered this year’s Presidential election.

Welcome to your new world of free speech — free only when it is “fair,” and “fair” only when Washington (and perhaps your local “dependable” state government) tells you it is.

And guess whose Washington it is now?

UPDATE:  A modest proposal to end guessing altogether (via Instapundit).

Business-process patents? Maybe not.

Originally posted 2008-10-31 01:37:36. Republished by Blog Post Promoter

A twelve-judge panel of the Federal Circuit has dealt the concept of business-process patents what appears to be a significant blow in In re Bilski, a case decided yesterday:

“We hold that the applicants’ process as claimed does not transform any article to a different state or thing,” the majority opinion said.

“Purported transformations or manipulations simply of public or private legal obligations or relationships, business risks, or other such abstractions cannot meet the test because they are not physical objects or substances,” added the opinion written by Chief Judge Paul Michel. Three judges dissented.

You might say business process patents hit a concrete wall.  But while you’d have a fine pun you would not be quite accurate.  As usual we defer here to Dennis Crouch, the nation’s leading patent blogger:

To be clear, the machine-or-transformation test is not a physicality test – i.e., a claim can still be patentable even if it does not recite sufficient “physical steps.” On the flip-side, “a claim that recites ‘physical steps’ but neither recites a particular machine or apparatus, nor transforms any article into a different state or thing, is not drawn to patent-eligible subject matter.” Here, the court spelled out the specific issue in mind: a claimed process where every step may be performed entirely in the human mind. In that situation, the machine-or-transformation test would lead to unpatentability. “Of course, a claimed process wherein all of the process steps may be performed entirely in the human mind is obviously not tied to any machine and does not transform any article into a different state or thing. As a result, it would not be patent-eligible under § 101.”

Which isn’t to say that “process steps [that] may be performed entirely in the human mind” don’t have their own charm.  They just can’t be patented.  Not that there’s anything wrong with that.

Today: ABA CLE Webinar on Disparaging Trademark Rejections at the PTO

Hurry up and register for this webinar , in which LIKELIHOOD OF CONFUSION® (that’s me) will be participating as comic relief, on the topic of the refusal to register “disparaging” trademarks such as REDSKINS and THE SLANTS under section 2(a) of the Lanham Act.

It is going live on the ‘tubes at 1:00 Eastern time.

ABA Redskins CLERegister and pay attention, and you get 1.5 CLE credits, though you have to pay the money.  Like anything else.

All the suntain lotion in the world…

Originally posted 2008-07-02 00:45:47. Republished by Blog Post Promoter

Note: This post quoted by the New York Times here. Cool, huh?

O’Connor federal courthouse

Originally uploaded by Ron Coleman

Yesterday I was here, in the stupidestly-designed courthouse on God’s brutally-baked brown desert earth — the Sandra Day O’Connor Courthouse in sunny Phoenix, Arizona.

It is truly a marvel of arrogance. Imagine being so utterly uninterested in anything besides how you’d like your box of Erector Set pieces to look like at the award ceremony that you design a massive building, meant for human habitation, that is actually a gigantic greenhouse that grabs scorching-hot sunbeams from one of the hottest atmospheres on the continent and just plays them across a gigantic, uncoolable interior atrium.

This monster has an evil twin in my own neighborhood, named after the entirely more prosaic former U.S. Senator and ur-fixer Anthony Alfonse D’Amato, in his home turf in Long Island. The U.S. courthouse for the Eastern District of New York is every bit as soulless and unconnected to how people use built space. Like the Arizona torture chamber, this one features cold, ornament-free, angular hard white spaces, a soaring atrium and a complete denial of the human spirit. Both feature vast plazas requiring five minutes of walking from the curb to the front door that, when shown on the architect’s drawings, must have depicted lunchtime building workers gaily eating their lunches, taking in the sun, flirting and strumming guitars — a true communitarian dream in federal jurisprudential space, and far enough from any possible truck bomb to make those shared moments entirely carefree.

Neither one of these plazas ever has a single person relaxing in them, in reality. The one in Central Islip is too windblown to hang out in, the D’Amato tower truly epitomizing the concept of a white elephant as the only building of its scale for what must be 20 miles all around — a largely empty monument to federally funded megalomania. On almost any day the sun beats off the bright white surfaces so intensely that polarized lenses are de rigeur and blinded lawyers quickly scurry across the plaza through the revolving-door entrance and into the heartless, icy lobby.

But this same formula truly amounts to a miniature Judicial Conference death valley in Phoenix. (continued at Likelihood of Success)

America’s trademark litigation gravy train – the Bratz / Barbie case is back!

Originally posted 2013-01-30 22:02:10. Republished by Blog Post Promoter

I can’t claim to be keeping close tabs on what’s going on in theBarbie / Bratz trademark litigation. But lookie here:

A federal appeals court has ruled that Mattel Inc. doesn’t have to pay $172 million to MGA Entertainment Inc. to settle a trade secrets theft claim over Bratz dolls because a key claim should have been dismissed before trial.

The ruling filed Thursday by the U.S. 9th Circuit Court of Appeals is the latest wrinkle in a bitter, protracted dispute between two Southland toy companies: El Segundo-based Mattel, the world’s No. 1 toy maker and owner of the Barbie empire, and Van Nuys-based MGA, a little-known company until it introduced Bratz in 2001.

Ok, don’t get too excited:

The unanimous decision by the three-judge panel found that MGA’s counter-claim accusing Mattel of misappropriating trade secrets was not related to an earlier trade secret allegation by Mattel and, therefore, could not be included in the lawsuit. The panel left open the possibility of a separate action on the claim.

Thursday’s ruling leaves MGA with an award of about $137 million, down from the original $310-million award the company received in a 2011 retrial.

Trademark lawyer Ron ColemanNaturally those of us lower in the food chain understand why this work goes to the tippy-toppest trademark lawyers ever, of course — all that certainty you get when you invest in such quality talent.

It’s inspiring to the rest of us just to be allowed to peer in through the knotholes, believe me!

Oh, well, $137 million.  That is less than half of $310 million, so I get why “MGA Chief Executive Isaac Larian said that the company ‘absolutely’ plans to bring another suit against Mattel for trade secret theft, although he declined to say when.”

Clearly no one in this case is “saying when.”  Which we in the legal economy call “a win-win,” of course.

Other People’s Information Doesn’t Want to be Free

Originally posted 2005-03-12 21:37:00. Republished by Blog Post Promoter

Last night Santa Clara County Superior Court Judge James Kleinberg ruled in the Apple case that “reporters who published ‘stolen property’ weren’t entitled to protections. ”

B-b-b-b-b-b-but even if they’re reporters?!

Yes. Even if they’re reporters. This is not a First Amendment issue. Just ask The Nation.

False light no problem for Jews for Jesus

Originally posted 2008-10-31 08:00:00. Republished by Blog Post Promoter

Jews for Jesus*, a litigation-happy racket that not only bases its religion business entirely on LIKELIHOOD OF CONFUSION but for whom misrepresentation and falsehood defines its entire enterprise, has once again pushed the First Amendment in a direction that works for it and avoided legal sanction for its unethical, but legal, way of utilizing other individuals for its own ends. In Jews for Jesus v. Rapp, the Florida Supreme Court has refused to adopt the tort of false light defamation on the ground that such claims are too rife with free speech risks and add little not otherwise available to most plaintiffs in a position to benefit from it.

What did these charmers do this time?  “The gravamen of Rapp’s claim is that Jews for Jesus falsely and without her permission stated that she had ‘joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus.'”  The philosophy of Jews of Jesus is Messianic Judaism, i.e., a sort of Christianity comparable to schmaltz herring steeped in bacon grease, and it is fair to say that most non-Jews have no idea just how shocking such a claim can be for a Jewish person, especially an older one, to read about herself on the Internet, if it is factually false.

The court acknowledged that there could be scenarios where the tort, as defined in the Restatement, could be useful.  Read More…