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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:

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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.


Kane on Trademark Law – 6th Edition

Kane on Trademark Law - 6th Edition

I’m biased in reviewing the 6th edition of the only comprehensive single-volume —

Well, there you go.  Bias number one:  As far as I can tell, Siegrun Kane’s Kane on Trademark Law: A Practitioner’s Guide is the definitive comprehensive single volume on trademark practice.  I have had my copy on hand at all times for over a decade.  When I learned that it had been updated in May 2014, I was pretty excited.

Bias number two:  I was excited because it was Siegrun Kane herself who mentioned it to me when I had the pleasure of seeing her, many years after we last worked together for a common client, early this year. That was when we both presented at the New York City Bar’s “Trademark Talk” CLE extravaganza, where she brought down the house.  So that’s (2) and (3), I guess:  We’re old colleagues, but although Siegrun is a legend in trademark law whereas I am something between a bad dream and a bit of gas, she is always unfailing gracious.  (As is her husband, David, whose picture is right there on the Wikipedia entry for “gracious.”)

So I’m all biased up, because I’m predisposed to liking this work, having always done so, and because I got a free new review copy of the 6th Edition because Siegrun asked them to send it to me.  But such bias is not, as we say in the trademark practitioner field, for nothing.  You have to have this book.

Wait:  Bias number four:  I’m writing for lawyers who have, and want to have, and like to have, books.  In other words, lawyers seriously interested in learning the answers to legal questions, and indeed identifying the right questions, thoroughly.  If you think you can learn how to be good at this by just doing text searches on Westlaw and Lexis —

Trademark lawyer Ron ColemanWell, you still need this book.  Because it’s one volume, and it’s all in there.  Perhaps it’s also in McCarthy’s treatise; but, frankly, who knows?  McCarthy is massive, it’s expensive, it’s full of forms you probably don’t want or need; and it’s got rust all over it.  Don’t get me wrong:  McCarthy’s treatise an encyclopedia of trademark law, really; if you ever need to know gobs and gobs of cases standing for this, that or the other proposition under the Lanham Act, you will want to have access to McCarthy, which you can cite like a court case.  It’s the black-letter dinosoropedia of trademark law.

But if you want to have one volume right at your side that allows you to scope out, in succinct, snappy prose organized along the lines that make sense in evaluating your client’s claims or defenses, this is the one.

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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.)

Consider yourself enlightened

Originally posted 2008-11-24 00:01:01. Republished by Blog Post Promoter

Michael Atkins, the Pacific Northwest’s trademark blogging doyen and, known to very few, one of America’s legendary masters of the theremin, has published a list of Considerations in Drafting Trademark License Agreements in connection with his upcoming CLE presentation, which you can read about here.

Oy vey

Originally posted 2009-03-09 12:11:57. Republished by Blog Post Promoter

Consider the other side of the aggrieved vandalism promoter Shepard Fairey, of HOPE poster fame:

Obey the "Hypocrite"'s Lawyers!

Obey the "Hypocrite"'s Lawyers!

Gawker: “Obey” Trademark Law:

Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the Giant!

Well, if that‘s who he ripped off, then he really does have guts, I guess!

UPDATE:  Fairey’s got even bigger trouble than that.

M-I-C . . . see you in court!

Originally posted 2008-09-03 11:51:57. Republished by Blog Post Promoter

Could there be a mouse hole in Mickey’s larder?  The Los Angeles Times reports:

All signs pointed to a Hollywood ending with Disney and Mickey Mouse living happily ever after – at least until a grumpy former employee looked closely at fine print long forgotten in company archives. . . .

Copyright questions apply to an older incarnation, a rendition of Mickey still recognizable but slightly different. Original Mickey, the star of the first synchronized sound cartoon, “Steamboat Willie,” and other early classics, had longer arms, smaller ears and a more pointy nose. . .

The issue has been chewed over by law students as class projects and debated by professors. It produced one little-noticed law review article: A 23-page essay in a 2003 University of Virginia legal journal argued that “there are no grounds in copyright law for protecting” the Mickey of those early films.

Garsh, Mick!

Roger Schechter, a George Washington University expert on copyright, called the article’s argument “a plausible, solid, careful case.”  By contrast, a Disney lawyer once threatened the author with legal action for “slander of title” under California law. No suit was filed.

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

Well, I told you I had some serious questions

UPDATE:  This is the story.