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Nailing the arm and hammer trademark

Armed and dubious

Armed and dubious?

It’s the eve of Labor Day — what better time to talk about that great symbol of  militant labor and refrigerator deoderizing, the ARM & HAMMER?

I have in the past wondered about a certain trademark and found, to my surprise, that as well known as it was, the trademark story itself had gotten scant attention from the world.  This was certainly the case regarding the now-defunct trademark, BATES STAMP.  Not so, however, regarding the Hammer.

When you see this symbol you probably just think of baking soda. But, comrades, to bake a few eggs, you know, you’ve got to, um, hammer some shells.  As one interesting little web page, obsessed (interestingly) with the link between what we’re talking about here and, um, Al Gore, explains (and demonstrates by competent evidence):

[T]he Arm and Hammer symbol does not originate with the Church family business, but rather has been widely used by others for other purposes. Traditionally, the Arm and Hammer image symbolizes manufacturing or industry, as for example on Wisconsin’s Coat of Arms and State Flag.

In Lewisburg, Ohio in 1932, an Arm and Hammer rubber stamp was used to cancel postage (www.stuartkatz.com/fancycovers3.htm), the symbol presumably employed here in its reference to manufacturing or industry.

To approach closer to the point, the symbol was also adopted by the American Socialist Labor Party, a precursor of the American Communist Party. Why should Socialists or Communists have been drawn to the arm and hammer? One imagines primarily because of its association with labor; however, the image may also carry a suggestion of militancy, of a powerful arm able to smash opposition.

You can start out, of course, with the official story from the Church & Dwight people, who make Arm & Hammer baking soda and rightly write to celebrate their famous brand, which, baking-s0da-wise, is described not as the symbol of manual labor (more on that below) but as “the standard of purity”:

When you think of ARM & HAMMER™ Baking Soda, you think of our little yellow box. That box has a lot of history – and the high quality it represents is appreciated by a new generation. For more than 165 years, people have chosen pure, versatile, effective, environmentally safe and economical ARM & HAMMER™ Baking Soda for baking and countless household & personal care uses.

Today, consumers appreciate that ARM & HAMMER™ Baking Soda is an effective, yet gentle cleaner and a real alternative to using harsh chemicals, which makes it great for use around food, kids, and pets. It can also be used to replace other household and personal items that may have ingredients that are harmful to the environment.

For more than 165 years, Church & Dwight Co., Inc., the makers of ARM & HAMMER™ Baking Soda, have been a fixture in your home. Our yellow box is so familiar and our logo is one of the most trusted trademarks. Follow our Timeline to see how ARM & HAMMER™ Baking Soda, and our company, has developed over the years.

True dat.  But not de whole true.   Read More…

A certain NFL team is on the warpath

Sorry about the pun — but then again, I’m not the PTO; then again, too, my attitude toward “scandalous and offensive” ethnic marks is different from that of lots of people, too. This one, in particular, has long rubbed me the wrong way.

Regarding the Redskins appeal of the REDSKINS cancellation, here, courtesy of The Trademark Blog, is the complaint in Redskins v Blackhorse:


Unsurprising:  Great reliance on the issues raised by the dissenting TTAB judge regarding the serious evidentiary problems with the TTAB ruling.  This is the core argument in our Federal Circuit brief on behalf of THE SLANTS.  Also interesting:

  • There’s a cause of action for a determination that Section 2(a) is void for vagueness, which we also argue in the SLANTS brief;
  • The Redskins claim that the ruling, coming so late in the historical game in terms of the history of the REDSKINS trademark, did not merely err in terms of laches, but that due to the long use of the trademark by the team violates the Due Process Clause and the Takings Clause of the Constitution;
  • Particularly interesting:  It’s de novo review by the District Court in Virginia, not an appeal to the Federal Circuit.  A party appealing from a TTAB ruling can, in most circumstances, do either of these.

Did the Redskins take the appeal to the District Court approach due to a perception that, based on its recent track record, the Circuit is inclined to approve 2(a) determinations of scandalous ‘n’ offensive as a rule? Probably not. It probably has more to do with the fact that, unlike in THE SLANTS case, the REDSKINS case is premised on an unusually rich factual record.  The team’s argument is that, given every opportunity imaginable to prove its case, the plaintiffs Blackhorse failed.   Remember that the burden on the  particularly onerous one:  Proving that the REDSKINS marks were disparaging to American Indians at the time they were registered, i.e., 1967-1990.

Trademark lawyer Ron ColemanI don’t have much trouble guessing, even assuming, that the marks were, in fact, disparaging to that group.  Doesn’t it make sense that it would be?  Anyone can see it.

That’s a very different kettle of fish, however, from proving it by a preponderance of the evidence.

On reading the REDSKINS decision, I was not surprised to find that the nature of the “proof” relied on by the TTAB was, as it admitted in its opinion, highly “inferential.”  Given the burden on the plaintiffs, and the profound interests, including bona fide commercial ones premised on a very reasonable presumption of the correctness of an agency’s repeated administrative decision, the idea that the TTAB would be swayed by so much inferential evidence is pretty surprising –

Suprising… Read More…

How bad is really bad IP blogging?

Originally posted 2010-10-08 00:01:59. Republished by Blog Post Promoter

I don’t like to call out other bloggers, but I do it sometimes.  People are gentle with my mistakes — Steve Feingold being the model of graciousness this week (as he always is, of course!) — usually.

Hand shredderBut if you write a blog and you jack it all up full of SEO juice and it then gets picked up by my daily Google Alert for “trademark” and then I poke around on your oddly-written Minnesota Attorney Blog blog where you have a category called “Minnesota Intellectual Property” — and hey, I know as well as anyone that they do intellectual property in Minnesota, so I’m not going to snark you out on that — and then I find that each post has this canned-SEO preface to it that says, Minneapolis Intellectual Property Attorneys,”… you know, just in case someone’s, like, searching for the phrase MINNESOTA INTELLECTUAL PROPERTY ATTORNEYS or something… and I click one of the two posts in this category by these “attorneys…”

It had better be good, brother.

So:

Trademarks do not have to be registered in order to be valid. The person who uses a mark in commerce first obtains a trademark on that mark. This mark indicates where a good or service came from. It shows the source. The person who obtains a trademark on a mark also obtains the right to prevent others from using that mark in commerce.

No.  Not good.

Not, not, not, not good.

I feel like Scott Greenfield.  But sometimes, somebody’s got to do it.

Not.  Good.

Minnesota Intellectual Property.

Attorneys.

Bad.

Hershey keeps pushing it

Originally posted 2008-10-30 00:01:29. Republished by Blog Post Promoter

And as usual, Marty’s on top of it like chocolate sauce on vanilla ice cream.

Hershey’s (Hershey’s’s?) pushing of the wrapper, foil and all, is one of our regular obsessions here.  You know, someone ought to do something about these guys…

Authorized?

Originally posted 2009-01-22 16:48:55. Republished by Blog Post Promoter

This better be, because The Force isn’t going to cut it for you these days!

Kimberlin v. All the bloggers — The Patterico / Liberty Chick Motion to Dismiss

Read about the case here and here.

Prejudice in a good way?

Originally posted 2009-07-06 13:22:25. Republished by Blog Post Promoter

Can a company name be “prejudicial”?

My friend Rob Holmes — he of the purportedly prejudicially-monikered “IPCybercrime” firm — is, quite reasonably, going to finish his coffee rather than worry about that too much.   (As Glenn Reynolds queries in an unrelated post, “Is there anything it can’t do?”)

But it is a pretty interesting question.

Infinite loop (updated and bumped)

Originally posted 2011-09-20 18:09:02. Republished by Blog Post Promoter

Essex County historic courthouse detail(Originally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around: Read More…

Secret defrauder ring (UPDATED)

Originally posted 2010-02-15 13:15:54. Republished by Blog Post Promoter

I want one, too!

What is the FRAUD-O-METER™?  Its creator, John Welch, explains:

Some say that a picture is worth a thousand words, and that is certainly true with regard to the TTABlog FRAUD-O-METER™ brand legal indicator. We all know that the CAFC in In re Bose Corporation jettisoned the TTAB’s “knew or should have known” standard for fraud set out in Medinol v. Neuro Vasx, ruling that the Board had “erroneously lowered the fraud standard to a simple negligence standard.”  The appellate court also held that proof of intent to deceive is required to establish fraud and it indicated that even “gross negligence” is not enough, but it declined to address the issue of whether “reckless disregard for the truth” would suffice.

The FRAUD-O-METER™ illustrates the current state of trademark fraud jurisprudence: the now defunct Medinol standard is depicted by the grey arrow resting in the “Negligence” wedge, while the white arrow, representing our post-Bose uncertainty, unsurely leans toward the “Reckless Disregard” wedge.

If the chart looks a bit blurry, then I suggest that you (1) move closer to your computer screen; (2) check your eyeglass prescription; or (3) double click on the chart for a larger version that you can print out or save as your computer wallpaper.

Or, kids, you can collect the whole set!

This is very clever.  Yet I have the sneaking feeling that John…  he is not to laugh from this PTO fraud, so much.

UPDATED:  The Beta for version 2.0 is out!  John explains:

The Board has yet to decide whether “reckless disregard for the truth” is enough to support a fraud ruling. There are some suggestions (including a recent article by TTAB Judge Lorelei Ritchie [TTABlogged here]) that “willful blindness” may be enough. With that in mind, I have created Version 2.0 of the Fraud-O-Meter, still in beta testing.

Louisiana’s lawyers’ guild

Originally posted 2008-11-26 00:28:26. Republished by Blog Post Promoter

Last year we screamed and shouted along with a bunch of other people and prevented New York from passing “ethics” rules that would have essentially shut down New York lawyers’ blogs by regulating them out of existence.  Unfortunately all the noise didn’t make it down to Louisiana, which did go ahead and pass a similar set of restrictions under the guise of “consumer protection” but which should be understood as an attempt by established bar-association types to keep the bogeyman of blog- and Internet-savvy lawyers away from their cozy courtroom concessions.

Now a Louisiana law firm is taking on the regulations and has filed suit in federal court. Look, here’s their press release — we’re allowed to copy that (but links added by LOC):

This morning, Wolfe Law Group, L.L.C. filed a suit in federal court challenging the constitutionality of Louisiana’s new rules governing lawyer advertising. The lawsuit seeks to prevent the enforcement of Louisiana’s new advertising rules, scheduled to take effect on April 1, 2009. The Louisiana advertising rules are some of the most aggressive in the nation, and Wolfe Law Group’s suit argues that the rules go too far and restrict an attorney’s right to freely speak about its trade.

Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s AdWords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums.

The law firm that practices in the area of construction law out of its offices in New Orleans, Louisiana and Seattle, Washington, is actively engaged in the Internet marketplace, posting daily on sites like wolfelaw.com, Twitter, Facebook, Avvo.com, and similar Web 2.0 services.

The suit argues that Louisiana’s new advertising rules would subject each of the firm’s posts to an “evaluation” by the Louisiana State Bar Association, with an evaluation fee of $175.00.

According to a letter sent to Wolfe Law Group’s colleagues and clients, “The new rules would stifle our firm’s ability to continue talking with you about the legal profession, the construction industry and the evolution of construction law across the nation.”

To continue commenting upon the progress of the action, the firm launched a blog titled “Blogging is Speaking,” at the Web address http://www.protectspeech.com.

Get that?  According to this, everything posted online by a Louisiana lawyer — and God help a Web 2.0-oriented shop such as Wolfe or, say, LIKELIHOOD OF CONFUSION® — has to be run past a Louisiana oldlaw censor at $175 a pop!  Even assuming it isn’t bounced, that’s a lot of pops per pixel.  It’s prior restraint on the First Amendment axis, a restraint of trade (sorry, it’s a profession, but in economic terms a trade) on the antitrust axis, and just plain piggy on the obnoxious axis.

This effort by the Wolfe Law Group deserves the support of blogging and online-networking lawyers, their clients, their prospective clients… everyone who isn’t getting a cut of that $175 per, basically.

UPDATE:  Kevin O’Keefe thinks it’s a tempest in a teapot:  “Lawyers get paid to be creative”!  (Via Overlawyered.)

MORE:  Here’s the preliminary injunction amicus brief filed by Public Citizen.

Tweets for the sweet

Originally posted 2010-01-11 10:50:32. Republished by Blog Post Promoter

It’s been a couple of weeks, but then again no one was really out there anyway — here are the recent topical tweets I’ve shared with the vast subscribership of @roncoleman:

Storming over from Jersey

Random photo. I like pictures.

All good stuff, and this is easier than blogging, right?

Is trademark bullying okay if you’re on the side of the angels?

Originally posted 2011-01-04 13:22:17. Republished by Blog Post Promoter

Think pink

I’ve never thought so.

Neither does Techdirt‘s Mike Masnick — not surprisingly — concerning the tactics employed by the Susan G. Komen for the Cure operation and its assertion of ownership over the color pink.

UPDATE:  This story turns out to have all kinds of legs.