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Court rules against Yahoo in Nazi speech case

Originally posted 2006-01-13 12:51:43. Republished by Blog Post Promoter

This Reuters report is important news:

A U.S. appeals court declined to intervene on Thursday on behalf of Yahoo Inc. (Nasdaq:YHOO – news), the world’s largest Internet media company, saying U.S. courts have no jurisdiction in a case pitting free speech against a French law barring the sale of Nazi memorabilia.

In a case that pitted U.S. freedom of speech rights against European anti-hate group statutes, the U.S. 9th Circuit Court of Appeals reversed a lower court ruling that had rejected French plaintiffs attempts to enforce French laws against U.S. companies in U.S. courts.

See here for some background, and a prediction by at least one wise guy attorney that — at least in the Ninth Circuit — turns out to be wrong.

Canadian Trademark Blog

Originally posted 2006-08-15 21:33:01. Republished by Blog Post Promoter

Neil Melliship, Larry Munn and Karen Monteith of the IP department at Clark Wilson LLP, which is the finest in British Columbia that I am aware of, has unveiled its new Canadian Trademark Blog. It has an excellent blogroll, I’ll tell you that.

Canadian Trademark BlogGood luck to the new kids on the block, and if you have any business on the northern side of things, by all means send them it to them! They never lose. Their composure, I mean, of course. Good lawyers, too.

Congressman loses appeal

Originally posted 2006-03-28 17:40:31. Republished by Blog Post Promoter

How’s that for a setup line? No, it’s another story about the use of “chilling effects” and the First Amendment in defense of illegal, usually political, acts — and this time, again, it didn’t work:

Here’s the story— remember this one?

A federal appeals court ruled Tuesday that Rep. Jim McDermott violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago.

In a 2-1 opinion, the U.S. Court of Appeals for the District of Columbia upheld a lower court ruling that McDermott violated the rights of House Majority Leader John Boehner, who was heard on the 1996 call involving former House Speaker Newt Gingrich. . . .

A lawyer for McDermott had argued that his actions were allowed under the First Amendment, and said a ruling against him would have “a huge chilling effect” on reporters and newsmakers alike.

Lawyers for 18 news organizations _ including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post _ filed a brief backing McDermott.

But Boehner’s lawyers said McDermott’s actions were clearly illegal.

Here’s the, er, “money quote,” by the way:

The lower court had ordered McDermott to pay Boehner more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and at least $600,000 in legal costs.

Now, who is going to pay thatWalter Olson, phone your office!  Someone just might earn a legal fee here!  (Via Drudge.)

Wikipedia ends world; entry on world locked down

Originally posted 2006-09-13 11:47:20. Republished by Blog Post Promoter

The Wall Street Journal asks, “Will Wikipedia Mean the End Of Traditional Encyclopedias?” It’s a debate between Wikipedia and Brittanica, if you can just imagine that.

It’s certainly meaning the end of traditional PTO practice. It’s driving trademark lawyers nuts (see here, too). I liked this exchange involving colleague John Berryhill on yesterday’s INTA email list, reprinted with his permission:

>The point is, why should Wikipedia be even considered as a reference on
>the trademark side, when it is not on the patent side?

Oh, that’s easy. Because the Wikipedia entry on trademarks says that I’m always right (or at least it will in a few minutes).

>On the patent side, suppose the issue is the level of ordinary skill in
>some particular art. Could not one person or entity stuff Wikipedia
>with entries suggesting that it is common in the field to use
>such-and-such or to do so-and-so, with an eye to influencing a patent
>examiner or a court?

No. Because obviousness is measured from the date of invention. Whether an invention was obvious at that fixed point in time cannot be measured according to a reference that changes.

Your specific problems with Wikipedia are well-taken, but whether a trademark is distinctive is always a question of “present” market reality.
It doesn’t matter whether it was distinctive ten years ago. EVERY invention, however, is obvious after it was invented. Whether an invention is obvious “now” is never a relevant question. Whether a trademark is distinctive “now” is always a relevant question.

To qualify as a reference for obviousness, the reference must pre-date the invention. That can’t be done with Wikipedia.

> what about just plain
> errors made by unqualified Wikipedia authors?

Yes, certainly, relying on the opinion of a single idiot to determine whether a trademark is distinctive is not reliable.

To get a reliable view of the matter, one must conduct of scientific survey of thousands of idiots.

> It doesn’t matter whether the issue relates to patents or trademarks.
>It’s a question of reliability as a reference. Read More…

Major League Baseball – SDNY Balks?

Originally posted 2005-11-28 11:48:08. Republished by Blog Post Promoter

SoxA potentially troubling (from the teams’ point of view) thought from the Southern District of New York in a case brought by Major League Baseball against a company selling beanbags with team names, colors and logos on them, reported by the NY Law Journal (subscription required):

The Court finds that a genuine issue of fact exists as to whether MLB Clubs’ trade dress has achieved a secondary meaning in the marketplace. As such, summary judgment on MLBP’s Lanham Act claim is inappropriate.

Wow. In other words, are the logos and team colors of the Yankees, Mets, Red Sox and other billion-dollar busineses protectable as trademarks? Think of the possibilities.

Full decision here.

Trademark McCrisis? (Or, McArabia)

Originally posted 2006-02-15 12:28:00. Republished by Blog Post Promoter

Angry at McDonaldsIs this good for McDonalds’ branding (click here for my personal favorite URL)?

I’m not so sure it’s that bad. Having your trademark publicly desecrated by the perpetually unhappy — the people, as Jonathan Rosenblum puts it, “for whom life itself is an insult” — because your mark is the happy symbol of American convenience, hospitality, tasty enjoyment and, well, let’s say free enterprise — isn’t the worst thing that can happen. (Via Instapundit.)

McDonald's AbroadBy the way, notice how the “angry” guy’s friends are cracking up as he does his performance for the cameras. Five will get you ten that he’s doing this to impress a girl.

Chicks love this stuff.

Yes, this cross-cultural business is confusing, isn’t it?

EFF: The Corruptibles

Originally posted 2006-06-20 11:08:45. Republished by Blog Post Promoter

The EFF goes over the top, amusingly, with superheroes who invade your private, rightful media enjoyment space.  Hat tip to Tech Law Advisor.

The Only Good Patent

Originally posted 2005-07-28 18:49:48. Republished by Blog Post Promoter

… is a smiley patent! (Most aren’t.) I got a heads-up on this one from the editor of Blawg Review, but before I could slip into shooting-pixels-in-a-barrel mode my own adopted general-topic blog beat me to it.

Boycotting the RIAA?

Originally posted 2007-03-07 08:48:12. Republished by Blog Post Promoter

Gizmodo seems to be the epicenter of this intriguing concept. Hat tip to attorney Brett Trout.

Trademarks — and Copyrights — in the Public Interest?

Originally posted 2005-09-26 18:31:09. Republished by Blog Post Promoter

South Brooklyn section of MTA Subway MapWired News reports:

Transit officials in New York and San Francisco have launched a copyright crackdown on a website offering free downloadable subway maps designed to be viewed on the iPod. . . .

More than 9,000 people downloaded the map, which was viewable on either an iPod or an iPod nano, before Bright received a Sept. 14 letter from Lester Freundlich, a senior associate counsel at New York’s Metropolitan Transit Authority, saying that Bright had infringed the MTA’s copyright and that he needed a license to post the map and to authorize others to download it.

Not very freundlich of Lester, was it?

“I removed it promptly,” said Bright, a design director at Nerve.com. “I’m very aware that they are copyright violations, but I’m not trying to make money or do anything malicious. I’m not in this to piss people off.”

Last week Bright received a similar cease-and-desist letter from officials with Bay Area Rapid Transit, or BART, demanding that Bright remove a map of the San Francisco rail system.

I blogged about this topic in general — the assertion of intellectual property rights in arguably public goods such as train-line symbols — in June. My conclusion then:

It’s one thing to say that services aren’t free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it’s another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

In other words, if you get a C&D letter from the MTA, give me call, won’t you?

The issue here is not quite the same. It is narrower, and deals only with the copyright in the maps. But in a broader sense, it is the same: Should these public authorities, ostensibly in the business of helping people get around, be more interested in rent seeking than in … helping people get around?

I don’t think so.

UPDATE: Excellent legal analysis, as usual, by Patry.

BUT WAIT, THERE’S MORE:  How did the MTA’s ad department let this past the boys in legal?!

DRM insanity confounding even Microsoft

Originally posted 2007-01-21 23:47:24. Republished by Blog Post Promoter

windows-vista-logoA reader writes in to Instapundit:  “On Windows Vista, the only way to get true HD movie and TV content from your $2000 home-theater PC will be to download illegal pirated content!”

Bad for branding, worse for trade secrets

Originally posted 2006-08-14 13:02:04. Republished by Blog Post Promoter

Pesticides in soft drinks, that is. Or even allegations of them. Boing Boing reports that a court in India has ordered Pepsi and Coke to cough up their respective formulas.

UPDATE:  It’s not easy to tell, but I think this means they got out of it.