Archive by Author

High class blawging

Originally posted 2006-12-19 23:30:18. Republished by Blog Post Promoter


Blawg Review #88 is a lot snazzier, jazzier and just plain classier than usual.

Anti-Sedition Acts begin their attack on the Internet

Originally posted 2006-01-16 23:17:14. Republished by Blog Post Promoter

Different River reports on the biggest threat to free speech ever — the McCain-Feingold Act and its state law copycats.  Is there any chance that the new and improved Supreme Court will save us from this not so petty tyranny?  Or will the present controversies over “money in the political process” (see here for a contrarian view, by the way) make things even worse?

Linux Redux

Originally posted 2005-09-22 13:22:17. Republished by Blog Post Promoter

Philip Albert writes In Defense of the Linux Trademark.

(See here for the other side.)

Not every trademark dispute is declaratory judgment fodder

Originally posted 2006-10-03 15:40:17. Republished by Blog Post Promoter

John Welch discusses a District Court decision (which he and his firm, Foley Hoag, helped secure) dismissing a declaratory judgment action brought by one side in a trademark dispute, seeking a ruling of “non-infringement.” Declaratory judgments (or “DJ’s”) are useful device for resolving a simmering dispute, particularly for trademark cases where the two sides have been trading threats. It allows the side that’s feeling pressure to press for a judicial resolution of the question, and has the tactical advantage of allowing the plaintiff to choose where and when issue will be joined. For instance, it may permit someone to know whether he should or should not go forward with a business built around a trademark whose validity is in question. (John links to what looks like a very useful new article on the tactics, strategies and, yes, legal issues implicated in declaratory judgment practice for trademarks.)

It is usually not difficult to establish the bona fides for bringing a DJ. Under the enabling legislation, there has to be an “actual controversy” between the parties, not just an imagined or imaginable one. That is frequently right at hand: If one side sends the other one a letter threatening legal action unless the receiving party “cease and desists” some activity, such as the use of a trademark, that’s a controversy.

In the U.S. District of Massachusetts case reported by John, you might well think there were a controversy: The parties were already in “litigation,” or at least that state of quasi-litigation known as a Trademark Trial and Appeal Board inter partes proceeding to cancel the mark in question. These are routinely stayed when “real litigation” begins.

So what happened here? The District Court “threw out” (as the papers like to say) the DJ claim for the simple reason that there was never a real threat of a trademark infringement action being filed. Was there some sort of controversy? Yes — but not one that the Declaratory Judgment Act meant. As the court suggests (though not in these words) in a footnote, if every TTAB proceeding provided a “controversy” giving rise to jurisdiction under the Declaratory Judgment Act, they could all be dumped into Federal court. That is not (my gloss now) what Congress intended by providing for both TTAB inter partes proceedings and declaratory judgments. More importantly, said the court, the pendency of a TTAB proceeding for cancellation does not equal a justiciable controversy — merely a registration dispute, which indeed is a long way from full-bore civil litigation. Absent a real threat of an infringement suit, it has nothing to say about the matter, and the declaratory judgment case was dismissed.

Whither The Unwritten MSM Constitution?

Originally posted 2006-01-02 10:32:32. Republished by Blog Post Promoter

Glenn Reynolds writes:

THE NEW YORK TIMES’ PUBLIC EDITOR, Byron Calame, criticizes the Times’ handling of the NSA story. Jeff Jarvis calls Calame’s column “almost tough,” and points to this post by Jay Rosen.

The Times’ behavior on this story, and the Plame story, has undermined the unwritten “National Security Constitution” regarding leaks and classified information. Since the Pentagon Papers, at least, the rule has been that papers could publish classified information in a whistleblowing mode, but that they would be sensitive to national security concerns. In return, the federal government would tread lightly in investigating where the leaks came from. But the politicization of the coverage, and the outright partisanship of the Times, has put paid to that arrangement. It’s not clear to me that the country is better served by the new arrangement, but unwritten constitutions require a lot of self-discipline on the part of the various players, and that sort of discipline is no longer to be found in America’s leadership circles.

* * *

Andrew Sullivan seems to think that I’m blaming the NYT editors for everything. No. If, in fact, the Administration broke the law, then there’s a story here, though that remains a pretty big “if” at this point. But he goes on to ask the same question I did, and everyone else has: Why did they wait for a year if it was such a big deal? And if reporting the story a year ago would have been too damaging to national security, why isn’t it too damaging now?

And there’s another point: A few years ago, I’d have given the NYT the benefit of the doubt. Now — because of the paper’s bad behavior of the past few years, which Andrew played a major role in pointing out — I don’t. That absolutely is the fault of the Times’ editors.

And its ownership.

The Times, of course, doesn’t have to tell anyone anything. It’s a private company. But as has been mentioned more times than you want to hear, the self-anointed Fifth Estate considers itself a thing above the normal citizen, and indeed the “unwritten constitution” referred to by Instapundit is premised on just that. Those unwritten constititutions really are a problem, though, just as Glenn says: in all but the most unusual cases, say perhaps England, they fall apart because the incentive to cheat for short-term gains — especially when faced with what at the moment looks like a threat to the Arrangement — is just too great. And maybe because they lack, at the end of the day, that legitimacy that genuine constitutions have.

Is “anarchy” in the press a good thing? And is oligopoly its only alternative?

UDPATE: TigerHawk seems to agree, and in fulsome detail. (Via Instapundit, again.)

UPDATE: More reasons why special privileges merely for owning a printing press may not be such a great idea.

The key to the kingdom

Originally posted 2007-08-17 13:36:51. Republished by Blog Post Promoter


Sooner a later, “the courts” are going to decide whether or not keyword advertising is a trademark infringement. Here’s the latest sortie taking off, via David Fish.


Originally posted 2007-04-14 23:28:25. Republished by Blog Post Promoter

Resurrection is a popular topic in branding and trademarks. There’s Tylenol, of course, which returned from a near-death experience; and Pepsi, which promised to provide one. Now William Lozito at Name Wire notes the phenomenon of

[S]taid, established brand names like GE and Westinghouse … being licensed to consumer electronics manufacturers overseas, mostly in Asia, and com[ing] back home to dominate a segment they did many years ago.

GE, in other words, brings good things back to life. He wonders a little about whether we’re calling a spade a spade here —

I can’t help but think, however, that many consumers, when the buy products by Westinghouse, Honeywell, GE or Sylvania, must be under the impression they are “buying American.”

— but he need not. If GE says that TV is a GE, it is a GE. And that’s a privilege only GE has. They stand behind it, to whatever extent that may mean, regardless of what language they speak and what they serve in the commissary of the McFactory that spat it out. As William comes around to acknowledging, after all:

I suppose in a world where close to 40% of a Ford is made overseas, “buying American” is harder and harder to do.

And it’s increasingly less meaningful — politically, economically, technologically.

Which isn’t to say that I can’t wait till my Nissan lease is up and I can get back into a Buick. I just can’t get used to Japanese cars. I just hope the other big General — General Motors — is in business this time next year. (And that I am. I may be outsourced by then!)

Likelihood of comprehension

Originally posted 2007-01-17 00:41:21. Republished by Blog Post Promoter

You must read Marty Schwimmer’s “Annotatation of ‘How Apple could fight Cisco.'”  You’ll learn a lot about trademark law if you do and just may sound a little more educated at the next cocktail party.  Via TM Branding Cap.

Editor and Publisher: Stop the new trademark dilution bill

Originally posted 2006-04-25 15:50:18. Republished by Blog Post Promoter


Steve Yahn at Editor and Publisher tries to stir up some interest in what should be — search-term advertising and other flavors of the month aside — the trademark story of the moment:

Embedded deep in H.R. 683, “The Trademark Dilution Revision Act,” which awaits what may well be a last look in the U.S. House of Representatives before being signed into law by President Bush, is language that would remove key free-speech protections that have been part of U.S. trademark law since 1996.

Read the whole thing. He’s right on: This bill will make the Lanham Act about as self- executing for plaintiffs as you could hope, at least for “famous marks.” Be very scared if you’re not the owner of such a mark… or its retained counsel.

UPDATE:  Reaction at Editor & Publisher.

Google Stock, Credibility Tumble

Originally posted 2005-07-28 21:21:00. Republished by Blog Post Promoter

We blogged on this a while ago — the question of whether Google News is the sort of fair and balanced you’d like to see in a service that in some sense is driven by a search engine.

The Confederate Yankee blog brings the story up to date: And, like the recent “profit taking” in my favorite issue on Wall Street (well, I’m diversifying a little!), it isn’t pretty. (H/T to the Pretender.)

Of course, we conservatives don’t go and divest our stock holdings over every little thing. Yeah, I’m holding

Ingenious, fair thoughts on fair use

Originally posted 2006-05-10 17:25:16. Republished by Blog Post Promoter

The Fire of Genius, a new blog by Joseph Scott Miller (no, it’s not about any particular genius), a professor at Lewis & Clark Law School in Portland and an alumnus (as I am) of one of the top ten law schools in the country (oops!), asks and points to possible answers (which sound right to me) about the profound cultural significance of fair use — a once-respected legal doctrine that is on the ropes in the courts and, in light of recent developments, in Congress these days. Add this one to your blogroll!

Anonymous victim

Originally posted 2006-10-05 18:23:32. Republished by Blog Post Promoter

The Anonymous Lawyer seems to have hit some sort of new plateau.