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Almost Kind of a Replica

Originally posted 2005-09-10 22:23:12. Republished by Blog Post Promoter

I get so much spam that I couldn’t even dream of not using a service to filter it. I use Spam Arrest, which is quite good and always getting better. Most of the spam I get is so bad, so — really — disgusting, that I am reluctant to scan the “unverified” emails, whose titles alone are overwhelmingly obscene. But, alas, sometimes it’s necessary.

Here’s a keeper. Like you, a large percentage of the spam I get is for “replica watches.” Counterfeits, that is. I used to do a lot of work suing these guys, but I suppose that irony is lost on the bots that sound out these emails.

But this one is a keeper. The reference line reads: Re: Injoy [sic] your Cartier that looks 98% REAL!

Looks 98% real! Interesting defense. “Judge, how can they be counterfeit? We stopped at 98% verisimilitude just to make sure no one was confused!”

Punk sprung

Originally posted 2007-04-06 16:05:46. Republished by Blog Post Promoter

Remember the insufferable Josh Wolf? He’s back on the streets, the enemy of police and the people they protect and yet another martyr for the self-absorbed press everywhere. Perhaps, if we’re fortunate, there’s a haircut out here for him. The Washington Post reports:

A San Francisco blogger who spent nearly eight months in jail for refusing to testify about an anarchists’ demonstration was released yesterday after turning over a videotape of the protest and posting it on his Web site.

Josh Wolf, 24, also answered two questions from prosecutors, after striking a deal that ends the longest contempt-of-court term ever served by someone in the U.S. media.

“I’m completely satisfied with the resolution,” Wolf said by phone from California one hour after being released. “There’s a very large problem with forcing a reporter to act as an investigator for a government prosecution. . . . It’s absolutely a victory.”

Since the video captured no violent incidents, he said, “it wasn’t worth being a martyr for no purpose.”

Yeah, that’s for sure. Did you know witnesses to a crime — like the splitting open of a cop’s head, which was what happened here — who have evidence, are transformed into “investigators for a government prosecution” if they are asked to just turn it over? No matter how inconsequential their information? After all, as the Post says, “A viewing of the video leaves unclear why Wolf fought so hard to protect it.” How about self-absorption and contempt for the society that enables him to live indefinitely — and just ending now, rent-free for half a year — as a punk slacker?

Check out his site (click at the graphic above) — he got every bouquet the journalism cult, demanding its special exemptions from participation in the society that enriches them, could throw him while cooling his heels in the joint. I don’t question whether he was acting as a “journalist” at the time — I continue to agree that journalism is something you do, not something you get get to be by virtue of some credential. But I think if you have evidence of a crime, regardless of whatever you were doing when you got it, yes, you give it to the cops. Not according to the subversive media’s view of citizenship circa 2007, however — and once again, we are reminded of why no one likes or trusts the professional media any more. The good news: With God’s help, Josh Wolf’s 15 minutes is over. Hat tip to Evan Brown.

Sloppiness is its own reward — for the other side’s lawyers

Originally posted 2006-07-19 15:57:05. Republished by Blog Post Promoter

We said a while ago that the RIAA and its ilk looked out of control. Now Walter Olson reports that now the RIAA might have to pay attorneys’ fees for going overboard in one of its “sue the phone book” copyright blunderbuss suits. That’s not a good sign.

Overlawyered, but in a Good Way?

Originally posted 2005-07-29 09:25:23. Republished by Blog Post Promoter

Hello, Walter Olson?!

The excellent IP Litigation blog reports on this story about a copyright lawsuit:

Apparently, Compaq published an instruction booklet containing 7 phrases and 4 illustrations “similar” to photographs and phrases in a 100 page book published by the copyright owners. The jury agreed with Compaq that this was de minimis and “fair use” and hence not copyright infringement. However, because the copyright owners apparently engaged in scorched earth litigation tactics while ignoring their own discovery obligations, the court ordered them to pay Compaq’s attorneys’ fees in the amount of $2.7 million. (Ouch!)

Okay, so why is that “overlawyered in a good way”? Because the good guys won, the bad guys have to pay, and the fine law firm (can anyone tell me who?) that represented Compaq made a fine feeSharkbite.jpg and it didn’t cost Compaq anything — right?

Well. I don’t know whether interest was a component of that attorneys’ fee award (it usually isn’t). I don’t know if the losing party can afford to pay Compaq’s fees. I do know that if a jury was able to come to this conclusion, where was the judge? Was there really no summary judgment available here? How nice for Compaq that it can afford to let $2.7 million ride for a zero-percent return over the course of X years. But what if this suit had been brought against your business?

New law of trademark dilution

Originally posted 2006-10-06 16:15:10. Republished by Blog Post Promoter

My old friends at Kaye Scholer (link fixed!) give you the skinny on the new Trademark Dilution Act.  Bottom line:  Good for big companies.  Not so good for defendants. 

SUPER HERO® my foot

Originally posted 2006-03-27 16:08:22. Republished by Blog Post Promoter

UPDATE: Our NPR interview on this topic was on NPR’s “All Things Considered” just before 6 tonight.

We blogged on this topic last week. Today the LA Times weighs in, writing, confusingly:

TICKETS TO THE California Science Center’s latest exhibit, “Marvel Super Heroes Science Exhibition,” sell for $6.75 and up. But there’s one lesson the exhibition offers free of charge to anyone who wanders by the museum, and it’s not about science.

The lesson is in the giant sign looming over the center’s entrance archway: “Marvel ® Super Heroes(TM) Science Exhibition.” The “TM” stands for trademark, signifying that Marvel is claiming exclusive rights to use the term “super hero” as a marketing term for, well, superheroes. The company and its largest competitor, DC Comics, jointly obtained the trademark from the federal Patent and Trademark Office in 1981.

The government’s action means that any company wishing to market a comic book, graphic novel or related item with any variation of “super hero” in the name or title must get permission from Marvel and DC. Dan Taylor, the Costa Mesa-based creator of the “Super Hero Happy Hour” comic, learned about this absurdity two years ago when he was contacted by lawyers for Marvel and DC, prompting him to rename his series to the more pedestrian “Hero Happy Hour.”

What government action? What happened in 1981? (See below — someone else found the answer.) Nor does a claim of a valid registration make any sense in light of the claim in the editorial that the sign says:

Marvel ® Super Heroes(TM) Science Exhibition

If SUPER HEROES were a bona fide registered mark, it should say “Marvel ® Super Heroes ®,” not “Super Heroes(TM).” “TM” signifies the assertion of common-law trademark rights — not a registered mark and, as a practical matter, that a mark was either refused registration or that legal counsel advised against seeking registration (because the refusal would harm a future common law claim).The editorial argues that SUPER HEROES is a generic term not entitled to any trademark protection, which is correct. Genericness is the only way to defend against a registered and incontestible trademark, which presumably one registered in 1981 would be.

Even if it were true that two competing companies could own a trademark jointly in an area where they compete — thereby violating the axiom that trademarks indicate a single source of a good or service with which they are used — they seem to be succesfully avoiding the issue of their absurd joint registration, even as their giant signs claim only a “TM” common-law mark.

I guess that’s some super-heroic PR / legal spin job by the comic book fiends, but why journalists aren’t “getting this” — or why I [couldn't] for the life of me find the source that does indicate a registration — leaves me pretty confused at the very unlikelihood of it all.

UPDATE: Attorney Robert J. Sinnema points me to registration number 1179067:


He adds:

If you look at the owner/assignment information it appears to show joint ownership between DC and Marvel. (I’m with you, though–I don’t know how the mark can be a valid indicator of source.)

And why the plural? Believe me, there’s a reason for everything, including the companies’ continued non-use of the ®. They simply don’t want to draw attention to preposterous joint ownership (again — by competitors!) of the registration of a generic term. Ah, but utilizing the joint assignment — when a joint application would never have passed muster — is diabolically clever. It’s still not an enforceable trademark, however — registration, assignment or not.

UPDATE: Via (and according to) aTypical Joe, I have discovered my inner (trademark – protected) self! Read More…


Originally posted 2007-01-14 11:52:24. Republished by Blog Post Promoter

“Cisco lost rights to iPhone trademark last year, experts say” – on Could explain a lot.

Does Macy’s tell Gimbel’s?

Originally posted 2006-07-05 19:27:20. Republished by Blog Post Promoter

Okay, so that dates me a tad. Well, does Pepsi tell Coke — that Coke employees are trying to sell Coca-Cola secrets to them?

Of course they do:

Three people were charged by federal prosecutors on Wednesday with stealing confidential information, including a sample of a new drink, from The Coca-Cola Co. and trying to sell it to rival PepsiCo Inc.

The suspects include a Coke executive’s administrative assistant, Joya Williams, who is accused of rifling through corporate files and stuffing documents and a new Coca-Cola product into a personal bag. … They are expected to appear before a federal magistrate judge on Thursday in Atlanta, where Coca-Cola is based.

Pepsi spokesman Dave DeCecco said his company did what any responsible company would do in cooperating with Coke and the investigation.

“Competition can sometimes be fierce, but also must be fair and legal,” DeCecco said. “We’re pleased the authorities and the FBI have identified the people responsible for this.”

Pepsi did the right thing. Anyone who understands how real corporations and the law work, as opposed to the tinfoil hat crowd, knows that it would be patently unthinkable for Pepsi — an established company with everything to lose if caught engaged in outright pilfering of its competitor’s proprietary information — to have done otherwise.

Meanwhile, some very greedy, unethical people are in a world of trouble. The real thing.

TRADEMARK NOTE:  Per the Wikipedia article about Gimbel’s linked to above:

The “Gimbel’s” trademark is currently owned by siblings Mark and Beth Gimbel; Mark Gimbel is owner of the Smiling Cow and Gimbel’s Country Store in Boothbay Harbor, Maine. They acquired the trademark in 1999 after Gimbel’s department stores went out of business and the trademark was abandoned

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.