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Admit it:

Originally posted 2007-05-05 23:34:26. Republished by Blog Post Promoter

You have nothing better to do. If you did, you wouldn’t be reading blogs. So, please take my blog reader survey!

Tattoo Me ®

Originally posted 2006-01-09 21:20:36. Republished by Blog Post Promoter

Eric Goldman has an interesting piece about an issue that has actually come up in my practice: Trademarks and tattoos, and specifically the concept of people selling “space” on their bodies to act as “human billboards.” “People appear willing to brand just about any part of their body for the right price,” he says. He also notes, however, that — just as you’d think — that price isn’t usually forthcoming.

Internet anonymity still a judicial fave

Originally posted 2007-01-24 14:56:30. Republished by Blog Post Promoter

Evan Brown reports:

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed.

We’ve discussed this issue beforemore than once. Although I am chary of the general proposition that Internet anonymity is an unalloyed good thing, this is a good policy: Where there is no defendant but a John Doe, as justified as it may be to file against unknown defendants in general, it is the court’s duty to make sure that the power of the court be utilized to obtain discovery in pursuit of a meritless claim.

Bloggers bend the elbow

Originally posted 2007-05-01 15:00:11. Republished by Blog Post Promoter

Old goats, fresh drafts
Bob Cumbow holds court at the INTA bloggers’ imbibery at the annual convention in Chicago.

UPDATE:  More evidence of hijinks.

Plastics, son. Plastics.

Originally posted 2007-01-08 22:16:42. Republished by Blog Post Promoter

In Wired News, Legal Predictions for 2007.

Merchant of Baloney

Originally posted 2005-07-20 09:08:53. Republished by Blog Post Promoter

Hilarious posting on John Welch’s TTAB Blog about what looks like PTO connivance in the wild and wacky career of would-be trademark king Leo “Likelihood of Derision” Stoller.

There is a Merchant of Venice restaurant out there, though, John. Doesn’t sound so kosher, but I wonder what they charge for the quarter-pounder of flesh?

New blawg for Oregon law

Originally posted 2007-03-30 11:08:27. Republished by Blog Post Promoter

Of course it’s called the Oregon Business Litigation blog!

Cui?, Bono?

Originally posted 2007-03-05 14:33:49. Republished by Blog Post Promoter

Advertising Age reports: “Costly Red Campaign Reaps Meager $18 Million.” Walking around New York City, I was impressed with the brand-development demonstrated by this $100 million campaign. Famous, beautiful people in Red Gap stuff, telling us to “Buy Red.” Fantastic simultaneous investment and expenditure of brand equity, utilizing not only Gap but Motorola and Apple — great brands building a new, greater brand for something even greaterly greater!

Okay, one slight problem.

Looking at the ads — on billboards, bus shelters, phone booths — I had no idea what they were for. What Red? Red what?

No message. No content.

In fact, even reading the Advertising Age article linked to above, you still have no idea what the point of this campaign was until five or so paragraphs down into the article! Evidently it’s something to do with AIDS. Or Africa. I still don’t know. Guess what: They — it — he — who? — doesn’t even tell you on the RED homepage.

It’s an arrogance thing, I think.

Frivolous copyright claims don’t automatically merit fee awards

Originally posted 2006-06-19 12:49:37. Republished by Blog Post Promoter

The New York Law Journal reports that my old friend Southern District Judge Denise Cote has turned down Fox Entertainment Group’s attempt to recoup almost $280,000 in attorney’s fees (pursuant to the copyright statute) it spent staving off a copyright suit that Fox had demonstrated was frivolous (it involved an allegation that a Fox TV program was a “ripoff” of another program). Judge Cote has an interesting take on the issue:

Although both sides agreed that the U.S. action should be dismissed with prejudice, Fox moved for an award of attorney’s fees, arguing that Ninox sued even though it knew that “The Complex: Malibu” was not substantially similar to “Dream House.”

“A compensatory fee award in these circumstances also encourages the defense of future meritless actions,” attorneys for Fox wrote in a letter to Judge Cote. “Like the gambler who raises the stakes in poker while holding no face cards, a litigant who loses this type of bet should bear the expenses incurred by the adversary in calling the bluff.”

Most IP litigators, especially those of us, ahem, “involved” in the defense side, recognize those cases that, once their merits, or outcome, are resolved, still chug along, powered solely by the gleam in someone’s eyes (woe to the ‘s attorney who puts it there!) that there could be an attorney’s fee award at the end of the rainbow. Judge Cote isn’t going to encourage that.

I’m not sure I get the next part, however. Judge Cote also writes,

“[A]lthough Ninox’s copyright claim is frivolous under the prevailing law, because this litigation would have applied copyright principles to a relatively new field of intellectual property, format licensing, as a matter of discretion, the Court will refrain from awarding attorney’s fees.”

Which is odd, because that sounds like whatever finding of frivolousness was made — the Court calls the claims “frivolous and objectively unreasonable” — is pretty much being taken back and defrivolized by that last quoted bit. What is it, exactly, that judges want?

UPDATE: The decision is here. A chilling excerpt from the lawyering point of view: Read More…

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.