Archive by Author

Hardware trademark rejected in UK

Originally posted 2006-08-22 20:27:38. Republished by Blog Post Promoter

The Register reports:

A businessman has failed to win the right to register the term “screw you” as a wide-ranging European trademark because it is offensive. It can be used, but only for goods sold in sex shops, the European trademark authority has ruled.

Hard to harmonize with this, I would think, and actually quite hard for me to understand even on its own terms, but perhaps these are subtleties that escape the morally hidebound here at Likelihood of Confusion.

eBay beats the gripe rap

Originally posted 2006-08-10 23:24:50. Republished by Blog Post Promoter

Eric Goldman reports on a California case that holds eBay not liable for bum feedback:

This risk of liability is the dark side of the “Web 2.0” and the emphasis on “user-generated content.” It’s all fun and games until someone serves a subpoena–and when users realize that responding candidly to those seemingly innocuous requests for feedback might lead to the courthouse, we should expect to see either platitudes or silence.

Essex County Hall of RecordsAs usual I like Eric’s comment, but I don’t understand this one.  It’s when the subpoena is served that the fun and games start!

Maybe he just doesn’t know what fun is.

Trademark on the Left Bank

Originally posted 2006-02-05 01:40:15. Republished by Blog Post Promoter

Interesting discussion, on one level or another, among non-specialists including Matthew Yglesias of a leftish stripe on the politics of trademark infringement at TPMCafe. They’re disappointed that Democrats are going along with the proposed changes to the federal dilution statute, and they should be. Yglesias links back to a column by Atrios, who says, “The original purpose of trademark law was to protect consumers from confusion, not to protect the sanctity of a brand.” Who’s said that before?

UPDATE:  Another point of view, via Instapundit.

One Bloggin’ Apple Don’t Spoil the Whole Bunch

Originally posted 2005-01-12 00:00:00. Republished by Blog Post Promoter

Bob Cox pointed me in the direction of this coverage of the Apple trade secret litigation: Blogs Persist Despite Apple’s Suit:

“The Macintosh maker obtained a court order to subpoena the AppleInsider and PowerPage sites after it filed a suit on Dec. 13 in a Santa Clara court. Apple said it wanted the names behind a post entitled, ‘Does 1-20,’ which allegedly leaked the information in question.
The EFF countered saying bloggers’ sources are protected by the same laws that protect sources providing information to journalists. ‘Bloggers break the news, just like journalists do.
They must be able to promise confidentiality in order to maintain the free flow of information,’ EFF Staff Attorney Kurt Opsahl said in a statement. ‘Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society.'”

I don’t agree. The press shield laws are and always have been a legal fiction. They were promulgated after Watergate to carve out a narrow exception for a “the press” to the general rule that civic duties — such as the requirement to respond to subpoenas — apply to everyone. They are creatures of a time when mainstream journalism reached its apex of power and truly asserted itself as the Fifth Estate, an unelected power with the prerogative to topple governments.  So now we are seeing the artificial barriers of institutional journalism fall.

But if every blogger is a journalist, why then every — every — everybody’s a “journalist.” So now all I need is to register with Blogger — a 15 second process — and then post whatever I stole, or my best friend stole, or (better yet) what I paid him to steal from someone else — to be immune to subpoenas? (Thankfully no one has said anything about “information wanting to be free” yet, have they?)

And really, does a “free society” really depend on getting out Apple’s latest product developments ahead of when they want it to get out? Read More…

Emerson InSinkErator trash compactors will mangle your hand if you stick it in one of them.

Originally posted 2006-10-19 13:44:39. Republished by Blog Post Promoter

Sounds like a reasonable assertion, right? The same thing will happen if you stick your hand into an Acme trash compactor. It’s just bad practice. Who could be offended by that?


Emerson Electic could (links added):

Emerson Electric is suing NBC over a scene in their new series “Heroes” that featured the company’s garbage disposal, according to an CNN Money article. The first episode showed one of the characters (whose superpowers include indestructibility) stuffing her hand down the disposal and getting it mangled, although within a few seconds her hand was fully healed.

However, Emerson, makers of the “InSinkErator,” believes the scene gratuitously showed their product as being dangerous. Their suit alleges that the program “implies an incorrect and dangerous design for a food waste disposer,” and “casts the disposer in an unsavory light, irreparably tarnishing the product.” They are reportedly asking the court to order NBC to “remove Emerson trademarks from future broadcasts of the show and also seek damages suffered from NBC’s acts of “unfair competition, trademark infringement, and trademark dilution.”

A spokesman for Emerson pointed out data showing that not only are you 10 times more likely to suffer harm from your dishwasher, but any injuries suffered in the event of a disposal accident would not be nearly as severe as those shown in the TV episode.

You can’t say “unbelievable” any more, because nothing is. But on the face of it, this sounds mighty flimsy — “trademark use,” anyone? — and an abuse of the Lanham Act that may be sanctionable. Decide for yourself and let me know what you think: Here’s the amended complaint.

The suit was filed in St. Louis, where Emerson is based.

UPDATE:  Stupid claim settled.  Of course.

Susan Crawford: Why I Voted For XXX

Originally posted 2007-03-31 23:09:23. Republished by Blog Post Promoter

Susan Crawford explains, at considerable length, why she voted with the minority at ICANN on the defeated proposal to open up a “xxx” new domain registry for dirty Internet websites:

I continue to be dissatisfied with elements of the proposed xxx contract, including but not limited to the “rapid takedown” provision of Appendix S,[1] which is manifestly designed to placate trademark owners and ignores the many due process concerns that have been expressed about the existing UDRP.

XXXI mean, there are a whole lot of other issues here, and you should read her and other comments on why this vote went this way and what it means for Internet governance, which I for one care little about. I can barely govern myself. But I do find her reference to the influence of Big IP pretty interesting.

My proposal, by the way: I’d already herd the 5% of non-pornographic websites into a ghetto ending in, I don’t know, “.ok.”

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?