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Talking a leak

Originally posted 2013-11-03 23:05:02. Republished by Blog Post Promoter

Want to know the difference between a leaker and whistle-blower? Johnny Dollar posits the distinction.

Universal Declaration of American Rights

Originally posted 2005-09-05 20:23:57. Republished by Blog Post Promoter

Derek Slater of the EFF’s Deep Links blog is unhappy — hat tip to Donna Wentwirth — about “general search warrants” being issued in India to bring the file-sharing crusade to those ruddy-golden shores:

These kinds of warrants are ripe for abuse. That’s why they’re prohibited in this country under the Fourth Amendment, which was prompted by British abuses of power during colonial times. The MPA has the right to go after those suspected of infringment all around the globe, but it should be ashamed of using tactics that ignore basic civil liberties.

Really? From what I read, since a few years ago India has been a sovereign country with its own laws and constitution, and a democracy as well. For some reason, in its wisdom India decided not to replicate the U.S. Constitution. It’s astonishing to me that anyone would suggest that anyone with a legal beef in India should unilaterally adhere to abstract principles of “basic civil liberties,” or those enshrined in the constitutions of other countries, as part of its legal strategy. It’s also quite a dollop of legal ethnocentrism.

It’s really not as complicated as all that, however. Slater simply doesn’t like the plaintiff in these cases — the Motion Pictures Association — nor its litigation goals. That’s what is called “outcome-based” legal argumentation — I don’t like the result so I’ll cook up a new pseudo-principle of law to get me an better one. I hope you’ll excuse me for assuming that no one is about to suggest, in adherence to this new international legal principle, that “the defendants in the Indian MPA litigation should volunteer to comply with the voluntary disclosure rules of Federal Rule of Civil Procedure 26(e), which was enacted because Congress and the Supreme Court believed there was excessive gamesmanship in the discovery process.”

But Ron, there’s a difference between the Federal Rules of Civil Procedure and the Fourth Amendment, for heaven’s sake!

Not in India there isn’t!

Now, there are plenty of real issues to argue about, and I tend to agree that the MPA is going about this all wrong. But fuzzy-headed simulations of legal or constitutional arguments are not going to win the day with anyone.

Trademark Fluff over Fluffernutters

Originally posted 2011-06-24 13:17:57. Republished by Blog Post Promoter


Reports a Lynn, Massachusetts newspaper:

A Lynn company known worldwide for its Marshmallow Fluff is suing Williams-Sonoma, Inc., claiming the culinary retailer is misusing the registered trademark, Fluffernutter.

I just made one of my sons a Fluffernutter tonight. You know — a Fluffernutter, which the good people at Durkee-Mower, Inc., the Marshmallow Fluff company, describe as “a wonderful concoction of Marshmallow Fluff and peanut butter in a delightfully tasty sandwich.” Legal experts agree on this definition. You might call that an odd coincidence, except that it’s almost all Avrumy eats. But I certainly didn’t know Fluffernutter (I mean FLUFFERNUTTER®) was a registered trademark.  It’s not surprising — instincitvely it seems as if it should be — and yet, and yet …

Why doesn’t the Fluffernutter page of the Marshmallow Fluff website show the circle-R emblem designating a registered trademark in FLUFFERNUTTER?  [Update:  Four years after I first posted this, it still doesn’t!]  What they do show is shown above — no circle-R. There is no notice of registraton or any other trademark rights in the mark FLUFFERNUTTER anywhere on the page, and if it is somewhere else on the site, I couldn’t find it. An odd way to protect a registered trademark.

More oddness: The word FLUFFERNUTTER is indeed registered; serial number 75175400. FLUFFERNUTTER was not registered until 1998, strange but not shocking to those of us who remember the Fluffernutter jingle (you can hear it by clicking on the Fluffernutter home page) from our own childhoods. But what’s more odd is that the registration doesn’t protect Fluffernutters! No, the goods and services listed in the registration are “printed recipes sold as a component of food packaging and cookbooks.”

Is that what I gave my little Avrumy for dinner? A printed recipe? I don’t think so! (There’s also a pending registration for … ice cream! I certainly didn’t give Avrumy ice cream for supper!)

Yes, theoretically speaking, at least, Durkee-Mower, Inc. has a problem, for as one of my other boys, Yisroel Asher, said as he saw me write this entry, “Can a name of a sandwich be a trademark?” Indeed, can it?

In fact, FLUFFERNUTTER appears to be a generic term describing a sandwich made with delicious Marshmallow Fluff — which is trademark protected, and whose makers evidently coined the word — and peanut butter. Indeed, Durkee-Mower does not sell Fluffernutters. You make them yourself with delilcious Marshmallow Fluff! So how can the company claim trademark infringement?

Think trademark dilution. The gift from Congress, wrapped by the courts (if temporarily lost in the parcel post by the Supreme Court) that keeps on giving. Or in this case, taking — taking a word right out of the English language and making someone liable under federal law for using it fairly, descriptively, accurately, non-confusingly, in favor of someone who files a federal trademark innacurately, confusingly and in a completely phony manner, to describe goods and services contrary to the manner in which the applicant itself uses the mark on its own website!

Will the court bite?

Other links on this story: Blogger Paul Harris reminisces about Fluffernutters [link is gone, not archived — RDC]; Bostonist gives some great background on the product.

UPDATE: This is almost certainly academic. It’s hard to see why Williams-Sonoma would fight this, notwithstanding that it’s winnable. How important can FLUFFERNUTTER be to a cooking equipment company? Don’t expect to hear about a decision — my guess is that the two sides will probably negotiate a walkaway.

UPDATED EVEN MORE:  Yep, PACER reports that case was settled in August of 2006.  “Terms not disclosed.”

In a legal mood

Originally posted 2006-02-07 15:13:25. Republished by Blog Post Promoter

ScreamWe blogged a little while ago about Doug Litowitz’s new book about how law firms chew up young lawyers. He makes it sound like a bad thing! With a slightly (you can judge how much) different point of view, Bruce MacEwen writes on his Adam Smith, Esq. blog dedicated to the economics of (big) law firms:

Consider that lawyers are socialized unlike members of any other profession or followers of any other discipline:

Martin Seligman [writes] in his book AUTHENTIC HAPPINESS: “Lawyers are trained to be aggressive, judgmental, intellectual, analytical and emotionally detached. This produces predictable emotional consequences — he or she will be depressed, anxious and angry a lot of the time.”

Or, consider a psychographic test measuring “sociability,” with the median American defined as scoring 50 on a 1-100 scale: Lawyers’ mean score was 8. Put 250 Type A’s with that personality profile in charge of a $100+ million/year enterprise, and you should not expect a touchy-feely environment to spontaneously emerge.

That’s why we started turning down clients at the Coleman Law Firm around the $85 million mark, by the way. We value our quality of life here a bunch. But you can still get on the waiting list!

Jews for Jesus* v. free speech: update

Originally posted 2012-12-04 12:56:40. Republished by Blog Post Promoter

The troublesome “Jews for Jesus” blog is still around, after some people had the impression that perhaps Jews for Jesus, Inc. had been succesful in shutting it down. The J4J Whistleblower is still feeling kind of conspiratorial, writing:

Take your time to read through my previous blogs and the points raised. In one of my earlier blogs I pointed out that it takes time to sort through everything to realize what is going on. My previous post to this one looks at the actual text of Jews for Jesus’ lawsuit and points out what they really want. You’ll find this is in line with Susan Perlman’s comment that Jews for Jesus believes it has a right to how their organization will be represented on the internet. That explains why they are only using this blog as a stepping stone to have Google remove any blog with the name “jewsforjesus” in it. An astute observer on a legal blog pointed out that the likely target is

Harrumph. I couldn’t find that astute observer — Whistleblower is quite stingy with the hyperlinks for a blogger — but if that were true, it would be another blow inflicted on free speech by Jews for Jesus with the help of the courts. Quite ironic considering that this group has actually extended free speech protection in a number of decisions, including one in the U.S. Supreme Court, where its own speech was threatened.

But that sort of irony is already old and tired, isn’t it? It must be, because this story is being fairly well ignored — as the Jews for Jesus v. Brodsky case was — by the usual suspects in the free speech department whose ox, for some reason, doesn’t ever appear to be gored when Jews for Jesus is doing the goring. In 1998, Steve Brodsky’s requests for amicus submissions in the Third Circuit were blown off by both the New Jersey ACLU and the Electronic Freedom Foundation, without any real explanation, for example. Here too the EFF has been silent about this case, as have been the “copyfighters” at I don’t know why now, as I didn’t know why, then. Maybe if Steve Brodsky or the Whistleblower published pornography or scandalous charactures of Dick Cheney or were uploading music files the self-appointed guardians of free speech would have something to say about what’s going on here.

Yes, the old irony is old news. I guess it’s just as well, anyway, because in the area of free speech, now we have the all new irony!

Or is irony just not the right word for plain old cynicism? Well… don’t ask me!

*(Sour grapes warning! But if you can stand the taste, come on in; the dishing’s fine!)

UPDATE: Thanks to Dean for the link. I think that one may criticize my analysis above by suggesting that because of my own personal interest in this case, I am also guilty of the “whose ox is being gored?” syndrome. This may be true, but then I do not claim a comprehensive bailiwick, as the would-be guardians of free speech on the Internet do. I am just one lawyer who has had a few clients with interest in these matters. But I will acknowledge that the experience of representing Steve Brodsky against Jews for Jesus, Inc. and The National Debate against the New York Times has affected my own views, which formerly were biased in favor of trademark and copyright holders — that, and getting beaten up on daily basis for several months on the CYBERIA-L list, largely at the hands of Mike Godwin! So you know — we grow, we learn…

Best headline of the year?

Originally posted 2006-02-07 19:44:11. Republished by Blog Post Promoter

Mister Snitch, concerned that we’re not getting enough irony, writes that this could well be the best headline of the young year. He could well be right!

The Trademark That’s Too Good to be a Trademark

Originally posted 2005-12-26 12:46:46. Republished by Blog Post Promoter

That’s what a generic mark is. The TTAB Blog reports that the TTAB has ruled that, the consumer interface for the Martindale-Hubbell law directory, cannot be registered as a trademark for “providing an online interactive database featuring information exchange in the fields of law, legal news and legal services…”

John Welch writes, “It took the Board 29 pages to explain this seemingly inevitable result …” — inevitable to the commonsensical among us, yes, but maybe not to the narcisstic world of brand management and rent-seeking that rules the roost in public discussion of trademark. Hat tip to Evan Brown.

Bring your discomfort bag (revised and expanded)

Originally posted 2014-06-17 16:41:08. Republished by Blog Post Promoter

Technology & Marketing Law Blog: “The keyword advertising legal roller-coaster continues.”

The roller coaster I would not ride

As someone who is on that thrill ride — at least partly on the dime of my clients (as in the Buying for the Home case) — it is of course troubling for an expert such as Eric Goldman to acknowledge this. It is somewhat of a vindication, though, not least of the fact that attorneys practicing in this area really have no business telling clients they have any idea what the outcome of cases implicating these issues might be, no matter how well we think we know the law.

That’s fine as far as it goes. But what about the law? It is distressing enough to tell your client that his case involves an unsettled area of law and that two courts faced with similar facts could well come to different conclusions about the application of the “same” law to those facts. (It can even happen in the same case, as Eric points out in his commentary on Buying.) It is preposterous, however, that your client could get slammed on damages or, in theory, attorneys’ fees — which require a finding of willfulness, mind you — because courts are still feeling their way around.

What a fine opportunity for Congress to step in and provide guidance via legislation — for these angels dancing on the heads of virtual pins are in fact not so much legal decisions at all but real, live policy decisions: Shall the Lanham Act regulate, as a trademark infringement, the utilization of trademarks as search terms in Internet or other computer-based software engines?

This is not the case every time a trademark and the Internet get involved with each other. In the context of past trademark-on-the-Internet disputes, notably involving domains (which the world once thought would be the alpha and omega of trademark battlegrounds on the Web), we have argued that the issues at stake are not novel “cyberlaw” questions but merely require the application of hoary principles of unfair competition to somewhat novel situations. But that argument simply does not stand when we consider the search engine question. It is pedestrian to observe that Congress could not have contemplated this or that application of a law when it passed it. The common law tradition abjures us from such arguments. It is the job of judges to apply the law which affects the decisions we make about conduct to new factual situations by the application of analogy tempered with equity.

Yesterday you said tomorrowBut we are in a new world. When courts make fundamentally different conclusions about a question or cluster of questions — in this case whether trademarks are even “used,” as understood in the Lanham Act, by search engines [UPDATE:  See here.  They are.] It is time to recognize that these legal questions are political questions implicating not only law but commerce at all different levels, as well as technology and the shape of the Internet to come. Not everyone has the stomach for roller coaster rides. Let those who do have their fun. The rest of us, lawyers and clients alike, are entitled to the option of standing on terra firma while conducting our affairs. This is our stop.

The heart wants what it wants

Originally posted 2011-08-24 12:55:22. Republished by Blog Post Promoter

The New York Law Journal (subscription required) reports:

Manhattan Supreme Court Justice Bernard J. Fried has ruled that under the terms of a January 2003 settlement agreement, [Woody Allen’s former producer] may develop television-and-airplane versions of Mr. Allen’s “Bullets Over Broadway,” “Mighty Aphrodite,” “Everyone Says I Love You,” “Deconstructing Harry,” “Celebrity” and “Sweet and Lowdown.”

The dispute over the final cuts of the modified films is the latest fallout of a May 2001 lawsuit Mr. Allen filed against [the producer] Ms. Doumanian, her personal and professional partner Jacqui Safra and their production company, Sweetland Films.

[A settlement] agreement [betweeen the two sides] was . . . at issue in the current dispute, over the final cut of the television-and-airplane versions of six films Mr. Allen made with Ms. Doumanian’s backing.

According to Justice Fried’s decision…, the 2003 settlement stipulated that if Mr. Allen and Ms. Doumanian could not agree on the cuts that would allow his oft-profane films to satisfy TV standards, either party could submit the matter to the Commercial Division of the Manhattan Supreme Court for resolution.

Now it has. Luckily for the plucky, morally deranged Alan Koenigsberg, no one wants to see any of the films named above, nor will anyone notice if any or all of them are diced and sliced for the back of an airplane seat. The decision in Moses Productions., Inc. v Sweetland Films, B.V. has been published here (the link provided by the Law Journal was broken never was repaired).

Mr. Allen’s . . . attorneys, Michael Zweig and Chris Carbone of Loeb & Loeb, called upon a single expert witness, Time Magazine film critic Richard Schickel.

Mr. Schickel testified that Ms. Doumanian’s methodology for satisfying television standards — primarily, dubbing over offending language — would damage the films’ “comprehensibility, entertainment value and artistic integrity,” according to the decision.

By cutting scenes and camouflaging offending language, Mr. Allen argued, the producers would trick audiences into believing they were watching an unedited film. He preferred explicit changes, such as bleeping offending language and blurring offending images.

The defense, in contrast, presented two expert witnesses, both of whom specialize in adapting films for television broadcast. Their testimony focused on the eventual salability of the modified movies. . . .

After watching the original versions of all six films at issue, Justice Fried ruled in favor of Ms. Doumanian.

“Based on the undisputed hearing testimony that networks rarely or [n]ever air films with bleeping or muting, however, and the parties’ apparent agreement that shooting alternate coverage for the films is no longer feasible, it appears that word replacement is the only way to modify the content in order to comply with the parties’ agreement to create one version of each of the films that complies with generally accepted network television censorship and/or standards and practices requirements,” Justice Fried concluded.

Freedom to blawg

Originally posted 2014-06-25 01:28:21. Republished by Blog Post Promoter

Blawg Review #85 is up, down under.  It’s one of the most thorough and “dense” blawg reviews ever.  I mean that in a good way.