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What the –? (ABC v. DEF.)

Originally posted 2013-04-05 10:03:35. Republished by Blog Post Promoter

mdbheadshotfinal Here’s what we knew, and when we knew it: On March 19, 2013, a federal lawsuit was commenced in the United States District Court for the Southern District of New York and assigned to the Honorable Alison J. Nathan. Even before the judge assignment, however, the case was ordered sealed by Hon. Kimba Wood. The following day, a SEALED DOCUMENT was “placed in the vault,” according to the docket, and a conference was held (in camera, one presumes). Between March 28 and April 2, then, three more SEALED DOCUMENTS were placed in the vault. Intrigue abounded. The caption of the case? ABC v. DEF. We kid you not.

At that point, one could only imagine what the case was about (though it was evidently about trademark law, inasmuch as it was designated an “840” case on PACER). We were reminded of the old joke, “Why was 6 afraid of 7? Because 7 8 9!

On April 2, however, by stipulation and order, the seal on the matter was released and the file “returned to the public portion of the Clerk’s office.” So now we know, from reading the April 3 preliminary injunction signed by Judge Nathan, that “ABC” is really Michael Kors, L.L.C., and “DEF” is really… well, a small slew of defendants, including one corporation, two business entities of unclear constitution, five John Does, and twelve URLs.

abc-v-defThe preliminary injunction refers to a “Summons, Complaint, Temporary Restraining Order and all supporting papers,” which were served upon “Defendant” [sic]… but none of those documents is available online (so they must be still in the vault, or at least not yet scanned). Still, the evident meat of the matter is that the defendants were selling online counterfeit goods bearing one or more of the registered marks owned by the plaintiff. Which is, you know, unlawful.

Somewhat oddly, although the single document available for public consumption is styled “Preliminary Injunction,” it provides that the defendants (and their agents, servants, employees, officers, and all persons in active concert and participation with them… in other words, the usual suspects/gang of idiots) are “permanently enjoined” from doing all sorts of unlawful things (that is, those things they were doing to irk Michael Kors, L.L.C. a/k/a ABC). To protect the DEF… endants (oh! I get it now! Ha!), MK had to post a $25,000 bond, which the preliminary order continued. (Counsel for MK proposed having that bond “released,” but Judge Nathan decided that just the opposite was appropriate. It was worth a shot, though, probably.) On the other hand, all of the assets of each identified defendant was frozen, which will no doubt be helpful to MK if and when it is awarded monetary damages.

That’s all for now, kids. ABC ya next time.

Cardiac counterfeiting

Originally posted 2012-12-30 15:00:15. Republished by Blog Post Promoter

It’s not a defense to trademark infringement or counterfeiting that your heart is full of good intentions.

He’s the genuine item, all right

Originally posted 2009-02-04 14:00:37. Republished by Blog Post Promoter

He’s already the most sincere, if not the swiftest, trademark counterfeiting defendant* of 2009, and though it’s only early February it may be hard to top Poynette, Wisconsin’s Vincent Konicek for a certain kind of earnestness and, well, um, some other sort of special quality that you just can’t … replicate:

Whatever.

Whatever.

Rolex … filed a federal lawsuit in Madison Wednesday against Vincent Konicek, accusing him of infringing on the company’s trademarks by selling knockoff Rolexes over the Internet. . . .

It also accused Konicek of violating the federal “cybersquatting” law by using the Rolex name in his Web site, “toprolexreplica.com,” in order to profit from the company’s name.

Konicek said Wednesday that he started selling the fake Rolexes after a trip to China, where they were being sold on the street for $10. Konicek sells his own Chinese-made Rolexes for $99.

The lawsuit states that Rolex found out about the site in October and wrote to Konicek. He faxed back a letter five days later, saying that when they finish “suing all of the following merchants listed on Google search pages, call me and let me know you are going after me next.”

He attached two pages of a Google search that used the terms “Rolex replica.” Rolex concluded that Konicek is “fully aware” that what he is doing is illegal and willful, the lawsuit states.

But Konicek didn’t sound all that certain.

“I didn’t know I was going to run into copyright infringement,” he said. “I guess I’ll have to talk to an attorney and see what I can do.

Well, don’t be hasty or anything, Vincent.  Copyright, trademark, replica, counterfeit, legal, schmegal, whatever.  Talk to an attorney when you have a chance, for sure.  But certainly don’t hesitate to talk to any reporters first.


*Disclosure: Plaintiff here is a some-time LOC client, though not so much in Wisconsin. Lately.

Giving up the Web

Originally posted 2010-11-05 17:11:33. Republished by Blog Post Promoter

ClickZ News says lawyers are “Giving Up on Web Trademark Infringement”:

“Trademark dilution is death by a thousand cuts,” said Joe Dreitler, partner at Frost Brown Todd. “And if there are a thousand people doing parodies of Louis Vuitton, at what point [does it occur]?”

It’s almost as if the claim of trademark dilution, regarding which we have long been very dubious, brings its own punishment: It is now so relatively easy for a truly famous mark (such as Vuitton, which we have represented) to make a meritorious dilution claim and yet it is even easier to dilute a trademark on the Internet. And the bigger the trademark the more dilutable… the more it cries out for dilution… the more lawyers and trademark owners trip over themselves trying to figure out what to do about it. As this article demonstrates, they’re increasingly frustrated over their inability to do anything as the truly anarchistic nature of the Internet defies enforcement regardless of budgets or ambitions.

Probably the smart thing would be to forget about dilution, which the world lived without since Creation, and focus on tight brand building and enforcement against real infringements. But of course that is a course the trademark owners are constitutionally incapable of considering. Are they on the verge of making utter fools of themselves in the RIAA “constant nuclear option” enforcement — I mean, “enforcement” — mode? Probably. And law firms will profit all the way, which is the up side. (You think I meant that as a bad thing?!)

Vikings and pirates at sea, and you don’t need a Weatherman to know which way the wind blows

Originally posted 2013-11-14 14:25:43. Republished by Blog Post Promoter

The Pirate BayPirate Bay, the massively growing file-stealing file-sharing website, is on trial in Sweden:

Four men linked to The Pirate Bay were charged early last year by a Swedish prosecutor with conspiracy to break copyright law and related offences. . . .

The group that controls The Pirate Bay, launched in 2003, says that since no copyrighted material is stored on its servers and no exchange of files actually takes place there, they cannot be held responsible for what material is being exchanged.

The prosecution says that by financing, programing and administering the site, the four men promoted the infringement of property rights by the site’s users.

OK, so why isn’t this just the Napster case with blond hair and blue eyes?  Would you believe it’s the difference between good and evil?

What sets the Pirate Bay apart from other file sharing sites is that it publicly defend file sharing and claims it is a “force of good”:

“The entertainment industry is spending their last money on suing us rather than investing in new business models. It will hopefully be the demise of slow fat giants and the birth of an artist friendly, consumer friendly and sound creating culture,” Mr Andersson said.

This view is echoed by Rick Falkvinge, the leader of the “Pirate Party”, a Swedish political party formed as a result of the growing concern amongst the file sharing community that their civil liberties were being clamped down on as a result of the entertainment industry’s powerful lobby. The party has over 9,700 members and received 34,918 votes in the last general election.

“We believe that peoples’ [sic] right to free access to culture has greater value to society than the right of the holder of the copyright to get paid,” Mr Falkvinge said.

“The people’s right to free access to culture”?  Oh, oh.  Ohhh.

Um, all right, I’ll bite.

“The people’s right to free access to culture”?  What the hell right is that?  Is that something in the Swedish constitution?

I guess it’s Napster with blond hair and blue eyes, after all.

Then again, maybe not.  Swedes don’t look quite as fair as they used to — and neither does Swedish law.  So anything’s possible.

UPDATE:  “Walk the plank!

Poor eBay!

Originally posted 2011-04-27 17:02:13. Republished by Blog Post Promoter

ebay-logo-02News item:

eBay just reported first quarter earnings today posting revenue of $2.5 billion, an increase of 16% from the same period of 2010. eBay’s net income on a GAAP basis of $475.9 million, or $0.36 per diluted share, and non-GAAP net income of $619.0 million, or $0.47 per diluted share, representing a 12% increase compared to the same period of 2010. The retail giant narrowly beat analyst expectations, which were 46 cents per share on revenues of $2.48 billion. eBay says that the first quarter increase in earnings was due primarily to sales growth and a lower effective tax rate.

Nice!  I wish I had one of those.

But it does bring to mind the following bunch of words I do have, and which I wrote on this very place in space, on the topic of eBay’s essentially unconditional non-liability for contributory trademark infringement in connection with the sale on eBay of counterfeit goods:

Willful blindness, evidently, is a good standard to spank flea market zhlubs who “should have known” vendors who rent tables from them are selling counterfeit goods.   It doesn’t apply, however, to billion-dollar companies that are “too big to be liable” as contributory infringers or even  accountable after the fact on some level (disgorgement?)  for the millions they rack up in commissions on counterfeit sales.

Ah, yes, but doesn’t the Circuit say, as quoted above?:

But we are also disposed to think, and the record suggests, that private market forces give eBay and those operating similar businesses a strong incentive to minimize the counterfeit goods sold on their websites. eBay received many complaints from users claiming to have been duped into buying counterfeit Tiffany products sold on eBay.  The risk of alienating these users gives eBay a reason to identify and remove counterfeit listings. Indeed, it has spent millions of dollars in that effort.

I’m disposed to think exactly the opposite, because:

  1. the law will not punish them for failing to do so;
  2. notwithstanding “many complaints” (it’s that Lanham Act “rigor” at work once again!),  most buyers of counterfeits want to buy counterfeits.  It’s not a matter of quality control:   These days, everyone except Archie Bunker who spends $45 for a “Romex” knows exactly what he’s buying.  But unless and until “private market forces” eliminate trademark law, notwithstanding that the sale of a fake Rolex or Tiffany item is entirely between “consenting adults,” it’s still an unlawful transaction;
  3. the “millions of dollars” spent by eBay was spent precisely to obtain an opinion like this by a court that doesn’t really “get it”; and
  4. eBay makes money selling counterfeits!  Even the Circuit had to acknowledge this fact, which it does in a little-bitty footnote and then completely ignores.

Yes, they make a lot of money, they do, at eBay.  Why the company is exempt from any responsibility to compensate victims of trademark infringement via a system it has established — notwithstanding their notice-and-takedown system — merely because it has spent “millions” on trying, a number that is both vague and which the court made no attempt to relate to the profits or the damages involved, remains beyond my understanding.

 

When counterfeits are serious business

Originally posted 2010-06-25 00:38:19. Republished by Blog Post Promoter

The New York Times writes about counterfeit drugs, the tragedies that follow in their wake and the reality of enforcement.  Via the NCPA website.

Reversal Strummed Up in Gibson Guitars Case

Originally posted 2011-12-23 11:45:20. Republished by Blog Post Promoter

The AP reports:

NASHVILLE, Tenn. Nashville-based Gibson Guitar Corporation has lost a legal battle. A federal appeals court has ruled that a competitor‘s copy of Gibson’s popular Les Paul model does not infringe on Gibson’s trademark.

Here’s a link to the decision.

We blogged on this story a while back and expressed some doubt about the lower-court decision. Guess now it’s Gibson‘s turn to fret.

No, really — counterfeiting

In the IP business, when you hear the word “counterfeiting,” you think — you know, fake Louis Vuitton handbags, Rolex “replicas,” that sort of thing.

Well that’s counterfeiting, yeah.  But then there’s… counterfeiting counterfeiting!  This infographic doesn’t skip over the old-fashioned, wrath-of-J.-Edgar-Hoover-type currency counterfeiting.  Enjoy it.

Just one thing — when you see assertions like the one on top of the infographic (“By 2015, [the] ICC expects the value of counterfeit goods globally to exceed $1.7 trillion”) — don’t be too too credulous.  Those estimates tend be, er, funny money — “massively overstated.”  But that doesn’t mean it’s not a problem.  Although if I don’t get some new antipiracy work myself soon it might start to not be one and I might start to say so.

Kidding!  It’s a real problem, and it’s not only China’s fault.  But I digress — as I said, enjoy the infographic!

counterfeiting-infographic

Infographic by Camcode

Best of 2011: Poor eBay!

First posted April 27, 2011.ebay-logo-02

News item:

eBay just reported first quarter earnings today posting revenue of $2.5 billion, an increase of 16% from the same period of 2010. eBay’s net income on a GAAP basis of $475.9 million, or $0.36 per diluted share, and non-GAAP net income of $619.0 million, or $0.47 per diluted share, representing a 12% increase compared to the same period of 2010. The retail giant narrowly beat analyst expectations, which were 46 cents per share on revenues of $2.48 billion. eBay says that the first quarter increase in earnings was due primarily to sales growth and a lower effective tax rate.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Nice!  I wish I had one of those.

But it does bring to mind the following bunch of words I do have, and which I wrote on this very place in space, on the topic of eBay’s essentially unconditional non-liability for contributory trademark infringement in connection with the sale on eBay of counterfeit goods: Read More…