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Update on speech regulation

Originally posted 2006-03-26 22:16:21. Republished by Blog Post Promoter

Wired News reports:

The Federal Election Commission proposed new rules Friday that would leave almost all internet political activity unregulated. The proposal would, however, require paid advertisements for federal candidates on the internet to be paid for with money regulated by federal campaign law.

We’ve addressed this creeping reduction in freedom of speech more than once.

UPDATE:  A good (short term) development.

Trademarks — and Copyrights — in the Public Interest?

South Brooklyn section of MTA Subway MapWired News reports:

Transit officials in New York and San Francisco have launched a copyright crackdown on a website offering free downloadable subway maps designed to be viewed on the iPod. . . .

More than 9,000 people downloaded the map, which was viewable on either an iPod or an iPod nano, before Bright received a Sept. 14 letter from Lester Freundlich, a senior associate counsel at New York’s Metropolitan Transit Authority, saying that Bright had infringed the MTA’s copyright and that he needed a license to post the map and to authorize others to download it.

Not very freundlich of Lester, was it?

“I removed it promptly,” said Bright, a design director at Nerve.com. “I’m very aware that they are copyright violations, but I’m not trying to make money or do anything malicious. I’m not in this to piss people off.”

Last week Bright received a similar cease-and-desist letter from officials with Bay Area Rapid Transit, or BART, demanding that Bright remove a map of the San Francisco rail system.

I blogged about this topic in general — the assertion of intellectual property rights in arguably public goods such as train-line symbols — in June. My conclusion then:

It’s one thing to say that services aren’t free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it’s another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

In other words, if you get a C&D letter from the MTA, give me call, won’t you?

The issue here is not quite the same. It is narrower, and deals only with the copyright in the maps. But in a broader sense, it is the same: Should these public authorities, ostensibly in the business of helping people get around, be more interested in rent seeking than in … helping people get around?

I don’t think so.

UPDATE: Excellent legal analysis, as usual, by Patry.

BUT WAIT, THERE’S MORE:  How did the MTA’s ad department let this past the boys in legal?!

Best of 2014: The Garden State Parkway and government trademarks: What exit?

First posted on July 24, 2014.


So, yes:  One of my many continuing series around here has long been the assertion of trademark rights by political subdivisions and agencies in stuff that they’re supposed to just do.  These include:

Jersey bus
I even kind of did a roundup on one case where the MTA pulled back after overplaying its hand.  But across the River, New Jersey, now — as ever — begs to be heard, as reported in the N.J. Law Journal and the Newark Star-Ledger, per the tweet above:

The New Jersey Turnpike Authority wants to be clear: It is not in the restaurant business, in this state or any other.

To underline the point, the agency has filed a federal lawsuit against a Florida chain of two New Jersey-themed pizza places, claiming the restaurants’ yellow-and-green logo too closely resembles the Garden State Parkway sign . . . .

“Coming after someone down here, 1,300 miles away, is ridiculous,” [defendant] DiMatteo said.
But the authority notes that the restaurant is actively working to franchise the brand — and presumably the logo — nationally, including, the restaurant says on its website, “up and along the coast to the northeast of the United States.”

“This is not just about some pizza joint in the Florida Keys,” a spokesman for the authority said an email.

Yeah, but it is.

So yes, I was, earlier today, asked my view of the matter.  And yes, I did pass on a link to one of those earlier posts.

But, to be more specific, and as one who has lived in the Garden State for over 40 years, let me put it to the Authority Jersey-like, as I write this in beautiful Passaic County, so’s I can be completely understood:

Ya not franchising nuttin, Goddin State Pockway.

You ain’t franchisin’ no stinkin’ pizza in Flah-rida.

You got nuttin.

Hey.  You.  Yeah, you. Read More…

Damaged China

Michael Atkins looks at how China now calculates trademark infringement damages.

No endorsement here

rwr-and-chesterfieldThe Media Bloggers Association president, Bob Cox, is all over the story regarding the Federal Trade Commission’s brand new Guides on Endorsements and Testimonials, which, as Bob explains, will certainly affect bloggers.  In fact, one of the examples given of a testimonial in the proposed revisions, found here, is of a product review written by a blogger.

I made my views known on this a while ago:  I’m against this sort of regulation, which I think is an unconstitutional restriction on free speech, kittens or not.  And I think most consumers — from a policy perspective, enough of “most” — can figure this sort of stuff out for themselves by now.

UPDATE:  Great minds think alike.

The Garden State Parkway and government trademarks: What exit?


So, yes:  One of my many continuing series around here has long been the assertion of trademark rights by political subdivisions and agencies in stuff that they’re supposed to just do.  These include:

I even kind of did a roundup on one case where the MTA pulled back after overplaying its hand.  But across the River, New Jersey, now — as ever — begs to be heard, as reported in the N.J. Law Journal and the Newark Star-Ledger, per the tweet above:

The New Jersey Turnpike Authority wants to be clear: It is not in the restaurant business, in this state or any other.

To underline the point, the agency has filed a federal lawsuit against a Florida chain of two New Jersey-themed pizza places, claiming the restaurants’ yellow-and-green logo too closely resembles the Garden State Parkway sign . . . .

“Coming after someone down here, 1,300 miles away, is ridiculous,” [defendant] DiMatteo said.
But the authority notes that the restaurant is actively working to franchise the brand — and presumably the logo — nationally, including, the restaurant says on its website, “up and along the coast to the northeast of the United States.”

“This is not just about some pizza joint in the Florida Keys,” a spokesman for the authority said an email.

Yeah, but it is.

Jersey busSo yes, I was, earlier today, asked my view of the matter.  And yes, I did pass on a link to one of those earlier posts.

But, to be more specific, and as one who has lived in the Garden State for over 40 years, let me put it to the Authority Jersey-like, as I write this in beautiful Passaic County, so’s I can be completely understood:

Ya not franchising nuttin, Goddin State Pockway.

You ain’t franchisin’ no stinkin’ pizza in Flah-rida.

You got nuttin.

Hey.  You.  Yeah, you. Read More…

Signed, sealed and delivered

That just about seals it for puns of this nature:  As John Welch informs us, the Federal Circuit has affirmed the decision by the TTAB to reject the applications by the city of Houston and the District of Columbia to obtain trademark registrations for their official seals, a case first discussed here in July of 2012.

The money quote, per John:

Section 2(b) prohibits an “applicant” from registering a mark that “consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.” These two cases raised a question of first impression: whether a local government entity may obtain a federal trademark registration for its official insignia. . . .

Houston:  The City of Houston argued that because it was seeking to register its own seal, it was not an “applicant” and Section 2(b) prohibition was inapplicable. . . . The CAFC noted that there is a “strong presumption that the plain language of the statute expresses congressional intent [which] is rebutted only in rare and exceptional circumstances.” United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 11 (2008). It found nothing in the “plain language” of the statute that suggests an exemption for a governmental entity like Houston. . . .

District of Columbia: The District took a very different approach, asserting that to deny it registration for its seal would violate the obligations of the United States under the Paris Convention. It contended that the meaning of Section 2(b) is not clear, but is ambiguous on this point. This issue of ambiguity was relevant to whether the legislative history of the Lanham Act and the Paris Convention may properly be considered.

The court, however, found no ambiguity in Section 2(b).

U.S. appellate courts, it appears, aren’t ready to rewrite the Lanham Act based on treaty obligations or overseas legal standards just yet.

While there have been government seal disputes before, such as this one involving the Presidential seal and this one involving the FBI seal, these, as I have said in these earlier posts, come a different way.

UPDATE:  Oh, boy.  Looks like this stuff is going to get worse before it gets better — now the NSA and the DHS are getting into the circus act! Read More…

Does the NSA Think You Are a Terrorist?

It’s nothing personal if they do, but — does the NSA think, maybe, you’re a terrorist?

Don’t be surprised if it does.

Does The NSA Think You Are A Terrorist?
Source: TopComputerScienceDegrees.com

STOLICHNAYA: In Soviet Russia, Mark Trades You.

mdbheadshotfinalI’ve long suspected that certain products–vice products, as it were–are disproportionately often involved in trademark disputes, but I’m too lazy to do actual research to confirm my suspicion. In any event, this dispute involves vodka, and–unless I’m very much mistaken–the decision is going to restart the Cold War. — MDB

bottle.stolichnaya-premium-vodkaI’m not a vodka drinker. I prefer gin. Still, I think Russia’s getting the short end of the swizzle stick in Fed. Treasury Enter. v. SPI Spirits Ltd., in which a decision of the United States Court of Appeals for the Second Circuit came down on August 5. (That is… August Fifth. Fifth! Get it?)

The plaintiffs-appellants are a Russian Federation-chartered entity (known in the matter as “FTE”) and its exclusive licensee (“Cristall”). The defendants are eleven related entities, real persons and corporations, who also claim rights to the vodka trademark at issue: “STOLICHNAYA,” which can be translated from Russian as “from the capital.” The mark has been registered with the USPTO since 1969.

The dispute is uncomplicated, even if the background might be: Because Russian law prohibits governmental bodies from conducting business activities, the Russian Federation (a governmental agency, and the one that owns the STOLICHNAYA mark), through its Ministry of Agriculture and Ministry of Property Relations formed FTE and charged it with exploiting the STOLICHNAYA trademarks on behalf of the Russian Federation. Over time, in a series of decrees, the Russian Federation endowed FTE with various rights; one gives FTE the right to prosecute suits in foreign courts.

It seems clear to this reader that the Russian Federation wants FTE to be able to handle all of its vodka-trademark-related business. The government of Russia, one presumes, has other things to worry about. Not that vodka isn’t very important… but you know what I mean.

The United States District Court for the Southern District of New York, however, didn’t think so, and now the Second Circuit has affirmed the dismissal of FTE’s claims for lack of standing to sue. Despite what (I expect) most people would find to be sufficient and satisfactory evidence of the Russian Federation’s desire and intent to have FTE sue in the United States to protect the STOLICHNAYA mark, the U.S. courts have concluded that FTE has not alleged facts sufficient to support a finding that it is either the “assign” or the “legal representative” of the Russian Federation or that the Russian Federation has “ratified” the lawsuit. Read More…

Federalist Society Executive Branch Project – IP and technology

Executive Branch Project Logo

The Federalist Society has a new blog dedicated to analysis of what the executive branch is up to.  You may have noticed the new trend, by which the President and governors have mastered, and received de facto Supreme Court approval, of a technique by which they veto valid legislation by “non-enforcement” of its provisions,  “declining to defend” laws they like (or no longer find politically useful) or just plain rewriting them.  From the website:

An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching Executive Branch Review, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide an objective resource that identifies major government activity, and provides a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach.

The Federalist Society for Law and Public Policy Studies is an organization of 40,000 lawyers, law students, scholars and other individuals located in every state and law school in the nation who are interested in the current state of the legal order. The Federalist Society takes no position on particular legal or public policy questions, but is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

The Federalist Society takes seriously its responsibility as a non-partisan institution engaged in fostering a serious dialogue about legal issues in the public square.  Positions taken on specific issues in publications, however, are those of the author(s), and not reflective of an organizational stance. We invite readers to share their responses, thoughts, and criticisms by writing to us [email protected], and, if requested, we will consider posting or airing those perspectives as well.

There is a link for intellectual property and technology issues, which is more oriented to patent and administrative law right now than copyright and trademark.  But this is something to keep an eye on — not so much the blog (that too) but the usurpation of authority by the executive.