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People Endlessly Troubling All

Originally posted 2014-01-22 13:44:31. Republished by Blog Post Promoter

The Canadian Trademark Blog reports that People for the Ethical Treatment of Animals (PETA), the extremist anti-protein group,

has launched a new “spoof” website in its stated bid to convince the Vancouver Organizing Committee (VANOC) that it should help in the campaign to end the Canadian seal hunt.

PETA?  Spoof website?

Rather ironic, no?

Changing the IP Mentality

Originally posted 2012-06-22 14:07:19. Republished by Blog Post Promoter

Mark V.B. Partridge, a partner at the firm that bears the name of my old trademark professor and author of the Guiding Rights Blog [link is dead – RDC], has written a very important piece for the [non]billable hour blog. Here’s my favorite suggestion:

2. Eliminate rights in gross mentality

My second change, admittedly related to the first, would be to eliminate the “rights in gross” mentality. By this, I mean the notion that a trademark creates an absolute and exclusive right. One sees this tendency on both sides of the rights issue. A trademark owner may have the view that no one else may use its mark for any purpose. The junior user may believe there is no infringement if the mark it adopts is not identical to another’s trademark.

I don’t think there’s a single bigger problem in trademarks than this mentality. It is not necessarily an unreasonable view for trademark owners to have; they pour millions or even more into the “brand equity” represented by a trademark. But that should not, and does not, change what a trademark is supposed to be. Unfortunately, the flowering of federal trademark dilution law has cut in exactly the opposite direction of this would-be change — and I don’t see it getting better.

The PROTECT IP Act: We’re all infringers now

Originally posted 2011-07-07 20:39:24. Republished by Blog Post Promoter

Guns of Battleship New JerseyGlenn Reynolds links to this story:  Dozens of law professors: PROTECT IP Act is unconstitutional:

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn “Instapundit”Reynolds.

“The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order… issued the same day the complaint is filed,” they write. Such a restraining order, which they describe as “the equivalent of an Internet death penalty,” raises serious constitutional questions.

Yep.  I argued much the same thing here a while ago, and I’m only a former law professor. (Ahem… adjunct.)

Anyone who reads this blog regularly knows that the encroachment of Big IP on the right of free expression — commercial or otherwise — has been my central theme.  And within that theme, I have consistently pointed out that the existing legal rules, especially in copyright, are already hopelessly skewed wrong.

Online counterfeiting and copyright infringement are serious problems, but this new proposed law is a terrible way to try to solve them.  Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property.  But if Big IP hasn’t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one — if Big IP doesn’t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going — then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

Dell’s cloudy IP planning

Originally posted 2011-05-23 16:57:10. Republished by Blog Post Promoter

Has anyone figured this out?

Dell’s newly-acquired trademark for the term “cloud computing” may have all the durability of a glass hammer, meaning it will shatter the first time they try to use it. The law is not exactly on the company’s side in this argument. . . .

The problem for a “cloud computing” trademark is that the term has become generic, widely adopted by the industry at large in the 18 months since Dell first applied for the trademark. . . .

“By now everybody’s using [the term ‘cloud computing’], and the law is quite clear that even though it’s not Dell’s fault, if the phrase is now a generic phrase for that kind of computing, nobody can own a trademark for it, because people need to be able to describe the generic product,” [Jessica Litman, professor of Law and Information at the University of Michigan,] added.

But it could be too late, said Litman. “Dell was unfortunate to pick a phrase that was too close to the kind of phrase everybody was going to use,” she said.

Or, it appears, did use. What appears to be the case is that Dell hoped to get out in front, or close to the front, of the use curve and capture the secondary meaning. It looks as if that’s not going to happen. On the other hand, there’s already LIKELIHOOD OF CONFUSION, of a sort:

“A registered trademark on this term would not give Dell the exclusive use of it,” [Dell’s spokesman] wrote in an e-mail to “It would protect us from others using the term specifically as it relates to our solution.”

No it wouldn’t. In fact, by Dell’s lights, you should only be able to use the term — in the only context that matters — as it relates to Dell’s “solution.” That’s what you get with a trademark. But as the clouds disperse and the sun shines its clarifying light on the matter, it appears that notwithstanding a registration, Dell doesn’t really have a trademark anyway.

UPDATE: And now, evidently… it doesn’t even have the registration: The Notice of Allowance was withdrawn today and the application has been “returned to examination.”  Why?  The PTO isn’t saying.  Does “the PTO” read blogs?

The stupid Berns

Boy from Brooklyn Makes God

Boy from Brooklyn Makes God

IP overreaching, like politics and intellectual property, makes strange bedfellows.  Thus the email from my comrade in litigation against IP overreach, but at the same time my political antithesis, and (for all that) personal friend Paul Alan Levy, conveying — with anguish, but knowing where his duty lies — a link to a post on the invaluable Consumer Law & Policy Blog, which I excerpt below:

Bernie 2016 Joins Long Line of Campaign Committees Abusing Trademark Law to Suppress Criticism (CL&P Blog)

A Republican feint on copyright?

Originally posted 2014-07-24 15:34:58. Republished by Blog Post Promoter

View from the Empire State Building 3I tried, and perhaps had some success, in making the point right before the election that there were political — as in policy, and as in electoral — questions involving intellectual property that could be affected by the presidential election.  And maybe I was right!

No one knows quite what to make of this story, which doesn’t mean people aren’t saying they do.  This, first, was Friday, November 16th’s story:

A Republican Study Committee policy brief released today to members of the House Conservative Caucus and various think tanks lays out “three myths about copyright law” and some ways to go about correcting what many see as a broken system. Derek Khanna, the RSC staffer who authored the paper, acknowledges an important role for intellectual property while also pointing out how badly the current system has gone off track.

The paper also suggests four potential solutions:

  1. Statutory damages reform — in other words, saving granny the legal headaches
  2. Expand fair use — set those DJs free!
  3. Punish false copyright claims
  4. Heavily limit copyright terms, and create disincentives for renewal

That would be a heck of a start towards making copyright actually incentivize innovation, rather than stifling it, as it most often does today.

It’s great to at least see this issue discussed in a substantive way–complaints about rigid IP protections have until now been limited to folks like Sen. Ron Wyden. Surprise opposition to SOPA excepted, neither party has taken a strong public stance on copyright reform. If the paper suggests a new turn for the GOP on the issue–against the Chamber of Commerce and for Internet companies, DJs, and millions of consumers–that would certainly beat the protectionism of bought-off legislators like Bob Goodlatte (who knew the good people of Roanoke had such a stake in strong IP?). Read the whole thing (it’s only nine pages, and easy to digest) here.

Read More…

Spam a little lovelier?

Originally posted 2007-04-19 11:04:33. Republished by Blog Post Promoter

ClickZ reports:

Spamhaus Chief Information Officer Richard Cox … [informed] me that Hormel, makers of SPAM (the tinned meat product), recently (and graciously) allowed Spamhaus to trademark their name. That’s quite a breakthrough for the spam-fighting non-profit, and certainly a first for Hormel. The company awoke one day and found itself the owner of a household name — for all the wrong reasons.

asterix-and-the-vikings-4Graciously? Or had they just had enough of the kind of nonsense and expense they’ve put SpamArrest through for no good reason? There’s been no resolution of the SpamArrest case, though Mike Atkins has a great rundown of the oral argument before the TTAB in February. Worst violation of the smell test is this exchange:

On likelihood of confusion, Judge Seeherman asked: Don’t we have two different meanings for the marks?

Hormel: Not really. The brand SPAM when used on all things still carries a meaning quite apart from canned meat. There’s an iconic statement about it. I don’t want to limit the meaning to canned meat.

Judge Seeherman: When the defendant uses SPAM for a product that filters unwanted email?

Hormel: That’s intended meaning. But if someone sees SPAM ARREST, the likelihood is that people will think there is some sponsorship or affiliation with Hormel.

Sure. Hormel. Top of our minds, every stinking day of our lives, each time someone tries to sell us Cialis or refinancing via email and McAffee labels it “spam.” Right — we assume it came from the tinned meat company.

Is there really nothing we won’t say for a fee?

"Opening up a dialog"

Originally posted 2008-04-02 18:17:54. Republished by Blog Post Promoter

t-mobile-vs-engadget-mobileAn in-house friend passes this along, with the note, “A good entry for your continuing series on preposterous misapplications of trademark law”:

Deutsche Telekom / T-Mobile demands Engadget Mobile discontinue using the color magenta

Yeah, a cease and desist letter is one way to “open up a dialog.” But doing that with a top blog such as Engadget, you might not open up quite the dialog you were looking for.

UPDATE:  As of April 3, [2008,] T-Mobile has taken no further action.

Let loose the blogs of war

Originally posted 2007-01-15 19:23:32. Republished by Blog Post Promoter

iphone-wm5-skinThe Apple-Cisco litigation is all that. Word is that Cisco is carefully courting bloggers in the publicity management of the case, which despite Apple’s cult-like status among many techies is tending toward successful — there’s a lot of cultural love out there, it seems, for Cisco.

At the same time, Apple is playing the Darth Vader card to the hilt, supposedly sending cease and desist letters to bloggers reproducing — as part of reporting — a skin someone created for Windows Mobile devices that looks just like the iPhone’s interface.

That can’t be a good idea, tactically speaking.

UPDATE: Cisco engages.  And, another front?

Google down, boogy oogy oogy

Originally posted 2006-05-28 15:53:53. Republished by Blog Post Promoter

Ben Charny at eWeek reports: “Google’s ‘Oogle’ Hunters Bag Another One.” What’s it all about? The magic of the double-o, reports Charny:

Google’s Rose Hagan, senior trademark counsel, explained during an an interview that Google is continuously monitoring the Internet for sites with names like Boogle, Foogle and Hoogle, etc. It usually will only go after Internet search engine sites with similar-sounding names.

After each potential Google trademark offender surfaces, it first gets a Google letter of warning, she said. That usually does the trick, and the name is soon changed.

“We aren’t trying to own the double O,” Hagan said. “We take steps to protect the Google brand.”

Ooh!   Good faith to boot.  Wouldn’t want a bad blood with Google — let’s keep the mood good.  Dood.