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Arizona court takes Lanham Act to its logical (modern) extreme

Originally posted 2006-07-21 11:52:31. Republished by Blog Post Promoter

A judge in the U.S. District of Arizona issued, earlier this week, an injunction against “any comments that could be construed as to disparage [a trademark].” Thankfullly, as Euguene Volokh reports, the Ninth Circuit has stayed the order.

Unbelievable? Not in the slightest. Why not? Trademarks have feelings, too. Now that they’re all but enforceable in gross (a trademark law term roughly meaning without necessarily being associated with a good or service, which is traditionally what they had to be to be trademarks or to be infringed), they should be protected from pain, as well as unsightly dinks and dents. They’re very sensitive, you know. And very high maintenance.

DMCA not such a good idea, after all

Originally posted 2007-03-26 12:48:39. Republished by Blog Post Promoter

Boing Boing is all over the story that’s all over the Internet today: “DMCA’s author says the DMCA is a failure.” (Hat tip to Instapundit.) That’s Bruce Lehman, whom I interviewed for this article (the first article on Internet law in the ABA Journal) some time around the Civil War.

Well, it seemed like a good idea at the time, but Lehman acknowledges that we’re in the “post-copyright era” now. Just to prove it, Boing Boing has links to his speech, ripped from a university server utilizing a proprietary media application, now freely available to every and sundry person via YouTube.

Twelve commandments?

Originally posted 2007-05-08 11:37:14. Republished by Blog Post Promoter

Something — someone? — called Aviva Directory, or Directory Aviva, has posted an article called “12 Important U.S. Laws Every Blogger Needs to Know.”

It’s quite good. Hat tip to Walter Olson.

Eat your words

Originally posted 2007-10-23 00:07:45. Republished by Blog Post Promoter

Or, rather, someone else — who can really use a meal — will.

Heavy lifting

Originally posted 2007-01-04 18:02:41. Republished by Blog Post Promoter

The Google Copyright Blog rips into that bad deep-linking decision in Texas.

Hurray for Hollywood!

The official website of the thing is here.  Register to attend by clicking here. I’ll be speaking about In re Tam but don’t worry, there will be thrills and chills and stuff you won’t read on LIKELIHOOD OF CONFUSION® … for the foreseeable future.

It’s time for my LA-area lawyer and other free-speech and public-interest friends to sign up for my talk next Monday at the Los Angeles Copyright Society!

Posted by Ron Coleman on Tuesday, March 8, 20

Best of 2010: You got privacy in my policy! No, YOU got policy in MY privacy!

Originally posted 2010-12-28 16:30:08. Republished by Blog Post Promoter

Guns of Battleship New JerseyFirst posted on July 15, 2010.Mindful always of my civic duty, my unique relation to humanity, and legal webby things, I’ve updated the LIKELIHOOD OF CONFUSION® privacy policy.  Your family can rest secure in the knowledge that the policy is always readily available for your perusal, as well as for bar mitzvahs, etc., merely by clicking the pressure-sensitive link at left.

But as a public service, I’m reprinting the updated policy as a post.  The public service being it’s a new way to recycle material no one has really seen so that you, the public, won’t complain so much about the service.  (Much less the portions!) — RDC

Privacy Policy
The LIKELIHOOD OF CONFUSION® blog respects the privacy of its readers and correspondents.  Of course this is an abstraction, because LIKELIHOOD OF CONFUSION® cannot “respect” or do anything.  So that means I (which is me, Ron Coleman) do these things, and indeed I will use the name of the blog and my name (Ron Coleman, remember?) interchangeably here.

If you do not understand what you just read above please read no further and navigate to some other website forever.  You might like this.

Anyway, yeah, we, I, it respect / respects everyone’s privacy, of course.  Now, below is a list of the sort of personal information, already pretty much available to everyone on earth if you use the Internet, but which if you make available to LIKELIHOOD OF CONFUSION® when browsing or navigating the site will be kept confidential unless you give me permission to release it, subject to this policy:

  • First and last name
  • Company, home, postal or other physical address
  • Other contact information, for example, telephone number, fax number, email address, and other similar information
  • Title or position in a company or an organization
  • Occupation
  • Industry
  • Personal interests
  • Any other information needed to provide a service you requested

How would I find this stuff out?  Well, scenarios where visitors provide their personal information include, but may not be limited, to:

  • Emailing, calling or communicating with me.
  • Posting a question or comment through the site.
  • Requesting literature.
  • Registering to attend a seminar or any event.
  • Participating in an online survey.
  • Requesting inclusion in an email or other mailing list.
  • Submitting an entry for a contest or other promotions.
  • Any other business-related reason.
  • Any other reason, of course.  Well, obviously.

LIKELIHOOD OF CONFUSION® provides you the opportunity to agree or decline to provide your personal information via the Internet.  LIKELIHOOD OF CONFUSION® will inform you of the purpose for any such collection.  I do not intend to transfer your personal information to third parties without your consent, except under the limited conditions described under the bit entitled “Information Sharing and Disclosure” below.

If you do choose to provide LIKELIHOOD OF CONFUSION® with your personal information, I may make use of that information for any permitted purpose described here. I am far more likely to ignore it, however, in the unlikely event its existence ever becomes known to me.  It’s all I can do to keep track of my kids’ birthdays.

Sunset hues, municipal and judicial buildings, New York CityDomain and Server Information Collection

LIKELIHOOD OF CONFUSION® may collect domain and server information to enable people who can explain it to me who uses this site and how, though they will probably have to repeat themselves several times.  This data, when it is available, enables me to kind of figure out who some of the people who visit the site might be, how often they visit, and what parts of the site they visit most often.  I use this information to improve my “Web-based offerings,” if you will; for client development; to assess and implement revenue options such as advertising; and, where appropriate, for opposition research in litigation and other legal matters.  Of course I do that.

This information is collected automatically and requires no action on your part. You, your IT manager or your ISP may conceal or obscure this information by use of a number of technological methods, either at your own option and, in some cases, cost, or sometimes without your input at all. Doing so, i.e., masking your server or other identifying information, will not in any way affect your ability to use this site, which I am sure is a huge relief.  Of at least equal importance it will also not affect your ability to have children.  At least there’s no firm proof that it will.

There is one exception to the foregoing:  If your domain or server information is associated with any unauthorized exploits, hacking, malware, spam or other bad Internet things, that server or, in some cases, the entire country where that server is located is likely to be banned from all access to this and site and other affiliated websites and may be reported to third parties such as my Internet hosting service and centralized organizations that monitor and collect information about such activity.  That’s my impotent little attempt to get you back, but it’s mine.

If you believe this has already happened to you in error, please email me and we’ll talk.  Be prepared to explain to me how it could have happened but you’re still reading this, by the way.

Use of Cookies and Tracking User Traffic

Some pages on this site may use “cookies” — small files that the site software places on your hard drive for identification purposes.  A cookie file can contain information such as a user ID to track the pages visited, but the only personal information a cookie can contain is information you supply yourself.  These files are used for customization, including ease of comment posting, the next time you visit LIKELIHOOD OF CONFUSION®. They are not the Mark of the Beast.

Some parts of the site may also use cookies to track user traffic patterns.  I do this for the same reason that I collect domain and server information, as set forth above.   Cookies cannot read data off of your hard drive.  Your Web browser typically will allow you to be notified when you are receiving a cookie, giving you the choice to accept it or not, or setting either choice as a default.  No, really.

So, if you prefer not to receive cookies while browsing my site, you can set your browser to warn you before accepting cookies and refuse the cookie when your browser alerts you to its presence.  You can also refuse all cookies by turning them off in your browser.   You should know this by now.

But if you’re going to be that way and not accept cookies, there’s just one thing:  Let’s face it, you’re going to pay.  Everything comes out in the end, you know?  Some pages may not work right; you may not be able to get access to certain content on this site; perhaps you will get hives.  On the other hand, it could work out great for you — one man in Sullivan County, New York who did have this experience reports a life-altering improvement in his attitude toward Brussels sprouts.  Anyway, I don’t know which cookies do these things or why but they tell me that is possible.  I’ve never even seen one.  “Cookies”?  What can I do?  I try my best.  Did I mention my surgery from last fall?  No, I mean both.  Surgeries, that is.

Information Sharing and Disclosure

Your personal information is never shared with anyone besides those who work or consult with me, and who maintain your confidentiality on the same terms as those set out here, without your permission, except under conditions listed below:

  • Consenting to share your information to a third party service provider working on our behalf to serve you.
  • Requiring us to provide you with a product or service.

LIKELIHOOD OF CONFUSION® will also disclose your personal information if required to do so by law, or in urgent circumstances, to protect personal safety, the public or. yes, LIKELIHOOD OF CONFUSION®.

The Belated Party - Jerome ThompsonProtecting the Privacy of Children

You think I have something wrong with me?  I’m suspicious of anyone who’s even reading this section.  But the disclosure part is this:  Children under 13 years old are, surprise, not the target audience for LIKELIHOOD OF CONFUSION®, which is about grownup things like laws and judges and the Commissioner of Trademarks.  “To protect the privacy” of such youngsters, and because it wants nothing whatsoever to do with any minors not rich in its own prize-winning DNA, LIKELIHOOD OF CONFUSION® does not solicit the readership of,  personal information, or anything at all from other people’s children.

Links to Third Party Sites

This site contains links to other sites, to put it mildly.  While it is hard to fathom why anyone would think otherwise, LIKELIHOOD OF CONFUSION® does not share your personal information with those websites.  So far they haven’t so much as asked for it.  I am not responsible for the privacy practices of other sites you “arrive” at by clicking a link from here.  In fact if that’s the kind of thing that concerns you, definitely go do some serious research on the privacy policies of those other websites right away.  No, you don’t have to get back to me.  That’s certainly not something I have ever done.  It’s bad enough that you’re even reading this one.

Changes to this Privacy Policy

LIKELIHOOD OF CONFUSION® reserves the right to change, modify or update this policy at any time without affirmative notice to you, because doing so is impractical and preposterous.  It is possible that I could make substantial changes in the way I use your personal information.  By way of example, but without limitation, I may choose to recast this disclosure in iambic pentameter or render it into Klingon — a distinct possibility that depends solely on the future prospects of my keeping the lid on my simmering black rage.

In such an event, however, any change will be posted on this site in a timely fashion to accomodate those who will not have already been advised of it through screaming tabloid headlines, street demonstrations or the Emergency Broadcast System.

If you have questions or concerns about this Privacy Policy, you may click here to email them to me and I will respond brilliantly as soon as I pick myself off the floor, still numb with astonishment.

Heck with you, Disney!

Originally posted 2006-03-11 21:59:43. Republished by Blog Post Promoter

UP reports (hyperlink added):

The Hell’s Angels Motorcycle Corp. has filed suit in Los Angeles federal court claiming the film, ‘Wild Hogs,’ stomps on its copyright.

But in its suit, the Hell’s Angels say Buena Vista never asked permission to use its name or its trademark horned and feathered skull, CNN/Money reported Friday.

How exactly do you ask the Hell’s Angels’ permission?

UPDATE:  More from Marty Schwimmer.

Copyright not lost in the contractual sauce

Originally posted 2007-07-26 21:00:00. Republished by Blog Post Promoter

Forum selection clauses are taking a beating these days. Now comes the Second Circuit to answer a question that comes up a lot, at least in theory: When you have claims arising a situation involving both a contract and a copyright — and the copyright is the subject matter of the contract — does a forum selection clause govern? Or does the copyright claim stand on its own?

Answer: The copyright, cheese-like, stands alone under the rule of Phillips v. Audio Active Limited, just decided. Stacia Lay explains (emphasis added):

The Second Circuit readily concluded, albeit with extensive discussion, that the forum selection clause was mandatory and that Phillips’ breach of contract claim fell squarely within the clause. The same was not true, however, for Phillips’ copyright and related state law claims.

The question facing the Second Circuit was whether these claims “arise out of” the recording contract. The Second Circuit was not persuaded by Phillips’ argument that because his claims arise under the Copyright Act, they could not also arise out of the contract, stating that it must examine the substance of the claims “shorn of their labels.” Ultimately, the Second Circuit concluded that because Phillips’ rights, which were predicated on ownership of the copyrights to the additional tracks released by the defendants without his permission, did not originate from the recording contract, his copyright (and related state law) claims did not “arise out of” the contract. Rather, Phillips’ claim of ownership of the copyrights was based on his authorship of the works. Although it did not discount the likely possibility that the recording contract would be raised in connection with Phillips’ copyright claims, the Second Circuit found that because Phillips denied that the contract had any relevance to his copyright claims, the contract “is only relevant as a defense” in the suit and therefore could not say “that the origins of the proceedings were in the recording contract.”

Query: Could you still contract around this, and have the contract — or even a separate contract — explicitly state that the author covenants to bring “all claims, including any claim based on copyright in the work governed by this contract,” in Forum X? Why not?

Tech Law Advisor Reviews the Blawgs

Originally posted 2006-10-16 18:15:47. Republished by Blog Post Promoter

Tech Law Advisor hosts the Blawg Review this week, and being a tech guy, tries something technologically different:

Welcome to Blawg Review Live – a living breathing experiment in tagging the live web and sorting it into little categories for all of the Blawg Review Readers. The archived version is available at the permalink, but this page will continue to update itself.

That’s kind of cool. But, you know, that’s Kevin “Not an advertisement for legal services” Heller for you!