LIKELIHOOD OF CONFUSION®

Speaking of sports:  In Texas, as you know, everything’s mu-u-u-uch bigger.  That includes NCAA-power-school IP thuggery, explains Eric Johnson, as well as the standard of what is and isn’t chump change:

UT has been very aggressive about trademark issues.

So with all that, how many millions of dollars has UT actually brought in to pay faculty and help students? You might be surprised. Annual royalty payments are only about $800,000.

That is a triffling amount of money. And, of course, there are expenses. UT maintains an Office of Trademark Licensing to manage the branding operations. Let’s assume that the office employs only the equivalent of two full-time employees. Salaries, benefits, and overhead would likely be a minimum of $200,000. Add to that a share of the in-house counsel’s budget and legal fees incurred for waging litigation warfare on hapless t-shirt makers, and that’s got to be at the very least about $250,000 annually. Thus, it is hard to believe UT clears more than $450,000 from trademark licensing. And it might be much, much less.

To put that in perspective, that doesn’t even cover a quarter of the gratuitous $2 million annual bonus that UT has recently started guaranteeing for football coach Mack Brown.

See what I mean?  Now Texas, that’s a place where $2 million can be “gratuitous”!  Don’t get me started.

Originally posted 2005-03-18 16:51:00. Republished by Old Post Promoter

Says here that GEEKZONE is now a registered trademark in New Zealand.

No word whether MIT (or any fellow travelers) entered an opposition to the registration due to its own prior and well known use of the term “geek.”

Originally posted 2006-01-03 13:05:07. Republished by Old Post Promoter

Jeff Jarvis reports that a new demographic has been discovered:

I had to laugh at this quote from an entertainment exec in Saul Hansell’s NY Times story about Starz offering movies for download.

“We see a market out there of people who are saying, ‘I want to choose what I want to watch, control how I watch it and watch it wherever I am’ said Robert Greene, a senior vice president at Starz.”

Yes, that’s a new niche market called everybody.

Originally posted 2005-11-07 18:10:40. Republished by Old Post Promoter

Speaking of the Patently-O patent law blog, let’s learn a little patent law. It’s been a while since law school.

The claims in a patent must be sufficiently definite so as to provide a standard by which a third party could, with some degree of certainty, determine whether a given practice would or would not be an infringement of the claims. 35 U.S.C. sec. 112. In other words, indefiniteness is just what it sounds like. But how fuzzy is fuzzy? In Fisher-Price v. Graco (Fed. Cir. 2005), the Federal Circuit ruled (in a “non-precedential” decision)

After a Markman hearing, the district court found several limitations of the claim indefinite (italicized) and thus invalid.

On appeal, the CAFC explained that a defect in a claim must be “severe” before it will be invalidated as indefinite. Here, the CAFC reversed because the “patent is not complex; it is readily understood by both the expert and layperson [and] the words used in the limitation are simple, with well-known ordinary meanings [that] can be construed without great difficulty, even if, as [the challenger] points out, it is not mentioned in the specification.

This is consistent with an August decision reported by Bill Heinze in which the Federal Circuit confirmed the rule that “When a claim ‘is not insolubly ambiguous, it is not invalid for indefiniteness.’”

I like this “insolubly ambiguous” standard because indefiniteness of patent claims makes me think — however inappositely (and I do think inappositely all the time) — of likelihood of confusion, thereby warming the otherwise bitterly cold cockles of my heart. More seriously: Wrting and prosecuting a patent all the way is serious business. Patent lawyers, whose malpractice premiums make them the ob-gyns of the legal profession,* need to be second-guessed in litigation like a headache. Setting the standard for indefiniteness high, and keeping it there, is a good idea.

–
* It is true that both bring marvelous things screaming into the world, is it not?

Originally posted 2006-07-19 19:54:53. Republished by Old Post Promoter

The end is near for Leo Stoller.

UPDATE:  Now it’s getting really silly!

Super.

I was going to skip it this year, honest.  But it really does get even better, not worser.  So, as I started out last year’s Super Bowl post:

Every year around Super Bowl time I post an item about the NFL’s overzealous efforts to impose a gridiron grip on all aspects of its somewhat valuable SUPER BOWL® trademark:

• In 2007, the NFL tried to claim ownership of the euphemism of choice for the Big Game, THE BIG GAME
• Later that year, someone picked up on how the NFL was requiring unwitting professionals trying to do their jobs on the field to be involuntary Super Bowl billboards
• One year I even ran a contest, which for how it flopped should have been called the not so super bowl, for the most preposterous euphemisms and end-runs employed by people and businesses intimidated out of making completely lawful use of the SUPER BOWL trademark
• Also in 2008 I also linked here to a good article rounding up the NFL’s heavy-handed IP blitz (here’s another one for 2009)
• And as I wrote in 2009 regarding the SWAT-team-like actions against sellers of “unauthorized” Super Bowl merchandise, “It’s the overselling that’s offensive, because of course the NFL has a trademark right to SUPER  BOWL.  But like all IP owners, the league has set up a campaign not only to protect its legitimate rights but a buffer of illegimate intimidation-based quasi-rights around the real thing. . . . Everyone knows ‘the fan’doesn’t need to be protected from allegedly shoddy merchandise bearing an NFL team logo any more than “the fan” needs to be protected from shoddy merchandise bearing paisley, polka dots or duckies. ‘The fan’ chooses what he wants to spend on a garment and is perfectly willing and able to evaluate quality for himself” without implicating, much less being confused about, the NFL as “source.”

You’d think that would have covered the whole nine yards by now, right?  Nope — not when sports leagues are out there making perfect fools of themselves over IP-based grabbing!  Well, what would make this year different from all other years?

Now, I’m not even writing about the “Who Dat” trademark thing because I frankly had no idea what that was about — I’d seen the headline but again, I had no clue — until I looked just now for a link to link to.  It’s not merely that I’m a language reactionary who recoils from… “dat” kind of thing.  I just  don’t follow sports closely enough, or have a TV, or think it matters whose “trademark” a fan cheer is because — well it’s obvious, isn’t it?  It’s not a trademark at all!  It’s a cheer!

OK, so we’re not talking about that.  No, this year it was copyright (via @copycense), not trademark, that spurred me to resurrect my annual Super Bowl post — namely, this from Nate Anderson:

An offhand comment the other day by a friend caught my attention—”Did you know that you can’t watch the Super Bowl on a TV screen larger than 55 inches? Yeah, it’s right there in the law.”

Bowl.

With the Colts and Saints set to do battle in Super Bowl XLIV, this seemed worth looking into as a public service. Could it be that some of those giant flat panel TV sets now finding their way into US living rooms are actually violating copyright law?

Yes, it’s in the law—sort of

Copyright law has a huge range of exemptions (like face-to-face classroom teaching), limitations (like fair use), and compulsory licensing schemes (like paying songwriters when you perform a cover version of a tune). Some are well known, but most are of interest only to specialists.

US Code Title 17, Chapter 1, Section 110 is called “Limitations on exclusive rights: exemption of certain performances and displays,” and it lays out 12 of these exemptions to copyright restrictions. Are 55+ inch TVs mentioned specifically? They certainly are.

TV broadcasts and movie showings can only be displayed so long as “no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers.” So there it is in black and white—a ban on big TVs!

Sort of.

Following which Nate then explains that the law is a little more subtle than that, and that it isn’t really all that crazy of a law, after all.   Which it’s not.   He adds that following one embarrassing recent legal fumble, now the NFL doesn’t even enforce the statute against churches, which is entirely appropriate — where else should you perform a religious ceremony such as a Super Bowl party, anyway?

Sort of.

Originally posted 2007-02-06 01:14:35. Republished by Old Post Promoter

Negotiate your browser in the direction of Blawg Review #94!

Originally posted 2008-01-15 11:57:25. Republished by Old Post Promoter

We all love loopholes. Concurring Opinions writes here about the Seinfeld defamation lawsuit, and asks:  How broad, really, is the “opinion” loophole?

Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the underlying defamation case. A series of innuendoes, jokes, dismissals, and jibes can probably undermine a reputation far more effectively than one false fact.

Judges, in fact, have been trained by a generation of post-Sullivan jurisprudence to find any way possible either to dismiss defamation cases or to defang them so severely by the time they get to a jury that a plaintiff’s verdict is almost impossible to achieve.

Thus the only threat implied by a defamation lawsuit, and one that will hardly impress gazillionaires like Jerry Seinfeld, is the cost of defending one.

Via Instapundit.

UPDATE:  The suit against Mrs. Jerry was tossed, but the just-making-it-worse riffing by Jerry (“if you read history, many of the three-name people do become assassins. Mark David Chapman. And you know, James Earl Ray.  So that’s my concern”), well, just made it worse.

Originally posted 2007-02-18 13:48:59. Republished by Old Post Promoter

But it’s hard to have sympathy for the MPAA about its being accused of infringement, since its insane shotgun appraoch to enforcement is so just plain bad. Now as Boing Boing says, the movies people are ripping off other folks’ shareware. As Cory Doctorow (via Insty) says:

Copyright law is hard. It used to only govern relations between giant industrial players. Copyright didn’t regulate reading an interesting tidbit from the newspaper for a friend. It didn’t regulate watching movies. But now, sharing a newspaper article with a friend (by blogging it) involves copying, and so triggers copyright. Now watching a movie (by downloading it) involves copying, so it triggers copyright. The rules that are supposed to be interpreted by lawyers at Fortune 100 companies now apply to every single kid working on a project for her class’s website.

This is like having to file with the SEC every time you loan a buddy $5 for lunch.

Even the MPAA and its member companies can’t avoid violating copyright. The MPAA’s own CEO personally ripped off Kirby Dick, pirating his film “This Film is Not Yet Rated” using the MPAA’s duplicating facilities. The studios regularly hose writers, painters, composers and performers, nicking their creative labor without compensation, and sneeringly invite them to sue if they don’t like it. Even the web-development departments get in on the act.

Is it any wonder that everyone with a computer is practically guaranteed to be a copyright criminal?

I can’t say I agree with this analysis — copyright has been relevant to the whole world for a long time, and there are many ways to make fair use of copyrighted material that do not infringe.  But is it virtually inevitable that almost all of us are at least copyright scofflaws, or worse, under the present regime?  Yes.  Something is going to have to give.

Bull's Eye (Sitting)

Remember the silliness over the attempt by a certain attorney to secure trademark rights for CYBERLAWYER?  The notable part about how that went down was that the foolishness was abated by virtue of a cacophony of webby mockery, a completely virtual beclownment of the first order.

So how you figure this ”intrepid” scoop from Jordan McCollum?:

That’s right, folks, you’re all once again about to lose your right to use SEO to refer to . . . well, anything. Back in 2008, one “intrepid” “SEO” [guy] decided he’d trademark [sic] the term and impose standards on the rest of us. That didn’t pan out, so someone else has taken up the [cause].

Or not. Apparently this person is confused about what, exactly, SEO will stand for once it’s trademarked. In the original filing, Search Engine Partners/Shangri-La Boutique filed as SEO standing for “Search Engine Optimization,” which the application claimed they first used in September 1996, and first used in commerce in September 1999. The filing also includes a pseudo mark (this is supposed to apply to other words that are pronounced the same way) of “Strategically Elevating Optimization,” which a company SEP acquired used as a slogan on its invoices. . . .

Or something.  This is actually pretty complicated, evidently, but as Jordan says, “Feel free to read the 250 pages of the filing.”  Well, for free–no, thanks.  (Last night was bad enough.)

But the real irony, of course, is that a self-described “SEO” (“O” meaning not “optimization” it appears but “Optimizerrrr”) would be so tone-deaf, Internet-wise, that he’d want to be next CYBERLAWYER.  Unless, of course, it’s, um, an SEO play?

Or something.

Originally posted 2005-03-11 15:40:00. Republished by Old Post Promoter

Queens County Supreme Court, New York

Very amusing colloquy at Balkinization arising from Jack Balkin’s prediction that the Supreme Court will “split” on the Decalogue case in a decision per Justice O’Connor that “upholds five, strikes down five.”

New York County Civil Court, New York

One interesting bit: A commenter called “Farnsworth” (author of the famous treatise on contracts?!) reports a New York Times article, excerpted to wit:

Justice David H. Souter asked whether a tablet containing only the last five commandments, the injunctions against killing, stealing and so on, might be constitutional because, unlike the first five, they did not necessarily imply religious belief.

Kings County Supreme Court, New York

That would be a harder case, Mr. Chemerinsky replied, but such a tablet would still be unconstitutional because it would still convey the Ten Commandments’ message.

Ultra-depressing.   I’m against the use of the Big Ten as judicial bric-a-brac, but in the process of getting there I see Establishment Clause jurisprudence in utter tatters here.

UPDATE:  They split but, thank God (can I say that?), not that way.

Originally posted 2006-10-06 16:15:10. Republished by Old Post Promoter

My old friends at Kaye Scholer (link fixed!) give you the skinny on the new Trademark Dilution Act.  Bottom line:  Good for big companies.  Not so good for defendants. 

Originally posted 2007-01-24 16:18:46. Republished by Old Post Promoter

Yahoo News:

Chinese Communist Party chief Hu Jintao has vowed to “purify” the Internet, state media reported on Wednesday, describing a top-level meeting that discussed ways to master the countrys sprawling, unruly online population. . . .

Hu, a strait-laced communist with little sympathy for cultural relaxation, did not directly mention censorship.

But he made it clear that the Communist Party was looking to ensure it keeps control of China’s Internet users, often more interested in salacious pictures, bloodthirsty games and political scandal than Marxist lessons.

Don’t kid yourself: This could be a very big deal. China can’t be competitive as anything other than a source of slave labor if it shuts down the Internet, Cuba-style — and it wants to be. On the other hand, its leaders do not want to cede political control along with economic control, which history has proved to be a very difficult task.

Incidentally, I take the stated concern with morality, as understood by the bourgeois among us — “We must promote civilized running and use of the Internet and purify the Internet environment” — at face value. It’s not an illegitimate concern, issues of power apart. The Internet is, or perhaps more accurately encompasses many things including, a moral cesspool. Free societies have by and large surrendered to this risk, preferring the very real risk of social harm to what they regard as the intolerable cost of censorship. How China goes about making its way on this issue, regardless of our view of it, will be objectively interesting and will matter beyond the borders of Middle Earth.

UPDATE: I chose the graphic even though there was no specific Google angle to this. But now there is.  And, of course, more here.

Originally posted 2009-03-14 23:59:47. Republished by Old Post Promoter

CORY DOCTOROW: Obama administration: releasing details of secret copyright treaty endangers “national security”. Er, what?

Good question, Instapundit.  Click through — the original story is here, at Wired.  But you can really see all you need to see by reading the letter from the Administration responding to the Freedom of Information Act request for disclosure of this information about a copyright treaty by stating that

the documents the documents you seek are being withheld in full pursuant to 5 U.S.C. sec. 552(b)(1), which pertains to information that is properly classified in the interest of national security pursuant to Executive Order 12958.

Well, good to know they’re being properly withheld!  Can this truly be the case?  Here’s what that Clinton-era Executive Order says (in part) about what shall and shall not be deemed classified (emphases added):

Sec. 1.2. Classification Standards.

(a) Information may be originally classified under the terms of this order only if all of the following conditions are met:

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one or more of the categories of information listed in section 1.5 of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage.

(b) If there is significant doubt about the need to classify information, it shall not be classified.

So now we know that information in this copyright treaty is not only properly classified, there is no significant doubt about whether it ought to be.  Well, of course there’s little room there is for doubt when it comes to the Obama Administration!  Okay, a little more seriously, what kinds of stuff can be classified under this Executive Order?

Information may not be considered for classification unless it concerns:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities; or

(g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

It appears that (d) would be the most applicable one here.  Well, how about (e)?  A plain reading of (e) would suggest otherwise, because the possibly applicable “technological or economic” topics covered would have to relate to “national security.”  But wait –

Section 1.1. Definitions. For purposes of this order:

(a) “National security” means the national defense or foreign relations of the United States.

Got it!  In Clintonese, “foreign relations,” as capacious a concept as you could please and which include, strictly speaking, anything on earth, is the same as “national security.”  

It’s good to be an Executive Order.

Well, we can snigger, though, but perhaps this designation is “proper” after all, under either provision.  Classification could be stupid, or unreasonable, but it sure seems legal.

And… maybe it’s not so stupid.  Maybe, after all, it makes a lot of sense not to disclose the contents of a draft treaty in the middle of the process of multilateral negotiations, regardless of the subject matter.  Read More »

Here’s some of what you’ve missed lately from other smart folks via @roncoleman on Twitter if you’re still pretending that if you draw the shades and turn out the lights it will all just go away:

• Whence happiness? “A person’s wealth of social relationships.” (That’s relationships. Not “followers.”)
• RT @InternetLaw: “Addressing Search Engine, Website, and Provider Accountability for Illicit Online Drug Sales“
• RT @internetcases: How Section 230 is like arson laws when it comes to enjoining website operators:
• RT @gfiremark: 4 ways do-it-yourself-ers mess up trademark applications
• RT @MegLG: Tintin copyrights go to war against Tintin fans
• RT @internetcases: BitTorrent site liable for Grokster style inducement of copyright infringement: http://is.gd/64I8K
• RT @MegLG @mschwimmer Second Circuit: Spider-man trade dress billboard case dismissed without prejudice
• RT @CopyrightLaw: “CBS uncovers rare Jack Benny treasures, puts them back and tosses out the key”
• RT @InternetLaw: “Court orders anonymous GQ blogger and accused hacker to be identified”
• RT @ArsLaw: Judge slashes “monstrous” P2P award by 97% to $54,000 -  | Wow! See this on LOC®

At least it was a good week on Twitter.

Originally posted 2005-05-23 15:19:00. Republished by Old Post Promoter

Outgoing New York Times ombudsman Daniel Okrent writes about 13 Things I Meant to Write About but Never Did. A favorite, via Best of the Web Today:

Op-Ed columnist Paul Krugman has the disturbing habit of shaping, slicing and selectively citing numbers in a fashion that pleases his acolytes but leaves him open to substantive assaults. … I didn’t give Krugman … the chance to respond before writing the last two paragraphs. I decided to impersonate an opinion columnist.

Don’t ask the obvious question — “Why didn’t you write about it, Dan?”, because, ho, ultimately he has, hasn’t he? Believe me, for the Times, that’s not a long delay before acknowledging the truth. Heck, I had to hit “refresh” a couple of times to make sure this wasn’t a parody.

Yes, well, you’ll forgive me for that. Hard not to think that our friend Bob Cox of the blog The National Debate ultimately had an effect on his sometime lunch companion. The two met shortly after the Times and Bob locked horns over the latter’s posting of a Times “corrections page we’d like to see” that made the point — a bit too realistically for the Old Grey Lady — that for no good reason, misstatements of fact and other errors in Op-Ed columns are not corrected in the paper unless the columnist himself decides to make such a correction. (Not that the Times loses a lot of sleep over corrections.)

The Times screamed copyright infringement (they would have done better to claim trade dress infringement, but the DMCA works better for copyright bullies than trademark ones). Bob found himself a smart lawyer and, suitably hit on the nose with a rolled up New York Post, the angry doggie backed off. Cucumber sandwiches, and the founding of the Media Bloggers Association by Bob, followed.

While, not suprisingly, the Okrent column is tantalizing for what could have been, there were a couple of other nice nuggets. This one hit my particular vein:

I still cherish the First [Amendment]; I still think it’s the cornerstone of democracy. But I would love to see journalists justify their work not by wrapping themselves in the cloak of the law, but by invoking more persuasive defenses: accuracy, for instance, and fairness.

Say it, Dan. Too little, not entirely too late; better than nothing, for sure.

Originally posted 2009-03-09 12:11:57. Republished by Old Post Promoter

Consider the other side of the aggrieved vandalism promoter Shepard Fairey, of HOPE poster fame:

Obey the "Hypocrite"'s Lawyers!

Gawker: “Obey” Trademark Law:

Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the Giant!

Well, if that’s who he ripped off, then he really does have guts, I guess!

UPDATE:  Fairey’s got even bigger trouble than that.

Originally posted 2005-02-15 14:44:00. Republished by Old Post Promoter

The ultimate branding device is a person’s name, although the oft-stated truism that “every man is entitled to do business under his own name” is far from absolute.

Still and all, how about every man’s right to do business under someone else’s name, or no one’s name at all? Bob Cox’s The National Debate [UPDATE:  Link gone.  Sorry!] has a pretty interesting piece involving the use of pseudonyms. Its politcal-media angle was the nonsense involving James Guckert, alias Jeff Gannon, and in particular the supposed hullaboo over his use of an assumed name. Bob really goes to town with the use of noms de plume (remember “Andre LaPlume“?).

My favorite new thing from the article? George Soros = George Schwartz.

Don’t ask me what my name was before someone changed it for us. I just don’t know, unfortunately. I used to say it was Soros, but now, why bother?

The wheels of justice, they say, turn slowly.  The fact that they say this does not, however, in any way assuage clients, though it does seem to relax certain judges even more than they, unfortunately, are already relaxed regarding the motions, applications and other prayers gathering dust before them.

On the other hand — this is ridiculous.

Originally posted 2009-01-14 21:45:14. Republished by Old Post Promoter

Ryan Gile reports that it’s Trixy out there.