Tag Archives: Best of the Year

Best of 2010: “Drive-by infringement”

The last couple of weeks of the year or so I always re-post, with typical humility, the “Best of 2010.”  I arrange it in a sort of month-by-month recapitulation.  It’s like having your whole life passing before your eyes right before you die, only you aren’t going to die.  Yet.

This year is no different.  But it’s better, see?  Because I’m going to start even earlier!  I’ll still do the month-by-month, but not until starting next week, see?  This week what I’ll do to avoid having to write new posts is … re-run some other ones!   In no special order.  Ones I like.  Great ones.  Best ones.  Well, ones with a lot of words and pictures that took so much work to put together in the first place that maybe if someone reads them this time I’ll feel a little better about it.

On the merits, this post full of words and pictures (and captions on the pictures — do you …. people … pay no attention at all?!) should have caused a societal sensation when it was first published on May 4, 2010.  Inexplicably, it didn’t.  This is your second chance, society. 

Coca-Cola Host of the Highways

Commuter Host

Steve Baird says initial interest confusion is “the real thing” and in the process  seeks to “add life” to Professor McCarthy’s famous “evil highway road sign” analogy:

Wagner's Coca Cola SignWhatever the criticisms might be to the doctrine of Initial Interest Confusion, including those detailed by our friends Ron ColemanMarty Schwimmer, and Eric Goldman, in the context of keyword advertising, the road-side restaurant sign shown [at left] definitely is “the real thing” for purposes of trademark initial interest confusion, in more ways than one:

It does depict the Coca-Cola brand, in all its glory, after all, so It’s The Real Thing, by definition.

And, unlike the very hypothetical scenario relied upon in the Wolf Appliance case, the above drive-in restaurant signage is real world and in current use, designed to attract attention, and has been for years, in fact, well after the business responsible for the sign dropped Coca-Cola for Pepsi. That’s right, “no Coke, Pepsi.” To twist Sean Penn’s words in I Am Sam, Wagner’s change was a “very bad choice,” at least in my humble opinion of taste.

Yeah, me too.  I used to think I liked Pepsi better.  Crazy!  It’s one more reason Steve and I are likethis.  More:

Last, it certainly is a good example of the Initial Interest Confusion doctrine at work.

Uh oh.  Like the old “Coke brings your ancestors back from the dead” story, I’m afraid this sincere run at resuscitating initial interest confusion is a grave error.  For now Steve would take us from the brand-laden anecdote and the cultural mix-and-match moment to — as if  he were a judge in a Lanham Act case! (some day, I’m sure!) — slapping some poor sap with legal liability over what’s probably just laziness, business logic or a little bit of both.  Here’s his real-life tale of interest, initially and heartbreakingly confused:

Minneapolis drivers on Highway 81 pull off the road for a great cheeseburger and a refreshing Coca-Cola, or in my case, Diet Coke. Only to find that there is no Diet Coke, or any Coca-Cola products for that matter, only Pepsi products. Drivers likely aren’t confused at the point of purchase, however, since the menu and interior soda fountain signage refer to Pepsi not Coke. Nevertheless, the exterior sign no doubt has steered more than a few thirsty types off the road over the years to end up purchasing Pepsi products, not Coca-Cola products.

Not me, however, I’m not even initially confused any longer, just annoyed with the change, and deciding with each visit, well in advance, to enjoy a chocolate malt instead of a soft drink, since I can’t have the real thing any longer at Wagner’s Drive-In II.

I’m not the first to say that, unlike a refreshing Coca-Cola® brand soft drink beverage product, this “detour of doom” argument leaves me flat.

Coca-Cola Sign of Good Taste

Lord, just show me a sign!

Read More…

Best of 2009: “Orange you glad you’re such mullahs?”

This was first posted on April 29, 2009:

William Lozito at Name Wire writes about a counterfeiting double-cross, or is it triple-cross or something more?, that is so byzantine in its fruity dimensions that only the wretched Zionist Entity could have hatched it. So, what happens when Jew oranges infiltrate the Islamic Republic of Iran’s citrus bins, formerly believed impregnable against the Elders of Zion and their nefarious schemes?:

Fruity Jew

Fruity Jew

[T]he seemingly innocent appearance of “Jaffa Sweetie Israel-PO” oranges was enough to make one Iranian official declare that “rogue elements” were trying to “disgrace the ruling government.”

As it turns out, those “rogue elements” were unscrupulous Chinese middlemen, who illegally used the “Jaffa Sweetie” brand name on their counterfeit fruit.

The problem was exacerbated by the fact that “President Ahmadinejad inadvertently distributed the fruit during a two day goodwill visit to the town of Salam in southern Iran.”

The Chinese and Iranian investigators have counter-claimed that they actually bought the real thing in Israel and simply forgot to remove the stickers before sending them on to Iran. One then must wonder if it is the brand naming of the oranges or the oranges themselves that is the actual problem?



The Iranians claim they want no part of “Zionist” oranges, but if the Chinese investigators are correct, then they have been eating them via China, branded as Jaffa or something else, for some time.

Well this much is clear: Of all the wicked Jews controlling the world these days, it’s the Chinese ones who are the worst, you know?

Hat tip to Pamela Chestek, a known insidious fruit-handler herself.

Comments at the original post.

Best of 2010: Moral rights in Massachusetts

First published April 12, 2010.

Lee Gesmer reported last month on a pretty important decision in copyright law:  A First Circuit ruling applying the Visual Rights Act, which–well, Lee says it very well himself, actually:

At the end, he had only his "honour"

Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA.  Christoph Büchell is a Swiss “installation artist.”  Think very large, very avant-garde.  The New York Times describes his work “dense, fraught creations, which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.”   Wow.  Sounds just right for good old, left-leaning western Mass.  Not.VARA is the Visual Artists Rights Act, a section of the U.S. Copyright Statute that gives grants artists “moral rights.”   For example, part of the law provides that the author of a “visual work” has –

the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

The First Circuit held that the Museum violated this right when, after installation of a work that called for, among other things, according to the Times, “a burnt-out fuselage of a 737 airliner” it displayed the work without the artist’s consent.   That is, the artist stormed off after artistic differences with the museum, and  museum prepared to present the work, entitled “Training Ground for Democracy,” like or not.  Büchel sued under VARA, lost in U.S. District Court, but prevailed in the First Circuit, which is (I suppose) more sympathetic to moral rights than U.S. District Court Judge Ponsor had been.

Hm.  Sometimes I wish I had a scorecard to figure out how libertarians, and or mere free-market magic hand guys like me, are supposed to come out on “moral rights.”  I’ll say this much:  For a country that doesn’t speak a Romance language, the idea of a federal statute that protects “honor” is problematic.  And after all, if you buy the thing, can’t you just do whatever you want with it?  If you want to limit my right to do that, then by gum let’s bargain for such a limit.  (I guess that’s the difference between a “Judge Ponsor” and a “Judge Posner“!)

And yet I too have some sympathy, as a non-visual artist (i.e., “a face for radio”) who has tasted the bitter experience of having his own “work made for hire” simply put under another person’s name by the copyright holder (and no, the fact that it was a federal judge’s name, and the ABA that did it, did not make it any less bitter) when the collective work in question was reissued in a second edition.

I have sympathy.  I didn’t say I think it’s ok, ok?  I mean this is America.  We don’t need copyrights on our money and we don’t need statutes to protect the “honor” of creative types!  I think.  In fact if you read too much into “sympathy” I’ll accuse you of dishonor!  And we can duel.  Pistols at dawn!

Ah, yeah.  Well, this should be interesting, this moral copyright visual honor stuff.  Not that there’s anything wrong with that.

Best of 2010: Forget breakfast — eBay eats Tiffany’s lunch

Tiffany's NYC

The Second Circuit, unsurprisingly according to most commentators, has affirmed the decision of the Southern District of New York refusing to find eBay liable for contributory trademark infrintgement in the Tiffany v. eBay case.  I have been following the case since before it was filed (yeah, bitter as usual!) and have written bunches of posts on it — see, look?

In terms of the Second Circuit opinion itself, you can find that here.  If at some point I have something really original to say about it–after all the blogging is done by everyone else–you’ll be the first to know.  But here’s a little roundup of “takes.” First, the WSJ Law Blog on the thrust of the story:

So long as eBay takes steps to remove listings it knows are bogus — and isn’t otherwise willfully blind to fraudulent sales — it can avoid liability, the court ruled.  Judge Robert Sack, writing for the three-judge panel, seemed to hang his hat on the “market”:

We are 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 Web sites . . .

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. . . .

Tiffany had argued that eBay knew it had a problem with counterfeit items being listed on its Web site and did little to clean it up. EBay insisted the obligation rested with the New York jeweler to identify and alert it to auctions of counterfeit Tiffany silver jewelry.

But that’s not the whole story, exactly, though it mostly is.  As Law.com’s Corporate Counsel explains:

The court sent the case back to the district level for more discussion of whether eBay may be guilty of false advertising because it promotes the presence of “Tiffany” products on its site in both direct advertisements and paid ads that pop up when users search for Tiffany on Google and other search engines.

Those ads could be deemed false, because eBay is aware that “a significant portion” of goods advertised as Tiffany items on eBay are actually counterfeit, the court said. (The exact percentage of counterfeit Tiffany items among all those advertised is in dispute). EBay has pointed out that its site contains a special “About Me” page for Tiffany (and controlled by Tiffany) in which users are told that any Tiffany item advertised for sale on eBay is likely to be a fake.

To win a false advertising claim, Tiffany will have to produce evidence that consumers were confused by the advertisements, the court said. So far, Tiffany has not produced that sort of evidence, which usually comes in the form of consumer surveys.

Usually?  Well, usually if anyone’s actually watching, I guess.  Anyway, some more–here’s a great article by a partner at Pattishall McAuliffe (the law firm that bears the name of my late trademark law prof)  named Uli Widmaier that gets to the heart of the matter (I’ve removed the citations for bloggy reading and added a link or two):

In other words, for a defendant to be liable for contributory trademark infringement, the defendant must have knowledge of specific individuals engaged in infringing activities. General knowledge that infringing activity might take place is not enough. This is an application of the “narrow standard” of contributory liability articulated in Inwood Laboratories, Inc. v. Ives Laboratories, Inc. eBay argued in the district court that this standard did not apply, but accepted the Inwood standard for purposes of the appeal.  Thus, the Court “assume[d] without deciding that Inwood’s test for contributory trademark infringement governs.

Tiffany had also argued that eBay was “willfully blind” as to the sale of counterfeit Tiffany goods on eBay’s website. The Court stated that, as a general matter, “[a] service provider is not, we think, permitted willful blindness. When it has reason to suspect that users of its service are infringing a protected mark, it may not shield itself from learning of the particular infringing transactions by looking the other way.” However, the Court declined to impose liability for contributory trademark infringement on this ground because “eBay did not ignore the information it was given about counterfeit sales on its website.”

In sum, the Second Circuit affirmed that a service provider is not permitted to be willfully blind to alleged trademark infringement. But eBay’s removal of listings identified as counterfeit by Tiffany, as well as eBay’s affirmative steps to police its website for counterfeiters were enough to render eBay not willfully blind. Had eBay done less, it might have been found liable. Unfortunately, the decision gives very little guidance as to the dividing line between “willful blindness” and sufficient vigilance.

Great point.  There’s something about trademark law that, for some reasons, makes judges want to make lawyers and businesses guess about liability until it’s too late.  As usual, Eric Goldman gets that, too: Read More…

Best of 2010: Gucci v. Frontline Processing: Giving credit for infringement where it’s due

First posted July 12, 2010.

This is an adaptation of a summary and analysis of the recent decision in Gucci America, Inc. v. Frontline Processing Corp., 2010 WL 2541367 (S.D.N.Y.), discussed here casually earlier. Jane Coleman’s definitive online treatise Secondary Trademark Infringement has recently been updated and the impact of this decision integrated into the text; a full update is planned for September. The complete analysis of Gucci, including full citations, can be found here.

The essential role played by credit card companies in online trademark infringement was recognized in Gucci America, Inc. v. Frontline Processing Corp. In that case, the court allowed contributory infringement claims to go forward against companies that had established credit card processing for an online counterfeit merchant. The payment for the counterfeit goods sold on its website was part of the infringing process, the court reasoned, drawing on Judge Kozinski’s dissent in Perfect 10, Inc. v. Visa Intern. Serv. Ass’n, and most of the infringing sales – of which the companies allegedly knew or should have known – were consummated using credit cards.

Gucci v. Frontline arose out of successful trademark infringement litigation brought by Gucci, the well-known manufacturer of luxury goods, against an online merchant operator of a website called “TheBagAddiction.com,” in which the owners admitted to liability for selling counterfeit Gucci products. Thereafter, Gucci turned to the three companies that had helped the merchant obtain credit card services, alleging both vicarious and contributory liability for trademark infringement. One of the three defendants, Durango Merchant Services acted as a middleman, while the other two, Frontline Processing Corporation and Woodforest National Bank, provided credit card processing services to the merchant.

In rejecting the defendants’ motion to dismiss, the court allowed the contributory liability claims to go forward as to all three defendants, but on different legal theories in accordance with their roles. As to Frontline and Woodforest, the court found the pleadings sufficient to allege contributory trademark infringement, based on their knowledge and control over the infringing activity on the website. As to the middleman, Durango, the court found the pleadings sufficient to allege contributory infringement based on an inducement theory.

As to Frontline and Woodforest, the court also found the pleadings stated a claim for contributory trademark infringement, based on the defendants’ knowledge and control over the infringing activity on the website. Citing eBay and Perfect 10, the Gucci court reiterated the direct control and monitoring test, stating that

[e]ven if a defendant does not seek out and intentionally induce a third-party to commit trademark infringement, it may still be held liable for the infringement if it supplied services with knowledge or by willfully shutting its eyes to the infringing conduct, while it had sufficient control over the instrumentality used to infringe.

Moreover, an allegation of the defendants’ general knowledge that infringement is taking place is not sufficient. “[A] service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods,” the court emphasized, citing further language in Tiffany that “’Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.'”

Both credit card processing companies either knew or should have known that they were servicing an infringing site, under the facts alleged, the court concluded. In both cases, a Durango agent had a dual role as both an employee of his company and a sales representative for the two credit card companies, and the court consequently accepted the allegations charging the companies with his knowledge. Thus, regarding Frontline, Gucci alleged that that company was aware of customers’ written acknowledgement of purchasing “replicas” as directed by the Durango agent. Read More…

Best of 2010: An opinion to Di for

First posted on May 5, 2010.

I do a lot of bellyaching around here about how there are never any consequences for filing frivolous trademark and copyright lawsuits. What’s the worst thing that can happen to a well-heeled plaintiff that wants to use the expense of defending, even meritoriously, against a “federal case” as a way to effectuate a “business message” (namely, you’re out of business, because we say so)? Usually, nothing. Not just usually. Really pretty much a lot usually.

"Do you have Princess Di in the can?"

Not this time.  This is a little dense if you’re not used to reading judicial opinions, but the payoff is worthwhile.  Emphasis is mine:

The Franklin Mint Company and its principals, Stewart and Lynda Resnick, (collectively, Franklin Mint) appeal from a judgment dismissing their malicious prosecution action against the law firm Manatt Phelps & Phillips LLP and attorney Mark S. Lee (collectively, Manatt). Manatt represented the executors of the estate of Diana, Princess of Wales and the trustees of The Diana, Princess of Wales Memorial Fund (collectively, the Fund) in a lawsuit filed against Franklin Mint alleging claims related to Franklin Mint’s use of Princess Diana‟s name and image in connection with merchandise Franklin Mint advertised and sold. . . .

We conclude that, based on the record before us, no reasonable attorney could find tenable the false advertising claim as it was alleged and litigated in the underlying action. Therefore, we hold there was no probable cause to prosecute that claim. We also hold there was no probable cause to prosecute the trademark dilution claim because no reasonable attorney could conclude that the claim could satisfy two fundamental, long-standing principles of trademark law. First, to be protectable as a trademark, a word, phrase, name, or symbol must be used in commerce to identify goods or services and their source. Although Manatt contends that Princess Diana used her name in connection with her appearances at charitable events, that use does not demonstrate trademark use. Second, a trademark that is descriptive — such as a personal name — must acquire secondary meaning to be protectable in a trademark dilution action. In other words, the primary meaning of the mark (i.e., the descriptive meaning) must in the minds of the public be subordinate to its meaning as the source of goods or services. Because “Diana, Princess of Wales” has such an extraordinarily strong primary meaning as descriptive of Princess Diana as a person, the contention that it had acquired secondary meaning at the time of the underlying lawsuit was, as the district court in the underlying lawsuit observed, “absurd.” (Cairns v. Franklin Mint Co. (C.D. Cal. 2000) 107 F.Supp.2d 1212, 1222 (Cairns III).) Therefore, we conclude that the trademark dilution claim was untenable.

Now this is really interesting on several levels.  One is the obvious one I’ve already alluded to–a court calling attorneys out and saying, “Stop the baloney.  You knew what you were doing here was fallacious, but you just kept doing it.  If malice and damages are proved, that’s actionable.”  It’s astonishing to read that.  Don’t even ask what has happened, in my own experience in the vaunted federal courts facing just such claims, that leaves me so dumbstruck reading this.

But then there’s the substantive legal stuff.  Diana, Princess of Wales, not a “trademark”?  Just because she’s mostly really a person (no longer a living one, granted, but you get the idea)?  But what about all those other celebrity trademark names? Read More…

Best of 2009: “The LIKELIHOOD OF CONFUSION® Twitter manifesto”

This was first posted on July 27, 2009.

The authors of many of the blogs I read that are topically related to this one now use Twitter. So do a lot of other people, and mostly they seem to talk about Twitter. They not only fail to recognize this as a problem, but I have even seen evangelists point to it as as something to be excited about. (I wrote more about this here so I won’t do it again.) Even more disheartening is getting tweets from people I otherwise respect telling me to go to such-and-such site and get 400 new followers “free,” presumably merely by promising to spam my existing followers with the same message. Dumb, dumb, dumb!

But I have learned how to meticulously add to the list of those I follow so that the vast majority of my (limited) tweeting time is spent on tachlis. My new and improved understanding of how to constructively utilize that flighty medium is not simply to maximize the number of people who will call themselves your “followers” in exchange for either automated reciprocity or some other trick that adds to their “followers” count, with no regard to whether this dumb audience cares about your feed. The tweets I send are overwhelmingly either blog posts or re-tweets of blog posts that I believe will be of interest to those who are following me presumably because they are interested in the things I already write about.

Twitter, in other words, is — as far as I can see — potentially useful only as a device for targetting narrowcasting of what you have to offer to an audience that cares. It is not the big schmear. To the extent my feed audience grows it will, I hope, be because more and people who read this blog (or my other one, which I know is not necessarily an ideal match) are either subscribing to it via Twitter or are among those colleagues and, of course, prospective clients or referral sources who “get it.”

All that was by way of introduction to the following: By virtue of this shift in media, noteworthy posts that once became posts here, either with a minimum of commentary or at least a riff, are now being “retweeted” by me — hence delivering value to my topically-oriented followers — but are frequently no longer making it to the big time. “The big time,” of course, is defined as a link on LIKELIHOOD OF CONFUSION®.

Well, that ain’t right. So following this post, which by the time I wrote it appeared to be worthy of its own slot, you will find the first of what will probably be a weekly occasional roundup of the last week’s by LIKELIHOOD OF CONFUSION®* topical trademark tweets. Copyright, too, and whatever else I write about here, but that would have ruined the alliteration. You can follow the links directly to the blog posts in question, so you need not be a twit yourself to benefit — though you may want to consider it.

* Which is me. Unlike some of my bloggy friends, some of whom are pictured here, the blog doesn’t have an eponymous Twitter feed, much less one Twitter feed for the blog and one for the man. LIKELIHOOD OF CONFUSION® is me, and I am it. I am diluted enough as it is!

Best of 2009: “Intellectual property and its digestion”

This was first posted on February 20, 2009:
Back and forth in in social networking space — once Facebook, I digest some key ingredients of intellectual property as it applies to famous burgers (reprinted with Ivan’s permission):
Today at 10:35am

Hi Ron,

I had an interesting IP question/hypo that’s been weighing on my mind the last couple of days. (At at least it seemed interesting to a non-IP person such as myself- there may be well-settled law on this. This is purely hypothetical, and I’m not seeking legal advice of any sort.)

A book entitled Top Secret Recipes, written by Todd Wilbur, became a top seller some time ago. It features the recipes of same famous franchise foods, like the Big Mac, or other foods, such as the Twinkie. (http://www.thesun.co.uk/sol/homepage/features/article2165816.ece). Presumably, Wilbur reversed-engineered these foods according to his taste, and then wrote the recipe book based on his experimentation.

My question is, did the author have to obtain permission/enter a licensing agreement of some sort with the litnany of franchises (i.e., McDonald’s KFC Yum Yum, et. al.), before publishing such a work? If the author did not get permission, do McD’s, Hostess, et. al. have a viable cause(s) of action against Wilbur, who presumably has profited as a result of publishing his interpretation of the recipes? Presumably, Wilbur did not convert any “trade secrets” as it were, but it does appear that he’s using their intellectual property for his commercial gain. What would the franchises’ cause(s) of action be in such a case?

I did a Google Search; there appear to be no suits filed in connection with this book. So I remain curious.

Thanks for reading,

My answer: Read More…

Best of 2010: Lug me tender

First published on February 24, 2010.

Doctors (J.D.) Detroit?

Should a law school be tendering seven figures of money to a minor league baseball team for stadium naming rights?  That is certainly a novel question.

I tackled the whole concept of branding, memory and stadium names in the context of the Mets’ Citi Field deal a few years ago–but a bank is one thing.  Heck, these guys know how to make record profits just by threatening to go out of business!  So who am I to say?

But a law school?  That’s something I know a little about!

And… with all due respect… should the law school that does that be Thomas M. Cooley Law School in Michigan?  Well, perhaps if it would be any school it would be Cooley, which has always marched to the sound of a different drummer.

A very, very different drummer.  I once wrote an article, or perhaps just a short roundup-type item, about Cooley when I was contributing editor for Student Lawyer magazine, but I can’t get my hands on the cuneiform tablets just now.  I do remember that it was the school that actually did things “the old fashioned way”–they actually admitted two or three times the number of students who were really going to make it through law school, and they actually kicked out people who couldn’t cut it.  So, yes, they have always been very funky, original and daring over there.

And in that context, now let’s see the Wall Street Journal Law Blog and the stadium story:

According to the NLJ, the law school will pay just shy of $1.5 million to the Lansing Lugnuts (a single-A affiliate of the Toronto Blue Jays) in return for the naming rights for 11 years. What used to be called Oldsmobile Park is now, just like that, Cooley Law School Stadium.

Much of the coverage was, well, critical of the decision in a way that didn’t necessarily seem unfair. To summarize the skeptics’ main question: What’s a law school not exactly at Harvard’s level doing throwing money at a baseball stadium in the middle of a severe economic downturn?

For a little help, we chatted today with Don LeDuc, the dean of the law school to ask him what about the deal, and to give him a chance to answer his critics.

Hey Don. So tell us about the deal.

The agreement we have with the Lugnuts has two elements, a marketing element and also an amenities element. Along with the name recognition, you also get some amenities at the park. We’ll be doing a sort of extended version of what we used to do at Comerica Park, where the Tigers play, in which we matched up students with alumni working in Detroit and all went to a ballgame. We’ll be doing that with the Lugnuts too. We’ll also do some community outreach at the stadium, too, in which we’ll take kids from Lansing to a game. Read More…

Best of 2009: “Infinity Dollars” — IP damages and the jury”

This post, which is the first of two parts (the second part can be found at the link at the end) was first posted on June 19, 2009.

A lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about. They are not supposed to be a windfall (discussed more here). But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing copyright infringement of two dozen songs, and to the person on whose head the jury just laid that award.

I’m not an “information wants to be free” nutter, and musical compositions aren’t “information” anyway except to the most heartless utilitarian, but Stan Schroeder (presumably no nutter either, but probably to my left on this issue) hits it right on the head:

In one of the most ridiculous verdicts I’ve seen, the jury decided that Jammie Thomas-Rasset, the first woman who was charged with copyright infringement and offered to settle but decided to fight the RIAA, is guilty and owes the recording industry 1.92 million dollars, or $80,000 per song.

As we mentioned in our original article, Jammie’s case was full of holes, and she probably would have done better if she had just settled with the RIAA. But what’s striking here is the amount of money awarded to the recording industry for infringing the copyright for just one song.

It reminds me of a recent Penny Arcade comic which mocks Microsoft’s Zune Pass, which offers unlimited selection of music for 15 dollars per month; since time never ends, this technically amounts to infinity dollars. Since the music is DRMed, if you ever stop paying, you lose all your music.

It’s just a joke, but it makes a good point. How much is one song worth to you? How much is it worth to the author? How much is it worth to the recording industry? You can push arguments to favor each side, and ultimately you can always claim that a song never fully loses its value and it can therefore be set to an arbitrary, insanely high amount of money.

The problem with this approach is that it results in cases like the one against Jammie Thomas-Rasset, who now has (there are indications that the RIAA is still willing to settle with a much lower amount of money, but it’s irrelevant; what’s important is the principle of the matter) to pay 1.92 million dollars for infringing the copyright of 24 songs.

In a word, it’s stupid.

As this fine roundup of the legal issues from the EFF explains, there are lots of problems with this outcome, including a two-pronged constitutional one — is this unconstitutionally excessive, and is there a different standard on that question when it comes to statutory damages? — as well as the whole issue of what has happened to statutory damages in the hands of the Copyright Congress. Of course, there’s the fact that, as Fred von Lohmann explains, “I assume these arguments will first be submitted to the trial judge in post-trial motions. After all, this judge has already indicated that he found the previous $220,000 award to be “unprecedented and oppressive.”

Seems that way, doesn’t it? (Part II is here.)

Best of 2009: “All that know-chow costs some scratch!”

This was first posted on August 26, 2009.


Legal Blog Watch:

Pet food giant Purina is like a dog that won’t give up its bone — or in this case, its chow. Three years ago, Purina sent a cease-and-desist letter to Chow, Baby!, a Baltimore area pet supply shop and Web site owned by Robin McDonald, asserting that its use of the “Chow, Baby!” name was likely to cause confusion with Purina’s CHOW trademarks and would dilute the distinctive quality of those marks. McDonald’s lawyer advised her that it would cost thousands of dollars to fight for the name and that she might lose anyway. As a result, McDonald took down the Web site. But she retained the name, Chow, Baby! for her local store, figuring that Purina wouldn’t find out about it.

Now, McDonald is ready to re-launch an Internet presence. But this time, McDonald decided to steer clear of a dogfight with Purina, and instead, changed her company’s name to “Howl, Baby,” subsequently shortened to Howl.

Would it really have cost McDonald “thousands of dollars” to tussle with Purina, or was her lawyer barking up the wrong tree when he dispensed that advice?

For someone who reads legal blogs, Carolyn Elefant asks a surprising question! No, it doesn’t cost thousands of dollars of anyone’s billable time to write up the argument about why Purina is out of line on a blog, as Carol does admirably at the link, or even a letter responding to Purina’s C&D. (Via Overlawyered.)

But there is not much use in arguing the merits of a claim with lawyers in correspondence, which I try studiously to avoid. Some percentage of attorneys above 50% knows both sides of the argument before putting a threat to paper, and your tutoring is seldom going to move their corporate clients. (In the case of smaller businesses, an “educational” response may be worthwhile, because there by virtue of your letter your adversary’s client may have the first chance to hear the other side of the argument — even giving your adversary the benefit of the doubt!)

In any case companies such as Purina are not interested in discussing the matter.  Brand management isn’t a seminar. Read More…

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

First posted on July 15, 2010.Guns of Battleship New JerseyMindful 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.

Dog in judge's chambers, EDNY (Cadman Plaza)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.

Domain 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.