Tag Archives: Big Thoughts

Revisiting the Black List

Originally posted 2014-02-27 18:10:00. Republished by Blog Post Promoter

David Bernstein writes:

[Northwestern Law Prof Martin] Redish concludes, and this Reviewer agrees, it was entirely appropriate — under the First Amendment, and also morally — for businesses and individuals to boycott members of the Stalinist CPUSA.

(SKIP PARAGRAPH IF YOU DON’T CARE ABOUT LAW SCHOOL POLITICS. ) Marty Redish wrote that? Very impressive for its political incorrectness. Maybe he’s hankering to follow (one of my other first-year NU Law professors — took Redish’s course on federal jurisdiction, too, which really paid off…) Dan Polsby, also recently getting attention on the Volokh blog, to George Mason Law. Interesting NU / George Mason thing going on here — what with Bernstein’s article appearing the NU Law Review…. (Ugh. I should leave this stuff to Brian Leiter.)

But really, I highly recommend the link, assuming that like everyone else you don’t read law review articles. Everything you thought about the “Red Scare,” pretty much, was wrong (unless you’re the type who reads this blog regularly, I guess). And the fact that a mainstream First Amendment authority such as Redish will write that this was an issue of moral choice, not “stifling of dissent,” is a very good development.

Best of 2009: “Keeping it real — the ultimate use in commerce”

Originally posted 2009-12-27 16:56:22. Republished by Blog Post Promoter

This was first posted on May 7, 2009.

The TTABlog® reports, again, on the fraud issue, but that’s not what interests me here so much this time. Rather, it’s the question of the lifecycle of a trademark’s “use in commerce” status when plotted against that of a specific product which may no longer be manufactured, but which arguably may have trademark significance.

Ron ColemanI have looked at this question in other contexts before, particularly in this post where I wrote about a company called River West Brands, that pokes through the junk-heap of “abandoned” consumer-products trademarks and tries to make money off them. The focus in that post was on trademarks for lines of goods that no longer exist, and I linked to related items by Pam Chestek and, guess what, John Welch that dealt with the issue. But here there’s a twist: The trademark, WAVE, is very much alive in Bose’s successful line of high-end audio equipment. But, as befits a “fraud on the PTO” case, the focus here is on one particular product in the list of goods and service that is no longer in production. Can the trademark still be a trademark?

Read More…

Best of 2009: Don’t be evil, much

Posted February 7, 2009.google-logo-874x288

It was bad enough that the government has gone “in house” on copyright issues.  Now not only is the government looking more and more “bought” on this, but the “Don’t be evil” kids — again, via Glenn — also continue to confirm everyone’s worst fears.  (No they’re not the government… not yet…)  First it was the turnover of YouTube to the RIAA.  Now it’s Google’s Blogger empire. This from TechDirt:

[M]any music bloggers are now fighting a much more invisible menace, with posts they’ve written suddenly disappearing from their sites (via Tyler Hellard) hosted on Google’s Blogger platform. An RIAA source says that the group sends Google a list of URLs it doesn’t

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

like, and Google “then deals with the problem.” Google says that it notifies bloggers after their posts have been taken down, in accordance with the DMCA. But it should hardly be surprising that many of those affected say they’ve gotten no such notice, nor that the offending material was either legally posted and/or supplied by the labels themselves.

Maybe.  Read More…

Best of 2006: Side by side comparison doesn’t decide likelihood of confusion

Dooney & Bourke’s pattern

Originally posted on July 11, 2006.

This is an important decision: The Second Circuit Court of Appeals has partially reversed the earlier ruling of the U.S. District Court for the Southern District of New York (full decision here) in Louis Vuitton Malletier v. Dooney & Bourke, Inc.

Here’s the “money quote” as a once-great blogger taught me to say (citations and internal quotes omitted; link added) :

We turn next to the question of likelihood of confusion. . . . The similarity of the marks is a key factor in determining likelihood of confusion. To apply this factor, courts must analyze the mark’s overall impression on a consumer, considering the context in which the marks are displayed and the totality of factors that could cause confusion among prospective purchasers.’ The district court here noted that there were “obvious

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

similarities” between the Louis Vuitton and Dooney & Bourke handbags. However, it determined that despite the similarities, the two marks were not confusingly similar. It appears the trial court made the same mistake that we criticized in [the] Burlington Coat Factory [decision]: inappropriately focusing on the similarity of the marks in a side-by-side comparison instead of when viewed sequentially in the context of the marketplace.

The district court reasoned:

Read More…

Best of 2006: The Eve of Destruction

Posted on January 26, 2006.

Big buzz for the new book by my law school classmate and ideological opposite, Professor Doug Litowitz:

Destruction of Young LawyersAdvance praise for The Destruction of Young Lawyers:

“If you are interested in the law, you better read this book. It tells the scorching truth about law schools and the so-called profession better and more honestly than any book I know.”

Gerry Spence
renowned trial lawyer and founder of Trial Lawyer’s College

“Easily the best of the lawyer books, The Destruction of Young Lawyers is tightly reasoned, clearly and lucidly written, full of examples and anecdotes, and well-paced.”

Richard Delgado
Distinguished Professor of Law, University of Pittsburgh

“This engaging and subtle series of essays summarizes and expands our understanding of the sources of stress and distress in the lives of today’s lawyers.”

Mark Tushnet
Professor of Constitutional Law, Georgetown University

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Perhaps he’s overstated it, though probably not as much as those interviewed in this New York Law Journal article (subscription required) think he did, but as I said in an email to Doug: “I haven’t read your book but appreciate the buzz it’s generated. I’m not unhappy that I went to law school but you’re right that at least a certain segment of people — mostly those with brains, imagination or creativity (horror if it’s more than one of those) — are destroyed at least partly by the big firm experience.” Read More…

China fakes reform

On the eve of the Beijing Olympics — which is nothing if not a branding, merchandising and licensing bonanza to which athletes are invited — a nervous Chinese government official writes in the Wall Street Journal that that the era of Chinese counterfeiting is about to end, actually, and here’s why:

How will we do this? In the following four ways:

  • First, we will make timely revisions to IPR legislation, including the laws on patent, trademark and copyright, as well as regulations on their implementation. We will also bring forward legislation in the areas of hereditary resources, traditional lore, folk arts and geographical marks so as to improve the overall framework for IPR law enforcement and management.
  • Second, we will speed up the revision of laws and regulations on punishment of IPR infringements, and strengthen the systems of judicial protection and administrative law enforcement. We will mainly rely on judicial protection for protecting intellectual property rights. We will mete out more severe penalties, reduce the cost of IPR protection, and deter violation by raising its cost.
  • Third, we will properly define the scope of intellectual property rights to prevent their abuse, ensure a level playing field, and protect the lawful rights and interests of the public. We will ensure a better mesh of our IPR policy with those of culture, education, scientific research and public health to uphold people’s rights to properly use the information and fruits of innovation in ways permitted by law in their activities in culture, education, scientific research and health, and make sure that innovation achievements are shared more equitably.
  • And finally, we will launch extensive educational programs among the public to further encourage innovation, promote such moral standards as honesty and credibility, and condemn plagiarism, piracy and counterfeiting. We will raise people’s IPR awareness and foster an innovation-friendly IPR culture in which knowledge and integrity are respected, and laws and regulations are complied with.

Still with us? A lot of chin music, really. An hour later and we again feel hungry. Why?

One would think that a totalitarian regime would have no trouble implementing policies such as these. They are just rules, after all. The problem is that China has opened to free enterprise, but it has not opened to the rule of law.

Free enterprise plus political repression — reliance on coercion throughout legal, administrative and social institutions — will not, in the long run, work in a large economy.  And in the short run, at least, the result is endemic corruption. Read More…

Copyright belongs to the ages

US-CopyrightOffice-Seal.svgMedia Wonk:

No wonder they call Economics the Dismal Science. At the Internet Video Policy Symposium in Washington yesterday (co-sponsored by Content Agenda), a chorus line of academic economists postulated that content owners face a far more difficult challenge than they know in monetizing their content on the Internet, and that the odds that we can build our way out of the current debate over how to manage scarce online capacity are virtually nil.The most enthusiastically glum was Gerry Faulhaber, a professor at the Wharton School of Business at the University of Pennsylvania and the former chief economist for the FCC. According to Faulhaber, copyright is a dead letter.

“Copyright is a very big issue in the legal world today, but in the business world, when you talk to consumers about protecting copyrights, it’s a dead issue,” he said. “It’s gone. If you have a business model based on copyright, forget it.”

Provocative, I suppose, though it sounds like an overstatement, and not necessarily all that logical. The copyright regime has never depended on the opinions of non-stakeholders, merely the ability to penalize them for infringement. The technological / legal dance is far from over. I would say that the Microsoft business model, to give one example of one that is “based on copyright” at least in part, is not exactly in “forget it” mode, and will not be all that fast.

But that’s not to say it looks good for copyright as a linchpin of monopoly-type business models in the future. No, no, no.

“I didn’t make him for you”

Google is not a utility. Or an agent of the state, or a thing that owes anyone anything except to the extent they pay for it. At least for now. Eric Goldman has the decision from the U.S. Court for the District of Delaware, and the writeup.

UPDATE: Unrelated, but related:  the Google Censorship FAQ.

SUPER HERO® my foot

UPDATE: Our NPR interview on this topic was on NPR’s “All Things Considered” just before 6 tonight.

We blogged on this topic last week. Today the LA Times weighs in, writing, confusingly:

TICKETS TO THE California Science Center’s latest exhibit, “Marvel Super Heroes Science Exhibition,” sell for $6.75 and up. But there’s one lesson the exhibition offers free of charge to anyone who wanders by the museum, and it’s not about science.

The lesson is in the giant sign looming over the center’s entrance archway: “Marvel ® Super Heroes(TM) Science Exhibition.” The “TM” stands for trademark, signifying that Marvel is claiming exclusive rights to use the term “super hero” as a marketing term for, well, superheroes. The company and its largest competitor, DC Comics, jointly obtained the trademark from the federal Patent and Trademark Office in 1981.

The government’s action means that any company wishing to market a comic book, graphic novel or related item with any variation of “super hero” in the name or title must get permission from Marvel and DC. Dan Taylor, the Costa Mesa-based creator of the “Super Hero Happy Hour” comic, learned about this absurdity two years ago when he was contacted by lawyers for Marvel and DC, prompting him to rename his series to the more pedestrian “Hero Happy Hour.”

What government action? What happened in 1981? (See below — someone else found the answer.) Nor does a claim of a valid registration make any sense in light of the claim in the editorial that the sign says:

Marvel ® Super Heroes(TM) Science Exhibition

If SUPER HEROES were a bona fide registered mark, it should say “Marvel ® Super Heroes ®,” not “Super Heroes(TM).” “TM” signifies the assertion of common-law trademark rights — not a registered mark and, as a practical matter, that a mark was either refused registration or that legal counsel advised against seeking registration (because the refusal would harm a future common law claim).The editorial argues that SUPER HEROES is a generic term not entitled to any trademark protection, which is correct. Genericness is the only way to defend against a registered and incontestible trademark, which presumably one registered in 1981 would be.

Even if it were true that two competing companies could own a trademark jointly in an area where they compete — thereby violating the axiom that trademarks indicate a single source of a good or service with which they are used — they seem to be succesfully avoiding the issue of their absurd joint registration, even as their giant signs claim only a “TM” common-law mark.

I guess that’s some super-heroic PR / legal spin job by the comic book fiends, but why journalists aren’t “getting this” — or why I [couldn’t] for the life of me find the source that does indicate a registration — leaves me pretty confused at the very unlikelihood of it all.

UPDATE: Attorney Robert J. Sinnema points me to registration number 1179067:

SUPER HEROES (“PUBLICATIONS, PARTICULARLY COMIC BOOKS AND MAGAZINES AND STORIES IN ILLUSTRATED FORM [(( ; CARDBOARD STAND-UP FIGURES; PLAYING CARDS; PAPER IRON-ON TRANSFER; ERASERS; PENCIL SHARPENERS; PENCILS; GLUE FOR OFFICE AND HOME USE, SUCH AS IS SOLD AS STATIONERY SUPPLY;] NOTEBOOKS AND STAMP ALBUMS )).

He adds:

If you look at the owner/assignment information it appears to show joint ownership between DC and Marvel. (I’m with you, though–I don’t know how the mark can be a valid indicator of source.)

And why the plural? Believe me, there’s a reason for everything, including the companies’ continued non-use of the ®. They simply don’t want to draw attention to preposterous joint ownership (again — by competitors!) of the registration of a generic term. Ah, but utilizing the joint assignment — when a joint application would never have passed muster — is diabolically clever. It’s still not an enforceable trademark, however — registration, assignment or not.

UPDATE: Via (and according to) aTypical Joe, I have discovered my inner (trademark – protected) self! Read More…

Two centuries of Blawg Review

Blawg Review: #200 went up earlier last week, and, contemplating its bicentennial edition, it got a little philosophical. “Ed” (as in “Ed.,” the nom de keyboard of Blawg Review’s maestro) hosted last week’s edition himself in honor of this milestone.

I particular appreciate this bit, going off on a topic I first had the opportunity to become aware of, and comment on, in the second half of this post, i.e., the transparently commercial blog-as-billboard:

Last week’s host, Mark Bennett, suggested that lawyers who enter the legal blogosphere looking to profit by it are headed for public ridicule; instead, he recommends that “the practical blawgosphere wants you to succeed. Write worth a damn, join in the conversation, link to posts on the blawgs you like reading, and we’ll find your blog and spread the word.” Scott Greenfield applauded Bennett taking a similar position in his Blawg Review last week. Whereas Bennett said that profiteers were welcome in but not well-suited to the blawgosphere, Greenfield put it more bluntly: “This Blawgosphere Ain’t Big Enough for the Two of Us”: “So why can’t we all get along? Because the marketers don’t care about the blawgosphere. They care about the quick buck and scheme.” Austin Criminal Defense Attorney Jamie Spencer blogged about an attorney in Dallas, whose blog is so transparently marketing-oriented that it concludes a post about a bizarre case where a drunk driver ended up with her truck in someone’s pool with “If you too have driven a car into a pool and are in need of an experienced DWI lawyer….”

Who among us hasn’t wished he had that number handy, eh?

And, hey — there was plenty of praise to go around, too, even a little coming out this way:

Colin Samuels, at Infamy or Praise, will remember Blawg Review for the annual award that recognizes the best Blawg Review of the Year. This annual competition is open to all law blogs that have hosted Blawg Review, and the same blogger wins every year. Congratulations, Colin, for getting the most nominations for Blawg Review #189, based on Samuel Taylor Coleridge’s “The Rime of the Ancient Mariner”, which has earned the award for Blawg Review of the Year 2008. Ron Coleman’s Blawg Review #191, a Chanukah special at Likelihood of Confusion, is this year’s runner-up. In third place in the voting, there was a tie between Rush Nigut’s Blawg Review #147 based on the Register’s Annual Great Bicycle Ride Across Iowa, and David Gulbransen’s Blawg Review #182, a special bar exam edition. Twenty-four issues of Blawg Review received nominations this year, which shows the quality and variety of presentations is appreciated.

Colin is very much the man, even if his spelling is a little weak.  His pumping of LOC for notice this year was worth every penny, it seems!

Congratulations to Colin and Blawg Review!