Tag Archives: Internet Law

Blame it on chain

Originally posted 2010-11-03 01:09:48. Republished by Blog Post Promoter

You’d think a catalog page would be a great way, in a trademark registration application, to show use of a trademark “in commerce” associated with the goods or services being offered. You could be wrong, though. John Welch reports a TTAB decision upholding the denial of a trademark application for machine chain supported by a specimen of use depicting the mark in a catalog.

It seems the catalog was so fancy-shmancy that it outdid itself by not really being a sales tool so much as a kind of “brand builder” that you could hardly do anything with other than, perhaps, razor out and frame for the living room. We’re talking about machine chain here, but looking at the specimen of an ad for … yeah, chain (here’s a link! ;-)) … you would think that you were beholding an ad for fine wine, jewelry or premium gasoline.

Here’s how the TTAB explained it:

[T]here was no record evidence as to how applicant and its competitors sell chain, or “whether customers, in fact, ‘know that orders are placed over the phone.'” InValenite [where a catalog was ruled to be adequate], the appellant submitted a declaration verifying that its customers regularly order products by telephoning the customer service department.

Second, here Applicant’s specimen does not contain the information necessary to order chains. In Valenite, the webpage specimen contained links to appellant’s “Technical Resource Center,” which included specification sheets, online calculators, and reference tables, and which provided toll-free customer service telephone numbers. Thus the Valenite website provided “sufficient information that the customer can select a product and call customer service to confirm the correctness of the selection and place an order.” Valenite at 1349-1350.

The Board found that Tsubaki’s catalog page is more like a fact sheet, catalog page, or brochure. It does not contain “any information normally associated with ordering products by the telephone or the Internet.” At best, the specimen provides a telephone number and a web address, but even the website “does not provide a means for ordering applicant’s chain online (or by telephone).”

The Board therefore found that Tsubaki’s specimen is not a display associated with the goods, and the refusal was affirmed.

“The crucial factual issue in this case is whether applicant’s specimen includes the information necessary to order applicant’s chain, thus making it a point-of-sale display,” wrote the Board. Guess I can follow the TTAB’s chain of thought, after all!

Plugging leaks

Originally posted 2010-11-23 15:45:17. Republished by Blog Post Promoter

[Here’s a blast from the past — RDC]:  In the New York Times:

In a move that legal experts said could present a major test of First Amendment rights in the Internet era, a federal judge in San Francisco on Friday ordered the disabling of a Web site devoted to disclosing confidential information.

The site, Wikileaks.org, invites people to post leaked materials with the goal of discouraging “unethical behavior” by corporations and governments. It has posted documents said to show the rules of engagement for American troops in Iraq, a military manual for the operation of the detention center at Guantánamo Bay, Cuba, and other evidence of what it has called corporate waste and wrongdoing. . . .

On Friday, Judge Jeffrey S. White of Federal District Court in San Francisco granted a permanent injunction ordering Dynadot, the site’s domain name registrar, to disable the Wikileaks.org domain name. The order had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look.

Very interesting. Is the fact that the remedy in the order itself was fairly ineffectual mean that the court was willing to make a pro forma but not really meaningful gesture here? Or is this the camel’s nose poking through the tent of prior restraint?

I am not a purist on this topic.

UPDATE:  How far we’ve come.


Originally posted 2009-01-22 13:31:48. Republished by Blog Post Promoter

"The Interloper" (Norman Rockwell)

"The Interloper" (Norman Rockwell)

Working from home today after a bruising few weeks at work (see yesterday’s post!), I finally figured out what was going on with banner ads on my Internet browsing.  It raises an interesting question about Internet-related copyright and trademark law.

We use a filtered Internet service at home.  This way we know that not only do our children not have access to or permission to use the Internet, but even if they “happen to” get to it anyway, the worst of the worst is not coming into our house.  This is good for the grownups too, of course.

I recently adjusted the filtering level on the service and by virtue of that change the filter now happens to block banner ads.  This I did not mind, because many such ads, especially on Yahoo! mail, are quite garish and often rather gross and, frankly, indecent.  After this change I also started seeing a filtering message in the place of familiar, and relatively high-class, banner ads on my favorite “big” blogs that feature ads, such as Instapundit. It was not a great aesthetic experience but I got used to it.

A little while later I had the jarring experience of realizing that ads for charity auctions on behalf of orthodox educational  institutions — including a client of mine! — and solicitations for fundraising on behalf of penurious young couples in Israel were appearing on that very same site, one of the most popular English-language blogs in the world!  Well, I would say Glenn Reynolds is pretty Jewish-friendly, to say the least, but this struck me as pretty odd.


Once I could focus on the question, however, I realized what was going on:  My filtering service was reselling the filtered advertising real estate to advertisers interested in the orthodox Jewish Internet user market!

This seems to raise some interesting questions, doesn’t it?  Read More…

Louisiana’s lawyers’ guild

Originally posted 2014-08-07 16:31:46. Republished by Blog Post Promoter

Hudson County Superior CourtLast year we screamed and shouted along with a bunch of other people and prevented New York from passing “ethics” rules that would have essentially shut down New York lawyers’ blogs by regulating them out of existence.  Unfortunately all the noise didn’t make it down to Louisiana, which did go ahead and pass a similar set of restrictions under the guise of “consumer protection” but which should be understood as an attempt by established bar-association types to keep the bogeyman of blog- and Internet-savvy lawyers away from their cozy courtroom concessions.

Now a Louisiana law firm is taking on the regulations and has filed suit in federal court. Look, here’s their press release — we’re allowed to copy that (but links added by LOC):

This morning, Wolfe Law Group, L.L.C. filed a suit in federal court challenging the constitutionality of Louisiana’s new rules governing lawyer advertising. The lawsuit seeks to prevent the enforcement of Louisiana’s new advertising rules, scheduled to take effect on April 1, 2009. The Louisiana advertising rules are some of the most aggressive in the nation, and Wolfe Law Group’s suit argues that the rules go too far and restrict an attorney’s right to freely speak about its trade.

Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s AdWords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums. Read More…

More on international law and the Web

Originally posted 2009-10-26 23:59:24. Republished by Blog Post Promoter

Instapundit reports:


According to Reporters Sans Frontieres (Reporters Without Borders), Information supplied by Yahoo! helped Chinese journalist Shi Tao get 10 years in prison

The text of the verdict in the case of journalist Shi Tao — sentenced in April to 10 years in prison for “divulging state secrets abroad” — shows that Yahoo! Holdings (Hong Kong) Ltd. provided China’s state security authorities with details that helped to identify and convict him. It reveals that the company provided the Chinese investigating organs with detailed information that apparently enabled them to link Shi’s personal e-mail account (on the Chinese Yahoo! service at yahoo.com.cn) and the specific message containing information treated as a “state secret” to the IP address of his computer. More details from RSF here.

Shi Tao was jailed because he e-mailed sensitive political information to be posted on dissident websites hosted outside China. His case is a cautionary tale to bloggers around the world: If you are publicizing information and views that your government doesn’t want exposed — even if you believe you have the right to do so under the Universal Declaration of Human Rights — companies like Yahoo! will not shield you from your government.

I don’t like this.

No, and who would? Collaboration in Communist repression by multinational web-based companies is not a new problem. But on the other hand — and with reference to this recent post here — what can we do about it? I’m not asking rhetorically. These companies are bound to follow national law wherever they do business. Do we say that the people of China are better off in the long run if Yahoo! and Google disengage, or if they comply as required? With China, I don’t believe there is an in-between option. If someone has enunciated one, I’d like to know.


Originally posted 2009-05-24 11:03:12. Republished by Blog Post Promoter

Cartier sued Apple last week, and before I had a chance to figure it out, they either un-sued them or announced that they were about to withdraw the complaint, which isn’t even available yet on the Southern District of New York’s PACER system.   As the Wall Street Journal explains, “The suit alleged that two applications for the iPhone infringed on the trademark for the luxury brand’s Tank watches.”   Per CNET News:

At the heart of Cartier’s infringement claim was a pair of apps called Fake Watch and Fake Watch Gold Edition. The apps are made by Digitopolis Game Studio, which interestingly enough, was not named in the lawsuit.

Filed in the U.S. District Court in Manhattan, the lawsuit claimed the applications give people the ability to tell time on the iPhone and iPod Touch with a display that simulates famous wristwatches.

Jonathan Lagarenne, Cartier’s lawyer, said the lawsuit would be withdrawn because the company was satisfied that Apple had removed the apps from the store.

That Jonathan Lagarenne is pretty darned effective!  Brings a lawsuit against a major technology manufacturer based, presumably, on contributory infringement, without even, “interestingly enough,” naming the alleged direct infringer, and gets results so fast that he and the rest of his Fox Rothschild colleagues are already riding into the sunset, back to Jersey across the George Washington Bridge!  (More here.)

It is odd, though, isn’t it?  You may not have thought that Cartier would necessarily hire a Philadelphia law firm for, well, for any reason… much less someone out of their crack “Princeton,” New Jersey office (actually kind of only near Princeton)… whose firm bio, while beaucoup impressive, doesn’t exactly scream “litigation” and who has appeared in only three prior cases in the Southern District and five in the District of New Jersey — ever  … to file a lawsuit in federal court in New York against — *gulp* — not just anyone, but Apple.  Again:

Cartier’s lawyer . . .  said the lawsuit would be withdrawn because the company was satisfied that Apple had removed the apps from the store.

An odd choice of words, don’t you think?  Of course it’s not a direct quote.  But “satisfied…” and “removed” (when?) … and “from the store” — were the apps” ever really “in the [Apple] store”?  Aren’t these third-party “apps”?

Why do I have a feeling we’re not getting the whole story here? Read More…

Anti-Sedition Acts begin their attack on the Internet

Originally posted 2014-09-05 10:55:51. Republished by Blog Post Promoter

Different River reports on the biggest threat to free speech ever — the McCain-Feingold Act and its state law copycats.  Is there any chance that the new and improved Supreme Court will save us from this not so petty tyranny?  Or will the present controversies over “money in the political process” (see here for a contrarian view, by the way) make things even worse?

Trademark: The tort of choice for censors

Originally posted 2009-10-20 23:46:20. Republished by Blog Post Promoter

Same old, same old we’ve been talking about since forever (via Glenn):

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at AFTExposed.com (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain AFTexposed.com or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the AFTexposed.com name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).

It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the AFTExposed.com folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as [its] tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT.

Boomerang_(PSF)Well forget about the tagline; it’s too late once you get to the site — there’s already been an incidence of the dreaded “initial interest confusion” by then!  But David Post is right:  In this case, the domain name itself negates any possibility of that, and you’ve got nothing but fair, fair use for a defense.

That won’t stop a wealthy plaintiff, though — and who’s wealthier these days than public employee unions? — from suing, however.  After all, there’s pretty much never fee-shifting in defendants’ direction under the Lanham Act, although the statute does provide for it (or for that matter for frivolous copyright claims)  But good luck on that.

So trademark infringement remains the legal claim of choice for those seeking to shut down smaller, poorer message opponents.  File yours today!

UPDATE:  Johnny may not be able to read, but the AFT knows how to interpret blog traffic logs.  They’ve backed down.

Anonymous penumbras; submerged emanations

Originally posted 2011-02-15 13:30:04. Republished by Blog Post Promoter

Glenn Reynolds links-n-thinks:

ESTHER DYSON: Internet anonymity is like abortion. “I’m pro choice, but I think abortion is an unfortunate thing. I think the same thing about anonymity: Everybody should have the right to it, but it’s not something one wants to encourage.”

Maybe that’s why we’re not-so-pro-choice here.  (We happen to reject the nomenclature anyway so don’t get us started.)  Not “everybody” should have “the right to” Internet anonymity.  We’ve long objected to the anonymity premise, because not nearly enough weight is assigned its potential costs in a modern communication regime, as opposed to in the pre-Internet era.

That doesn’t mean we don’t appreciate Internet anonymity’s value in certain circumstances.  But, like abortion, we should distinguish between cases where a departure from a general rule of prohibition is justified.  Let’s don’t posit a dubious “right” when at most we mean a desideratum and, more likely, we mean something regarding which reasonable people can disagree — anonymously or otherwise.

S&L v. Australian Gold: You, the Jury

Originally posted 2009-01-08 21:34:29. Republished by Blog Post Promoter

Its all about the coin.

It’s all about the coin.

Here’s S&L Vitamin’s Trial Brief for the trial scheduled for next week in the above-entitled cause.  (Or you can read it at the bottom of the post).  We pick a jury on Monday, and after a day “off” for stuff I don’t even want to mention, opening statements are Wednesday morning.

Oh, all right.  Here’s Australian Gold’s trial brief.  I’m sure our distinguished adversaries are at least as proud of this work product as we are of ours.

I will not comment on the prospect of this trial, of course, at least not at this juncture.

But others have, more or less. And now, you can too!