Tag Archives: Overreaching

More, more, Moore!

Originally posted 2010-08-02 12:49:54. Republished by Blog Post Promoter

Joe CollegeOne of my favorite ever topics here on LOC has been the litigation brought by the University of Alabama against painter Daniel Moore for unauthorized artistic depiction of trademarks.  As I reported last November, after first writing about this emerging issue four years earlier:

U.S. District Court Judge Robert Propst said in an opinion that Moore did not violate trademark laws by painting scenes of Crimson Tide football without licensing the work through the university. He rejected UA’s argument that the football team’s uniform and colors are iconic enough to trump First Amendment rights in fine art.

‘This court concludes that the depiction of the uniforms in the paintings is incidental to the purpose and expression of the paintings; that is, to artistically depict and preserve notable football plays in the history of University of Alabama football,’ Propst wrote in his memorandum opinion.

As I said then,

You don’t have to go as far as I and praise the kinder, gentler world of the past when an ambitious entrepreneur could pay homage, and maybe pay the mortgage, by taking – yes, horrors! — “free rides” on significant popular culture phenomena that were unlikely to be deemed “affiliations” or “authorized merchandise” without doing the high-end brand equity any harm at all (and probably some good).

This campaign by Alabama, though, really does take the rent-grabbing aspect of this business model to truly offensive levels.  There’s no doubt that NCAA schools and other pro sports teams sell “official” sports art, but it is utterly, utterly meaningless to fans whether this art is “approved,” “official,” “endorsed” or anything else (much less “fine”).  The claim here is simply “The University of Alabama owns everything about the Crimson Tide, and no one is going to make a penny off fan enthusiasm for the team but us.  Period.”

Notwithstanding that, well, yes, the Lanham Act does by its terms protect “approved and endorsed” as well as “source of origin,” I stand by this argument — which is rather narrow, mainly that the NCAA schools and other pro sports leagues should acknowledge that none of this has anything to do with fans, quality or anything other than what may or may not be a legally-granted franchise on branded enthusiasm.

In any case, the decision could not be abided by Big Collegiate IP, which appealed the ruling to the Eleventh Circuit.  Last Friday Moore filed his brief as respondent.

The amicus brief (available here) filed by Big Collegiate IP demonstrates that the schools continue their goal-line defense of intellectual dishonesty in their the presentation of this issue.   Read More…

Diversion, yes, but no

Originally posted 2009-11-26 08:30:51. Republished by Blog Post Promoter

Some people have all the luck in the Eastern District of New York.  Whereas me — I think I’ve got it coming to me right down the middle, and then it seems to get, I don’t know — diverted from me!

So some lawyers get assigned judges in the Eastern District of New York whose ideas about trademark law and, well, the Federal Rules of Evidence — and, actually, the Federal Rules of Civil Procedure have, well, um . . . okay, I won’t say.  But in their courtrooms this is the kind of thing happens to “unauthorized resellers,” regardless of the actual “law” stuff.

RDC BIG BEARDI know, regular readers are sick of hearing about the S&L case, but I’m just framing the story here, okay?  Stick with me.

And then there are other judges in that same court who actually not only get it, but really, really, really get it:  There’s no such thing as “diversion” of authentic, untainted merchandise by “unauthorized” resale on the Internet.  Whether or not the manufacuter of a product thinks you need a whole two years of community college or that certificate from beauty school to slather on hair goop or tanning sludge, that preference does not “run with” the over-hyped blech they sell.

So — still setting the stage here, stay with me! — Judge Leonard Wexler, in 2007, went this far to make that point, as reported here exactly two year agos from tomorrow:

L’Oréal maintains that to keep the value, integrity and status of the products, they are supposed to be sold only by company-trained professionals in fashionable salons. Matrix alone “has been the number one professional hair brand on the market, with an estimated 16 percent market share,” L’Oréal said in court papers.

Quality King and Pro’s Choice, however, were obtaining the products in violation of the injunction by buying them, or, as it is called, diverting them, from middlemen and reselling them to nonqualified dealers, L’Oréal contended.

Diverting attention

Diverting attention

In his opinion, Wexler declined to enforce the old injunction, in effect, throwing out L’Oréal’s case against the two companies.

The judge said that if L’Oréal wanted seriously “to stop diversion of Matrix products,” it could terminate those of its distributors who are the sources of the diverted products.

He actually declined to enforce the old injunction, did Judge Wexler, because it would have actually been, well, wrong to!  Because of the law stuff.

Isn’t that enough mazal for Quality King?  Can’t some other lawyers in other courtrooms in that District have some of that good fortune?

No!  Evidently, on appeal of the earlier decision, the Second Circuit affirmed his vacatur (cancellation) of the injunction going forward, but remanded for further determination of whether the injunction should be not only — not “only”! — vacated, but also “terminated,” i.e., retroactively time-traveled into non-ever-existence.

So once more comes Matrix, the plaintiff, and with them this time big guns from the collossal Weil Gotshal, a real New York law firm this time.  So, was it a good idea to spend a good 50% more on fees (not to mention their markup on donuts!) to make the same arguments? Read More…

Unlovely SPAM

Originally posted 2007-01-08 22:45:17. Republished by Blog Post Promoter

Hormel won’t give up.  And neither will Spam Arrrest, LLC (which makes a great product I’ve used for years). A press release from Spam Arrest reports:

Spam Arrest LLC, which provides the popular web service software to eliminate email spam, hopes to end its four year legal battle against Hormel next month. Spam Arrest is the only company ever, except Hormel Foods Corporation, to secure a trademark including the word “spam” recorded on the principal United States trademark register. For nearly four years, Spam Arrest has defended its trademark against Hormel’s lawsuit seeking to cancel the SPAM ARREST trademark registration….

Spam Arrest has incurred almost $500,000 defending its trademark rights. “We’ve spent years fighting for our trademark, while much larger companies have simply abandoned their trademark applications after threats from Hormel,” said Brian Cartmell, CEO of Spam Arrest. “Not one person confuses our anti-spam service with Hormel’s canned meat — the average American consumer is smarter than that.”

There you have it, canned and virtually inedible.  spamA ridiculous three-and-a-half-year crusade meant to “take back” trademark rights arguably never earned under the guise of trademark dilution, the law that made trademark a right in gross for the privileged few; a claim — quite credible — that many smaller companies have simply folded their tents rather than defend their businesses, the very essence of IP enforcement abuse; an utter absence of LIKELIHOOD OF CONFUSION; certainly no evidence of damages and every reason to believe that the coinage of “spam” for junk email has done more to build this brand than anything, including Monty Python, could ever do; and a half million dollars donated to America’s most deserving (and, I might add, most handsome) sub-class of learned professionals.

Climbing off my tinned-meat box, here’s some interesting spice for your ham from the press release:

The Trademark Trial and Appeal Board, the federal administrative court charged with overseeing the national trademark office, has decided to hold the final hearing for case number 92042134, Hormell vs. Spam Arrest, before a live audience of trademark lawyers in New York City. The hearing will take place at the Practicing Law Institute in New York on February 23, 2007.

Now that is fascinating. Here’s a link to the schedule for the PLI course featuring this live argument. I’d attend in a second if I had been one of the torchbearers for Spam Arrest’s commitment to principle, freedom and justice. Since I’m not, I’ll have to use the $1,295.00 course tuition and buy things like food. Not Spam, of course. Nothing personal — doctor’s orders.

Designer Skin v. S&L Vitamins trial update

Originally posted 2008-07-17 11:39:17. Republished by Blog Post Promoter

The remaining issues in the case, you may recall, were copyright infringement and Arizona unfair competition. Here is the status per this morning’s minute entry in the court’s electronic case filing docket:

Minute Entry. Proceedings held before Judge James A Teilborg on 7/16/2008: Jury Trial – Day 2 held. Plaintiff’s case continues. Evidence and testimony presented. Plaintiff rests. Defendant rests. The Court grants defendant’s oral Rule 50 Motion as to statutory damages, actual damages and unfair competition claim. The Court grants defendant’s oral Rule 50 motion to dismiss defendant Lawrence Sagarin as a defendant. The remaining issue in the case is the injunction issue. Closing arguments. Jury deliberations. Jury to return at 9:00 a.m. 7/17/2008 to resume deliberations. (Court Reporter David German.) (TLB )

A tad terse and bloodless — quite unlike how trial has gone.  Not terse or bloodless at all.  [UPDATE:  Here's the transcript.  Dismissal of the damages claims were stipulated; see the ruling from the bench at page 124 of the PDF for the ruling as to Sagarin.]

“The Court grants defendant’s oral Rule 50 Motion as to statutory damages, actual damages and unfair competition claim” means “The Court grants defendant’s’ oral motion to dismiss Designer Skin’s claims for statutory damages, actual damages and unfair competition. (Earlier on the court declined to take our “suggestion” of a lack of copyright jurisdiction.)

So, so far: No damages, no plaintiff attorneys’ fees in play. Jury (advisory per Rule 39(c) of the Federal Rules of Civil Procedure; injunction against further use of Designer Skin’s “electronic renderings” is not a jury issue, but they are charged with deciding whether there was copyright infringement) is out; they return this morning, Phoenix time, at 9.

We will update and backfill…

UPDATE: The jury returned a verdict of infringement on 42 of the 54 copyrights. In post-verdict interviews, interestingly, the jurors reported they would have awarded no damages, or nominal damages, had the judge permitted them to consider damages. (Per the above the damages claims were dismissed.) The jurors rejected the idea that a manufacturer is entitled to damages in connection with the sale by third parties of merchandise the manufacturer already sold once before, regardless of the legal theory. This came as quite a surprise to the plaintiff’s legal team, whereas the advisory verdict of infringement (which the court indicated he would adopt) was not particularly surprising to us… considering.

RELATED POST: Two Cities.

Putting trademark in the corner

Originally posted 2007-08-25 22:45:49. Republished by Blog Post Promoter

Catchphrases such as THREE-PEAT with no coherent secondary meaning and no meaningful trademark identity are one of the really galling misuses of trademarks these days.  Nick Daly sends along this story (link added):

Lionsgate Film Studio has sued 15 companies for allegedly selling their merchandise featuring its trademarked [sic] phrase “Nobody puts Baby in a corner” from the 1987 hit movie “Dirty Dancing.”. . .

The suit, filed in Los Angeles last week, alleges that the use of the phrase by the companies wrongly sends the message to the consumers that the merchandise was authorized for sale by Lionsgate.

This is silly. Not every “good line” from a movie that’s silk-screened onto a trinket lures consumers into thinking that the merchandise has to do with the movie in any formal way. To the contrary, consumers recognize this as a mere cultural reference. But cleverness should not be not a basis for granting trademark rights. This is no more than trademark as cultural rent seeking, an old topic around here, and it’s despicable regrettable.

“Good lines” used to be their own reward. The late Phil Rizzuto was known by millions for his “trademark” use of the phrase “Holy Cow” in calling baseball games. This “trademark” benefited “the Scooter” without recourse to the Lanham Act: It was something that projected his reputation, enhanced his career and the demand for his services, and gave joy and pleasure to his fans.

Contrast THREE-PEAT — a registered trademark of basketball coach Pat Riley, meant to describe a thrice-repeating professional sports championship. Beaucoup clever. But a trademark? For what? Some junk that his company sold around the time he registered the mark, solely for purposes of establishing bona fide trademark use? I’d love to see the survey that could establish any good or service consumers associate with this coinage. That survey will never be taken, because the kinds of companies shut down by lawsuits by the likes of Riley and Lionsgate typically can’t afford to litigate (a survey alone can easily cost six figures of money).

Thus the abuse of the Lanham Act continues. Ironically, it’s unnecessary. I’ll bet you dollars to donuts that NOBODY PUTS BABY IN THE CORNER isn’t making Lionsgate a dime today, because it is essentially worthless as anything but a lever over other peoples’ use.

Trademark blogger Ron ColemanBut you ask: Wait, why shouldn’t Lionsgate be rewarded for its clever phrase (I guess it was clever; I did not see the movie) or the “artistic” moment or recollection it evokes? But it has been! This line presumably made their movie better, and a better movie made them over a fifth of a billion dollars in box office receipts.

And that’s what — and all that — a good catchphrase should be. You know: Its own reward.

UPDATE:  Brett Trout points out there isn’t even a registration for this phrase.  Lots of other good stuff in his piece.  Hat tip to Blawg Review.

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

Originally posted 2009-12-26 22:48:55. Republished by Blog Post Promoter

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?

Jujyfruits

Jujyfruits

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.

Clash of titans averted

Originally posted 2007-07-26 00:39:02. Republished by Blog Post Promoter

Wrestliang press reports (link to this blog added):

Former WCW superstar Diamond Dallas Page has settled his trademark infringement lawsuit against hip hop mogul Jay-Z. The suit was settled on July 10th after the court signed off on an agreement reached between the two parties.

According to one source, the settlement included a monetary fee that was paid by Jay-Z to Page. In exchange for the fee, Page agreed to drop all claims in regards to the infringement suit. Each party paid their [sic] own legal fees.

I, for one, will sleep a lot better tonight, knowing that Jay-Z sliced off about ten minutes worth of earnings to pay off the offended “superstar.” It would, however, have been quite interesting to see if anyone really had any trademark rights in their shared hand gestures. I assume that since Page is a “former WCW superstar,” he isn’t using the gesture any more, so there are no licensing issues. I would love to see what the quality control provisions would provide!

Jews for Jesus v. Google and Brodsky – update and analysis

Originally posted 2006-01-22 12:59:35. Republished by Blog Post Promoter

Jews for Jesus

I was on a panel called “Trademark Rights vs. Free Speech” at the Fall 2000 INTA Trademarks in Cyberspace Conference with Marty Schwimmer and David Bernstein. (Five years later I’m still glowing from the reflected brilliance!) The moderator was IP superstar Brendan O’Rourke, who cruelly, on-the-record, and correctly reminded me, “Ron, you lost the Jews for Jesus case, okay? Okay?” Yeah, well, okay. But that doesn’t mean the next guy–in this case, Google–has to! The “Jews for Jesus Whistle Blower” writes, at his Jews for Jesus blog:

Google has a few more days to respond to Jews for Jesus’ lawsuit over the rights to a blog. I bet Jews for Jesus is praying ferverently (and keeping their collective fingers crossed) that Google will give in. What is the likelihood that Google will set a precedent that all anyone has to do is sue Google and they’ll give in? Seems to me that Google is principled. And if they are willing to defend themselves against the government, there’s a good chance they’ll defend themselves against Jews for Jesus.

If Google doesn’t give in, will Jews for Jesus wilt? How much money do they have to pursue the control of a simple blog?

WB, they have plenty of money, and, as you cannily point out, they’re using this litigation to raise more. Jews for Jesus claimed (off the record) during the Brodsky litigation to have raised more in sympathetic donations than they spent on Thelen Reid’s legal fees. We’ll never know if that was true, but it’s food for thought.

As far as the “other side” went, although Steve Brodsky was the sole defendant and there was nothing but the most casual (well, and virtual) link between him and Rabbi Toviah Singer, certainly the two were aligned sympathetically. Rabbi Singer later told me that as a result of the controversy and the traffic that was generated as a result of the publicity for his website, a number of Messianic Jews (i.e., Christians with gefilte fish) returned to the Jewish fold. Maybe he was able to raise a dollar or too himself.

It is fair enough to say that the litigation was more helpful for J4J than it was for either Steve Brodsky, Rabbi singer or anti-J4J missionaries. The real loser, of course, was the law of trademark infringement, which still has not fully recovered. The most egregious aspect of J4J’s arguments on this point (as opposed to the even worse arguments–such as the cooked up “commercial use”–in the opinion) is the very premise that there is, with respect to these website cases, anything even approximating LIKELIHOOD OF CONFUSION.

As we put it in the Third Circuit brief which, among others, future Supreme Court justice Samuel Alito by all indications did not read (although he was on the panel that rubber-stamped the District Court decision with one sentence of affirmation):

Liability under the Lanham Act requires a showing, inter alia, of likelihood of confusion as to source. Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1228 (3d Cir. 1978). But, appellee has submitted no admissible proof to support a finding that confusion is likely.
. . .

[I]t takes virtually no time for even self-described “unsophisticated” users to quickly realize they are at Mr. Brodsky’s site, not that of appellee. The honesty of the non-confusing message on Mr. Brodsky’s website is in stark contrast to the defendant’s website in Planned Parenthood:

Because the words on the top of the page load first, the user is first greeted solely with the “Welcome to the Planned Parenthood Page!” It is highly likely that an Internet user will still believe that she has found plaintiff’s web site at that point.

42 U.S.P.Q.2d at 1438. That kind of confusion is simply impossible in the case of Mr. Brodsky’s website . . . In response to this argument, the District Court found that an individual may be a sophisticated consumer of the Internet but may be an unsophisticated consumer of information about religious organizations. Such a user may find his or her way to the Defendant Internet site and then be confused; the Defendant Internet site advocates views antithetical to those of the Plaintiff Organization.

The last two clauses in the excerpt above constitute a non-sequitur. They also make no sense in the context of the actual website at issue, which explicitly states its opposition to “the Jews for Jesus cult” and disclaims any affiliation with appellee. Concluding that Mr. Brodsky is not part of a Jews for Jesus organization does not require any particular “sophistication.” It only requires the ability to read.

In fact, the courts routinely define “sophistication” in much less “sophisticated” terms than did the court below, where a simple grasp of the obvious is all that is required to negate confusion. Thus, in Girls Scouts v. Personality Posters Mfg. Co., 304 F. Supp. 1228, 1231 (S.D.N.Y. 1969), the court ruled that “rational analysis” precluded confusion about whether the Girl Scouts were the source of a poster depicting a pregnant girl in the well-known uniform of the Girl Scouts appearing with the caveat “BE PREPARED.” Similarly, in Stop the Olympic Prison v. United States Olympic Committee, supra, 489 F. Supp. at 1123, a poster reading “Stop the Olympic Prison” was held not to violate the trademark of the United States Olympic Committee. The court reasoned as follows:

On the basis of its own examination of the poster, the Court finds it extremely unlikely that anyone would presume it to have been produced, sponsored or in any way authorized by the U.S.O.C. While at a fleeting glance, someone might conceivably mistake it for a poster advertising the Olympics, nobody could conceivably retain such a misconception long enough to do any harm: for example, there is no danger that anyone would purchase or display it as such.

Id. . . .  As in Girl Scouts and Olympic Prison, no rational person could believe that Mr. Brodsky’s message was in any way affiliated with appellee. The District Court nonetheless held that confusion is likely because Mr. Brodsky’s site is “related” to that of appellee [and that the use of the trademark was in fact more, not less, protected for this reason, on fair use grounds!-- RDC]. The court below inexplicably rejected the inescapable conclusion that consumers can dispel any confusion if they merely trouble to read Mr. Brodsky’s message, the way Chellathurai, Kalstein and Sanchez did.

If you’re still with me, here’s a last nail from the Third Circuit reply brief:

In defending the District Court’s likelihood of confusion analysis, appellee comes again to its prized exhibits: the three “confusion affidavits” of Chellathurai, Kalstein and Sanchez. There is little left to debate regarding whether these affidavits demonstrate confusion, or, more likely, the absence of confusion. This Court will simply have to read them. A076, A080, A257. Appellee suggests that the District Court found “initial interest confusion” here. Opp. Brief. at 37. But this doctrine is mentioned nowhere in the opinion below. Developed in a sales context, it has been applied only where “a potential purchaser is initially confused [such that] the [senior seller] may be precluded from further consideration.”

Weiss Assoc., Inc. v. HRL Assoc., Inc., 902 F.2d 1546 (Fed. Cir. 1990) (emphasis added). Thus it does not apply here. In fact, in Girl Scouts the Southern District of New York rejected transient confusion as proof of trademark harm in a social-commentary context:

Even if we hypothesize that some viewers might at first believe that the subject of the poster is actually a pregnant Girl Scout, it is highly doubtful that any such impression would be more than momentary or that any viewer would conclude that the Girl Scouts had printed or distributed the poster.

304 F. Supp. at 1231. As the Girl Scouts court recognized, ephemeral moments of confusion that do not threaten to divert sales are not evidence of actionable harm under the Lanham Act. Real harm must be shown to overcome the constitutional protection of free speech:

No evidence is found anywhere in the record before the court that the poster has to date damaged the plaintiff in any way. No facts are presented to show that contributions to the organization have fallen off, that members have resigned, that recruits have failed to join, that sales . . . have decreased, or that voluntary workers have dissociated themselves or declined to support the honorable work of the organization.

Id. at 1235. Similarly, there is no evidence in this case of any actionable or even discernible harm that appellee has suffered as a result of Mr. Brodsky’s website. Even the court below admitted that the publicity surrounding this dispute was, far from harmful, undoubtedly a boon for appellee. A436-37. And all three supposedly confused affiants found their way to appellee’s website, undeterred by Steven Brodsky and more zealous than ever in their devotion to appellee. In fact, their reports to appellee negate the suggestion of confusion; again from Girl Scouts:

[I]ndignation is not confusion. To the contrary, the indignation of those who [reported the offending use] would appear to make it clear that they feel that the Girl Scouts are being unfairly put upon, not that the Girl Scouts are the manufacturers or distributors of the object of indignation.

Id. at 1231. This passage perfectly describes the three “confusion” affidavits here: indignant, yes, but certain that appellee was not the source of Mr. Brodsky’s website. They were not confused.

They were not confused. Unfortunately, a lot of people were, and are–about what the Lanham Act is, and is not, meant to protect, and don’t get this key point:  Indignation is not confusion. We can survive that, as long as too many of them aren’t judges.

It’s a good bet, as Whistle Blower suggests, that Google will get a better hearing than lone idealist Steve Brodsky did in his case, and not just because it is better heeled. (My old firm, Pitney Hardin, handled the Brodsky litigation pro bono.) And the issues are somewhat different.

Still, Whistle Blower says that the Reverend David Brickner, the pleasant, non-Jewish head of Jews for Jesus, thinks this is the second coming of the Brodsky case. Jews for Jesus attorneys Thelen Reid probably hope so (though perhaps not every Thelen Ried partner is singing from the same sheet of music on the topic of God and intellectual property). WB beleives that from a legal point of view this seems like somewhat wishful thinking. (Not to mention the fact that this case was filed in the federal court in New York, not New Jersey, and that Judge Lechner of the former court has retired and moved onto bigger and better things.)

Then again, the Rev. Brickner’s statement is hardly the first instance of wishful confusion to eminate from the the precincts of Jews for Jesus–not hardly.

Life Imitates the National Debate

Originally posted 2005-05-23 15:19:00. Republished by Blog 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 Timescorrections 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.

SUPER BOWL® Trademark Watch and Contest I

Originally posted 2008-01-17 15:50:57. Republished by Blog Post Promoter

thisisinadequate.jpg

Every year it’s the same thing: Several weeks before the Super Bowl®, people and businesses wishing to promote events related to the timing of the biggest sporting event of the season — the Super Bowl®, that is, the National Football League’s championship game — go through all sorts of contortions to avoid saying the trademark-protected words, Super Bowl. Most frequently ad copywriters and broadcast announcers used the phrase, “the big game,” until last year they were intimidated out of even that tepid use of a descriptive word by the league as well.

This year should be no different, and you can already hear the litigation terror bubbling up on sports radio and elsewhere. Want to tell people they can get a great price on a new large-screen HDTV on which to watch the Super Bowl®? No way! You can’t say that on TV! People will think the TV is an Official Super Bowl® Broadcast Entertainment and Enjoyment Partner! And so on. There is no fair use of trademarks when it comes to the Super Bowl® — right?

Of course not right.

I would love to collect Super Bowl® trademark workarounds that people see in the various media and post them on LIKELIHOOD OF CONFUSION®. But… I need your help in order to get up a nice collection in time for the

SUPER BOWL®!

So please spread the word, keep your eyes and ears open, and send submissions to me at likelihoodofconfusion at GMAIL. If we get enough submissions we can make a contest out of it. It could be the SUPER BOWL® of IP Blawging submission contests, no?

moar funny pictures

From “homage” to “infringement”

Originally posted 2010-01-18 23:27:22. Republished by Blog Post Promoter

I’m not so doctrinaire:  Sometimes a press release is actually worth posting:

For more than thirty years, as hip-hop evolved from the urban streets of New York to its current status as a multibillion dollar industry, hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. But when lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”

COPYRIGHT CRIMINALS, a new film by Benjamin Franzen and Kembrew McLeod, will air on the PBS series Independent Lens January 19 (check local listings).

COPYRIGHT CRIMINALS showcases many of hip-hop’s founding figures like Public Enemy, De La Soul and Digital Underground, along with emerging artists such as audiovisual remixers Eclectic Method.  It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.

Computers, mobile phones, and other interactive technologies are changing our relationship with media, blurring the line between producer and consumer, and radically changing what it means to be creative. As artists find ever more inventive ways to insert old influences into new material, the film asks a critical question: can anyone really own a sound?

The trailer’s here.  Why, if I had a TV, I just might watch this!

What can I tell you?  These guys are playing my song.

So to speak.

Trademark misuse at the AIPLA

Down at the bottom of this post is a PDF of my paper, included in the CLE materials for a panel on which I was a participant at the American Intellectual Property Law Association’s annual meeting on October 24, 2013. The panel was called “Trademarks, Goodwill and Free Speech: Does the First Amendment Give You the Right to Create a Trademark and Associated Goodwill, and Where Does That Right End?”  My scribble is called “The Misuse of Trademarks to Control Free Expression.”  In other words, regular readers of this blog will find little new there, except for the footnotes.

The program was moderated by my buddy Paul Alan Levy of Public Citizen, and the other participants were Christine Haight Farley from American University’s Washington College of Law, who gave an incisive overview of the theoretical and doctrinal issues, and Tony Zeuli of Merchant and Gould, PC, in Minneapolis, who spoke broadly as well but particularly about his successful defense against the lawsuit brought by Michael Jordan [UPDATE:  Uh oh] against the Chicago-area Jewel / Osco food store chain based on various theories arising from that distinctly modern sin, “false endorsement.”

Me?  I ranted, but I was certainly listened to.  (The core of my rant was, forget commercial speech vel non and the First Amendment — this nonsense should stop at the door of the Lanham Act itself.)  The paper below doesn’t have all that much to do with what I said.  A little bit closer, perhaps, is this PowerPoint slide presentation.

The experience was quite enjoyable, because as you may or may not know, the AIPLA is predominantly dominated by patent lawyers.

Um, let me rephrase. Read More…