Tag Archives: Politics

Best of 2010: If you see something… it’s probably “trademarked”

Originally posted 2010-12-24 08:00:42. Republished by Blog Post Promoter

First published on May 12, 2010.

If You See Something, Say Something

See me, squeal me

A while ago, while obsessing about New York’s Metropolitan Transportation Authority and its obsession with turning what might have once merely been viewed as functional municipal signage or insignia into “IP ,” I made fun of the MTA’s trademark application (since approved) for IF YOU SEE SOMETHING, SAY SOMETHING.

So in light of last week’s Times Square bomb-thingy, who’s laughing now?  Not the New York Times, in an article about the phrase’s elevation to “iconic,” including an interview with sloganeer extraordinaire Allen Kay:

“The model that I had in my head was ‘Loose Lips Sink Ships,’ ” Mr. Kay said. “I wasn’t born [yet] during World War II, but I sure knew the phrase and so did everybody else.”

“In this case,” he added, “I thought it was ironic because we want just the opposite. We want people to talk. I wanted to come up with something that would carry like that. That would be infectious.”

In 2002, the transportation agency saw a need for a security-awareness campaign to encourage customers to report suspicious activity or unattended packages, and they turned to Mr. Kay, who still had the phrase on his index card. By January 2003, the slogan was on posters and placards in subway cars, buses and trains.

It has since become a global phenomenon — the homeland security equivalent of the “Just Do It” Nike advertisement — and has appeared in public transportation systems in Oregon, Texas, Florida, Australia and Canada, among others. Locally, the phrase captured, with six simple words and one comma, the security consciousness and dread of the times, the “I ♥ NY” of post-9/11 New York City.

The transportation authority received a trademark on the slogan from the United States Patent and Trademark Office, though unauthorized uses appear to outnumber authorized ones.

That’ll happen with plain old ways to say things in English–once called “phrases” or “sentences,” not “trademarks.”

Did you know, by the way, that you can “receive a trademark” from the PTO?  I didn’t.  I thought they only registered trademarks, which are otherwise earned by use that rises to the level of establishing a secondary meaning!  Silly me.

So the end of that distinction, manifested of course by the common use of “trademark” as a verb, is now official, for it is no longer recognized among reporters or their diligent, triple-checking editorial phalanxes at the Newspaper of Record.  This says it all about what “trademarking” has become, unfortunately; as to “journalism,” well, what do I know?

There’s more: Read More…

Speech and — more? — speech re Russ Feingold

Originally posted 2010-11-05 17:11:32. Republished by Blog Post Promoter

Don’t say they’re anything but — what’s the term? — “fair and balanced” over at Randazza’s Legal Satyricon blog when it comes to the post-mortem on the end of Russ Feingold’s present level of responsibility with respect to the public trough trust.

Focusing on the McCain-Feingold Incumbent Protection Act, one of his satyrs, J. DeVoy, writes:

Russell Feingold will be an ex-senator in January.  It’s not soon enough.  Feingold, half of the propulsion behind the McCain-Feingold Act that limited political speech and chipped away at your First Amendment protections, was never the reformer he portrayed himself to be.

McCain-Feingold has long been one of the outgoing Wisconsin senator’s hallmark achievements. . . .

So what if he initially voted against the Patriot Act, a token vote doomed to uselessness?  When it mattered, at election time, the only civil liberties that were worth defending were those that Russ Feingold found important – evinced by McCain-Feingold.

Here to help with fairness

Marco himself couldn’t take that sitting down, and ripostes, crying “Shame on Wisconsin” (a state I was just getting to like) and with not a small bit of overstatement, as follows:

In 2001, I watched as dissent began to be equated with disloyalty. Questioning became equated with sabotage. Standing up for what you believed in became equated with treason.

My fears unfolded as the Patriot Act was rolled out. Did anyone really believe that the government worked tirelessly to “protect us,” drafting the Patriot Act almost overnight? Or was this a wish list of authoritarian desires that had simply been waiting in a file marked “Do Not Release Until We Have a Good Excuse.”

I watched as 99 of Russ Feingold’s colleagues voted to pass this sweeping measure that changed what it meant to be an American.

There was what to complain about in the Patriot Act, as the Supreme Court ruled time and again, though little of it had to do with the curtailment of free speech — Marc’s “topic,” I always thought — and certainly not the curtailment of classic political speech, which was what made McCain-Feingold a true crime against the First Amendment.

But Marc’s post completely ignores McCain Feingold.  Now who, or what, would have put a gag on the likes of such a man such as to cause such conspicuous silence where there was, as they say, a “duty to speak”?

For copyright, a crown

Czar Nicholas II -- Model for IP enforcement

Last post: Copyright ridiculous. This post: Copyright sublime. From Wired (via Jane Coleman, who found it on Instapundit):

U.S. lawmakers approved the creation of a cabinet-level position of copyright czar as part of sweeping intellectual property enforcement legislation that sailed through the Senate on Friday.

However, a controversial measure granting the Justice Department the authority to sue copyright infringers on behalf of Hollywood and the music industry was removed after the White House lobbied against assuming those new powers. . . .

The new copyright czar will oversee government anti-piracy crackdowns and, among other things, train other countries about IP enforcement. The legislation also creates an FBI piracy unit and allows for the forfeiture of equipment used in large pirating operations.

The intellectual property measure approved Friday was strongly backed by Hollywood, the recording industry, unions, manufacturers and the U.S. Chamber of Commerce. . . .

Digital rights groups, including Public Knowledge, opposed the measure.

Gigi Sohn, the group’s president, said the bill goes too far but she was nonetheless pleased that the Justice Department won’t be suing copyright infringers on behalf of the entertainment industry.

“We are pleased that the Senate bill as passed does not include the egregious provision allowing the Justice Department to file civil suits against alleged copyright violators on behalf of copyright holders,” she said.

The White House, in successfully pressuring for a rewrite to the legislation, said the original proposal requiring the attorney general to sue copyright infringers “could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry.”

Sometimes that White House does things right. This fairly obscure policy choice by the President is huge, considering the extent to which copyright law is already, due to the cost of litigation, one-sided attorneys’ fees provisions and at least the threat of statutory damages, severely stacked in favor of copyright claimants — some of which are copyright holders — and against defendants.

Can anyone out there send along the names of the congressional sponsors of the original version of the bill as it included that corporate intellectual property welfare provision?

Meanwhile, what can we do to at least try to get them to hire Bill Patry for the first copyright autocrat?

Kinsley on The New York Times’ next First Amendment embarrassment

Not a lot of time to blog these days but this Slate piece from Michael Kinsley is a must-read. Excerpt:

[T]he Times believes that its First Amendment right to speak includes a right (for journalists only) not to speak when subpoenaed in a criminal investigation. Meanwhile, it cannot see how a right to speak includes the right to spend money on speech. . . .

One interesting revelation in that 6,000-word deconstruction of the Judith Miller affair in the Times last Sunday was the different ways the whole culture of anonymous sources leads to suppression of information. The identity of sources is just the beginning. Yet the Times believes that its First Amendment right to speak includes a right (for journalists only) not to speak when subpoenaed in a criminal investigation. Meanwhile, it cannot see how a right to speak includes the right to spend money on speech.

As many have pointed out over the years, the Times might feel differently about a law that limited how much any one person or organization could spend putting out a newspaper, although that too would reduce the “unfair advantage” of some players over others. As a matter of fact, various legislative attempts to limit campaign spending invariably include an exemption for the news media, just to avoid that whole thicket. But this would be an excellent moment for the Times (and the Post and the other MSM) to reconsider all their various pleas for special treatment.

Hat tip to Kaus.

Big Green’s Ethiopian trademark problem

maxwell-house.jpgThe Australian reports that earlier news about a resolution of Starbucks’ trademark problems with the Ethiopian coffee thing was perhaps over-caffeinated.

UPDATE:  Have things perked up since then?  Or simmered down?  I simply don’t have grounds to say.  But from the looks of it, these guys do.

Google using trademark policy to shield MoveOn?

(UPDATED, revised). That’s what Bob Cox is reporting in this story in the Examiner; more here. Google said it would not run anti-MoveOn ads because they supposedly violated its trademark policy prohibiting the use of anyone’s trademarks in online advertising by a third party. But Google should know better. Courts have repeatedly held that such a “nominal” use is not a “trademark use” at all.

Bob interviewed me for the article. Here’s what I said (I’ve added some supporting links here):

Ronald Coleman . . . noted that, as a private company, Google has the right to treat different advertisers differently.

But he called Google’s removal of the Collins ads “troubling.” Coleman says that there is no such requirement under trademark law and that Google appears to be selectively enforcing its policy.

“In a recent ruling, the Ninth Circuit Court of Appeals rejected the notion that there is anything like a cause of action under the Lanham Act, the statu[t]e governing trademark law in the United States, for so-called ‘trademark disparagement,’ ” Coleman said. The courts have also rejected the notion that the use of a trademark as a search term is a “legally cognizable use” as a trademark use under federal trademark law, he added. Coleman is also general counsel for the Media Bloggers Association.

Did I really say “troubling”? Gak. Truth is, this is an emerging area of law, and you can hardly blame Google for desiring a policy that keeps it out of Lanham Act lawsuits. They made a hard and fast rule, supposedly, though the background documentation makes it seem that Google has applied its policy selectively.

Selective application of the policy is “troubling,” yes, but what’s more important is that the Lanham Act has nothing to say when a trademark is being used by an “unauthorized third party” in connection with the assertion of political or ideological ideas. That is not a trademark use, and cannot be trademark infringement. Even if the trademark law did have something to say, the First Amendment would trump it. Judges are beginning to catch on to the idea that trademarks are not private licenses to censor, but they are catching on slowly.

Again: Google is a business. But let’s not be overly impressed when it makes its business decisions about content, political or otherwise, and calls this a “trademark policy.”

UPDATE: Discussed this topic on “Fox & Friends,” an early morning television program (sounds like a cartoon!) on Fox News, this morning.

UPDATE:  Resolution, of a sort, discussed here.

Steal your plate

The Jews take a worldwide day off from eating, and what happens when they sit down and pick up their forks and knives to dig in?  Their enemies want to take their food away and get fees, too!

MBA Legal intern Andie Schwartz sends along this item from Mike Masnick at TechDirt about what happens when intellectual property rights are so abused by people who should know better, that those who know less — and whose intent is something less than benign — come to think of it as a way to just plain get your way when you don’t like how things are turning out for you:

Another day, another ridiculous intellectual property lawsuit. Along the same lines as various regions in France declaring that only they can sell “Champagne” or Greece being the only one allowed to offer “feta,” a group in Lebanon is claiming that various popular middle eastern foods such as hummus, falafel, tabouleh and baba gannouj are property of Lebanon and Lebanon alone. In fact, the group is planning to sue Israel for “stealing” its food. They’re actually claiming that this could be a violation of a “food copyright” (something that doesn’t actually exist). Specifically, the group says that since Israel sells such foods, it’s taking “tens of millions of dollars” away from Lebanon, where those foods should be bought. This, folks, is what happens when you build up a society around the idea of “owning” infinite goods.

We mostly agree with him, even if his last sentence is a little incoherent.  Masnick seems to be in love with the naive concept of “infinite goods,” and his misapprehensions are examined fruitfully here.  Besides, no one has ever tried to “build a society” around the ownership of abstract rights — even intellectual property rights, unless you count INTA or the RIAA as a “society.”  And if anyone ever did so, that society would not be the Republic of Lebanon.

If Masnick cut the hyperbole and just said, as he does at the beginning, that we are developing a worldwide culture that thanks of IP as a generic problem-solver for commercial, cultural or personal disappointment — why, he’d be right on.

And the fact is the Jews did “steal” falafel.  But they also stole pizza, too, which a million Israeli children think was invented by Ben Gurion.  (They also stole “Flatbush,” but that’s a topic for a different blog.)  Yet for some reason, Sicily has managed to attract its share of tourist dollars without inventing new tortes torts on which to slather its grievances against the you-know-whos.

Either way, pass the falafel — we’re still pretty hungry …

UPDATE:  Marty Schwimmer digs in a tad more analytically:

The Lebanese entity is likely thinking about appellations of origin (Champagne sparkling wine, Feta cheese, Parma ham) which are conventional methods of protecting a geographic name associated with a food but can’t be used to protect the generic name. “Lebanon” is (was?) potentially protectable for cedars of Lebanon.

First Amendment Lives on Campus (at least a little)

The online New York Law Journal (sub. required) reports on an important free speech case:

Vesting a student association with virtually unbridled discretion in doling out funds for campus organizations is a facial violation of the First Amendment because it implicitly permits the governing body to deny funding based on the content of the applying group’s speech, a Northern District judge has held in a case involving the State University at Albany.

Here’s a free link.  The premise of this decision is that money and speech are pretty darned closely related. I wonder what Senator McCain would think.

UPDATE:  The decision was affirmed by the Second Circuit in November, 2007, and here’s a recent analysis of the decision’s practical implications.

From Russia, without royalties


"For Distinguished Services for the Motherland"

The Kalashnikov rifle: Naked trademark licensing (“I take them into my hands and, my goodness, the marks are foreign,” [General Kalashnikov] said of the knockoffs the Soviet Union once championed. “Yes, they look alike.  But as to reliability and durability — they do not meet the high standards of our military” at its bloodiest).

UPDATE: Much more, and done better, here. Also a good piece about the man and the weapon here and here*.

NEW AND IMPROVED KILLING POWER:  The AK-47 (i.e., the Avtomat Kalashnikov 47 — does that mean you could buy one here?) as “Most Important Weapon Ever” (via Instapundit).

*”A unique design feature of the AK-74 . . . is an air-space (about 5mm long) inside the jacket at the bullet’s tip. . . [T]he air-space does serve to shift the bullet’s centre of mass toward the rear, possibly contributing to its very early yaw. This shift of lead occurs asymmetrically and may be one reason for the peculiar curvature of this bullet’s path in the last half of its path through tissue. Only in a shot with a long tissue path, like an oblique shot through the torso, would this curved path be evident; it doesn’t really add anything to wounding capacity, but might cause an occasional confusing path through tissue.”


The increasingly ubiquitous Marc Randazza pronounces, on the INTA list:

In doing some research on the new Attorney General nominee, I discovered that he was the judge who penned the opinion in Tommy Hilfiger v. Nature Labs, LLC, 221 F. Supp. 2d 410 (S.D.N.Y. 2002).

It’s good to see that we have a nominee with intelligence and a sense of humor.

Of course, A-Gonz was funny and smart too, just a different kind of funny and a different kind of smart.

What does he mean by that?