Tag Archives: trademark

Louis Louis

Originally posted 2012-03-13 10:54:05. Republished by Blog Post Promoter

Steve Baird makes some great points about the Louis Vuittion / student activities flier kerfuffle:

There has been quite a flap surrounding the poster and invitation used by the University of Pennsylvania Law School to promote Penn Intellectual Property Group’s Fashion Law Symposium, scheduled for a week from tomorrow. The symposium . . . boast[s] an all-star cast of general counsel from the fashion industry, including those from Ralph Lauren, Forever 21, and Coach – to discuss in the first panel: ”Trademark and the Fast Fashion Phenomenon.” The second panel is set to discuss “Copyright for Fashion Design: Evaluating the IDPPPA.” Last, copyright scholar David Nimmer is addressing “Copyright and the Fall Line” in his keynote address, and a number of big name law firms are symposium sponsors or donors . . .

Louis Vuitton – owner of the likely famous trade dress and individual marks depicted on the designer bag shown above – objected to the use of the poster shown below in this cease and desist letter, and LV now has been branded a serial “trademark bully” for it (and past objections against other alleged infringements). The Penn Law School Associate Dean for Communications apparently agreed to cease use, but then the accommodation was formally withdrawn by the University’s Associate General Counsel, in this response letter, defending the poster as a clever parody. As far as I can tell, the coverage of this flap is highly critical of Louis Vuitton for sending the demand letter in the first place, and entirely in favor of the University’s final decision to not cease use; for some examples of the coverage, see TechdirtAbove the LawLaw of FashionEric Goldman’s Technology & Marketing Law BlogThe Volokh Conspiracy,Johanna Blakely, and Alison Frankel’s ON THE CASE.

While I tend to agree the tone of the LV letter was excessive, and a few carefully-placed phone calls instead of a written demand, with greatly toned down the rhetoric, likely would have been more effective, what has left me a bit surprised by the coverage of this dispute is the absence of any scrutiny of the University’s response or position.

Now, I must say:  To me, the tone and the tack are the entire tale, and the level of coverage on that ground is appropriate.  But not the content; not all of it, because, as Steve explains quite aptly, a lot of of what everyone is saying is wrong:

[I]t seems no one is asking any questions probing the University’s claimed parody, and my concern about the popular ”trademark bully” label and a social media shame-wagon approach to this issue is it sends the wrong message in that it greatly oversimplifies a very complex body of trademark parody case law — decisions that most counsel as quite unpredictable if they ever go the distance.

Like it or not, unlike the defense of federal dilution claims where certain conduct is excepted from liability, neither noncommercial use nor parody is excepted from or an affirmative defense to trademark infringement. Parody is really just another way of saying, there is no likelihood of confusion, which no one will know for sure, without credible survey evidence of the relevant public. . . .

Is it not at least plausible that the modified LV artwork was designed to simply attract attention and fill seats in the auditorium, and not to make fun of LV, and that LV’s design was so meticulously reproduced that some who see it won’t even notice the subtle changes? After all, trademark parody case law certainly supports the proposition that the more outlandish, outrageous, shocking and/or offensive the parody, the less likely confusion will result. We’ll probably never know, but it wouldn’t surprise me at all – if survey evidence were pursued on these facts – to find support for an actionable level of likelihood of confusion as to LV’s sponsorship, affiliation, connection, or approval of the fashion law symposium, especially since LV noted it has sponsored such events by other schools (Fordham Law School’s Fashion Law Institute). This, it seems to me, is a key alleged fact overlooked in the Associate Dean’s response. Moreover, the focus on comparing luxury goods to educational seminars seems to miss the mark, as there appears to be a direct overlap in the sponsorship of fashion law seminars.

I think Steve is right on every point here.   Read More…

Best of 2013: Lanham Act attorneys’ fees: Good to know

First published on June 27, 2013.

The situation with attorneys’ fees in “exceptional cases” under the Lanham Act is, to put it mildly, not clear.   I’ve written about it from time to time here, including, in December, in connection with the important Second Circuit decision in Louis Vuitton v. Ly USA Inc., which held that a prevailing plaintiff in a trademark counterfeiting case may collect both statutory damages and attorneys’ fees.

Well, I say “collect” — I really mean “be awarded.”  In the vast majority of “big” counterfeiting cases, of course, these awards aren’t collected, or collectible, at all (there are exceptions).  Rather, they are “symbolic” victories meant to “send a message” to counterfeiters around the world and make them repent.

Window and statue, Appellate Division First Department CourthouseHaving sent one of those messages myself … back in, oh, 2002 … I must admit I am curious why it hasn’t been received yet, evidently…

Anyway, it always comes down to this:  No one really knows what an exceptional case is, because it’s obviously an entirely subjective test pretty much left to the sound discretion of the District Court. That “standard” is amorphous enough that, outside of big counterfeiting cases, clients should not only never be told that they can get Lanham Act attorneys fees:  They should never even be left with the impression that it’s a creditable probability, and certainly not to the extent that they should include collection of those fees in their budgeting choices for infringement litigation.

All this is by way of linking to Michael Atkins’s recent post on the latest statement on the topic of that elusive “exceptional case,” this one on the other side of the continent, in a Ninth Circuit case called Haas Automation, Inc. v. Denny, No. 11-56991, 2013 WL 2303528 (9th Cir. May 28, 2013):

Courts don’t award attorney’s fees that often in trademark cases.

That’s because the statute only authorizes fees awards in “exceptional” cases.

So what’s that mean?

The Ninth Circuit recently reviewed the standard. . . .

The court didn’t offer much analysis in upholding the district court’s award to the prevailing plaintiff. It just said that “[c]onsidering all of the circumstances of this case, including the jury’s verdict, we agree with the district court that the threshold standard for awarding fees has been met, and further that the district court did not abuse its discretion in awarding attorneys’ fees.”

A little more explanation would have been nice. However, trademark owners still have an important take-away from the decision: it’s important to know the court’s standards when seeking or defending against a claim for attorney’s fees. Most claims won’t cut it, but the cases with egregious facts can.

Just to be a little clearer:  The decision doesn’t say a damned thing about what the facts were that were so egregious.  Moreover, the case is one of those “nothing to look at here, move along” specials, with a footnote that says, “This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.”

Well, I’ll tell you some facts.   Read More…

Lanham Act attorneys’ fees: Good to know

The situation with attorneys’ fees in “exceptional cases” under the Lanham Act is, to put it mildly, not clear.   I’ve written about it from time to time here, including, in December, in connection with the important Second Circuit decision in Louis Vuitton v. Ly USA Inc., which held that a prevailing plaintiff in a trademark counterfeiting case may collect both statutory damages and attorneys’ fees.

Well, I say “collect” — I really mean “be awarded.”  In the vast majority of “big” counterfeiting cases, of course, these awards aren’t collected, or collectible, at all (there are exceptions).  Rather, they are “symbolic” victories meant to “send a message” to counterfeiters around the world and make them repent.

Window and statue, Appellate Division First Department CourthouseHaving sent one of those messages myself … back in, oh, 2002 … I must admit I am curious why it hasn’t been received yet, evidently…

Anyway, it always comes down to this:  No one really knows what an exceptional case is, because it’s obviously an entirely subjective test pretty much left to the sound discretion of the District Court. That “standard” is amorphous enough that, outside of big counterfeiting cases, clients should not only never be told that they can get Lanham Act attorneys fees:  They should never even be left with the impression that it’s a creditable probability, and certainly not to the extent that they should include collection of those fees in their budgeting choices for infringement litigation.

All this is by way of linking to Michael Atkins’s recent post on the latest statement on the topic of that elusive “exceptional case,” this one on the other side of the continent, in a Ninth Circuit case called Haas Automation, Inc. v. Denny, No. 11-56991, 2013 WL 2303528 (9th Cir. May 28, 2013):

Courts don’t award attorney’s fees that often in trademark cases.

That’s because the statute only authorizes fees awards in “exceptional” cases.

So what’s that mean?

The Ninth Circuit recently reviewed the standard. . . .

The court didn’t offer much analysis in upholding the district court’s award to the prevailing plaintiff. It just said that “[c]onsidering all of the circumstances of this case, including the jury’s verdict, we agree with the district court that the threshold standard for awarding fees has been met, and further that the district court did not abuse its discretion in awarding attorneys’ fees.”

A little more explanation would have been nice. However, trademark owners still have an important take-away from the decision: it’s important to know the court’s standards when seeking or defending against a claim for attorney’s fees. Most claims won’t cut it, but the cases with egregious facts can.

Just to be a little clearer:  The decision doesn’t say a damned thing about what the facts were that were so egregious.  Moreover, the case is one of those “nothing to look at here, move along” specials, with a footnote that says, “This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.”

Well, I’ll tell you some facts.   Read More…

College review website: Not hardly infringing anything, says SDNY

Out of respect for the Passover holiday, which ends next Tuesday night, I am not blogging as such.

But to keep the pot boiling, I will share a topical decision issued today by the Southern District of New York in a case in which I represented the plaintiff, captioned Boarding School Review, LLC v. Delta Career Education Corp.

Order on Motion – Boarding School Review v. Delta

Actually, also kind of a “let my people go” thing, no?

UPDATE:  One point I will make, per another, earlier decision reported on by Eric Goldman:  ”Here’s something you don’t see every day: a trademark infringement lawsuit defeated for lack of consumer confusion–on a 12b6 motion to dismiss.”  Well, we saw it again — in this decision — today!

Best of 2012: Moldy oldies

Originally posted March 29, 2012.

Album cover was found very appealing by some

Cohen the “Trademark Attorney” (his SEO people told him to sign blog posts as “Trademark Attorney” I guess; I think it worked, too!) has this phenomenal item about some really fresh fruits (lawsuits, that is) for rotting vegetables (incredibly old IP rights):

Many people would recognize the Andy Warhol stylized print of a banana as the Velvet Underground’s unofficial logo.  Many of the same people would also know that the banana was created by Warhol, who often collaborated with the band.  But who owns the rights to the iconic print?

Explaining that Warhol never registered the copyright, he continues:

The Velvet Underground recently filed a trademark infringement lawusit that claims that the print was taken from a newspaper ad that was part of the public domain.  The Andy Warhol Foundation currently owns most of Warhol’s copyrights, which are valued at over $120 million.  The foundation earns about $2.5 million a year by licensing these copyrights.  When the foundation decided to start using the banana print as part of its copyrighted repertoire, the band sued.  According to the lawsuit, the band wants a judicial declaration that the foundation has no copyright protection for the banana icon.

I love when hippies or their heirs fight over money, don’t you?  As Michael says, the Warhol banana evidently became a sort of de facto logo for the band, but they never attempted to perfect those rights by registering the mark, either — which of course would have been dicey, considering that the logo was someone else’s creative work.  They did have permission to use the banana logo — Warhol made it for the album cover.  But he didn’t give them any other permission, so, as Michael explains, the question is the extent of the rights included in this case of a work made for hire.

As Art News reports it, though, there is a trademark question here too:

Lawyers and intellectual-property experts say that to win its case, the Velvet Underground will have to show the design has come to be associated by the public with the band itself.

“This isn’t necessarily going to be easy,” said Marc Reiner, a trademark and copyright lawyer at Anderson Kill & Olick P.C., in New York. “After all, Andy Warhol’s name is also on the cover.”

Okay, maybe not so easy, but this is one old banana!  And Warhol’s estate can’t really claim trademark rights in it, you’d think.  Pretty interesting issues.  Glad they are finally getting around to settling questions involving these old fruits.

UPDATE:  Settled.

Trademark, trademark, trademark!

Trademark Drink and Eat

In February, 2011 I wrote about Trademark™, a design studio with the domain name www.trademark-trademark.com.  I was looking to refer back to that post because I wanted to link to it, as I have just done, as a springboard for commenting on this review of a restaurant called Trademark Drink and Eat.  It’s located in lovely Alexandria, Virginia, right near the bustling word headquarters, full of hungry trademark people, of the USPTO.  And I like the idea of TRADEMARK trademarks.

Perfect!  Except I couldn’t remember how to find that post.  Let’s just stay that doing a search for the word “trademark’ on LIKELIHOOD OF CONFUSION® will get you a lot of hits.  I remembered something about “design,” however.  Still no dice, so I did a search on Google for “trademark” and “design.”

I eventually found the place, and the post, but I found some other interesting things too:

Don’t ask me if I see any LIKELIHOOD OF CONFUSION across any of these axes here.  It’s complicated.

UPDATE:  Did someone say TRADEMARK?

Moldy oldies

Album cover was found very appealing by some

Cohen the “Trademark Attorney” (his SEO people told him to sign blog posts as “Trademark Attorney” I guess; I think it worked, too!) has this phenomenal item about some really fresh fruits (lawsuits, that is) for rotting vegetables (incredibly old IP rights):

Many people would recognize the Andy Warhol stylized print of a banana as the Velvet Underground’s unofficial logo.  Many of the same people would also know that the banana was created by Warhol, who often collaborated with the band.  But who owns the rights to the iconic print?

Explaining that Warhol never registered the copyright, he continues:

The Velvet Underground recently filed a trademark infringement lawusit that claims that the print was taken from a newspaper ad that was part of the public domain.  The Andy Warhol Foundation currently owns most of Warhol’s copyrights, which are valued at over $120 million.  The foundation earns about $2.5 million a year by licensing these copyrights.  When the foundation decided to start using the banana print as part of its copyrighted repertoire, the band sued.  According to the lawsuit, the band wants a judicial declaration that the foundation has no copyright protection for the banana icon.

I love when hippies or their heirs fight over money, don’t you?  As Michael says, the Warhol banana evidently became a sort of de facto logo for the band, but they never attempted to perfect those rights by registering the mark, either — which of course would have been dicey, considering that the logo was someone else’s creative work.  They did have permission to use the banana logo — Warhol made it for the album cover.  But he didn’t give them any other permission, so, as Michael explains, the question is the extent of the rights included in this case of a work made for hire.

As Art News reports it, though, there is a trademark question here too:

Lawyers and intellectual-property experts say that to win its case, the Velvet Underground will have to show the design has come to be associated by the public with the band itself.

“This isn’t necessarily going to be easy,” said Marc Reiner, a trademark and copyright lawyer at Anderson Kill & Olick P.C., in New York. “After all, Andy Warhol’s name is also on the cover.”

Okay, maybe not so easy, but this is one old banana!  And Warhol’s estate can’t really claim trademark rights in it, you’d think.  Pretty interesting issues.  Glad they are finally getting around to settling questions involving these old fruits.

UPDATE:  Settled.

Best of 2011: Sun, Oracle, Microsoft, Google, trademark, patents, copyright and David Boies

First posted September 28, 2011.Eastern District of New York, Brooklyn

There’s a lot going on, conceptually, in this article entitled “The $800M question: What’s the difference between trademark and copyright?” in VentureBeat:

Ten years ago, when Sun sued Microsoft over Java, Sun alleged trademark infringement because Microsoft was not implementing Java according to Sun’s specification. Microsoft had entered into a license agreement with Sun — promising to follow the specification. When Microsoft deviated from the specification, Sun rightly claimed breach of contract and trademark infringement. Sun sought an injunction against Microsoft to stop using the Java logo and to remove the incompatible Microsoft code from the market. Sun ultimately prevailed, and received a large settlement, in part due to Microsoft’s anticompetitive conduct over Java.

Check.  A fine point in trademark licensing:  If you manufacture a widget and use my trademark, under a license, to tell the world that you’ve got my widget-juice running it, your willful failure to follow the specs is both a contract breach and a trademark infringement. Next:

Attorney David Boies . . . served as Special Trial Counsel for the United States Department of Justice in its antitrust suit against Microsoft. At the conclusion of that antitrust suit, U.S. District Court Judge Jackson found that Microsoft took actions “with the sole purpose of making it difficult for developers to write Java applications … that would allow them to be ported.” . . .

Boies now represents Oracle (which has since acquired Sun, including its rights to Java) in its case against Google for patent and copyright infringement of Java. He surely knows the differences between the issues in the prior lawsuits. Unlike Microsoft, Google never licensed Java from Sun. It never agreed with Sun to implement the Java specification, and it doesn’t call its product Java. It calls it Android and Android is not a candidate for an antitrust case. In fact, the Microsoft .NET Framework and Java are the two dominant middleware platforms.

In court pleadings, Oracle constantly argues that Google breaks the “write once, run anywhere” promise of Java. . . .

The problem for Oracle is that Google made no license promise, and doesn’t need to worry about Oracle’s “write once, run anywhere” registered trademark because that trademark has nothing to do with Android . . .

Following?  Not everyone is, according to author John Koenig:

Moreover, Oracle is suing Google for copyright infringement, not trademark infringement. Oracle never alleged any Java trademark claims, only harm by “fragmentation” of the Java “write once, run anywhere promise” and “creed.” But promise, creed and fragmentation are not copyright claims, they relate to trademarks. It’s a nice example of the adage that “if you repeat something often enough, people will believe it’s true.” Accordingly, on September 15, 2011, Judge William Alsup in his order regarding summary judgment says:

Android allegedly supports some, but not all, of the APIs defined for the Java platform… This so-called fragmentation undermines the “write once, run anywhere” concept underlying the Java system and supposedly damages Oracle by decreasing Java’s appeal to software developers.

I don’t know how “promise, creed or fragmentation . . . relate to trademarks,” and I thought I knew a thing about trademarks.  But to the extent that anyone buys this vague concept — which I would describe as reputational or goodwill (i.e., trademark-type) damage arising from copyright infringement — it doesn’t seem to include Judge Alsup.  Or, at least, he doesn’t see a copyright claim here, never mind the theory of damages. As his order states:

Words and short phrases such as names, titles, and slogans” are “not subject to copyright.” 37 C.F.R. 202.1(a); Planesi v. Peters, No. 04-16936, slip op. at *1 (9th Cir. Aug. 15, 2005). Google argues that “the names of the Java language API files, packages, classes, and methods are not protectable as a matter of law” (Br. 17). This order agrees. Because names and other short phrases are not subject to copyright, the names of the various items appearing in the disputed API package specifications are not protected.

So what was Oracle, and its oracular attorney, thinking?  As Koenig says:

Google could have long ago pointed out that Oracle is alleging trademark harm using copyright infringement claims. But why should Google help Oracle plead correctly? Google never agreed to the “write once, run anywhere” promise (in any license) from which Oracle claims to have suffered harm. Google calls its software Android, not Java. While Oracle could have argued that Google has confused the market by making references to Java in Android marketing and documentation, Oracle cannot now amend the complaint with a trademark infringement cause of action. It’s too late.

It’s hard to believe that Oracle’s legal team “missed” this one.  More likely, they determined that “promise, creed and fragmentation” are just not trademark claims, and decided not to make them.  In contrast, in the fluid world of copyright as applied to software, systems and programming, it probably seemed worth urging a unique theory of recovery to maximize the chance of a copyright verdict, which — damages notwithstanding — at least guarantees payment of attorneys’ fees and costs to the prevailing party.  Again, Koenig:

Oracle is not giving up however, and the API copyright issue isn’t the whole lawsuit. Oracle is also claiming patent infringement, and there are still questions of fact and law about the scope of Google’s alleged copying. But those don’t relate to the “write-once, run anywhere” promise from which Oracle claims to have suffered harm.

Nevertheless, Oracle’s latest alleged copyright damages and lost profits estimate is still in the neighborhood of a whopping $800 million.

Easy come, easy go.  I don’t think David Boies is losing a lot of sleep over this one.

Occupying trademark

So eventually all the “big trademark stories” catch up to you, even if you try to avoid them as you would try to avoid … certain assemblies of people in certain locations.

Paul Elias of the Associated Press asked me what I thought about the OCCUPY WALL STREET trademark application, and that turned into this story in the Washington Post:

[Wylie] Stecklow, the attorney for the protesters, says he believed his clients will prevail because they’ve been using the phrase “Occupy Wall Street” for months before the first application was filed….

“This rush to trademark was entirely expected and predictable because this is what everybody does,” said Ron Coleman, a trademark lawyer and author of a popular trademark blog. “The irony is too rich.”

Coleman predicted the New York protesters would prevail because they’ve been using the phrase the longest. Nonetheless, he questioned how the trademark could be managed by a group claiming to be leaderless.

“Who has authority to speak on behalf of the trademark?” Coleman said.

Prevail, I said, as opposed to the t-shirt makers out West, discussed in the story, whose date of first use is both later and, it seems pretty obvious, is entirely ornamental.  Then there’s the admission that, well, “Vincent Ferraro of Fer- Eng told Cable News Network that his company had no affiliation with the movement and simply filed the application as a business proposition.”  That quote should pretty much deep-six that registration.

In terms of the last quote from me in the AP story, just to be clear — and Paul was typing as fast as he could,* but those don’t sound quite like my precise words — what I meant in the last quote was along these lines:

The application  (a copy of which you can get here) has numerous interesting aspects to it.  First, a little focus on who, exactly, is making this application, and how.  From the unofficial but de facto official website, here is the unofficial but de facto official description of the nature of the unincorporated association that is OWS:

OccupyWallSt.org is the unofficial de facto online resource for the growing occupation movement happening on Wall Street and around the world. We’re an affinity group committed to doing technical support work for resistance movements. We’re not a subcommittee of the NYCGA nor affiliated with Adbusters, anonymous or any other organization.

Occupy Wall Street is a people-powered movement that began on September 17, 2011 in Liberty Square in Manhattan’s Financial District, and has spread to over 100 cities in the United States and actions in over 1,500 cities globally. . . .

The occupations around the world are being organized using a non-binding consensus based collective decision making tool known as a “people’s assembly”. To learn more about how to use this process to organize your local community to fight back against social injustice, please read this quick guide on group dynamics in people’s assemblies.

That sounds complicated, to say the least, and takes the concept of unincorporated associations pretty far.  How exactly do you manage a trademark by “non-binding consensus”? Read More…

Sun, Oracle, Microsoft, Google, trademark, patents, copyright and David Boies

Eastern District of New York, BrooklynThere’s a lot going on, conceptually, in this article entitled “The $800M question: What’s the difference between trademark and copyright?” in VentureBeat:

Ten years ago, when Sun sued Microsoft over Java, Sun alleged trademark infringement because Microsoft was not implementing Java according to Sun’s specification. Microsoft had entered into a license agreement with Sun — promising to follow the specification. When Microsoft deviated from the specification, Sun rightly claimed breach of contract and trademark infringement. Sun sought an injunction against Microsoft to stop using the Java logo and to remove the incompatible Microsoft code from the market. Sun ultimately prevailed, and received a large settlement, in part due to Microsoft’s anticompetitive conduct over Java.

Check.  A fine point in trademark licensing:  If you manufacture a widget and use my trademark, under a license, to tell the world that you’ve got my widget-juice running it, your willful failure to follow the specs is both a contract breach and a trademark infringement. Next:

Attorney David Boies . . . served as Special Trial Counsel for the United States Department of Justice in its antitrust suit against Microsoft. At the conclusion of that antitrust suit, U.S. District Court Judge Jackson found that Microsoft took actions “with the sole purpose of making it difficult for developers to write Java applications … that would allow them to be ported.” . . .

Boies now represents Oracle (which has since acquired Sun, including its rights to Java) in its case against Google for patent and copyright infringement of Java. He surely knows the differences between the issues in the prior lawsuits. Unlike Microsoft, Google never licensed Java from Sun. It never agreed with Sun to implement the Java specification, and it doesn’t call its product Java. It calls it Android and Android is not a candidate for an antitrust case. In fact, the Microsoft .NET Framework and Java are the two dominant middleware platforms.

In court pleadings, Oracle constantly argues that Google breaks the “write once, run anywhere” promise of Java. . . .

The problem for Oracle is that Google made no license promise, and doesn’t need to worry about Oracle’s “write once, run anywhere” registered trademark because that trademark has nothing to do with Android . . .

Following?  Not everyone is, according to author John Koenig:

Moreover, Oracle is suing Google for copyright infringement, not trademark infringement. Oracle never alleged any Java trademark claims, only harm by “fragmentation” of the Java “write once, run anywhere promise” and “creed.” But promise, creed and fragmentation are not copyright claims, they relate to trademarks. It’s a nice example of the adage that “if you repeat something often enough, people will believe it’s true.” Accordingly, on September 15, 2011, Judge William Alsup in his order regarding summary judgment says:

Android allegedly supports some, but not all, of the APIs defined for the Java platform… This so-called fragmentation undermines the “write once, run anywhere” concept underlying the Java system and supposedly damages Oracle by decreasing Java’s appeal to software developers.

I don’t know how “promise, creed or fragmentation . . . relate to trademarks,” and I thought I knew a thing about trademarks.  But to the extent that anyone buys this vague concept — which I would describe as reputational or goodwill (i.e., trademark-type) damage arising from copyright infringement — it doesn’t seem to include Judge Alsup.  Or, at least, he doesn’t see a copyright claim here, never mind the theory of damages. As his order states:

Words and short phrases such as names, titles, and slogans” are “not subject to copyright.” 37 C.F.R. 202.1(a); Planesi v. Peters, No. 04-16936, slip op. at *1 (9th Cir. Aug. 15, 2005). Google argues that “the names of the Java language API files, packages, classes, and methods are not protectable as a matter of law” (Br. 17). This order agrees. Because names and other short phrases are not subject to copyright, the names of the various items appearing in the disputed API package specifications are not protected.

So what was Oracle, and its oracular attorney, thinking?  As Koenig says:

Google could have long ago pointed out that Oracle is alleging trademark harm using copyright infringement claims. But why should Google help Oracle plead correctly? Google never agreed to the “write once, run anywhere” promise (in any license) from which Oracle claims to have suffered harm. Google calls its software Android, not Java. While Oracle could have argued that Google has confused the market by making references to Java in Android marketing and documentation, Oracle cannot now amend the complaint with a trademark infringement cause of action. It’s too late.

It’s hard to believe that Oracle’s legal team “missed” this one.  More likely, they determined that “promise, creed and fragmentation” are just not trademark claims, and decided not to make them.  In contrast, in the fluid world of copyright as applied to software, systems and programming, it probably seemed worth urging a unique theory of recovery to maximize the chance of a copyright verdict, which — damages notwithstanding — at least guarantees payment of attorneys’ fees and costs to the prevailing party.  Again, Koenig:

Oracle is not giving up however, and the API copyright issue isn’t the whole lawsuit. Oracle is also claiming patent infringement, and there are still questions of fact and law about the scope of Google’s alleged copying. But those don’t relate to the “write-once, run anywhere” promise from which Oracle claims to have suffered harm.

Nevertheless, Oracle’s latest alleged copyright damages and lost profits estimate is still in the neighborhood of a whopping $800 million.

Easy come, easy go.  I don’t think David Boies is losing a lot of sleep over this one.