We’re back

It wasn’t your cache files — if indeed anyone checks in here regularly (traffic logs say they do) — nor, unfortunately, a trial. We’ve been gone for a while because of a death in the family. Now we’re back.

Here are some trademark-related and other topical links to think about while we get back up to speed:

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  • Technolawyer.com has just released its book, Blawgworld 2006, about law-related blogs (“blawgs”) focusing on practitioners such as yours truly and blogs such as this very one. You can read about it and even register for a free copy here. We were supposed to speak at the launch party last week in New York but regrettably our personal circumstances required a cancellation — even though we are in the plural we were unable to pull off the trick. There’s a bit of discussion about the book here, not all of it flattering and not all the unflattering justified.
  • UPDATE: Another interesting review at Blawgreview.com.

  • Blawg Review #34 – The Tryptophan Overdose Edition is up at Phosita, an IP blog which is evidently the best law blog of all.
  • When in doubt and desperate about an extended Likelihood of Confusion blogging gap, stop in at Evan Brown’s Internet Cases blog, whose interests most closely follow my own among blogs I know about and whose point of view is also quite a lot like mine only with a measure of humility. Here’s a decision Evan picked up on that is more than a little interesting to someone in my line of work:

    Plaintiffs, who had previously licensed their trademark to defendants in return for the payment of a 5% royalty rate, filed suit in federal court alleging, among other things, violation of the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. 1125(d). Defendants moved to dismiss for lack of subject matter jurisdiction, and the court granted the motion. It found that the case presented merely “a state law contract dispute, not one involving substantive questions of federal law.”

    The court ruled that the only dispute between the parties was over the nonpayment of the agreed-upon royalty. Because defendants had been authorized to use plaintiffs’ trademark, the court held, there could be no bad faith intent to profit from the mark. Accordingly, without a valid claim under the ACPA, there was no federal question, and the court was without subject matter jurisdiction.

    Reasonable minds may differ as to whether this holding was correct. Doesn’t it seem that if the royalties weren’t being paid, then the use of the trademark was not, as the court concluded, authorized? In other words, wasn’t payment of royalties a necessary condition of authorization? To bring it under the language of the ACPA, doesn’t it seem like continuing to use a trademark as a domain name without paying for it would be in bad faith?

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    Ron Coleman

    I write this blog.