Intellectual Property Law
Likelihood of Confusion 
Developments in trademark, copyright, new media and free speech.
Post Frequency: 2/day Last Entry: November 19, 2009 at 16:05:11 Recent Entries: 665
By Ronald D. Coleman, Esq.
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New trademark blog: Pittsburgh Trademark Lawyer
Posted on November 19, 2009Daniel Corbett, who unlike some people does not merely have a sadly un-updated picture of his younger self but who is by all indications actually as terrifyingly youthful as the visual evidence suggests, has despite this seeming deficiency quite ably rolled out the Pittsburgh Trademark Lawyer blog...
Last week’s sweet tweets
Posted on November 17, 2009You know the drill! Here’s some of what I found flying around out there that relates to LIKELIHOOD OF CONFUSION®’s docket and which I saw fit to share, little-birdy-like, with those following @roncoleman last week: RT @copyrightlaw: Secrecy surrounding Anti-Counterfeiting Trade Agrmnt (ACTA) worries public interest groups http://bit...
Fraud, trademark, and rights
Posted on November 17, 2009Mises Blog: This is my main problem with current trademark law — that in transferring the customer-fraud-based right to trademark holders, the fraud basis is lost over time, as the trademark right is conceived of as a right of the trademark holder...
“Private Label Store Brand OTC Naming Architecture”!
Posted on November 17, 2009Now that’s a mouthful, eh? Yes, that is one ba-a-a-ad phrase to have handy for your next trademarks-and-branding over pigs-in-blankets soirée! Oh… you don’t… know what private label store branding OTC architecture means? (Cough...
Libel lives; ethics, too
Posted on November 17, 2009No “free speech absolutist” I, I like defamation as a cause of action when you can prove its elements, and I’m glad to see it hasn’t been completely eliminated by judges who raise the bar plaintiffs must overcome to impossible heights on imagined constitutional grounds...
Reuters: Never mind.
Posted on November 17, 2009I am sure it was accurate, in some Ratherian sense … but it was fake, and the blogsphere did brilliantly what it does best: Caught it and called the fakers out. Kudos of a sort to Reuters for, unlike Dan and the People’s Commissariat of Propaganda at CBS, admitting the undeniable...
Life Imitates the National Debate
Posted on November 17, 2009Outgoing 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 Read Dead Peoples’ Email: UPDATE
Posted on November 17, 2009Remember this item? I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows: I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man...
Commented on “The Trademark Blog” — Polo v. Polo
Posted on November 16, 2009Marty Schwimmer (via @trademarkblog) updates us on the latest, and floats a novel idea of his own for getting in on the action, in the ongoing legal war between the United States Polo Association and Ralph Lauren’s faux-Aryan-fashion empire. As I said in the comments there, Man, this is the litigation series that just keeps on [...
Vintage PTO “fraud”?
Posted on November 15, 2009The TTABlog® almost breathlessly — and, quite understandably, considering — links to Seattle Trademark Lawyer, who reports on a case, One True Vine, LLC v. The Wine Group LLC, just now being uncorked in a California District Court that could well answer a lot of the questions about application of the new “fraud on the [...
Osama kin gives up trademark fight
Posted on November 15, 2009The application for a Bin Laden trademark by Falcon Sporting Goods in Europe has been withdrawn. Originally posted 2006-08-08 09:20:02. Republished by Blog Post Promoter
Weblog Awards are good
Posted on November 14, 2009Look! A big logo what you can link to! If you think I should get one of these, you’re in a distinct minority. But… maybe this year, a little less distinct? Let’s see! Anyway it’s a cool logo, and Kevin Aylward has done all the work...
Don’t Say I Didn’t Warn You
Posted on November 14, 2009Google shares are up only seven-plus percent this morning. Am I sitting pretty? Let’s put it this way: My haircut this morning? Paid for. Originally posted 2005-04-22 00:00:00. Republished by Blog Post Promoter
Defining counterfeiting downward
Posted on November 12, 2009Counterfeit Chic happens upon a new defense to trademark counterfeiting: ”Counterfeiting? You call this counterfeiting?!” We’ve all seen imitation goods so poorly rendered that they wouldnt fool a myopic Martian on a dark night. And there must be a market out there beyond mere video fiction, or LV look-alikes wouldnt keep showing up on shady street [...
Rat’s rights
Posted on November 12, 2009A Chinese company has been refused permission to use the name of a disgraced official as a trademark to sell rat poison. Xinhua News Agency said the Shenyang Feilong Pharmaceutical Co. applied last month to use the name of Zheng Xiaoyu, who was fired as head of the national drug watchdog for suspicion of taking [...
Likelihood of … whatever
Posted on November 10, 2009Okay, folks — this one is for the lawyers, pretty much. It’s a Contract Interpretation Quiz (I’ve added the emphasis): Interpret this contract, reproduced below in full: In consideration of the sum of One Dollar ($1.00) and other good, valuable, and adequate consideration, the receipt and sufficiency of which is acknowledged, the undersigned does hereby sell, assign, transfer, [...
Boycotting bookstores that boycott books?
Posted on November 10, 2009I blogged on this question today over at Dean’s World, where I’m now a regular contributor. This post is topical to Likelihood of Confusion, too, but the current-eventsiness of it all makes me think it belongs there. Still, I didn’t want you to miss out in case, until now, you weren’t also reading Dean’s World...
Superior to lump of coal: Blawg Review Awards 2006
Posted on November 10, 2009“It’s a new tradition on the last Monday of each year for an anonymous editor to announce the Blawg Review Awards for the best law blogs in numerous categories.” This year [2006], that falls on December 25th — no matter if the only one working today is me and a few close personal friends...
Chocolate Ice Cream with Chocolate Syrup
Posted on November 10, 2009How else to describe a post (this one) that combines two of our favorite obsessions — Google and fair use? Business Week online reports that Google’s announced plan to to scan millions of the world’s books and make them searchable online is, not surprisingly, a little scary to some people...
Oh, won’t you stay?
Posted on November 09, 2009Say you will? The judge politely declined, actually — per our suggestion. Read all about the happy outcome, and other yeoman work from the self-promotion-with-dignity crowd, at JD Scoop.
Likelihood of occlusion (or, Dragged down by the stone)
Posted on November 09, 2009Despite being unduly influenced virtually the whole time by narsty opoid medications so they could shut up my gallbladder till they yanked it out (warning – link not safe for lunch) – or, perhaps, precisely by virtue of that influence?* — these are the terrifickest tweets t’at was via @roncoleman last week: @IPThinkTank David Kappos comments on [...
Hackers with Grey Hats
Posted on November 09, 2009Two different sources alerted me to this story that is near and dear. That link to Shlashdot comes from my friend at the Sapiens Cogito blog. It appears that a law firm called Harding Earley Follmer & Frailey (no website I could find) is accused of pushing a little too hard to get [...
Scientology pushed back on copyright
Posted on November 09, 2009Scientology seems to do a lot better with the Internal Revenue Code than with the Copyright Act: A Colorado nonprofit group has won a critical round in a legal fight against the Church of Scientology, raising questions about whether Scientology has a legal right to keep hundreds of documents offline and out of the public eye...
Easy cometh, easy goeth
Posted on November 06, 2009No, not that Goethe. I mean the Bogeyman cameth and wenteth in the person, so to speak, of Evan Turkowitz’s Halloween hosting of Blawg Review this week, while I was out of commission and being all about me, me, me! The Bogeyman hateth — I mean, hates that...
Bad journalism: Something you are, or something you do?
Posted on November 05, 2009Forget faked pictures and media bias. How about basic writing? Read this AP story — “Walesa quits Solidarity union” — and tell me if you have any idea what the dispute between Lech Walesa and Solidarity is, or what the word “conservative” means in Polish politics...
Jenzabar: Blogs are sticks and stones; they hurt me.
Posted on November 05, 2009Jenzabar, the educational software company Paul Levy and I mentioned last month (and which Overlawyered picked up) in connection with its “trademark as censorship tool” litigation, is back at it again — and not a little clumsily, for all its cleverness...
Whaddya know!
Posted on November 05, 2009The Mustang Ranch trademark case has finally been resolved — and it turns out that prostitute proprietor Lance Gilman gets to claim the trademark for the whorehouse he done boughten after all. Ho-ho-ho! Originally posted 2006-12-17 11:21:24. Republished by Blog Post Promoter
Dear Linus: Trademarks are not Security Blankets (UPDATED!)
Posted on November 05, 2009Dana Blankenhorn understands how trademark law works. Evidently, Linus Torvald’s lawyers don’t. And if Dana’s wrong and Linus is right, why, that will be an interesting new chapter in the IP rent-grab-a-thon: Open source trademarks, where quality control (the sine qua non of trademark licensing) is, to say the least, besides the [...
Media Bloggers Legal Defense Project
Posted on November 05, 2009The Media Bloggers Association is setting up a stable of attorneys “to provide MBA members with first-line counsel on matters relating to the use of intellectual property, defamation and other issues arising from their weblogging.” Looks like they got a real crackerjack guy to take the laboring oar...
Hardware trademark rejected in UK
Posted on November 05, 2009The Register reports: A businessman has failed to win the right to register the term “screw you” as a wide-ranging European trademark because it is offensive. It can be used, but only for goods sold in sex shops, the European trademark authority has ruled...
Turning back that Crimson Tide
Posted on November 03, 2009Trademark law does not trump the right to make and sell artistic depictions of real life after all, it turns out. Or even NCAA football. Almost exactly four years ago I wrote about the suit by the University of Alabama urging the obnoxious claim that artistic depictions of its players at play were, by virtue of [...
A week of tweets
Posted on November 02, 2009Last week’s topical tweets via @roncoleman: RT @LawWriting There is no great writing, only great rewriting. ~ ~ Justice Louis Brandeis RT @MegLG Redskins litigants win support from psychologists, justice advocates in TM expungement suit http://ow...
Attorney fights right of publicity fight… and then some.
Posted on November 02, 2009Overlawyered follows the continued adventures of media avenger attorney Jack Thompson who is acheiving cult-like notoriety among the very segments he seeks to protect: Jack Thompson, the Florida lawyer with a seldom-rivaled knack for keeping this site supplied with material (Oct...
See Dick Win. Pay, Defendant, Pay.
Posted on November 02, 2009By now you must have heard about the dustup involving Yiddish with Dick and Jane. The irony for me is that not long after I was learning to read English with the original Dick and Jane at P.S. 225, I was learning Yiddish from an essentially identical book for little secular Yiddishists (it turned out [...
True twit
Posted on October 27, 2009Here are last week’s greatest twits from @roncoleman: RT @ptolawyer: Subway sues Vegas restaurant for TM infringement -TacticalIP.com IP Bully of the Month? http://bit.ly/3c2lNO RT @nowsourcing: RT @toprank The Truth About SEO http://retwt.me/180kb RT @VBalasubramani: AutoAdmit web defame case settled http://bit...
Meet the bloggers!
Posted on October 27, 2009Reminder: Marty Schwimmer, doyen of trademark bloggers, John Welch, éminence grise in the field, and LIKELIHOOD OF CONFUSION, of whom it is said À boire ou je tue le chien!, will be hosting a reception for INTA attendees and other hangers-on under Chicago at the Billy Goat Tavern Monday night at INTA, beginning at [...
iDiots
Posted on October 27, 2009The AP reports that Apple has responded to a new book about Steve Jobs entitled iCon Steve Jobs: The Greatest Second Act in the History of Business by yanking all the books by the publisher, John Wiley & Sons, off the shelves of its Apple stores...
PTO invents perpetual spam machine
Posted on October 27, 2009Patently-O publishes a rather ambitious patent application that could actually make that mainstay of PTO rejection fodder, perpetual motion machines, look quite reasonable: “Chris Roller wants exclusive right to the ethical use and financial gain in the use of godly powers on planet Earth...
More on international law and the Web
Posted on October 27, 2009Instapundit reports: YAHOO! HELPS TURN THE SCREWS: 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 [...
Evan Brown gets a gig
Posted on October 26, 2009InternetCases.com’s Evan Brown is now the Legal Correspondent for the Internet TV show Viral, produced by Veoh Networks. Can’t hurt that Evan is a Sean Hannity lookalike. Me, I don’t get gigs. I get other things, like some press from time to time, but gigs, no...
“Social media and the legal community”
Posted on October 26, 2009Here are highlights from the October 16th seminar in Hackensack, New Jersey that some of you may have missed. Participants were Frank Burgos, head honcho of MSM power North Jersey Media Group, Melissa Shuman, marketing director of the Cole Schotz law firm, Phillips Nizer’s Stacey Salmon and Jason Chupik of Mediabistro...
China clamps down on the Net
Posted on October 26, 2009China sets new rules on Internet news – Yahoo! News BEIJING (Reuters) – China set new regulations on Internet news content on Sunday, widening a campaign of controls it has imposed on other Web sites, such as discussion groups. “The state bans the spreading of any news with content that is against national security and public interest,” [...
Power Line to the DNC: Sue us
Posted on October 26, 2009Power Line asserts the “actual malice” standard to defend itself against a threatened defamation suit against just about everyone from the Democratic National Committee. (Via Insty.) They’re right about the legal standard, and the fact that the DNC lawyer making the threat has to know that the DNC and Howard Dean can’t overcome that standard...
Thoughts on Welch’s thoughts on PTO fraud
Posted on October 23, 2009The TTABlog®’s John Welch shares his thoughts from on “fraud on the PTO in the post-Bose era. Excerpt: So how does one plead a fraud claim post-Bose? It appears that one must expressly allege that the adversary knew that the statement was false and intended to deceive the USPTO...
Virtual trademarks, real money
Posted on October 23, 2009Marty Schwimmer writes about “Real Trademark Issues In Virtual Worlds.” This is one of the edges that’s just bleeding all over the place. Originally posted 2006-07-12 12:33:35. Republished by Blog Post Promoter
Hitler on copyright
Posted on October 22, 2009The “Downfall parodies” aren’t really parodies, in the legal sense. But as this one demonstrates, “Hitler” does seem to understand something about copyright, law, IP management and, of course, slaloming through alternative realities: Never before has an historical figure, much less one of history’s most evil men yet one still regarded as some kind of transcendent figure, been [...
Chippendales shimmies up to the Circuit
Posted on October 22, 2009Hot (if unlike LIKELIHOOD OF CONFUSION® you go for that sort of thing) off the presses — here’s the appellate brief in the Chippendale’s appeal of the Trademark Trial and Appeal Board’s affirmation of In re Chippendales USA, LLC, in which the PTO refused to register the “apparel configuration” shown at right for “adult” “entertainment” “services,” on [...
The Only Good Patent
Posted on October 22, 2009… is a smiley patent! (Most aren’t.) I got a heads-up on this one from the editor of Blawg Review, but before I could slip into shooting-pixels-in-a-barrel mode my own adopted general-topic blog beat me to it. Originally posted 2005-07-28 18:49:48...
Trademark: The tort of choice for censors
Posted on October 21, 2009Same 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)...
Sloppiness is its own reward — for the other side’s lawyers
Posted on October 20, 2009We said a while ago that the RIAA and its ilk looked out of control. Now Walter Olson reports that now the RIAA might have to pay attorneys’ fees for going overboard in one of its “sue the phone book” copyright blunderbuss suits. That’s not a good sign...
McDonald’s considers IP protection for anticipated move into sale of actual food
Posted on October 20, 2009The story they’re all talking about on barely-middlebrow talk radio today: McDonalds tries to patent sandwich-making – or, rather, a sandwich-making McGuffin for its Egg McMuffin. We’re not bluffin’! This is one of those blog items that just writes itself...
Super cy that?
Posted on October 20, 2009Trademark law not for everyone, huh? Not true! Watch just how well a hammer works when everything in its world is a nail! Okay, so Mark Herrmann and Jim Beck go to town in their Drug and Device Law blog (originators of Blogolation!) on a legal fiction not directly related to intellectual property — the cy [...
Kinder-finished
Posted on October 19, 2009The Kinderstart lawsuit over Google search engine placement has been dismissed, with leave granted to amend. Originally posted 2006-08-04 01:07:17. Republished by Blog Post Promoter
Man in the tweet
Posted on October 19, 2009Here are last week’s too, too topical tweets shared with my slavish devotees via @roncoleman: RT @TrademarkBlog Ralph Lauren Apologizes For Image Of Emaciated Model: “We Are Responsible” (UPDATE)http://bit.ly/4te40O RT @gfiremark Why every writing team should have a written collaboration agreement...
Norway puts it to Apple
Posted on October 18, 2009Yahoo! News / Reuters: Norway stepped up its battle with Apple Computer Inc.’s iTunes on Thursday when its consumer ombudsman said the software giant must open access to its music download system by October 1 or face legal action. Last June, Norway’s powerful ombudsman said iTunes violated Norwegian law by forcing consumers to play their downloaded music [...
Spam lovely, tasty; not actionable
Posted on October 18, 2009Remember this story? Hormel has lost its attempt to regain control of its famous trademark in England, arguing — in an appropriately silly way — that it wanted to reserve rights in the mark for technical consulting. Hormel argued that an average English speaking person would not necessarily associate “spam” with junk email...
A head of the game
Posted on October 18, 2009Says Ed: Some ponder, “Are law blogs dying?” Others follow Blawg Review and know they’re not. Or at least that the answer is … negotiable. Hardly surprising, seeing as how the hostess this week is the Countess of Compromise, Victoria Pynchon herself, whose extremely deep Blawg Review is the first one I know of to feature a classic nephrology [...
The Curmudgeon’s Guide to Practicing Law
Posted on October 16, 2009After you get past my book, get this book by my friend Mark Herrmann. (Who’s not quite a curmudgeon.) I read it in preview (and provided a blurb) and believe me, it’s a must read for people seeking to succeed in the legal profession. Originally posted 2006-03-31 16:38:06...
Spicy IP
Posted on October 16, 2009Care for curry in your copyright? Take tatri in your trademark? Then you might just love this group blog, Spicy IP, on intellectual property developments in India. Start out with the hot haleem roundup here — turns out it’s still monsoon season, for as the post says, ”It’s raining trademark tidbits today”!
“I didn’t make him for you”
Posted on October 14, 2009Google is not a utility. Or an agent of the state, or a thing that owes anyone anything except to the extent they pay for it. At least for now. Eric Goldman has the decision from the U.S. Court for the District of Delaware, and the writeup. UPDATE: Unrelated, but related: the Google [...
Copyright for bloggers
Posted on October 14, 2009A while back ago I prepared a plain-language article, given the title “Copyright Rules of the Road for Bloggers,” for the Copyright & New Media Law Newsletter. I never posted it here, for some reason, but I should have, I think. I do have permission...
Hall of shame
Posted on October 14, 2009Trademark infringement claims, especially based on Internet use — where no real damage need ever be proved, or even pleaded, to maintain an action — remain the handmaidens of litigants with deep pockets and think skins utilizing the courts to silence critics...
Impolitico
Posted on September 17, 2009I first read about the brouhaha over the Politico trademark claim against the College Politico blog on Instapundit: ED MORRISSEY: ?Who owns the word ?Politico??? The blogosphere has been very good to Politico, and I think they should bear in mind the ill-will they?re incurring as a result of their heavy-handed legal tactics...
Top ten list
Posted on September 15, 2009Okay, it’s a little late to actually attend his talk — but then again, most of LOC readers don’t really get to Iowa Idaho that often. Still, it’s worth clicking around Stephen Nipper’s ?Ten Things Every Designer Needs to Know about Copyrights and Trademarks” blog post (the post of the talk) (actually, not a post- [...
Where was Betsy’s Page?
Posted on September 15, 2009We linked below to this item that has developed over the weekend — someone had swiped Betsy’s Page, one of the first blogs I advertised my law firm on when I first got involved in blogging. It was, to all appearances, just plain gone from Blogger, and no one — besides a few Internet [...
Likelihood of opposition
Posted on September 15, 2009They’re having trouble assimilating the concept of worker Yao Ming in the People’s Republic of China. Of course most of us have trouble assimilating someone who’s 7′5″ (or so); all the more so in China, I suppose. Not that they haven’t tried...
We’re All Journalists Now
Posted on September 15, 2009That’s what all we journalists have been saying. Scott Gant now lays it out in a new book by the same name. Originally posted 2007-05-17 16:39:44. Republished by Old Post Promoter
This is Not Censorship
Posted on September 15, 2009Editor and Publisher reports about the canning (”resignation” following a “suspension”) of the tasteful gent who ran that front-page story that New Yorkers saw staring out of newspaper boxes: ?52 Funniest Things About the Upcoming Death of the Pope? in the New York Press, “New York’s Premier Alternative Newspaper...
Disclaimer for the slow-witted, the vicious and the greedy
Posted on September 15, 2009I have added a disclaimer to the right-side navigation bar as the winds of oppression howl about me. It’s preposterous to think that this is really necessary, but here we are. Originally posted 2007-01-02 00:33:26. Republished by Old Post Promoter
EU Not Soft on Patents
Posted on September 15, 2009Matt Sheffield reports: Software Patents Rejected by EU. (Hat tip to Dean Esmay.) If you’ve read the blog before you know what I think about patents. But this is pretty newsorthy, and, as Sheffield notes, has very interesting micro- and macroeconomic implications...
Twisn’t it rich
Posted on September 14, 2009Here is the latest roundup of topical re-tweets that were tweeted to followers @roncoleman in the last week or so: @gfiremark New William Patry book arrives — with a new blog!http://bit.ly/INHCK @eschaeff Lawyers tripped up online: “A Legal Battle: Online Attitude vs...
Name that geek
Posted on September 14, 2009Dennis Crouch of the Patently-O blog did a cool little experiment. A professor of law at Boston University and a practicing patent lawyer, he’d be the first to admit this is entirely awful demographic / sociological statistical technique, but it’s still pretty good cocktail party nosh: Name and contact-information is available for registered US patent [...
Reverse Trademark Dilution?
Posted on September 14, 2009Trademark dilution is something that happens when you use my “famous” trademark in a way that, while not necessarily threatening likelihood of confusion — because everyone knows Microsoft doesn’t make skateboards or Coke doesn’t make hunting rifles — does threaten to “dilute” or lessen the ability of my trademark to denote a single source in [...
Commented on “The Trademark Blog”
Posted on September 10, 2009Marty Schwimmer: IDEA v PETA (SDNY August 298 2009): Plaintiff, no doubt aware that statutory damages are only available for post-registration copyright infringements that are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged by defendant prior to the effective date of registration, alleged in its amended complaint [...
Dumb bomb
Posted on September 10, 2009Courthouse News Service picks up on a final ruling in a case that made everyone titter last fall: A Long Island man infringed on Pfizer’s trademark by towing a 20-foot replica missile with “Viva Viagra” painted on its side through midtown Manhattan, eventually parking it in front of the drugmaker’s 42nd Street headquarters, a federal [...
YouTube, other websites and the DMCA
Posted on September 10, 2009Lee Gesmer at MassLawBlog explains why the hullaballoo about YouTube’s exposure to copyright liability is overstated. I agree with his analysis and have lots of other little thoughts about it, and you’d have read them in Variety if a wicked editor hadn’t cut them out before it went to press...
Trademark infringement: Just say no
Posted on September 10, 2009Trademark litigators and enforcement people (especially in anticounterfeiting) frequently analogize to the War on Drugs. You can’t really ever stop the flow of fake Vuitton bags, but there’s supposedly some value in achieving token victories over the “kingpins...
The Trademark Blog: Opposition to “scandalous mark” opens some box
Posted on September 10, 2009Marty Schwimmer chronicles and opines on the latest blip in the controversy regarding registration of a tasteless trademark, answering the musical question, What exactly is the speed limit on the road to perdition? Yes, I don’t agree with Marty on this one...
All wet
Posted on September 10, 2009Wordlab has the latest on the surf wars. Originally posted 2007-04-20 13:23:34. Republished by Old Post Promoter
You can’t fool Mother Trademark
Posted on September 10, 2009G. Mathew Lombard reviews an important article in the INTA Bulletin on the reemergence, or perhaps emergence in full for the first time, of viable claims for fraud on the PTO in trademark applications: Specifically, the article discusses the adoption of a new ?bright line? test for fraud on the USPTO...
An Army of Narcisusses
Posted on September 10, 2009The anti-Glenn-Reynolds, represented in this article in the Weekly Standard: Just as Marx seduced a generation of European idealists with his fantasy of self-realization in a communist utopia, so the Web 2.0 cult of creative self-realization has seduced everyone in Silicon Valley...
Loss of Faculties
Posted on September 10, 2009This is off topic, but if you’re a law school graduate, you’ll appreciate my question. There’s a website written written by a far-left-wing law professor in Texas (he once mentioned one of our colleagues, obliquely, as one of his many enemies, but this is irrelevant to my point — in fact his credentials are mind-meltingly [...
Google and the Privacy Obsession
Posted on September 10, 2009Google is the new horseman of the ever-approaching privacy apocalpyse, according to an article in Reuters. Why? Because Google lets you keep your mail (on its Gmail service) “forever,” though the article doesn’t explain what exactly the privacy risk is there...
Mix ‘n’ match
Posted on September 09, 2009The thing about lawyer jokes — besides the fact that they’re never funny when you all of a sudden have to call one of us in the middle of the night — is that they don’t necessarily have to make any sense at all to be considered worthy of publication...
Not lovin’ it
Posted on September 09, 2009McCrazy: Malaysia’s highest court ruled Tuesday against US fast food giant McDonald’s, which has waged an eight-year battle to prevent local eatery “McCurry” from using the prefix “Mc” in its name. . . . McDonald’s on Tuesday sought permission from the federal court to contest the appeals court decision, but judges denied the application and said the [...
Who owns the copyright in scans of public domain works?
Posted on September 09, 2009I love Plan59.com. If you’re my age or a little older, almost any click on this smartly designed and comprehensive website can recreate a certain feeling that comes with recalling a much more secure, confident and simple America — kind of like the grown up version of Dick and Jane...
Secondary trademark infringement: The whole of the law
Posted on September 07, 2009Secondary Trademark Infringement — the website: This website is dedicated to an examination of the law of secondary liability for trademark infringement ? the idea that someone other than a direct infringer can be liable for infringing another?s trademark...
Unlovely SPAM
Posted on September 07, 2009Hormel 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...
Keeping it in reserve
Posted on September 04, 2009This week’s Blawg Review is from The Inspired Solo, who, tacitly acknowledging that all the good jokes have been taken — having taken quite a few of them herself — wisely advises saving the inspiration for more important things, after all...
Unilateral copyright law
Posted on September 04, 2009Eugene Volokh joins the pile-on regarding a website that claims to exempt its contents from the liberating effects of the fair use doctrine. The North Country Gazette, a publication whose editorial fare contains a remarkably high percentage of Terry Schiavo-oriented stories, takes the position that due to this fiat, we cannot excerpt the likes of: An [...
New York’s MTA Has an IP Obsession
Posted on September 04, 2009The New York Sun reports that New York’s Metropolitan Transit Authority has filed to register the phrase “If You See Something, Say Something” — its “watch out for presents from the religion of peace” campaign on the New York public transit system — as a trademark...
Fraud on the PTO: Is it real, or all in my mind?
Posted on September 03, 2009Big decision, via the TTABlog®: The worm, finally, finally, has turned on the issue of the cancellation of trademark registrations based on “fraud on the PTO,” typically arising where the description of goods and services in a registration application is found to be innacurate...
How not to make money in telecom
Posted on September 03, 2009A jury ordered Vonage to pay $58 million in a patent infringement case brought by Verizon. But that’s okay — Vonage already “reported a net loss of $65 million for the last quarter.” It will just pay the damages by making it up in volume...
They always get their man
Posted on September 03, 2009Assuming they want to recruit Snidely Whiplash. Originally posted 2007-02-20 19:07:14. Republished by Old Post Promoter
More fantasy sports litigation
Posted on September 03, 2009We wrote in the past about the bogus “right of publicity” issue and the unsuccessful attempt by major league sports to claim ownership in statistics and grab a piece of the fantasy sports action for their fat selves. This one, reported by Andrew Braff, may be different: TEB Capital Management, “the owner of the publicity [...
Brand abuse on line
Posted on September 03, 2009Tom Crandall gets graphic. Originally posted 2007-08-15 18:38:04. Republished by Old Post Promoter
What’s all this I hear about geographically misdescriptive?
Posted on September 03, 2009The TTABlog presents, in effect, a primer, based on a recent Trademark Trial and Appeal Board decision, on the concept of why you cannot register a trademark that is “primarily geographically misdescriptive.” Originally posted 2007-02-08 11:37:12...
MTA’s way or the highway
Posted on September 02, 2009I’ve been watching these guys at the MTA and their IP enforcement program for a while now. Once was for a client, who, regrettably, didn’t want to fight. I first picked up on this over four years ago, when I wrote, The New York Times reported (yes, reg...
Avast ye, domain lubbers!
Posted on September 02, 2009Your Name Is My Business explains domains on the Internet main — or at least one of them: sarcy dogs trying to make a virtue of a scurvy vice! Originally posted 2007-10-21 18:58:59. Republished by Old Post Promoter
A 3-D trademark – Taipei 101
Posted on September 02, 2009Markenbusiness News reports: Skyscrapers can not only be landmarks, they can also be trademarks as well. That has now been made clear by the owners of the 508 meter high, 101 storey “Taipei 101″ in Taiwan. They were no longer prepared to accept that every postcard and souvenir seller can profit from the greatest tourist attraction [...
Not all ISP’s are created equal
Posted on August 31, 2009@EricGoldman: Web host Akanoc hit with $32M contributory TM judgment for customers’ counterfeiting http://bit.ly/3BR6ZW Whoa. More to come … Louis Vuitton v. Akanoc jury verdict http://bit.ly/OCNwr & Aug. dismissal motion http://bit.ly/A1WQ7 My Jan...
The week in tweets
Posted on August 31, 2009Here’s what you missed if you’re not yet floating in my social cloud: @VenerAbility: “The twin forces which could destroy Twitter are immature game-playing and PC taken to extremes.”http://bit.ly/Ax0rc @MegLG When trade marks go bad: Hells Angels lose bid to have logo items returned http://ow...
Times Op-Ed Columnists Have More Fun
Posted on August 31, 2009One of our most excellent blog-related adventures was our involvement with Bob Cox of The National Debate and his wacky IP-abusive go-round with the New York Times. Bob’s point was that Times columnists should be held to the fire (however lukewarm it is at the Times) every bit as much as the inkstained wretches [...
Net neutrality panel at Fordham — April 2nd
Posted on August 31, 2009Irina Tsukerman writes to tell me that “Fordham’s Geeks Are Out of the Closet.” Here’s the program for next Monday: The Future of the Internet: A Panel on “Net Neutrality” April 2, 2007 12:30pm – 1:45pm Room 430B Fordham Law School: 140 W...
Google News de-linked in Belgium
Posted on August 31, 2009Yahoo! News: Google Inc. has been ordered by a Belgian court to stop reproducing article snippets from French-language newspapers, in an unprecedented copyright crackdown over what is a common online practice. The complaint against the world’s most popular search engine was lodged by Copiepresse, an organization which manages copyright for the Belgian French- and German-speaking press...
China’s feelings hurt
Posted on August 31, 2009We’ve been following the domestic story of when trademarks hurt. (And get ready for this one, homey!) But we’re not the only sensitive ones out there, even if those sophisticated Europeans are beyond trademark offense. The The Hindu News explains that the Chinese government is hurt, offended, and its ego dented by [...
No joke
Posted on August 27, 2009Noel Sheppard (via Insty) smells a rat: [T]he photo sharing website Flickr removed the Obama Joker picture that was later transformed into posters showing up in cities around the country. At the time, Flickr claimed it had acted on advice of counsel due to legal issues involving copyright infringement...
Hot fun in the summer time
Posted on August 26, 2009A little while I ago I uploaded, at J.D. Supra, the three days of trial transcripts from last year’s desert extravaganza, the Designer Skin v. S & L Vitamins trial. Which, er, technically speaking, I lost. But, still. The non-technical non-losing was really wild...
DC and Marvel — still winning Super Friends
Posted on August 26, 2009John Welch has a report about an applicant for a SUPER HERO trademark registration for skin care productswho was bounced because, well, the owners of the existing SUPER HERO trademark –yes, that SUPER HERO trademark — pointed out that it doesn’t seem he really wanted to do anything other than, uh, have it...
Knockoff News in perfect form
Posted on August 26, 2009Counterfeit Chic ties Joe’s record* with 56 consecutive knocks — 56 editions of Knock-Off News, that is! *Link to explanation provided for foreigners and Canadians. Originally posted 2007-04-16 15:09:18. Republished by Old Post Promoter
Likelihood of Success
Posted on August 26, 2009The likely blog for non-lawyers. Originally posted 2007-04-15 12:37:54. Republished by Old Post Promoter
And Let Google the Dogs of Law
Posted on August 26, 2009It had to happen — another piece of territory now being rented out in the Lanham-Act-as-competition-buster industry: A new service has announced that it will scoop up the Google infringements for ya for a few kopeks. Their proud slogan: “Online trademark infringement is the act of using search keywords that specifically target another company’s brand to [...
My Old Kentucky Ho
Posted on August 26, 2009When you think of the term “the world’s largest whorehouse” — and who among us doesn’t? – do you think of Kentucky? I guess I just don’t get around enough. The AP Reports on this chap, who preaches the “Gospel Truth” on his website about what a, er, “whorehouse” that big old state is...
Blog Juice?
Posted on August 26, 2009Joy McCann, blogging on Dean’s World, comments on a Slate article suggesting that bloggers are the Euro-American version of rappers. In your bottle-full-o-bub’ dreams, Joy! Originally posted 2005-03-23 00:00:00. Republished by Old Post Promoter
American Graffiti
Posted on August 26, 2009Graffiti: Art or crime? And by crime, I don’t mean mere vandalism. I mean criminally bad legal-decision-making.
Blogolation nation
Posted on August 25, 2009What’s in a blog name? Eh, not so much, it seems, at least when it comes to longevity. My old friend Mark Herrmann of Drug and Device Law — who erroneously predicted incredible wealth for me about ten years ago but at least does know a thing or two about life-extension technologies — writes in [...
Topical tweets
Posted on August 24, 2009Here are some topical tweets by others of likely interest to LIKELIHOOD OF CONFUSION® readers that I’ve passed along to members of my Twitter social network in the last couple of weeks: @melaniejhoward: Ex-wife and daughter of Gucci heir forbidden by court from TM use of own surname http://bit...
Not just any Schadenfreude!
Posted on August 24, 2009No, better – it’s the RIAA kind. Really, who doesn’t hate those guys, already? Originally posted 2007-08-01 00:35:30. Republished by Old Post Promoter
You know it’s not a crime any more when…
Posted on August 24, 2009… even the judges are doing it? Originally posted 2006-06-07 17:26:12. Republished by Old Post Promoter
Internet Strategies for Legal Professionals
Posted on August 24, 2009That’s the name of the seminar I’m giving in Princeton tomorrow through the National Business Institute. (I knew I’d “teach at Princeton” some day.) I presented it in northern New Jersey last week and I’m hitting Cherry Hill, New Jersey (a Philadelphia suburb) next Tuesday...
Triple chocolate!
Posted on August 21, 2009Truly scrumptious: Speaking again of “what’s not to love?,” check out this lede from Pamela Chestek on the topic of comestible love itself slathered with gooey IP: If you’re interested in trademark management in large enterprises, or management of large enterprises in general, there’s an interesting decision in a multidistrict antitrust case against the chocolate candy [...
Last Friday of the year.
Posted on August 21, 2009Times Square Skyline Originally uploaded by Likelihood of Confusion. Go home early. You?re not likely to confuse anything else this year. Originally posted 2006-12-29 12:41:50. Republished by Old Post Promoter
Pardon our Appearance
Posted on August 21, 2009… and surfeit of bloggery while we jiggle, switch and realign in terms of hosting, software and graphics. It happens to the best of us, and we are, of course, among the best. Of us. Originally posted 2005-09-14 11:43:02. Republished by Old Post Promoter
Why abduct us? We cede our values for free
Posted on August 21, 2009Mark Steyn asks: Did you see that video of the two Fox journalists announcing they’d converted to Islam? The larger problem, it seems to me, is that much of the rest of the Western media have also converted to Islam, and there seems to be no way to get them to convert back to journalism...
“Litigation is the continuation of business by other means”
Posted on August 21, 2009From West (I have added links): Trials and legal proceedings in courtrooms play out as a battle of words and wills. In Litigation Is War, a new book published by West Legalworks?, Frederick L. Whitmer suggests that the winners in litigation also may be determined by who best applies the fundamental principles of military strategy...
The Google exception?
Posted on August 19, 2009Way back when the Google Books issue first burst forth, I expressed considerable skepticism that their plan to scan the universe of books and put it on line could be described as anything besides copyright infringement. As I wrote in my firstest post on the topic nearly four years ago: It sounds like copyright infringement to me [...
Co-opting the blogosphere
Posted on August 19, 2009Glenn Reynolds has a roundup on the latest New York Times outrage regarding the phony story they ran on U.S. abuses in Iraq that, evidently, didn’t happen, as the paper now admits. Yes, we all make mistakes, but if all my mistakes were in the same direction, you’d accuse me of bias, wouldn’t you? That’s [...
Defamation online
Posted on August 19, 2009It’s our future. Instapundit rounds up developments, which Julie Hilden is all over. I’ve made my point on this topic — less a legal than a cultural observation. Originally posted 2006-12-11 21:43:28. Republished by Old Post Promoter
Vote already
Posted on August 19, 2009I find the idea of electioneering in the these things unpleasant. But coming in last would leave an unpleasant taste in my, mouth, too. So help me prove I have friends — and that IP blogs deserve a moment in the sun! — and cast your vote for LIKELIHOOD OF CONFUSION® as Best Law Blog in the [...
Insight Into the Google IP Beat
Posted on August 19, 2009My old firm Pitney Hardin has a neat analysis of how the Google patent just might help you figure out how Google works. I said you. The very thought of it makes my brain hurt. Originally posted 2005-06-23 23:32:20. Republished by Old Post Promoter
What is a word mark?
Posted on August 19, 2009Speaking of Google and trademarks, an interesting article on Google’s own trademarks is this: Don’t “Hitchhike”A Ride On Google’s Trademarks and URLs by Russell Shaw. Only thing is that he defines a “word mark” as “similar to a trademark, but more of a logo than a business name,” which it isn’t...
Trumpmark®
Posted on August 19, 2009Does it get any better/ worse than this? The Smoking Gun reports: Fearful of a dilution of his powerful brand, Donald Trump is fighting his ex-wife Ivana’s bid to trademark [register as a trademark] her name for use in the real estate business. U...
Maine Blogger defamation suit developments
Posted on August 19, 2009Evan Brown sums up the legal issues as this case lights up the blogosphere, and then some. UPDATE: And then some more. UPDATE: It’s all over. Originally posted 2006-05-05 10:33:49. Republished by Old Post Promoter
Blawg Review from the Great Pacific Northwest
Posted on August 18, 2009Blawg Review this week is hosted by one of us (thanks for the link!) — Michael Atkins, the one and only Seattle Trademark Lawyer, whose blog engagingly still features his high-school yearbook picture. As I’ve said so many times before, what’s not to love?
Copyright’s absolute liability?
Posted on August 18, 2009Michael Ratoza of U.S. IP LAW reports (via @BeelJDPhD) on a case that issues a somewhat stunning ruling for those of us, such as LIKELIHOOD OF CONFUSION®, who have never really thought about the question of common-law indemnification for copyright infringement — or, worse, who have thought about it a little and assumed it must exist...
Knockoff News Forty-Two
Posted on August 18, 2009Check it out, bub. Originally posted 2006-12-04 22:52:40. Republished by Old Post Promoter
After the deposition
Posted on August 17, 2009After the deposition Originally uploaded by Ron Coleman Cooling my heels.
It never ceases to amaze
Posted on August 17, 2009John Berryhill writes, on the “INTA List”: Now everyone is getting in on the act… Since large scale domain tasting has largely been stopped, the way is clear for internet service providers to intercept queries seeking non-existent, non-registered domain names, which largely consists of users who have made typographical errors, and to engage in mass “virtual typosquatting”...
Three years ago in CONFUSION: “Is Google a utility?”
Posted on August 13, 2009I posted this in August, 2006. I don’t think the question has been answered yet: We wrote about the Kinderstart lawsuit against Google, claiming an unfairly depressed Google search rank, last March. There have been further, very interesting, developments, exemplified by this this colloquy reported by Dawn Kawamoto: David Kramer, a Wilson Sonsini attorney also representing [...
Two years ago in CONFUSION: Going underground
Posted on August 11, 2009This picture, from two years ago this month, links to one of the most popular blog posts on LIKELIHOOD OF CONFUSION®. It’s probably linked to numerous health risks as well, but you buys your sandwich, you takes your chances — and your cholesterol, your calories …...
A year ago in CONFUSION: “The ultimate license”
Posted on August 10, 2009LIKELIHOOD OF CONFUSION® is on vacation this week, which, for those of us old enough to remember the concept, obviously means one thing: “Summer reruns”! This item from August 2008 struck me as at least superficially reminiscent of the present Kindle Kontroversy, wherein it turns out Amazon was remotely deleting books already downloaded onto customer’s Kindle [...
The DMCA and the search engine
Posted on August 06, 2009Traverse Legal: Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act. Mary?s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials...
Head of State
Posted on August 05, 2009Sounds almost ordinary enough at first — this tweet from @EFF: Another Obama image fair use controversy: http://bit.ly/vhWCk Oh, sure. Another vhWCk?! What are you, stoned? Whoah, no. Much better! No, no, no. Oh, ma-a-a-a-a-a-a-n!: Don’t worry, it’s only a cigarette! They were cheap back then! It was only a matter of time before someone combined a certain memorable [...
Tall orders
Posted on August 04, 2009It’s always something, isn’t it. Here’s the latest shipwreck-in-the-making — you can’t call tall ships tall ships any more, matey: The age of wooden ships and iron men is long gone. We appear to be square in the era of tall ships and stupid lawyers...
Cajuns cooked
Posted on August 04, 2009Attorney Scott Wolfe, flush with victory, sends along this update on the Louisiana lawyer advertising rules I blogged about last fall, when I said, “Get that? According to this, everything posted online by a Louisiana lawyer ? and God help a Web 2...
Tweeting the tweets that twas
Posted on August 03, 2009Last week’s notable and topical tweets and re-tweets on my Twitter feed: @blawgreview Duncan Bucknell’s IP Think Tank hosts BR222, a carnival ride down under. @piercelaw RT @gfiremark Court bars fair use def for Tenenbaum, huge blow; proposed defense ‘would swallow copyright’ @walterolson Sculptor of “Wall Street Bull” sculpture sues over book that used photo of it on [...
Oy, Tenenbaum
Posted on August 01, 2009A while ago I wrote a little piece linking to Doug Lichtman’s exploration of the Tenenbaum copyright case, which Harvard law professor Charles Nesson said would be a “a public referendum not only on the music industry?s efforts to enforce copyright through these direct-infringer suits, but also on the copyright rules that make the industry litigation possible...
Steal your Face right off your head
Posted on July 31, 2009If there’s one thing I can’t stand, it’s a blog post so well developed that I can’t rephrase it, riff on it or summarize it, so I have to steal it lock, stock and barrel. And then it’s about someone who is maybe even cleverer than LIKELIHOOD OF CONFUSION®! Well, here’s one of each of those, [...
Not in the good way
Posted on July 29, 2009Ryan Gile reports about a case that deals with real trademark fraud, and that makes it matter: I have previously written (link here) about the ongoing dispute between Roy Tuccillo and Geisha NYC, LLC (?Geisha NYC?) over the restaurant name ?Japonais? (the ?JAPONAIS mark?)...
Tweeting the week what was
Posted on July 27, 2009As threatened in the previous post, and by way of rounding up blog posts and other items that should be of interest to LIKELIHOOD OF CONFUSION® readers, here are those topically relevant and particularly interesting Twitter finds, and in some case original tweets, that I have not already elevated to a post from the last week [...
The LIKELIHOOD OF CONFUSION® Twitter manifesto
Posted on July 27, 2009The authors of many of the blogs I read that are topically related to this one now use Twitter. So are a lot of other people, and mostly they seem to talk about Twitter. They not only fail to recognize this as a problem, but I have even seen evangelists point to it as [...
Google’s keyword policy shift has unsurprising effect
Posted on July 24, 2009Lori Weiman of Search Engine Land reports: As you may know, Google recently loosened its policy in the USA related to the use of trademarks in ad copy text, which went into effect on June 15, 2009. The big question is: has this change resulted in an increase in trademark use? The answer is yes...
Bar none
Posted on July 22, 2009Michael Atkins: [University of Washington] School of Law Professor Sean O?Connor, guest blogging at Legal Satyricon, writes about AT&T?s trademark registration of the bars indicating cell phone signal strength (depicted left). ?The bars are purely functional representations of the strength of cell service and a standardized one at that,? he writes...
No one Timesing this story?
Posted on July 21, 2009The New York Times gets it… [T]he speed at which reputations are made and destroyed in the Internet age has changed the thinking about the danger of brand names? becoming verbs. Better to get the market share when you can and worry later, when the brand becomes part of the popular vernacular and less distinctive in [...
A quick scan of the law regarding copyright and the public domain images
Posted on July 20, 2009The story’s all over the Net, but here’s as good a take on it as any, from Mike Masnick at Techdirt: Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London...
Goldman Sachs, those big losers!
Posted on July 17, 2009Remember Mike Morgan, the flaky sort who dast challenge the mighty Men of Gold? Now it over, and here’s how it all ends (via @walterolson): Mike Morgan, a Florida-based investment adviser who started the controversial blog GoldmanSachs666.com, has prevailed in a case he brought against the investment bank in April...
Gibson argues for brand on the merits
Posted on July 16, 2009Since the beginning I’ve been blogging about the attempts by Gibson and Fender, the makers of fine guitars, to avoid copycat competition via the trademark and litigation route. My most recent post on the progress of that campaign is here, where I wrote: I often explain to clients and prospective clients that the main reward for [...
Owning ratings
Posted on July 16, 2009Eric Goldman: A Colorado judge has reached the remarkable conclusion that a hospital publicizing its star ratings and other recognition from a third party rating service in its marketing material might be committing copyright and trademark infringement...
Coming soon to a bridge under you
Posted on July 15, 2009Patent Litigation Weekly has a fascinating article about what tangled webs we — well, not we, but patent lawyers — weave when they become, er, patent rights opportunity entrepreneurs — i.e., patent trolls. In this case, you could call them inbred patent trolls...
Overlaywered, just-right-Blawg-Reviewed
Posted on July 13, 2009Walter Olson hosts this week’s Blawg Review: Welcome to Blawg Review #220, rounding up some highlights of the past week from around the legal blogosphere. It?s my second time hosting it here at Overlawyered, a blog that as its name implies maintains a certain critical distance from many of the doings of the legal profession...
Fakers rising
Posted on July 10, 2009Brandweek: Ersatz goods selling on Canal Street isn’t exactly news in New York, even though Mayor Mike Bloomberg staged an impressive photo op amid a mountain range of purses. But the size and stealth of the raid on what cops called “Counterfeit Triangle” seemed to verify a change that many in the brand community have sensed [...
“Excuse me while I kiss this guy”
Posted on July 09, 2009Michael Atkins, that is. Well, that’s what Hendrix always sounded to me to be saying in “Crosstown Traffic.” Anyway, Mike continues his dogged coverage of all things Hendrix-trademarky, and here’s the latest of it: Defendants? use of HENDRIX and JIMI HENDRIX was fair use of plaintiffs? trademarks to describe the images depicted on their products, the [...
Companies versus their fans
Posted on July 07, 2009Walter Olson: The famous maker of candies and candy-dispensers is suing the owners of the Burlingame Museum of Pez Memorabilia in Northern California, claiming that its venture into Pez homage, which includes a Guinness-record largest replica of a Pez dispenser, infringe the firm?s trademarks and ?deceive the public into thinking that the museum is operating under [...
Liable to regret it
Posted on July 07, 2009Instapundit: LIBEL SUITS AGAINST BLOGS HAVE BEEN IFFY ? I wrote an article on that a couple of years ago ? but Mickey Kaus?s discussion for some reason made me think of this New Yorker cartoon. Remember, just because ?actual malice? is a tough standard to meet doesn?t mean you aren?t in big trouble if someone [...
Prejudice in a good way?
Posted on July 06, 2009Can a company name be “prejudicial”? My friend Rob Holmes — he of the purportedly prejudicially-monikered “IPCybercrime” firm — is, quite reasonably, going to finish his coffee rather than worry about that too much...
Dr. Yes
Posted on July 06, 2009Just a scant day after I was using the mythical man from MI6’s movie mug to mock our former colonial overlords for their upperclass-twittery, comes the Telegraph of London to report that, unlike in these United States, perhaps there’s still a bit of that Anglo Saxon Magna Carta lust for freedom in ye olde English [...
Tens years of Overlawyering
Posted on July 03, 2009Overlawyered turns 10. Congratulations! There was really blogging ten years ago? I didn’t miss the anniversary. I just didn’t want to be accused of cadging for a link.
Holding Caulfield
Posted on July 02, 2009I could have linked to a million stories on this, but Publishers Weekly seems appropriate: In a potentially precedent-setting ruling today, federal judge Deborah Batts ruled that J.D. Salinger?s most famous character, Holden Caulfield, is protected by copyright...
Copywrong
Posted on July 01, 2009David Post discusses Judge Richard Posner’s musings on the pretty hopeless prospects of the newspaper biz: [I]f “the newspaper” as a business model fails (because of competition from the free content available on the Net), who will invest the resources required for adequate news-gathering services in the first place? ...
Royal mess
Posted on June 29, 2009Burger King’s trademark place is kind of funny. If you Google His Majesty’s Monicker along with the word TRADEMARK, you get this link, which not only asserts, naturally, his royal BURGER KING® registered mark, but the far more dubious BK® mark down at the bottom, yet not at all (on that page) the ancient [...
He just bought it like that
Posted on June 29, 2009Impulse buying, King of Pop style: Branca had a surprise for Jackson. The attorney said casually, ?By the way, the ATV catalogue is available.? Jackson looked puzzled. Branca added teasingly, ?It includes a few things you might be interested in.? ?Like what?? Jackson asked...
Come, lettuce reason together
Posted on June 26, 2009Leafy, green and non-infringing. Real judicial fiber here — cleans the whole system out, right down the line. Via @EricGoldman, by way of TechDirt.
When you’re a hammer
Posted on June 26, 2009The whole world is a nail. Now Marty Schwimmer isn’t a hammer, because he does trademarks and not patents, see. So this post connecting Michael Jackson and intellectual property is not proof that Michael Jackson’s death is a nail! (Single-glove-tip on the actual patent to Andie Schwartz!)
All true
Posted on June 23, 2009Ruling Imagination: I may be a minority, but I find it odd to think a literary character, rather than the work he appears in, can be copyrighted. Nonetheless, the judge hearing J.D. Salinger?s lawsuit seeking to block publication of 60 Years Later: Coming Through the Rye apparently thinks Holden Caulfield is ?a portrait by words...
Fashionably litigious
Posted on June 22, 2009Miss Trials is a new blog, or sub-blog or something (I can’t make heads or tails of the navigation) on a site called Halogen Life. It’s written by Kelly Taylor — “a reformed politico, fashion writer and aspiring lead counsel for a major house of style...
No endorsement here
Posted on June 22, 2009The Media Bloggers Association president, Bob Cox, is all over the story regarding the Federal Trade Commission’s brand new Guides on Endorsements and Testimonials, which, as Bob explains, will certainly affect bloggers. In fact, one of the examples given of a testimonial in the proposed revisions, found here, is of a product review written by [...
Don’t bother, they’re here
Posted on June 19, 2009President Obama is suffering from the right-of-publicity blues again. And now maybe we understand why he wants an intellectual property counterfeiting expert on the Supreme Court — this could rise to the level of an international incident already, Jack! A blog called Cloned In China explains it all in (ironic as it is to say) inimitable [...
“Infinity Dollars” — IP damages and the jury, Part 2
Posted on June 19, 2009(Part 1 is here.) So. In light of the decision in the Thomas-Rasset case, which I first rounded up in part 1 of this first-ever two-part LIKELIHOOD odyssey, does a jury of supposedly ordinary and sensible people becomes twelve angry persons and so profoundly abandon common sense in IP cases (even if it the whole thing [...
“Infinity Dollars” — IP damages and the jury, Part 1
Posted on June 19, 2009A lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about. They are not supposed to be a windfall (discussed more here). But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing [...
No master of that domain
Posted on June 18, 2009Evan Brown reports on a California appellate case holding that, in that state at least, a domain name is not something a judgment creditor can have “turned over” as an asset of the debtor: The provision in California law allowing turnover of property limits itself to tangible property that can be ?levied upon by taking it [...
People Endlessly Troubling All
Posted on June 15, 2009The Canadian Trademark Blog reports that People for the Ethical Treatment of Animals (PETA), the extremist anti-protein group, has launched a new ?spoof? website in its stated bid to convince the Vancouver Organizing Committee (VANOC) that it should help in the campaign to end the Canadian seal hunt...
Trademark doomsday on Facebook
Posted on June 12, 2009TechLaw is one of the gazillion places reporting on what Facebook is allowing trademark owners –owners of registered trademark , that is — to do in order to prevent their marks from being squatted when, at the stroke of midnight Friday night Eastern time, the Great Facebook Vanity URL Land Rush begins...
And Derek Jeter’s pageload times are preposterously slow
Posted on June 10, 2009Venkat Balasubramani hits one square over the firewall and argues that Tony La Russa’s legal claims against Twitter look tenuous. I used to think I was a little bit on top of things and stuff, but, really, I just don’t know. Did I ever foresee the intersection of the concepts embracing both Tony LaRussa and Twitter? [...
Redskins redux
Posted on June 09, 2009I didn’t have a chance to mention that last month, the order denying the legal challenge to the Washington Redskin’s use of its trademark American Indian logo was upheld. Now I have a chance! And do the unhappy Indians have a chance? They think they do.
Rewriting his story?
Posted on June 08, 2009Slashdot: The_Pey writes “Recently, an application was pulled from the Apple App Store because of its name. The game in question, Edge, reportedly infringes on the the trademark rights of Tim Langdell to the name Edge. The unfortunate aspect to this whole affair is that Tim is broadly enforcing rights to the name, whether or not [...
Berry disappointing
Posted on June 03, 2009Walter Olson: ?Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap?n Crunch with Crunchberries in reliance on defendant?s fraud.? Figured out … what? You have to click the link to find out...
Sotomayor — one of us?
Posted on June 02, 2009There’s been a lot of talk about U.S. Circuit Court Judge Sotomayor’s nomination to the Supreme Court by President Obama in the context his controversial emphasis on “empathy” as a desirable quality in a judicial nominee. Well, check out this empathetic note from Counterfeit Chic: Counterfeit Chic knew that Sonia Sotomayor’s nomination to the Supreme Court [...
Rawhide!
Posted on June 01, 2009Remember the lawsuit pitting the Naked Cowboy against the Mars candy people? Well, the Cowboy rides again — out in the direction of that sunset into which he rode (bareback), in fact, filing suit against Clear Channel, alleging that one of their radio stations misappropriated his mark...
Likelihood of Revelation
Posted on May 28, 2009I will be off the grid due to the two-day observance of the Jewish festival of Shavuoth, the celebration of the Revelation that made the Jews the “chosen nation,” starting tonight through Saturday night. I’ll be back next week, and will continue to reveal all.
Channeling Mr. Rogers
Posted on May 27, 2009“I have always wanted to have a neighbor just like you,” crooned Mr. Rogers for all those afternoons. Well, evidentially it’s mutual, and then some. Michael Kinsell, it seems, as always wanted to be a neighbor, just like — I mean, just like — Mr...
TTAB to dirty trademark applicant: “Go.”
Posted on May 26, 2009We see again that the ill-defined “scandalous” criterion for rejecting trademark registration applications — and not merely those involving hot-button ethnic slurs — lives, as John Welch reports (not safe for work, and, really, for home either — why not just read my nice version right here?): In the Board’s latest Section 2(a) rulings, Applicant RK [...
Towel Day, see?
Posted on May 25, 2009Cyberlaw Central has Blawg Review #213. The theme is “Towel Day.” You have to be there, I guess. With a towel.
Tanked?
Posted on May 24, 2009Cartier 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...
No fan of DANGO
Posted on May 22, 2009Connie Loizos wrote a piece with the kind of headline just guaranteed to get a link from this blog: Trademark Battle Reaches Height of Ridiculousness: As TechFlash reports, seven-year-old Jobdango, a Portland-based jobs site, suddenly wants three-year-old search engine startup Zoodango to find a new name after it successfully pressured another startup, Goddango, to drop its [...
Blawg Review
Posted on May 20, 2009Tamera Bennet brings us Blawg Review #212. Two-one-two — that’s the ancient and venerable New York City (now, only Manhattan) area code. Tamera is in Dallas, though. But I always said Texas was the New York of the South, so, there you go...
A shanda all around
Posted on May 20, 2009We reported the Woody Allen right-o-publicity lawsuit arising from “that billboard” when it was filed April. This billboard: Yeah, oy. And now, it’s settled, for $5 million. That’s not chopped liver, especially when you consider that it’s more than the lifetime gross of five of his last ten movies...
Trademark blogoids
Posted on May 19, 2009Blogoids? Tablogs? It could happen! After all, look how we got the word “tabloid.” Did you ever think about what an odd name that is for a newspaper that’s guilty of no more than being immensely simpler to read than obsolescing dinosaurs such as “broadsheets”? Well, yes, it is odd...
Seattle. Trademark lawyers.
Posted on May 19, 2009At Mike Atkin’s place in Seattle, all kinds of law bloggers, but mostly trademark ones, got together tonight in honor of all being rained on in the same place for the annual INTA Festival of Expense Accounts. Here are two of them. Yes, that’s Randazza on the right (Marc, Marco, whatever) — not in the picture, [...
Google adwords hell breaks loose. Yay!
Posted on May 14, 2009The Google / ad words / trademarks story, long a mainstay of LIKELIHOOD OF CONFUSION®, may end up needing a blog of its own, so don’t be surprised if you see less and less coverage of it here. (I just resent stories that outgrow me.) We’re almost there...
Enabling defeat
Posted on May 13, 2009Michael Hall talks about the trademark application that said too much: [Imagine a]n examining attorney has just pulled a new application. It?s a safe bet that one of the very first things he or she will do is visit the applicant?s website to see whether and how the applicant is using the applied-for mark...
McBummer
Posted on May 11, 2009I’ve written before about the odd cultural juxtaposition of McDonald’s and the Muslim world. It turns out I don’t know the half of it! Now McDonald’s has lost its effort to extend its monopoly of “Mc”-family trademarks in Malaysia, which bucked the colonialist-lackey trend of extending American-style “McFamily Values” to the rest of the globe: The [...
Branded for life
Posted on May 08, 2009BrandlandUSA Blog: Here are our Top 19 stories so far this year. More people are concerned with the ugliness of the new Kraft logo than anything else. Really? More than the Tropicana debacle?
Keeping it real — the ultimate use in commerce
Posted on May 07, 2009The TTABlog® reports, again, on the fraud issue, but that’s not what interests me here so much this time. Rather, it’s the question of the lifecycle of a trademark’s “use in commerce” status when plotted against that of a specific product which may no longer be manufactured, but which arguably may have trademark significance...
Vo-do-de-o
Posted on May 06, 2009The Trademark Blog reports on the dispute between ICED VOVO v ICED DOUGH VO. The song is here. Just try to stay in your seat!
My readers aren’t geeks!
Posted on May 05, 2009But as a matter of professional due diligence, they should at least still be aware of the 64 Things Every Geek Should Know (via Evan Brown).
“The Facebook Police” and likelihood of confusion
Posted on May 04, 2009There are more developments on social-networking brand management, as you would expect. Nick O’Neill at the All Facebook Blog writes: This morning I got an email from the owner of the ?Cristiano Ronaldo? public profile stating that he had been disable[d] after attracting over 2...
It’s the thought that counts?
Posted on May 04, 2009I’ve talked about the odd issues of “fraud” in the trademark context here and here. It’s a mess. Jeremy Phillips of IPKat and TTABlogger John Welch, reports the latter, “shared the microphone on an IP Think Tank podcast (here) last week, mainly discussing the issues of bona fide intent and fraud and how they may impact [...
Blog hurts
Posted on May 01, 2009Do you read blogs so much it hurts? The Government is here to protect you! see more Lolcats and funny pictures
Tweetmark infringement
Posted on April 30, 2009When I essentially retired from Twitter a few months ago (it’s all the rage!), I did so by politely bidding farewell to my 500 or so “followers” and then scattering the whole cloud of them by canceling my Twitter account. I then counted to five… and quickly re-registered for Twitter using the same name...
Orange you glad you’re such mullahs?
Posted on April 29, 2009William 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 [...
Father of all Blaw Reviews
Posted on April 28, 2009Blawg Review #209 is a quirky tribute to a great American.
Gutless in San Francisco?
Posted on April 28, 2009Threat Level: U.S. District Judge Marilyn Hall Patel?s contempt for the media is widely known by the San Francisco tech press. Patel, a Carter appointee, presided over the Napster trial in one of the smallest courtrooms in the San Francisco federal building ? despite unsuccessful press pleas that the high-profile case be moved to a substantially [...
Magnesium ad nauseum
Posted on April 27, 2009Ryan Gile reports that it’s Coke vs. Pepsi on behalf of their sport-drink proxies, Gatorade and Powerade: Coke?s advertising . . . makes the claim that Gatorade is “missing two electrolytes” ? calcium and magnesium ? that are found in Powerade...
The Sound of silence
Posted on April 24, 2009Michael Atkins is beside himself with intellectual-property-enforcement frustration about the use of an image of the Seattle Space Needle — a tall pointy building what they have there instead of skyscrapers — on the logo of some foreign-sport team called the Sounders: Which of course brings me to trademark law...
Turn the other one? Or liberty? Or death?
Posted on April 23, 2009Right — we will resolve these all here and now. Key issues. Fish or cut bait. Or we most assuredly will all hang separately! The Daily Mail reports, ” Cheeky team applies to use ‘Obama’ as a European trademark“: A group of enterprising Spaniards is set to win the European trademark rights to a word with instant [...
Trademarks, the Internet and people
Posted on April 22, 2009Here’s a nice feature on my friend Ellen Shankman, the go-to gal for trademarks in Israel. Two key quotes: “The Internet has changed the landscape in ways that are impossible to overestimate,” she goes on. “E-commerce growth has fueled the rapid growth of counterfeit goods sales online...
Florida: A nice place to visit, but…
Posted on April 20, 2009Internet Solutions operates recruiting and Internet advertising businesses, including one called VeriResume. Tabatha Marshall runs a blog and website at www.tabathamarshall.com that monitors “phishing,” including dubious job pitches. One section of the blog focused on VeriResume, and the various users posted comments criticizing VeriResume...
“Liberals Against the First Amendment”
Posted on April 19, 2009Marco Randazza again, this time on naked state-backed censorship at the University of Massachusetts: The UMass conservative organization, the Silent Majority, publishes a newspaper called ?The Minuteman.? The most recent issue of The Minuteman exposed some financial irresponsibility in another student organization, Bridges (an organization that is supposed to spend its funds to tutor minority students), [...
The three C’s
Posted on April 19, 2009CNN, copyright and censorship? It is a kind of censorship, I think we can say by now, to cynically use the copyright laws to shut down embarrassing publication of obviously non-infringing works. It’s particularly ugly when media outlets do it, though...
From the highest yardarm
Posted on April 17, 2009Techmeme / New York Times: A court in Sweden on Friday convicted four men linked to the notorious Internet file-sharing service The Pirate Bay of violating copyright law, handing the music and movie industries a high-profile victory in their campaign to curb online piracy...
“Mr. Lincoln, call your agent!”
Posted on April 17, 2009“I have been to the mountain and I have secured the rights to the promised land!” The AP reports that the pimps family of the Rev. Martin Luther King Jr. got $800,000 for “the use of his words and image” on the national memorial to his memory on the National Mall — another story I’ve [...
The best of the best. Of the bestest.
Posted on April 14, 2009Only Marco Randazza can put certain things in certain ways — and on those occasions when he’s actually right (like when he’s discussing law and not politics! ;-)), man, he’s right on. Well, he’s right on today. As Marco explains in his not-quite-safe-for-work post, a man called Morgan, whose name only ironically reminds us of [...
Virtually alive
Posted on April 13, 2009It’s Passover, and as Jewish tradition teaches, the Exodus implicates issues of resurrection — of which there’s been a lot at LIKELIHOOD OF CONFUSION® lately! First we had the update on an early LOC item, the Gibson guitar case. Now further developments related to “I read dead people’s email,” the attempt by parents of an [...
Candy-coated popcorn, peanuts and a prize! That’s what you get from –
Posted on April 13, 2009Roller derby! Quinn Heraty reports on the trademark battle to make us forget SPAM v. Spamarrest – the CRACKERJACK derby: Frito-Lay has filed an opposition to the registration of Crackerjack?s trademark with the USPTO. Crackerjack is [the professional name of] one of the founders of the Mad Rollin? Dolls roller derby league and is the president of the [...
Wherefore art thou trademark use?
Posted on April 08, 2009I wrote a couple of days ago — and once again got hit hard by a learned commenter who disagrees with my view of the matter — about the Second Circuit’s ruling in the Rescuecom v. Google case that keyword advertising can be trademark use giving rise to an action to infringement...
Don’t be stupid
Posted on April 08, 2009Paraphrasing the poet and writer Don Williams, Jr.’s words about fame and riches: ?Defamation and retainer fees are fleeting. Stupidity is eternal? In other words, in most cases, the only thing worse than defamation is poorly-lawyered defamation action...
Likelihood of extrusion
Posted on April 08, 2009Reprinting my annual Passover post, scrubbed and cleansed and covered with vinyl shelf paper for this year: This year Passover takes up two weekdays, Thursday and Friday, and abuts against the Sabbath, so I’m “out of pocket” through Sunday and essentially on mission-critical-only duty for most of the rest of next week, too...
Write This Way
Posted on April 07, 2009People always want to know about the value of a successful blog for lawyers. They want insight, tips, theory, strategy, and sometimes they ask me for those things, because they think I have a successful blog. And perhaps I do. What I often tell them, however, is that they first have to come to terms with [...
Second class on the First Amendment
Posted on April 06, 2009The Administration believes bloggers can’t be trusted with free speech the way everyone else is, it seems. Reports FT.com (hat tip to Marco): Advertisers in the US are bracing themselves for regulatory changes that they fear will curtail their efforts to tap into the fast-growing online social media phenomenon...
Second Circuit and the whole of the law on confusion
Posted on April 06, 2009This is big, but stay calm. Though I hardly can. I took some heat a little while ago for suggesting, contrary to my generally skeptical view of what constitutes trademark use in commerce (a legal premise of infringement), that there’s something very flabby about the argument that the use of trademark-protected words as search terms by [...
Reflecting Fool
Posted on April 03, 2009George M. Wallace, better known to law blog readers by virtue of his Declarations and Exclusions blog, moons us all and has published an “extra” April Fool’s Blawg Review Appendix on the first of the month. Extra, meaning there was another one already, right? Right — the moon, after all, only reflects the greater glory of [...
How to describe a Catch 22
Posted on April 02, 2009Michael Hall considers the PTO’s “Heads I Win, Tails You Lose” policy on trademark registrations used as evidence to refuse new applications on the basis of “descriptiveness”: [T]he Office routinely relies upon them in issuing merely-descriptive refusals, yet when an applicant introduces third-party registrations to support its position, the Office will often dismiss them with a [...
Avast ye social networker file-sharers!
Posted on April 01, 2009The Sweden Pirate Bay trial is long over, and the verdict is due in a couple of weeks. But even if you didn’t think it was safe to go back in the water yet, Marty Schwimmer links to this story, suggesting double-decked linkin’ and sinkin’ liability for Facebook due to a new “feature that makes [...
While my guitar gently weeps
Posted on March 31, 2009One of the first posts on LIKELIHOOD OF CONFUSION® was about Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 70 UPSQ2d 1911 (M.D. Tenn. 2004), and the question of whether “only a Gibson guitar can make a Gibson-looking guitar.” Not long after that decision came down, Gibson’s rival Fender filed for what it now [...
I enjoy being a trademark lawyer
Posted on March 27, 2009John Welch at the TTABlog® has up what even he acknowledges is an “excit[ing]” post, in which he both imagines himself a woman and quotes this lively Trademark Trial and Appeals Board opinion excerpt concerning the resolution of the Chippendale’s dancer-boy trademark appeal I discussed a while back: Judge David Bucher ...
Virtually Aimee
Posted on March 26, 2009Virtually Blind, a blog by Benjamin Duranske focusing on legal issues in virtual reality, reports (via IBLS): Second Life?s ?Aimee Weber? (Alyssa LaRoche) recently became the first avatar with a registered trademark. The application for the registered mark was filed February 18, 2007 approved for publication July 7, and published for opposition August 14...
The generic agony of defeat
Posted on March 24, 2009The best LIKELIHOOD OF CONFUSION® blog item title ever was evidently wasted — and I’m sorry I didn’t keep you quite so up to date on this — but, as Ryan Gile reported less than two months ago on the case featuring the “my name is Coca and I am a cola; what’s the problem?” [...
Comments from another blog; or, Did I get chocolate in Marty’s peanut butter?
Posted on March 24, 2009Marty, you got peanut butter in my chocolate! You’re considering the respective design and layout choices in isolation, seriatim, rather than looking at the whole and acknowledging, hey, peanut butter cups! Having said that: I acknowledge that this is a borderline case...
Manners and morals for counterfeit hearts
Posted on March 23, 2009Susan Scafidi: When complimented upon a counterfeit watch, should one confess its nefarious origins or simply say “thank you”? Philip Galanes’ “Social Q’s” column in the Sunday New York Times approaches this question as all good etiquette lessons do, by confronting the perplexed party with a point of view he hadn’t considered...
Tide, logic turns on eBay counterfeit cases
Posted on March 23, 2009Choose the quote that was actually attributed to a leading business magazine: ?If Ford shoulders too much of the burden, its ability to wring a profit from the sales of cars with easily-ignited gas tanks could be compromised,? wrote BusinessWeek. ?If the financial institutions shoulder too much of the burden, their ability to wring a profit from [...
Whistle while you cringe
Posted on March 20, 2009Dave Wieneke asks: Can the Seven Dwarfs of Menopause not be infringement? Note that this is the version up on Dave’s site. There are others out there, relatively less safe for work. But maybe not misspelling psycho. Or dwarfs. Not that I’m going to bring that up, exactly, you know...
Key decision
Posted on March 19, 2009?Google makes money not by reason of the nature of the keyword, but by someone clicking on the keyword,? Google lawyer Alexandra Neri told a 15-judge panel of the European Court of Justice in Luxembourg today. ?The decision to click or not to click belongs to who — clearly to the Internet user...
Statutory damages in copyright, and the Tenenbaum case
Posted on March 18, 2009Statutory Damages and the Tenenbaum Litigation: Doug Lichtman out at UCLA sends this along: Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out [...
Download it fast
Posted on March 17, 2009Brian Ledbetter finds the mother of all copyright hornet’s nests on YouTube. He says it’s a masterpiece, too, but it’s only a matter of time — second, probably — before it’s pulled.
Properly classified — there’s no significant doubt
Posted on March 15, 2009CORY DOCTOROW: Obama administration: releasing details of secret copyright treaty endangers ?national security?. Er, what? Good question, Instapundit. Click through — the original story is here, at Wired. But you can really see all you need to see by reading the letter from the Administration responding to the Freedom of Information Act request for disclosure [...
New “knockoff news,” TM prosecution blog
Posted on March 11, 2009Rob Holmes, anti-counterfeiting investigator to the stars, has revamped and retooled his blog — check out his Knockoff Report: News & Views in the World of Anti-Counterfeiting. Also, I see Michael Hall of Fairfax, Virginia has set up a blog focusing on trademark prosecution called Registration Ruminations...
Oy vey
Posted on March 09, 2009Consider the other side of the aggrieved vandalism promoter Shepard Fairey, of HOPE poster fame: Gawker: “Obey” Trademark Law: Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the [...
And miles to go before I sleep
Posted on March 09, 2009Robert Frost? Well, no, it’s Yehuda, he of the rhyming versions of Lanham Act and such. He’s rolled out the UK Copyright Law, in verse, and hey, you could do verse. What better way to enjoy intellectual property on this, the eve of Purim, the holiday that celebrates LIKELIHOOD OF CONFUSION!
Get out of jail, postage due
Posted on March 06, 2009Bob Ambrogi reports on some cease-and-desist follies involving GET OUT OF JAIL FREE and Mr. Monopoly, which of course are the intellectual property of the Monopoly people over at Hasbro. As could be expected with a friend’s blog, I put in my two cents in his comments; here I flesh ‘em out for a penny [...
Call for Papers: Cardozo’s IP 9th Annual Intellectual Property Scholars Conference
Posted on March 03, 2009Destroy!
Posted on February 26, 2009Computer security expert Ben Rothke on data destruction: In today’s litigious environment, there are a plethora of aggressive lawyers who would love to devour your organization for failure to take due care around document and media destruction. He makes that sound like a bad thing!
NJ Law Journal tutorial on online illegality
Posted on February 26, 2009Is what Walter Olson calls a “How-to guide for harassing websites” that’s ” disguised as a perfectly respectable legal article in the New Jersey Law Journal”really just a primer on cyber-terrorism that you can try at home?
Nothing gained?
Posted on February 25, 2009Sam Bayard sums up “thoughts on the Jones Day-BlockShopper Settlement”: So what did Jones Day get out of the settlement? Not much actually. BlockShopper agreed not to use “embedded links” back to the law firm’s website...
News to me
Posted on February 25, 2009The Brooks Pierce law firm in North Carolina has a blog called the Newsroom Law Blog: The contributors to Brooks Pierce’s Newsroom Law Blog comprise our firm’s newsroom practice group, which includes Mark Prak, Charles Coble, Charles Marshall, Elizabeth Spainhour and Eric David...
The other side of anonymity
Posted on February 24, 2009What happens when it’s the plaintiff that is anonymous, and wants to stay that way?
“Innovative” not a quality?
Posted on February 23, 2009Michael Atkins reports: On Feb. 13, the Federal Circuit reversed Western District Judge Marsha Pechman’s denial of judgment as a matter of law in Baden Sports, Inc. v. Kabushiki Kaisha Molten, 541 F.Supp.2d 1151 (W.D. Wash. 2008), relating to the jury’s award of $8,054,579 for false advertising under Section 43a of the Lanham Act...
Intellectual property and its digestion
Posted on February 20, 2009Back and forth in in social networking space — I digest some key ingredients of intellectual property as it applies to famous burgers (reprinted with Ivan’s permission): Ivan Kevin Alexander Today at 10:35am Hi Ron, I had an interesting IP question/hypo that’s been weighing on my mind the last couple of days...
The bitter billable hour
Posted on February 19, 2009Is lawyer time billing a great big scam? The Bitter Lawyer says it is. I’m not so sure it is and I say so in the comments there, which unfortunately are not permalinkable. So hurry up and read it.
Avvo ranks us
Posted on February 18, 2009From the Avvo Blog: [W]e threw together this auto-updating list of over 300 legal blogs ordered by their Alexa traffic ranking. Now you can: - Know who has the most popular legal blog based on objective, third-party data. - Understand why blogs rank where they do...
About Face
Posted on February 18, 2009The New York Times reports the latest on the Facebook “license” story: After a wave of protests from its users, the Facebook social networking site said on Wednesday that it would withdraw changes to its so-called terms of service concerning the data supplied by the tens of millions of people who use it...
“The most dangerous libel decision in decades”
Posted on February 17, 2009That’s how Robert Ambrogi describes this decision, as reported by Sam Bayard: Last Friday, the First Circuit Court of Appeals upended the generally accepted notion that U.S. defamation law does not impose [defamation] liability for truthful statements...
Vikings and pirates at sea, and you don’t need a Weatherman to know which way the wind blows
Posted on February 16, 2009Pirate Bay, the massively growing file-stealing file-sharing website, is on trial in Sweden: Four men linked to The Pirate Bay were charged early last year by a Swedish prosecutor with conspiracy to break copyright law and related offences. . . . The group that controls The Pirate Bay, launched in 2003, says that since no copyrighted material [...
Administrative Note
Posted on February 16, 2009Yes, this is the same blog. I had to switch back to the old theme for a couple of weeks — I’ve been having some trouble with WordPress “widgets.” A recent change to a new database and reinstallation, however, may have solved the problem.
The magnificent seven
Posted on February 15, 2009Blawg Review at the East Central Illinois Criminal Law & DUI Weblog: Today, we will find our inspiration in the seven deadly sins: lust, gluttony, greed, sloth, wrath, envy and pride. Without further ado, here are your submissions shoehorned into these categories...
Top 11 List
Posted on February 12, 2009Take a look at the “Top 11 Cyberlaw Developments of 2008″ on the Technology & Marketing Law Blog.
Ha, ha. Hey kids!
Posted on February 12, 2009M-I-C — Cease and desist! K-E-Y — Why? Because we caught you! M-O-U-S-EEEEEEEEEEEEEE!
Hello world!
Posted on February 10, 2009Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!
Super ice cream!
Posted on February 09, 2009Interesting licensing choices, Carvel ice cream store Originally uploaded by Ron Coleman They did license this, right? Of course right. What with all that advertising diligence.
Very popular in France
Posted on February 09, 2009Mike Masnick: Google is being fined hundreds of thousands of euros for allowing certain trademarked [sic] words to have advertisements run against them. It’s hard to see how this makes any sense at all. First, unless the ads are designed to confuse someone, there should be no question that ads against a competitor’s keywords are perfectly legal...
Don’t be evil, much
Posted on February 07, 2009It was bad enough that the government has gone “in house” on copyright issues. Now not only is the government looking more and more “bought” on this, but the “Don’t be evil” kids — again, via Glenn — also continue to confirm everyone’s worst fears...
Copyright-wingers at the top
Posted on February 06, 2009Sorry about all the politics, but this Slashdot item about the infiltration, via Joe Biden, of RIAA and BSA lawyers into the White House (via Insty) doesn’t bode well for the kind of “progressive” change on copyright law even a political right-winger such as your blogger may have been hoping for in Washington...
Iconography
Posted on February 05, 2009Last week it was the O-Team preparing for lighting raids on Obama-brand-equity rustlers. But maybe the Obama Administration needs to set its own White House house in order, as the AP reports that the AP is coming after President Obama for its piece of icon pie...
Canada: Courts can distinguish TM fraud from error
Posted on February 04, 2009Larry Munn: The Federal Court recently made clear that Canadian law does not recognize a rule equivalent to the U.S. doctrine of fraud on the trademark office, pursuant to which any material misstatement in the processing of a registration renders the entire resulting registration void...
He’s the genuine item, all right
Posted on February 04, 2009He’s already the most sincere, if not the swiftest, trademark counterfeiting defendant* of 2009, and though it’s only early February it may be hard to top Poynette, Wisconsin’s Vincent Konicek for a certain kind of earnestness and, well, um, some other sort of special quality that you just can’t … replicate: Rolex … filed a federal [...
The “Fair Use Massacre”
Posted on February 03, 2009Fred von Lohmann of the EFF calls out YouTube: Fair use has always been at risk on YouTube, thanks to abusive DMCA takedown notices sent by copyright owners (sometimes carelessly, sometimes not). But in the past several weeks, two things have made things much worse for those who want to sing a song, post an a [...
“Yes we brand”!
Posted on January 31, 2009Bloomberg News reports that “my generation”’s President is every bit as thoroughly modern as you’d expect. In other words, no unauthorized drawing down of his icon-equity will be permitted: White House lawyers want to control the use of the president’s image, recognizing the worldwide fascination about Obama’s election, First Amendment free-speech rights and easy access to [...
“Sue now, explain later”
Posted on January 29, 2009This is something to worry about: Straws in the wind: as federal courts use the welcome new pleading standards to dismiss more weak lawsuits at an early stage, plaintiff’s counsel grow discontented and talk begins to be heard of efforts to restore the sue-now, explain-later regime that prevailed earlier...
Smokin’!
Posted on January 28, 2009Here’s a whole blog dedicated to “Cigar Law” — quite a bit of which is trademark.
Jiggering it out at the PTO
Posted on January 27, 2009Oh, to be a hip, Jewish intellectual… property owner. Stick with me here. A while back I was following the story of the PTO’s refusal to register the mark NIGGA. As I put it then: Forget ?immoral or scandalous,? which, as we have said before, is an increasingly hopeless position for national government to take on almost [...
What the First Amendment isn’t
Posted on January 25, 2009Eric E. Johnson published this last fall regarding the pathetic misunderstanding of what free speech does, and doesn’t, mean: Ben Stiller stars in the DreamWorks picture ["Tropic Thunder"] as a struggling actor, the high point of whose career is taking on the role of a man with mental retardation, seen as a film-within-the-film...
Adverference?
Posted on January 22, 2009Working 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...
Authorized?
Posted on January 22, 2009This better be, because The Force isn’t going to cut it for you these days!
Legal in Phoenix, liable in Central Islip
Posted on January 21, 2009My client S&L Vitamins and I just suffered a devastating loss in its Eastern District of New York litigation against Australian Gold (now owned by a holding company called New Sunshine, LLC) after a five-day jury trial on claims by AG for tortious interference with contract and trademark infringement...
“We cannot allow our brand to be abused”
Posted on January 19, 2009Originally posted on November 13, 2008: “We cannot allow our brand to be abused.” What “brand” is that? The Rev. Dr. Martin Luther King, Jr. brand. The greed of the King “branders” was one of the earliest, and is still one of the most popular, posts on LIKELIHOOD OF CONFUSION®, and it’s rearing its really unbecoming [...
Here, read this
Posted on January 18, 2009While I’m busy with this Long Island jury, which — bless their souls — seems to be in for a longer shlep than they may have expected, I can at least send readers to the December Quick Links on Eric Goldman’s Technology & Marketing Law Blog...
Counterfeit arguments
Posted on January 18, 2009Every year around Super Bowl time I post an item about the NFL’s overzealous efforts to impose a gridiron grip on all aspects of its somewhat valuable SUPER BOWL trademark: In 2007, the NFL tried to claim ownership of the euphemism of choice for the Big Game, THE BIG GAME Later that year, someone picked up on [...
Goodbye, dolly
Posted on January 17, 2009Pamela Chestek reports on the dizzying fallout of the Bratz litigation.
The second time as farce
Posted on January 12, 2009On the occasion of the S&L Vitamins v. Australian Gold trial starting Wednesday, I’m reposting what I wrote here six months ago about the first of these these jointly evil twin litigation matters, conducted in appropriately welcoming environs, in which our client is entwined: O’Connor federal courthouse Originally uploaded by Ron Coleman Yesterday I was here, in [...
“Truth made you a trader, as it often does in a time of scoundrels”
Posted on January 11, 2009And it is words such as these that follow that are the first refuge of trademark scoundrels. If you are a trademark attorney, sit down for this. This is that sinking-feeling-inducing quote, just those words you don’t want to read that your client, the owner of New York’s Gristede’s food markets who just opened an [...
Trademark Insanity Awareness. Day.
Posted on January 10, 2009Congenital Diaphragmatic Hernia! It’s a serious condition, but… what about it? Techdirt explains: BoingBoing has the latest story of trademark insanity, where a “charity” focused on the rare, but apparently serious disease of Congenital Diaphragmatic Hernia (CDH), is trying to trademark [sic] the phrase “Congenital Diaphragmatic Hernia Awareness” and appears to be threatening other charities for using [...
S&L v. Australian Gold: You, the Jury
Posted on January 08, 2009Here’s S&L Vitamin’s Trial Brief for the trial scheduled for next week in the above-entitled cause. 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...
New online “IP Clearinghouse” from Stanford
Posted on January 07, 2009The Chicago IP Litigation Blog put me onto Stanford Law School’s new IP Litigation Clearinghouse. This is a neat site. While not completely built out, it lets users (registration required) quickly access IP case information, organized by type of case, forum, or law...
I can’t stands no more!
Posted on January 06, 2009The Popeye copyrights are now in the public domain in Europe. That’s copyright, not trademark. As Mark Owen, an IP lawyer at the UK firm of Harbottle & Lewis is quoted as putting it: The Segar drawings are out of copyright [yes, that's how they put it over there -- RDC], so anyone [...
Blogi-what?
Posted on January 05, 2009Usually around this time of year LIKELIHOOD OF CONFUSION® remarks on its “blogiversary,” the story of which is not at all tiresomely set out somewhere on Dean’s World, the blog named after Dean Esmay, the leading blogger whom I thank every year for encouraging me to begin this blog but whose permalinks, alas, have gone [...
No copyright in the fact of your existence
Posted on January 02, 2009Whether someone else’s movie includes your building in Times Square (a properly defunct trademark claim) or, as Marty Schwimmer reports, your pinball machine in the corner of the room, being an IP jerk — at least in front of U.S. District Judge Denny Chin — will only get you so far: [T]he movie ‘What Women Want’ [...
Best of 2008: “Mourning Sonny” (November)
Posted on January 01, 2009Posted on November 17th: No, not that Sonny. No, rather this: If America’s most famous variety-show-star-turned-congressman hadn’t slammed into that tree on that fatal day of downhill skiing, we’d probably never have the Sonny Bono Copyright Term Extension Act of 1998...
Best of 2008: “‘Scandalousness’ Remains a Lightning Rod at the TTAB’” (September)
Posted on December 31, 2008This was posted on September 24th: John Welch reports on an interesting, not quite safe for home viewing case called Boston Red Sox Baseball Club Limited Partnership v. Brad Francis Sherman in which the TTAB sustained an opposition to a trademark brought by the Boston Red Sox, owners of the RED SOX mark, regarding a mark [...
YouTube, the IDF and the truth
Posted on December 30, 2008YouTube is at it again, or something. We’ve blogged before and even taken to the airwaves to discuss the political abuse of YouTube’s terms of use, the copyright laws and the trademark laws. YouTube seems to have a great deal of tolerance for pretextual use of supposedly content neutral rule systems that just happen to slow [...
Best of 2008: “Revival of the Dead” (July)
Posted on December 29, 2008First posted on July 31st. Just this morning a client told me about this company, River West Brands, that finds ways to obtain some semblance of the “rights” in abandoned consumer-products trademarks and “revitalize them for modern relevance, reconstruct the business model for today?s marketplace, and ultimately return these brands to the consumer...
Best of 2008: “Designer Skin v. S&L Continued: ‘S&L had a perfect right to sell this product’” (July)
Posted on December 29, 2008This was first posted on July 18th: Unfortunately for future defendants in the position of our client, Internet retailer S&L, U.S. District Judge James Teilborg’s decision from the bench in the District of Arizona dismissing the damages claims of suntan lotion manufacturer Designer Skin will not be officially published, being an oral opinion...
Best of 2008: “‘Diversion’: Threat or Menace?” (June)
Posted on December 28, 2008This was posted on June 25th: ‘Diversion’ Originally uploaded by Ron Coleman We have written before (as have some judges) about the dubious concept of “diversion,” usually used to rationalize the equally dubious concept of “initial interest confusion,” as well as in cases where claims for tortious interference with contract have been used as a way to protect [...
Best of 2008: “Cowboy rules”
Posted on December 28, 2008This was first posted on June 24th: From the National Post, trademark news about a lawsuit brought by New York’s charming Naked Cowboy against the makers of M&M’s and its ad agency. The story is in Canadian, but you can still more or less make it out: Robert Burck, a New York street performer who entertains [...
Best of 2008: “The Long and Rocky Road” (May)
Posted on December 27, 2008This was first posted on May 7, 2008. Irvin Robbins, the co-founder of the Baskin-Robbins ice cream chain, died yesterday. Here’s how much time has passed since just about the time your blogger was born, in ice cream marketing years: When the Beatles were to arrive in the United States in 1964, a reporter called to [...
Best of 2008: “The Color Purple” (April)
Posted on December 26, 2008This was first posted on April 14, 2008. Cadbury is purple in the face over not being able to secure the wordlwide exclusive rights to the use of the color purple in association with the sale of chocolate — even as against an Australian company that’s been using the two together for almost a century: Cadbury tells [...
Best of 2008: “‘Consumer fraud’: The New Online Speech Control Law?” (March)
Posted on December 25, 2008This was first posted on March 19, 2008. Get this: New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students. Language on the site ranges from catty to hateful and offensive...
Best of 2008: “No Social Networking Privilege” (February)
Posted on December 24, 2008This was originally posted on February 24, 2008: On Point reports that a New Jersey federal magistrate has, to the surprise of no actual attorney I could imagine, ruled that MySpace and Facebook postings and other social networking communications are discoverable in civil litigation...
Best of 2008: “Other People’s Money” (January)
Posted on December 23, 2008Originally published on January 8th. WSJ.com’s Law Blog reports about the seven-figure effect in the Central District of California for a one-minute-late filing: A judgment in favor of [Morrison & Foster's] client was entered on Sept. 26, giving Toshiba?s attorneys 14 days - until Oct...
Blawg Review #191
Posted on December 22, 2008LIKELIHOOD OF CONFUSION® is privileged to host the Blawg Review of Lights on this festive night! ?? ???? ???! That is, Happy Chanukah! Yes, the fundamental narrative of Chanukah is black-letter: Chanukah celebrates the victory of the Maccabees, a small band of Jewish patriots, over the mighty armies of Syrian King Antiochus...
Call for submissions: Blawg Review of Lights
Posted on December 18, 2008LIKELIHOOD OF CONFUSION® is hosting the upcoming Blawg Review, which, like this blog, is not nearly as good as it was this year, but which will always be special to us here. As Ed mentions, we were the brains behind Blawg Review #2 back in the days of old, but we’re rededicating ourselves to kindling [...
MasterCard card. Card card. Card.
Posted on December 17, 2008A reader writes to New York Times Q&A guy Stuart Elliot with a question that’s on a lot minds: What’s with this “Mastercard card” stuff you hear on the commercials? There are, evidently, two answers, the second of which was LIKELIHOOD OF CONFUSION®’s guess and the first of which is… well, here, read it for [...
IP infringement scrabbed
Posted on December 17, 2008The Scrabulous case has been settled! According to court documents, the case was voluntarily dismissed at the request of the plaintiffs. Neither the Agarwalla brothers nor Hasbro were available for comment, but a statement posted late Monday on the Lexulous site declared that “Pursuant to the settlement, RJ Softwares has agreed not to use the [...
Grey and not so good
Posted on December 16, 2008Yesterday’s Wall Street Journal had an extensive article on about companies that “borrow” trademark equity, or purported equity, from others to build their brands, pushing the edges of fair use and perhaps then some. Marty Schwimmer has some multimedia backup (ok, well, talking heads) on this case, too.
Stand up for your right to blawg review!
Posted on December 15, 2008And who better to speak for that right than that right-is-never-right civil libertarian, gadabout and new da-da, my chum Marc Randazza, who’s hosting this week’s Blawg Review with a highly appropriate Bill of Rights Day theme keyed, in all probability, to Marc’s celebration of the expansion of free speech and civil rights to the people [...
Something different on our plate
Posted on December 15, 2008Today 100-plus New Jersey bloggers (LIKELIHOOD OF CONFUSION® works in New York but lives — and has an office of course!) in New Jersey) are blogging, and trying to raise awareness, on behalf of the struggling New Jersey Community Foodbank. We posted about this over at Likelihood of Success.
Never on a Sunday
Posted on December 14, 2008Maybe Google just couldn’t find this story on the Internet? Uh… on little-known Interwebs site, Instapundit?: THE END OF OBJECTIVITY AT GOOGLE? ?Google this week admitted that its staff will pick and choose what appears in its search results...
Who anticipated THAT?
Posted on December 12, 2008Anticipate This!, a fun patent blog (yeah, we know!), celebrates a milestone, and thanks all his IP-bloggy friends.
Anonymous penumbras; submerged emanations
Posted on December 12, 2008Glenn 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...
Land grab
Posted on December 11, 2008General practitioners and even civilians can file their own trademarks if they want to, and it frequently works out okay. It usually is not the, how do you say?, rocket science. Yes, there’s good, better and best, but sometimes good is good enough...
eBay, Vero and the Scientologists
Posted on December 10, 2008Last February Scott Pilutik, an aggressively anti-religion blogger and lawyer, posted this excellent piece about the abuse by the Scientology cult of eBay’s VeRO program, which eBay waves around to show what it’s doing to combat counterfeiting on the Internet (though of course the courts have mainly relieved it of having to do much of [...
Likelihood of enthusiasm
Posted on December 09, 2008Here’s a notice regarding our lust for life from C.C. Holland at Law.com: The litmus test for whether you should start a blog boils down to passion, says Kevin O’Keefe, CEO of professional blog service LexBlog and a blogger himself. “I think every attorney should consider blogging, [but] if you don’t have a passion for the [...
eBay appeal: The gang’$ all here
Posted on December 09, 2008Eric Krangel reports that Amazon and Google join in on the Tiffany v. eBay appeal: It’s not hard to see where the interest is coming from: A ruling against eBay could have ramifications for Amazon Marketplace or Google Checkout as well. Yes, ramifications indeed...
Blawg Review: Colin Samuels’s class act
Posted on December 08, 2008At Infamy or Praise, tales of an ancient mariner: For my first three Blawg Reviews, I’ve let Dante lead me through Hell, Purgatory, and Heaven. Inconsiderately enough, however, Il Maestro never completed a fourth cantica for his Divine Comedy, leaving me stuck for a theme this time around...
Acquiring distinction
Posted on December 05, 2008Tim, of the JoshueTree blog, asks a great question in the comments to this post: Can one of you help me?I?m a confused Trademark student. If they already have protection under 2(f) ["acquired distinctiveness'] - and I visited the website, they have a section about their trademark policies that’s quite impressive?anyway, I?m confused as to why a [...
Color me infringing
Posted on December 04, 2008Trademark law continues to slip from its moorings in subtle ways. From Inside Higher Ed (hat tip to its editor, Doug Lederman, for sending it along): On Wednesday, the U.S. Court of Appeals for the Fifth Circuit ? ruling in a case involving an apparel manufacturer that made T-shirts that incorporated the colors but not the [...
EFF backs eBay in Tiffany spat
Posted on December 04, 2008See, we don’t agree with Public Citizen all the time! Read on, via the Electronic Frontier Foundation (EFF): [EFF] along with Public Citizen and Public Knowledge urged a U.S. court of appeals Wednesday to reject jewelry-maker Tiffany’s attempt to rewrite trademark law and create new barriers for online commerce and communication...
Tackiness not grounds for refusal to register
Posted on December 01, 2008Otherwise, why would John Welch be reporting this appeal?: December 4, 2008 - 10 AM: In re Chippendales USA, LLC, Serial No. 78666598 [Refusal to register the apparel configuration shown below for "adult entertainment services, namely exotic dancing for women in the nature of live performances" on the ground that the design is not inherently distinctive]...
Lori Drew and you
Posted on November 30, 2008We’ve written a sort of roundup touching on some of the issues implicated by the Lori Drew “MySpace suicide” prosecution and verdict over at the Media Bloggers Association Legal Blog.
Trademarks with all the trimmings
Posted on November 27, 2008The U.S. Patent and Trademark Office Joins in the Celebration of Thanksgiving: The Department of Commerce’s United States Patent and Trademark Office joins in the celebration of Thanksgiving by recognizing some patents and trademarks associated with this festive holiday...
Defamation nation
Posted on November 26, 2008We know a little about defamation law, but Adrianos Facchetti appears to be the go-to man in the blogosphere, so from now on, ask him! He writes the California Defamation Law Blog, which does not appear to be limited, topically, to California law, and which includes pages called Defamation Basics and Blog Protection 101...
Louisiana’s lawyers’ guild
Posted on November 25, 2008Last 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 [...
Beyond fair use
Posted on November 24, 2008We’re a little obsessed here with the rights of “unauthorized” resellers to use the trademarks that describe the stuff they’re reselling. So this UK domain name decision strikes us as extra-interesting (a link added): Pressure gauge maker ITT failed in its claim for the domain name ITTbarton...
Nolo contendere
Posted on November 23, 2008There can’t be any dispute: This is a blog a lot of people, and especially non-specialists, should read — Nolo’s Patent, Copyright & Trademark blog by Rich Stim. He answers basic questions with great insight and a full appreciation of the issues and resources...
Consider yourself enlightened
Posted on November 23, 2008Michael Atkins, the Pacific Northwest’s trademark blogging doyen and, known to very few, one of America’s legendary masters of the theremin, has published a list of Considerations in Drafting Trademark License Agreements in connection with his upcoming CLE presentation, which you can read about here.
J.D. Supra, Facebook …. and the Word
Posted on November 21, 2008Bob Ambrogi: The document-sharing site JD Supra is launching an application for Facebook today that lets its members stream their documents and professional profile information into their Facebook profiles. This means that if you contribute documents to JD Supra, you can get additional exposure by having them show up in Facebook...
Jones Day keeps chillin’
Posted on November 19, 2008Public Citizen’s Paul Alan Levy reports: A few weeks ago, I commented on the efforts of mega law firm Jones Day to abuse trademark law to suppress articles it didn?t like on a real estate transactions web site, BlockShopper.com. Jones Day claims that linking to its web site without permission infringes and dilutes its trademark...
Mourning Sonny
Posted on November 17, 2008No, not that Sonny. No, rather this: If America’s most famous variety-show-star-turned-congressman hadn’t slammed into that tree on that fatal day of downhill skiing, we’d probably never have the Sonny Bono Copyright Term Extension Act of 1998...
The thing speaks for itself
Posted on November 17, 2008Blawg Recenseo est procul Res Ipsa Blog! NB (ut opes notabilis “note well“): Nos should totus have habeo Latin nomen pro nostrum blogs. Ut would restituo veneratio quod integrity ut professio , quod enhance publicus contemplor nobis. (Blawg Review is at the Res Ipsa Blog! NB (that means nota bene): We should all have to have Latin [...
Weblog awards
Posted on November 17, 2008We never win, so it’s not about that. The reason must be because we write about sub-niche topics here which for some reason not everyone finds fascinating. But you can nominate and vote for your favorite law blogs, and other blogs, in this year’s Weblog Awards.
Fool’s gold
Posted on November 16, 2008The Internet changes everything right? Not this: A fool and his money — especially the kind paid to consultants — are still soon parted: Pre-Internet, lawyers would do their best to flesh out the backgrounds of people who might sit in the jury box...
A little knowledge is a dangerous thing
Posted on November 16, 2008Knoxnews.com reports: Unsuccessful state House candidate Roger Byrge is suing Republican Rep. Stacey Campfield for libel. Byrge, a Democrat who lost his East Tennessee race by fewer than 400 votes, filed the $750,000 lawsuit against Campfield in Jacksboro this week...
Social networking your way to summary judgment
Posted on November 15, 2008That’s summary judgment, or worse, against you or your client. Last February we reported on a decision in which a federal magistrate judge ruled, unsurprisingly, that there is no “social networking privilege.” Now Walter Olson reports and links on further developments and thoughts as follows: Nowhere to hide: When your litigation opponent subpoenas your Facebook, Amazon, [...
Blogosphere news
Posted on November 15, 2008It’s not all about us, you know. For example: Stephen Nipper has a page with links to free text of the opinions in all of the past US Supreme Court patent law cases. How awesome is that? Ok, it would be a little more impressive if he had future decisions...
Lego loses
Posted on November 13, 2008We reported on Lego’s overreaching years ago here and here. They tried to use trademark rights as a way to protect the design of their toy and avoid competition. But that is not what trademarks are, much less what they are for. And now, barring a successful appeal, a European court has ruled that the [...
“We cannot allow our brand to be abused”
Posted on November 13, 2008What “brand” is that? The Rev. Dr. Martin Luther King, Jr. brand. The greed of the King “branders” was one of the earliest, and is still one of the most popular, posts on LIKELIHOOD OF CONFUSION®, and it’s rearing its really unbecoming head once again in light of “the sudden wave of T-shirts, posters and [...
Just trying to be Objectivist!
Posted on November 13, 2008We’re not libertarians at LIKELIHOOD OF CONFUSION®, but when it comes to regulation of economic resources we do kind of swing that way. And we’re kind of stumped about what to think about the issue. Thankfully, now there’s Eric S. Raymond’s “Net neutrality: what?s a libertarian to do“? Excerpt: One of my commenters asked, rather [...
How secret can secret be?
Posted on November 12, 2008For an actual federal litigation case currently about to go to trial? Very secret.
Mooning off into the sunset
Posted on November 11, 2008The lawsuit by the Naked Cowboy against candymaker Mars has been settled. Terms are undisclosed, the filing of a stipulation of dismissal with prejudice a sorry fig leaf over this tawdry affair.
Google and the bookmakers
Posted on November 11, 2008Remember the Google book-scan lawsuit? No, we hadn’t either; we hardly even remember books. But thanks to Jaded Topaz we’re reminded, as she sends along word that it’s been settled: Here?s what happened: Yesterday, in what some say is the biggest book deal in U...
All a-Twitter
Posted on November 10, 2008What is Twitter? How does it work? Why on earth would a lawyer want to get involved in such a thing? Don’t ask us. Ask Nicole Black!
((*GONG*))
Posted on November 06, 2008When we were in high school — this is the late ’70’s and early ’80’s — the old-fashioned institution of the high school “talent show” was transformed into “Gong Shows,” based on the cheesy 1970’s TV hit by Jewfro pioneer Chuck Barris, now recycled, as all remotely serviceable Hollywood ideas are, for moderns...
Ads for pirates
Posted on November 05, 2008Imagine a world where producers and owners of TV shows, movies and the not only upload full-length copyrighted video content onto the Web in the full knowledge that it will be ripped off, but welcome the prospect? Why not, if they can sell advertising on the programming? MySpace and Viacom International-owned MTV Networks today moved to resolve [...
Democrats to institute government monitoring of media
Posted on November 04, 2008Already giddy with the power they expect to be delivered to them today, Democrats are promising to reinstate government control of public communication to insure what political appointees determine is “fairness” and balance: Asked if he is a supporter of telling radio stations what content they should have, [Sen...
Grok this, why dontcha
Posted on November 03, 2008Via Denise Howell (via Facebook via Twitter, really… or is it the other way around… gosh…) Weird Al Yankovich reveals the unsurprising fact that despite its pride in bringing us many aspects of the worst popular culture has to offer, MTV has its limits in terms of free expression — when it comes to the [...
False light no problem for Jews for Jesus
Posted on October 31, 2008Jews for Jesus*, a litigation-happy racket that not only bases its religion business entirely on LIKELIHOOD OF CONFUSION but for whom misrepresentation and falsehood defines its entire enterprise, has once again pushed the First Amendment in a direction that works for it and avoided legal sanction for its unethical, but legal, way of utilizing other [...
Business-process patents? Maybe not.
Posted on October 31, 2008A twelve-judge panel of the Federal Circuit has dealt the concept of business-process patents what appears to be a significant blow in In re Bilski, a case decided yesterday: “We hold that the applicants’ process as claimed does not transform any article to a different state or thing,” the majority opinion said...
Hershey’s keeps pushing it
Posted on October 30, 2008And as usual, Marty’s on top of it like chocolate sauce on vanilla ice cream. Hershey’s (Hershey’s’s?) pushing of the wrapper, foil and all, is one of our regular obsessions here. You know, someone ought to do something about these guys…
Stop by Cardozo for lunch and get a tan!
Posted on October 29, 2008Our [ahem, adjunct] law professor days are behind us, it appears, but we’ll be giving a presentation at the Intellectual Property Law Society at the Benjamin N. Cardozo School of Law tomorrow on the topic of how intellectual property law is being used and abused in the service of anticompetitive practices...
Nomenclature matters
Posted on October 27, 2008It matters what you call things, and how you use words. Why? Because if enough people who should know better use the word “trademark” as a verb enough times — you’ll get stupid stories like this: Although Microsoft Corp. registered the Web site for its new Windows Azure more than 14 years ago, it has not [...
He don’t lie, he don’t lie, he don’t lie…
Posted on October 27, 2008Marc “Hussein” Randazza — who hardly needs extra stimulants in his life right this second — brings his “A game” to this very thorough consideration of the failure of the applicant for COCAINE as a trademark for soft drinks to overcome a PTO refusal to register on the grounds that the mark is … you [...
UK eBay seller sues buyer for negative feedback
Posted on October 25, 2008That really takes chutzpa. But it’s an odd choice for the seller, who would seem to have acknowledged the buyer’s complaint by refunding his money. (That’s “seem” — it need not be the case at all.) On the one hand, of course, UK libel law is a lot more plaintiff-friendly than that in the U...
Copyright infringement mecca?
Posted on October 24, 2008That term, courtesy of the MBA’s Andie Schwartz (who sent the link) could apply to the whole Internet, but it seems particularly appropriate for describing this development: The elimination of the ten-minute limit on videos posted to YouTube: “YouTube is a clip culture,” says Jordan Hoffner, YouTube’s director of content partnerships...
Quote-unquote-copyright
Posted on October 23, 2008Gordon Firemark reports on this very troubling story: Independent label Quote Unquote Records? website was recently taken down by its web hosting provider, after the label couldn?t produce copyright registration certificates for songs posted on its website in mp3 format...
You bet your BIPO!
Posted on October 22, 2008Here’s a new patent blog from J. Matthew Buchanan of BIPO. Recent posts: Patent Law Year in Review - Preparing presentation for DunesCLE in Las Vegas 21.10 Our green and cost-effective letterhead hack 29.09 My $7 I-forgot-my-business-cards insurance policy 24...
Cache me if you can
Posted on October 20, 2008Eric Goldman has good — well, somewhat mixed, but more good than not good — trademark infringement news for search engines and other Internet players that use thumbnails: This lawsuit squarely revisits the ground covered in the Field v. Google case, which Google won for 5 different reasons–including that anyone who posts content to the web [...
Likelihood of conclusion
Posted on October 20, 2008We won’t be online for a couple of days because of the last of the Jewish festival days of the season, Shemini Atzeres and Simchas Torah. See ya!
Copy-resistant “Intellectual Property Colloquium”
Posted on October 17, 2008Here’s another new way to get CLE credit from your computer: Doug Lichtman, a UCLA law professor, has put together the Intellectual Property Colloquium, a series of learned discussions about IP law between Lichtman and other leading-edgiest of guys...
Looking smarter
Posted on October 16, 2008An interesting development on the search-engine trademark infringement beat: In a weird development that looked impossible two years back, search engine giant Google Inc. last week agreed to cooperate publicly with Click Forensics, a click-fraud detection company with which it has had a rocky relationship...
Someone dropped in an extra zero, right? RIGHT?
Posted on October 16, 2008It’s a month-old story, and how it got past us here notwithstanding, it’s not getting past us now. Per the ABA Journal, remember the Bratz litigation? Well, you haven’t read half of it yet: Two toy companies battling for rights to the Bratz dolls-with-attitude have racked up legal fees of at least $93 million in the [...
YouTube, the DMCA and politics — again
Posted on October 15, 2008Slashdot reports: It appears that CBS and Fox have submitted DMCA takedown notices to YouTube for videos from the McCain campaign. The campaign is now complaining about YouTube’s DMCA policy making it too easy for copyright holders to remove fair-use videos...
Come, blawgers, let us reason together
Posted on October 13, 2008Tune into this week’s Blawg Review at the Mediation Channel: It’s not merely “settling”!
Selling counterfeit DVD’s on 34th Street
Posted on October 12, 2008Selling counterfeit DVD’s on 34th Street Originally uploaded by Ron Coleman While the IP-equity lobbyists are appointing copyright czars and planning endless dragnets against college students and their grannies, counterfeit media properties ripped off from major studios are sold openly on the corner of 34th Street and Seventh Avenue, with utter impunity, and, it seems, every day.
Think pink?
Posted on October 10, 2008Think pink In a nearby Duane Reade: Pink-tinged Mint Milanos by Pepperidge Farm. You’re supposed to know that the pink on the package means raising money for breast cancer. Breast cancer owns pink. But what you’re thinking as you scan the point-o-purchase is, “They put some strawberry or something in the cookies...
Steal your plate
Posted on October 10, 2008The 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 [...
Electric… what?!
Posted on October 07, 2008From the TTABlog® — not the brightest argument in the legal chandelier: Applicant Electric Visual Evolution argued that “the term ‘electric’ is not commonly used by the general public to describe a source of power for watches,” ...
Slap on the cuffs!
Posted on October 07, 2008Nicole Black has written a very interesting article about how new media and social networking brush up against the New York penal code. Even if you’re outside of New York — it happens — the issues should be of interest, since most other states also have laws against crimes, as well as computers hooked up to [...
Regrets, I’ve had a few
Posted on October 07, 2008But then again, too few to mention. The problem, of course, is someone else mentioning them. Google says it has the solution: When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math [...
Dozier Internet Law: The Internet’s loose legal cannon
Posted on October 06, 2008They’re back: A Virginia lawyer used intimidation and bullying tactics, including spurious trademark infringement and defamation claims, to shut down a Web site that criticized him, Public Citizen argues in lawsuit filed against the lawyer and his firm...
Legal aspects of blogging
Posted on October 03, 2008General practice and other non-bloggy lawyers seeking an introduction to legal aspects of blogging can now get one, along with continuing legal education credit in California, Illinois and New York, from Lawline, the web-based CLE provider. The online introductory presentation, which in fact is called “Legal Aspects of Blogging,” is given by the MBA’s [...
Secure your place among innovators — read Blawg Review
Posted on October 02, 2008This week’s edition of Blawg Review is at Securing Innovation! And what could be more innovative, or more secure, really, than the item at the top of the post: The good old ball-point pen, in honor of this week’s birthday of Laszlo Biro! It’s worth clicking Blawg Review if only to learn what the name of the [...
AOL and blogging — uh, no.
Posted on October 02, 2008Jacqui Cheng writes at Ars Technica that AOL, perhaps in many ways the cultural antithesis of the blogosphere as Internet companies go, is making the logical move of getting out of any pretense of being a player as a blogging platform: The two services being cut are AOL Journals and AOL Hometown...
Bull market
Posted on October 01, 2008Are trademark filings really an economic indicator? This is from the Philadelphia Inquirer (via David Ardia, who cites Marty.) Glenn Gundersen . . . [a] trademark and copyright lawyer at Dechert L.L.P. has been tracking trademark filings since the early 1990s...
Scrabbled in India: Copyright no, trademark yes
Posted on September 29, 2008No time to blog on the eve of Rosh Hashana, but we had to pass this development in the Scrabulous story on before the sun begins its descent: Mattel, which owns the international rights to Scrabble, said today it would appeal last week’s court ruling in India that the Scrabulous online word game did not violate [...
For copyright, a crown
Posted on September 28, 2008Last 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...
A back seat for copyright
Posted on September 26, 2008Let’s get apolitically political here (via Instapundit, Mr. Diversity himself): An informal national coalition of Internet pioneers and users with widely divergent political views will issue a letter Friday morning calling on John McCain and Barack Obama to open the remaining debates completely to the public domain...
Sue this way
Posted on September 24, 2008The AP reports (via Mrs. LOC again!) a pretty unusual intellectual property (well, let’s say abstract property) lawsuit involving bloggers. Steven Tyler, the man who made Mick Jagger’s lips look those of Frank Burns, is suing anonymous bloggers who have posted blogs purporting to be written by him and which are evidently very invasive: In a [...
Social networking for… the rest of us
Posted on September 24, 2008This, via the Avvo blog … via Facebook (not so ironically): Are you befuddled by Twitter? Not sure if you should be on Facebook? Carolyn Elefant, a noted expert on setting up a solo legal practice, recently released an e-book entitled Social Networking For Lawyers (download available)...
“Scandalousness” remains a lightning rod at the TTAB
Posted on September 24, 2008John Welch reports on an interesting, not quite safe for home viewing case called Boston Red Sox Baseball Club Limited Partnership v. Brad Francis Sherman in which the TTAB sustained an opposition to a trademark brought by the Boston Red Sox, owners of the RED SOX mark, regarding a mark we will not name here [...
Freelance tips
Posted on September 23, 2008Goyishe Kop sends along a link to this piece on legal tips for freelancers. What’s not to like?
Key shift
Posted on September 22, 2008Google has long played fast and loose with the sale of key words, leaning this way or that but claiming to have content- or politically-neutral rules of general application. Like a good big new media company, it may ultimately make whatever changes it has to get the heat off it, but it seldom acknowledges it [...
Another black eye for Starbucks
Posted on September 22, 2008Has there ever been a more star-crossed brand maintenance campaign than that of that troubled leftover from the dot-bomb days, Starbucks? No respect in Korea… embarrassed in Africa… cross-branding eye-crossing in Manhattan… compromising in Arabia… and now this: Looks like the Rat City Rollergirls will get to keep their logo after all...
Ninth Circuit: eBay not a portal to jurisdiction
Posted on September 17, 2008We spill a lot of pixels here blogging about the question of just how transparent, nay ethereal, eBay is as, say, a facilitator of transactions premised on trademark infringement, such as the sale of counterfeit goods. Regular readers know we’re somewhat wed to the suggestion that eBay knows enough, makes enough and controls enough to [...
A Jones for masochism
Posted on September 16, 2008What, Jones Day doesn’t know about trademark law? Hardly thinkable. Well, maybe it doesn’t know that in the Internet age, you can’t send comically meritless cease and esist letters on the assumption that the recipient will merely curl up and die when he gets it? No, Jones Day has to know that...
Thelen’s accelerated schedule
Posted on September 12, 2008Grim branding days at Thelen Reid Brown Raysman & Steiner! What do you do when you’re called Thelen Reid & Priest, having once been Thelen, Marrin, Johnson & Bridges and having changed your name after merging with Reid & Preist, and you like how that went so much that you figure why, let’s do it [...
Build American! Or hire good lawyers.
Posted on September 11, 2008When it comes to manufacturing, it’s all about price, right? Brand management and licensing gurus Oliver Herzfeld and Richard Bergovoy beg to differ, writing in Managing Intellectual Property that a casual attitude toward offshore manufacturing could end up costing a fortune in brand equity: In a brand owner’s worst nightmare, goodwill that has taken years to [...
Go chutzpa!
Posted on September 10, 2008GoDaddy, better than anyone, realizes that the margins in domain sales are slim and getting slimmer. Economics teaches us that in a perfectly competitive market, there is no profit in the long run. Domain registration is rapidly approaching that level of efficiency...
In real life, Voldemort sometimes wins
Posted on September 08, 2008The decision has come down in the J.K. Rowling lawsuit against the authors of the Harry Potter Lexicon, which we reported on most recently here. Outcome: Not fair use, but copyright infringement. Judgment for plaintiff, upon a very detailed and well-reasoned opinion (on first scan)...
Chasing confusion
Posted on September 08, 2008Chasing confusion Originally uploaded by Ron Coleman This explains why it’s so hard for the rest of us to get legal work from Chase.
Which exit did we get off, again?
Posted on September 07, 2008Well, maybe we’ve been too hard on the Democrats here at LIKELIHOOD OF CONFUSION®. Perhaps unlike the GOP, they’ve got good, progressive IP counsel out there, and maybe an Obama Administration will take a more realistic view of what you can and can’t do on the Internet...
U.S. District of Arizona: “No automatic injunction upon a finding of copyright infringement”
Posted on September 05, 2008Not that the plaintiffs in the Designer Skin case didn’t get an injunction: They did (here it is); a narrow one utilizing proposed language by defendants explicitly permitting S&L to use its own photographs of Designer Skin merchandise on its website (see the prior post)...
Fat lady sings: Findings of Facts and Conclusions of Law in Designer Skin v S & L Vitamins
Posted on September 05, 2008The District of Arizona ruled today in a case we defended through trial and have reported on here extensively. The decision is here; the minute entry on the electronic docket reads as follows: FINDINGS OF FACT AND CONCLUSIONS OF LAW - that S & L Vitamins has infringed Designer Skin’s copyrights in the electronic renderings of [...
Likelihood of somniloquy
Posted on September 04, 2008The New York Times: ?Trademark is the sleeping giant of intellectual property,? said Paul Goldstein, a professor at the Stanford law school. Who’s sleeping? No one sleeps around here, believe me.
M-I-C . . . see you in court!
Posted on September 03, 2008Could there be a mouse hole in Mickey’s larder? The Los Angeles Times reports: All signs pointed to a Hollywood ending with Disney and Mickey Mouse living happily ever after - at least until a grumpy former employee looked closely at fine print long forgotten in company archives...
New LinkedIn group for law bloggers
Posted on September 02, 2008Having recently had a pleasant experience beginning an alumni group on LinkedIn, we thought it might be a fun idea to have a group for law bloggers. That’s about the best rationale we have for it, okay? It could be a fun idea. “A fun idea...
Football Redskins live to fight another day
Posted on September 02, 2008This story won’t die — especially judging from the prominence of related words among search terms that reach this blog. The latest, which we missed when it came out in July and we were otherwise engaged, is that the NFL’s Washington Redskins again prevailed in a lawsuit brought by a group of American Indians, but [...
As if malpractice weren’t its own reward
Posted on August 31, 2008Steve Nipper notes a number of changes in the US Patent and Trademark Office’s regulations that make it really obvious what a bad idea, and how sore they will be, if a non-patent-admitted attorney or other agent tries to get a piece of the patent action in any form...
The Copyright Act: It’s a law, dude
Posted on August 28, 2008We don’t mince words at LIKELIHOOD OF CONFUSION® regarding the misuse of copyright and trademark, but we’re having trouble finding anything wrong with this at-first-blush shocking story from the Reuters “news agency”: Federal officials on Wednesday arrested a man on suspicion of violating copyright laws for placing songs on the Internet from an unreleased [...
Even the MSM has to worry about free speech sometimes!
Posted on August 27, 2008These days you’d think perhaps — maybe from reading this blog — that free expression, commercial or otherwise, were solely an Internet issue, and the MSM is mostly on the other side of it, hiding behind some pretextual body of law or another...
Tiffany update
Posted on August 25, 2008Susan Scafidi reports: If Dad says no, ask Mom. And if the Federal District Court for the Southern District of New York says no, ask the 2nd Circuit. As expected, Tiffany has filed a notice of appeal of its loss last month to eBay in a lawsuit alleging, among other things, that eBay should bear more [...
Slamming the DOORS
Posted on August 25, 2008History repeating and all, ya know. First time, tragedy. Second time — farce.
We are the world
Posted on August 21, 2008A classic explanation, via the case method, of trademark law’s doctrine of foreign equivalents: Affirming a Section 2(d) refusal, the Board found Applicant’s mark AMMIRAGLIA for “wines, sparkling wines, liqueurs,” likely to cause confusion with the registered mark FLAGSHIP for vodka...
Shot to Dell
Posted on August 18, 2008Dell’s CLOUD COMPUTING trademark application has gone up in a vapory mass of smoke: Dell cannot register “cloud computing” as a trademark because the term is a generic one describing services offered by many companies, the U.S. Patent and Trademark Office (USPTO) has said in an initial ruling...
Running on empty
Posted on August 14, 2008Urk. Remember when I told you the GOP was getting lousy IP advice? It hasn’t gotten better: Singer, songwriter, liberal activist and now John McCain scourge Jackson Browne filed a lawsuit today against the presumptive GOP nominee and the Republican Party for failing to obtain a license to use one of his songs in a television [...
“Free license” doesn’t mean free to do what you want
Posted on August 14, 2008Larry Lessig (links added): So for non-lawgeeks, this won’t seem important. But trust me, this is huge. [T]he Court of Appeals for the Federal Circuit (THE “IP” court in the US) has upheld a free (ok, they call them “open source”) copyright license, explicitly pointing to the work of Creative Commons and others...
We’re from the government, and we’re here to help
Posted on August 13, 2008Would Barack Obama’s election lead to revival of the “Fairness Doctrine” — and if so, how would that affect bloggers, who basically didn’t exist as of the last time the Fairness Doctrine governed political speech in the media? The FCC’s chairman, Robert McDowell, suggests that bloggers wouldn’t be too happy about such a development...
Tank you very much
Posted on August 13, 2008Ryan Gile reports that Cartier is upping the ante on its efforts to assert its IP rights in the “Tank watch,” shown below, and has sued Donna Karen over its knockoffs of El Tanque. This is interesting to LIKELIHOOD OF CONFUSION®, because we have some background in watch trademark work and represented Cartier in what seems [...
Tiffany’s escalates it
Posted on August 11, 2008A peeling machine. Tiffany’s is, not surprisingly, appealing the decision dismissing its claims against eBay.
And worth every penny!
Posted on August 11, 2008Free (and apolitical) IP advice for bloggers over at Right Wing News.
The ultimate license
Posted on August 07, 2008We’ve written before about the preposterous concept of asserting that stuff you buy is really just a “license” you buy. Well, here’s something even “better” — and while it may make users fume, it may be completely legal, and it doesn’t require judges, statutory damages or even any kinds of lawyers to work: Apple apparently can [...
Dell’s cloudy IP planning
Posted on August 07, 2008Has anyone figured this out? Dell’s newly-acquired trademark for the term “cloud computing” may have all the durability of a glass hammer, meaning it will shatter the first time they try to use it. The law is not exactly on the company’s side in this argument...
Copywrong
Posted on August 05, 2008Copyright doyen Bill Patry explains why he shut down his brilliant copyright law blog. Some of it had to do with his inability to prevent people from ascribing his personal views to his employer, Google. Some of it had to do with a sort of spiritual exhaustion (despite being a pretty spiritual guy)...
Blawg review settles
Posted on August 04, 2008In a way: See this week’s edition at Victoria Pynchon’s IP ADR Blog!
Let’s brand together and make a BRANDED COMMUNITY!
Posted on August 01, 2008Another one: A blogger on ZDNet had a post about “enterprise communities” where the phrase “branded community” was used. That’s a descriptive use and a perfectly reasonable one. Yet, the owner of some marketing firm wrote a semi-threatening letter claiming to hold the trademark on “branded community” and demanding that the blogger “refrain from using the [...
Revival of the dead
Posted on July 31, 2008Just this morning a client told me about this company, River West Brands, that finds ways to obtain some semblance of the “rights” in abandoned consumer-products trademarks and “revitalize them for modern relevance, reconstruct the business model for today?s marketplace, and ultimately return these brands to the consumer...
Birds gotta fly, fish gotta swim
Posted on July 29, 2008Liability insurers gotta deny coverage: As the Trademark Blog reports, American Guarantee & Liability Insurance Co. is balking at the prospect of paying any part of the $305M judgment Adidas America, Inc., obtained against Payless Shoesource, Inc...
Likelihood of persuasion
Posted on July 28, 2008Rick Hasen expresses understandable concern over a footnote in a recent Supreme Court opinion suggesting that a certain set of studies is not worthy of consideration because it was “litigant-funded.” Here’s the footnote: The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting [...
How many points is INFRINGEMENT?
Posted on July 27, 2008We had been wondering who had the “Z.” Now the other tile drops, and probably right onto a triple word score — Hasbro, owner of the SCRABBLE trademark, has sued Scrabulous: The general manager for digital media and gaming at Hasbro said yesterday that the company had waited until there was a “legal” version of [...
A beauty, a doll
Posted on July 25, 2008The WSJ Law Blog reports: A federal jury in Riverside, Calif., determined Thursday that MGA Entertainment?s hugely popular Bratz dolls (pictured left) were designed while the designer worked for Barbie?s home, Mattel Inc. . . . [I]t?s a big win not only for Mattel but also for Mattel?s attorneys, a team led by John Quinn of Quinn [...
Imagine no religion
Posted on July 24, 2008Guy makes a video parodying the deification of Obama Barack, and posts it on YouTube. Looks like it hit a little too close to home. After a slew of complaints of hurt feelings by His ministering angels, the video has now been put beyond a registration wall by Google on the grounds that it is, [...
Fake this book
Posted on July 23, 2008Facebook is looking over its shoulder at the competition, and doing what comes naturally for succesful businesses based on a model, if not a technology, fundamentally simple to replicate: Suing the competition for IP infringement: Facebook filed a complaint last Friday accusing [social networking site] studiVZ of copying the look, feel, features and services of [...
Knockoff News is smokin’!
Posted on July 22, 2008Susan Scafidi treats us to a hot-summer edition, volume 80 to be exact, of Knockoff News over at Counterfeit Chic!
Eat hot cross buns!
Posted on July 21, 2008Instapundit: THE MUSIC INDUSTRY PICKED ON THE WRONG MOM.
DMCA days
Posted on July 21, 2008Mike Masnick on a key question: Whether copyright fair use, no matter how obvious, may be ignored by a would-be copyright owner when sending a DMCA takedown notice that but for the fair use defense is “reasonable”: The DMCA has provisions for a copyright holder to assert ownership, at which point the service provider needs to [...
10th Cir. on DJ’s in TM
Posted on July 20, 2008The DeMoines firm of McKee Voorhees & Sease has a very interesting looking IP blog called Filewrapper®. Here they report on a Tenth Circuit case clarifiying the applicable standard for declaratory judgment jurisdiction in trademark infringement cases: The court held that the “reasonable apprehension of suit” standard [previously] applied in trademark cases was supplanted by [...
Designer Skin v. S&L continued: “S & L had a perfect right to sell this product”
Posted on July 18, 2008Unfortunately for future defendants in the position of Internet retailer S&L, Judge James Teilborg’s decision from the bench dismissing the damages claims of suntan lotion manufacturer Designer Skin will not be officially published, being an oral opinion...
Grand Old Persecution
Posted on July 17, 2008Paul Alan Levy sends this along: The latest abuse of trademark law to suppress discussion of topics of substantial public interest comes from not from a company, like most of the trademark abuses previously discussed on this blog, such as here and here, but from the Republican National Committee, which has threatened to sue CafePress...
Designer Skin v. S&L Vitamins trial update
Posted on July 17, 2008The 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...
Trial call
Posted on July 16, 2008Phoenix eve Originally uploaded by Ron Coleman Unbelievable day at trial in the Designer Skin v. S&L case yesterday. Maybe we’ll talk about it some day. Let’s see how today goes! Have me in mind…
eBay wins Tiffany case
Posted on July 14, 2008Reuters reports that Tiffany’s gamble has not paid off: EBay Inc scored a major legal victory on Monday, when a federal judge ruled that Tiffany & Co failed to prove the online auctioneer was responsible for the sale of fake Tiffany jewelry on its website...
Can you ring the unrung bell?
Posted on July 14, 2008LIKELIHOOD OF CONFUSION® has recently run up against the following issue in litigation and welcomes views from the house. We think we’re on the right side of it, but there’s no question some courts have waved it away, though not usually with a lot of analytical rigor: It is known to be a common practice [...
Locking it down
Posted on July 10, 2008Every lawyer who practices in the intellectual property area is asked frequently how to go about protecting a unique or creative idea that someone fears is at risk of being stolen by a prospective investor, partner or advisor to whom early disclosure is necessary...
There must be some kind of way out of here
Posted on July 09, 2008But mediation isn’t it — in the Jimi Hendrix vodka case, that is, which Mike Atkins has been all over since last year, as we reported back then. No settlement, says Mike now; back on a litigation track. The hour’s getting late!
Forward, into the past
Posted on July 09, 2008Eric Goldman reports on a couple of cases that are doin’ the Time Warp — again: It’s not uncommon for courts to make judgments based on outdated understandings of precedent and technology, especially when dealing with dynamically evolving areas like Internet trademark law...
VeRO takedown — but not the usual way
Posted on July 08, 2008“A home-based seller of handmade crafts has won a trademark lawsuit by default against an artwork licensing giant,” reports AuctionBytes: Jennifer Heist makes handmade collectible fabric crafts, such as checkbook covers, photo holders and bookmarks, and sells them online and at craft shows...
Read Blawg Review or be a Commie
Posted on July 07, 2008Jonathan Frieden’s E-Commerce Law blog hosts this week’s Blawg Review! Don’t think less of him just because he’s done a rally - round - the - flag theme, in which he picks the best or, in the case of New York, most financially undercompensated law blogger in each state to honor with a link...
Blame it on chain
Posted on July 05, 2008You’d think a catalog page is 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 [...
Viacom discovers You
Posted on July 04, 2008I wouldn’t overreact to this, because in my experience confidentiality orders work very well, but it is certainly newsworthy: A U.S. judge’s order to Google Inc to turn over YouTube user data to Viacom Inc sparked an outcry on Thursday from privacy advocates in the midst of a legal showdown over video piracy...
All the suntain lotion in the world…
Posted on July 02, 2008O’Connor federal courthouse Originally uploaded by Ron Coleman Yesterday I was here, in the stupidestly-designed courthouse on God’s brutally-baked brown desert earth — the Sandra Day O’Connor Courthouse in sunny Phoenix, Arizona...
Home cookin’ a la mode, with a most undeserving dessert
Posted on July 01, 2008From the WSJ Law Blog: A French court today cracked down on counterfeits ? and an outlet that sells them ? ordering eBay to pay Louis Vuitton and other luxury brands ? Kenzo, Guerlain, Dior and Givenchy ? $63.1 million in damages for auctioning fake goods...
Bloggers aren’t fair game in litigation just because you can
Posted on June 26, 2008There is really justice in this world, sometimes, reports David Ardia: A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. We really blew this one, blogging wise...
Trademark trouble for posturing peaceniks?
Posted on June 25, 2008Harvey of IMAO is on top of what promises to be a huge — record-setting, perhaps — IP story: While attempting to create the world’s largest peace sign, festival-goers in Ithaca, NY, created the world’s largest Mercedes sign by mistake...
License revoked
Posted on June 25, 2008Ever wonder about this new thing — where someone sells you some stuff, typically something that has some sort of copyright on it, only when you take a close look it turns out they tell you, no, they didn’t really sell it to you — they only licensed it to you? Sounds pretty ridiculous, and [...
“Diversion”: Threat or menace?
Posted on June 25, 2008‘Diversion’ Originally uploaded by Ron Coleman We have written before (as have some judges) about the dubious concept of “diversion,” usually used to rationalize the equally dubious concept of “initial interest confusion,” as well as in cases where claims for tortious interference with contract have been used as a way to protect distribution networks from Internet-based competition...
Cowboy rules
Posted on June 24, 2008From the National Post, trademark news about a lawsuit brought by New York’s charming Naked Cowboy against the makers of M&M’s and its ad agency. The story is full of Canadian spelling, but you can still more or less make this story out: Robert Burck, a New York street performer who entertains the crows in Times [...
Brandland, USA
Posted on June 22, 2008This is fun: News and history on brand preservation. BrandlandUSA? brings back America’s best-loved dead brands. Find a forgotten product. Help us save, promote and preserve historic brand names. Baby boomers, and their little brothers and sisters such as LIKELIHOOD OF CONFUSION®, insist on the never-ending relevance, nay, central significance of every popular cultural referent capable of [...
A new wrinkle in Internet privacy
Posted on June 19, 2008The Alex Kozinski dustup has everyone clucking his tongue over the seemingly inevitable march toward realization of the dictum that there is no expectation of privacy for anything going on or through the Internet. One would think that is certainly the case of text messaging, following the sad case of Kwame Kilpatrick...
China fakes reform
Posted on June 18, 2008On the eve of the Beijing Olympics — which is nothing if not a branding, merchandising and licensing bonanza to which athletes are invited — a nervous Chinese government official writes in the Wall Street Journal that that the era of Chinese counterfeiting is about to end, actually, and here’s why: How will we do this? [...
The AP, copyright, and the bloggers
Posted on June 17, 2008You can’t have missed the story, in all its agony. One weensy problem with the blogosphere: It’s so quick, so supple, so instantaneous, so plastic… that it is also reactive, and in its own way, reactionary. Its reactions have the tendency, from time to time, of pouring flames on fires, and painting parties and their antagonists [...
A stitch in time saves Nine
Posted on June 17, 2008And the converse, says the Ninth, saves nothing, reports Michael Atkins: On June 11, the Ninth Circuit upheld the Western District?s award of attorney?s fees on the false designation of origin claim in Derek Andrew, Inc. v. Poof Apparel Corp. However, the court cautioned that if the award included fees based on the Copyright Act, then the award [...
The infinite chain of being
Posted on June 15, 2008For increasingly desperate copyright holders such as the RIAA and its UK equivalent, the BPI, in the vain fight against a fatal paradigm shift it’s not just a matter of third-party liability: They want the presumptive right to shut down any physical or technological resource that could even, conceivably, result in a copyright infringement, as [...
Aw, shucks
Posted on June 12, 2008We already covered the Designer Skin v. S&L Vitamins summary judgment decision, and linked to commentators Greg Beck, Bill Patry, Rebecca Tushnet, Eric Goldman and Jason Lee Miller. But it’s positively nerve-wracking reading the commentary of someone like Evan Brown!
Mad Abboud you
Posted on June 11, 2008Ouch! The Wall Street Journal reports: A federal judge ruled that menswear designer Joseph Abboud, who sold his trademark and later left the company that owns it, can’t use his name to promote a new line he calls “jaz.” JA Apparel Corp...
Blurring away
Posted on June 11, 2008It really does appear that trademark dilution, once the darling of federal judges seeking to enforce trademark rights in gross on behalf of markholders whose brands they recognized, is getting less and less respect. Which in general doesn’t trouble us too much, though it’s not as if Starbucks hasn’t had enough undeserved aggravation on [...
Cafe-Oppress
Posted on June 10, 2008Increasingly, meritless IP claims and spineless takedown policies (always a dangerous combination) are making a Cafe Press a battleground for political speech assassination. No, it’s not a First Amendment issue; they’re a private company. Private censorship is legal, usually, and often absolutely necessary...
Certainty of Revelation
Posted on June 08, 2008We will be out of the reality-based loop (or will we?) due to the two-day observance of the Jewish festival of Shavuoth, the celebration of the Revelation that made the Jews the “chosen nation,” starting Sunday night through Tuesday night...
Bring out The Best?
Posted on June 06, 2008We’ve always been fascinated* with the concept of the lookalike packaging of “house brands” or private labels, which are usually priced a good one-third cheaper than the most popular version of the same product sitting right next to the house-brand version on the shelf...
Bag It
Posted on June 05, 2008Remember Vuitton v. Dooney? It’s over. Reports the Shiny Style blog: A judge ruled in favor of Dooney & Bourke in the trademark dispute involving their “It Bag” monogram . . . and the Louis Vuitton Monograme Multicolore collection...
Sounds good to me!
Posted on June 05, 2008Hello? Walter Olson: The patenting of software, in contrast to the patenting of chemical and pharmaceutical compounds, generates relatively high litigation costs and low benefits . . . What’s with the low benefits? It says relatively high litigation costs! What’s not to love? Oh...
Kudos to Doctorow
Posted on June 04, 2008Mr. Boing-Boing himself is rewriting the rules about creativity, copyright and keysh: Remember four weeks ago when I told you that my young adult novel Little Brother made the New York Times bestseller list? Well, I’ve just heard from my publisher that it’s about to go into its fourth week on the list, having climbed to [...
UDRP decisions firm up on gripe sites
Posted on June 04, 2008Greg Beck reports about a UDRP decision regarding a complaint filed by California’s Metrolink system over the domain name Metrolinkrider.com, a gripe site dedicated to… California’s Metrolink system: Noting a split in past decisions on the issue, the panel held that noncommercial use of a trademark in a domain name for purposes of comment or criticism [...
New quicklinks from Goldman
Posted on June 03, 2008Know what’s going on — the latest developments in trademark and domain name jurisprudence. Right here at Eric Goldman’s place! I was particularly intrigued by this: * NYT: Can a Dead Brand Live Again? This article discusses the development of a secondary market for well-recognized but defunct brands...
Baseball whiffs
Posted on June 02, 2008You’re outta here! Major League Baseball and the players association struck out on Monday when the U.S. Supreme Court rejected their appeal of a ruling that sided with a company that uses player statistics for fantasy baseball. The high court declined to hear the appeal of a lower-court ruling that a St...
Zombie on zombie action
Posted on May 30, 2008The Escapist (via Punning Pundit): In a battle that refuses to die, publisher Capcom filed a pre-emptive lawsuit against the Dawn of the Dead film owners as part of a dispute over patenting zombie action. Capcom requested a declaratory judgment against MKR productions, because, according to a Hollywood Repoter blog, it expects MKR to file a lawsuit [...
Magistrates malign magenta monopoly
Posted on May 30, 2008We reported earlier about T-Mobile / Deutsche Telekom’s attempts to assert rather far-flung trademarks rights over the color magenta. Now it appears that at least one tribunal has declined to see the world with those-colored glasses, as Engadget reports: Well, would you look at that — our good friend Deutsche Telekom seems to have lost [...
Blawg searchin’
Posted on May 28, 2008The ABA Journal, my alma mater (and immensely cooler than when I used to haunt its halls), announces that its site now has a new “blawg search” function. Indeed, right at the top of the site, there’s a search bar that gives automatically gives you results for the site and for the blawgs the [...
When worlds collide
Posted on May 27, 2008You can read about it anywhere. I’ll just give you one link — David Lat: Google vows not to settle [its case with Viacom], saying it will take the case to the Supreme Court if necessary. Let the law firms rejoice! And there was much rejoicing!
Birthday Marty
Posted on May 27, 2008John Welch: Marty Schwimmer’s Trademark Blog turns six years old this month. Marty is the grandfather of trademark blogging. I’m not sure who the grandmother is. Well, I didn’t even know six years was three generations in trademark blogging years! Is that like Moore’s Law for niche blogging? (Kind of an ironic statement, though, for [...
Likelihood of Reciprocation
Posted on May 26, 2008Our “blogroll” policy has not really changed, even though LIKELIHOOD OF CONFUSION® is bigger and better than ever, but it may be useful to clarify it, because we do get inquiries, and there have been some refinements that I just made up. And this blog is now “big” enough in our micro-sub-niche that it is [...
Kissing trademark rights goodbye?
Posted on May 25, 2008Eric Johnson’s Pixelization blog has a sweet insight into a sticky trademark mess that Hershey’s could be, theoretically, getting itself into: It’s a Hershey’s-brand three-compartment silicone muffin pan. When you bake muffins in this pan, they come out - adorably, of course - in the shape of oversized Hershey’s chocolate bars - complete with the Hershey’s [...
Ten questions on trademark application “fraud”
Posted on May 25, 2008John Welch asks ten questions about the state of the law on so-called “fraud’ on the Trademark Commissioner, i.e., the type that invalidates a trademark. This is “fraud” of the type that most people in most walks of life, including lawyers, would call… a mistake.
Online retailing and initial interest confusion
Posted on May 21, 2008We reported earlier on a related case in this area implicating the use of trademarks to sell merchandise online via “unauthorized distributors.” A new decision in this area was issued yesterday in the U.S. District Court for the District of Arizona...
A Wolf by any other name
Posted on May 20, 2008When you think of the juxtaposition of restaurants you probably can’t afford to eat in and men whose name should remind you of Mozart but really make you think of sprouting hair all over your body when the moon is full, okay… only one person comes to mind, right? Right?
The words they own
Posted on May 19, 2008There’s a learned (of course) discussion of copyright and free speech going on at Volokh. (Hat tip to Above the Law.) Says Neil Netanel: Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright...
One down, four to go!
Posted on May 15, 2008Five more years until incontestability for the bestest trademark registration ever!
American Red Cross lands right cross against J&J
Posted on May 15, 2008Johnson & Johnson started it. The Red Cross wins it: A federal judge last night ruled against Johnson & Johnson (J&J) in its suit to stop the American Red Cross from using the Red Cross emblem on first aid and other health and safety products sold to the public...
Judicial circuitry
Posted on May 14, 2008This colorful map showing which states fall into which federal judicial circuits is just plain a handy thing to have around. I am sure that, properly matted and framed, it will also make a fine gift this upcoming Father’s Day! Pinning this up near the phone just could make Pop sound pretty smart one of these [...
“Tolerated use”
Posted on May 14, 2008Tim Wu (via Glenn Reynolds) says that we have to deal with the fuzzy logic of copyright enforcement in order properly to understand how copyright is, and perhaps should be, realistically enforced: “Tolerated use” is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated use of copyrighted works...
Domain names only, please — if that
Posted on May 14, 2008When is a UDRP claim more, and less, than a UDRP claim? William Morris reports: The Panel spent considerable effort recounting the facts and allegations between the parties, which involved multiple cease-and-desist letters, offers to sell the disputed domains, filing of trademark infringement complaints with the concerned registrars, and a pending petition before the TTAB to [...
Give it a rest!
Posted on May 12, 2008John Welch reports on a case involving the would-be registration for IRESTMYCASE.COM, an attorney’s website, wherein the TTAB reminds us that a URL (website address) alone does not constitute a trademark.
Creative license
Posted on May 11, 2008David Donoghue reports on an interesting copyright issue blowing around Chicago, my home away from home: The Chicago Tribune’s Ameet Sachdev reported that an ongoing copyright dispute may be coming to a head at the corner of Michigan Avenue and Randolph Street in Chicago, click here for the Tribune article...
Adidas v. Payless
Posted on May 10, 2008ADIDAS, right? All Day I Dream About Susan Scafidi’s definitive analysis and writeup of this hot case! (Okay, Karla?!)
Goldman’s quick links
Posted on May 08, 2008Get the big picture — Eric Goldman’s roundup on technology and marketing law developments for April.
The long and rocky road
Posted on May 07, 2008Irvin Robbins, the co-founder of the Baskin-Robbins ice cream chain, died yesterday. Here’s how much time has passed since just about the time your blogger was born, in ice cream marketing years: When the Beatles were to arrive in the United States in 1964, a reporter called to ask whether Baskin-Robbins was going to commemorate [...
UDRP Blog
Posted on May 07, 2008The world needs more better blogging! So welcome, good luck and Godspeed to the youthful but wise William J. Morris, III, of Saunders & Silverstein in Newburyport, Massachusetts, evidently a master of his domain, who launched his new UDRP Blog last month!
Patent this
Posted on May 07, 2008Business method patents! I must get a call about patenting a “business method” once a month. And I’m not even a patent lawyer. And, as a not one of those guys, I often wonder — mostly when trying desperately to fall asleep on a day packed with action, adventure and stimulation such [...
All that know-chow costs some scratch!
Posted on May 07, 2008Legal Blog Watch: Pet food giant Purina is like a dog that won’t give up its bone — or in this case, its chow. Three years ago, Purina sent a cease-and-desist letter to Chow, Baby!, a Baltimore area pet supply shop and Web site owned by Robin McDonald, asserting that its use of the [...
There’s NoSpace like home
Posted on May 05, 2008At least for MySpace.com, which has lost a key domain name battle in England. According to Bell Denning, solicitors for the respondent: Both the first and the appeal decisions held that the vast majority of MySpace?s claims had no merit ? not least because the UK ISP had legitimately registered the name some 6 years [...
Bad moments in lawyer advertising
Posted on May 04, 2008Above the Law reports: Belluck & Fox is a nine-attorney law firm in Manhattan. The firm worked out a deal with the radio station that broadcasts New York Yankees games, making it the official legal sponsor of Yankee radio broadcasts. The folks at Belluck & Fox must have misread the contract though...
Copyright protection for blogs
Posted on May 01, 2008Sarah Bird explains how to do it right. She explains why she thinks you would possibly want to bother here, conveniently omitting the uncomfortable fact that — unlike Sarah Bird — most of us don’t really have to worry about the copyright in our blogs being infringed...
Imagine no gelt-crazy gazzilionaire no-talent Beatle widows
Posted on May 01, 2008Till then, though, Yoko Ono is out there.
“We also invented the color of ink”
Posted on May 01, 2008Greg Beck: This has to be in the top five dumbest copyright threats I’ve ever seen, and that’s saying a lot. I’ll agree that Greg has seen a lot, but even saying a little less — boy, is this one dumb.
Top of the heap thingy
Posted on May 01, 2008LIKELIHOOD OF CONFUSION®, it turns out, is on this new thing — Internet startup guru guy Guy Kawasaki’s “Alltop project“: We help you explore your passions by collecting stories from ?all the top? sites on the web. We?ve grouped these collections ? ?aggregations? ? into individual Alltop sites based on topics such as environment, photography, science, [...
Couture in Court
Posted on May 01, 2008Fabulous filings for fashionistas — and those who just want to look like them!
Constitution? But we’re patent lawyers!
Posted on April 30, 2008Maybe. Maybe not: The U.S. Patent and Trademark Office may have a major problem on its hands — the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges. Such a constitutional flaw, if legitimate, could call into question the hundreds of decisions worth billions of dollars in the past eight years...
Blogger beats lawyer
Posted on April 30, 2008Blogger Kathleen Seidel pushes back on the Clifford Shoemaker subpoena — all by herself, it seems — and wins.
Cardiac counterfeiting
Posted on April 29, 2008It’s not a defense to trademark infringement or counterfeiting that your heart is full of good intentions.
Managing Trademark Litigation
Posted on April 28, 2008This blog is a “media partner” sponsor for the following upcoming CLE seminar: Managing Trademark Litigation June 10 - 11, 2008 The Helmsley Park Lane New York, NY www.americanconference.com/tmlitigation Managing it? I couldn’t manage without it! Among the speakers are my former partnersBrian Brokate and Heather McDonald and my friends and colleagues Dawn Atlas, Barbara Kolsun and Stephen Feingold — all [...
The target keeps moving on keyword advertising
Posted on April 28, 2008Searchengineland: Eric Goldman reports that a US District Judge in Florida ordered an advertiser using a trademark term to use the negative keyword option, to ensure that they would no longer bid on that term in the future. The judge ordered the defendant to stop using the word “ORION” in their search ad campaigns, by adding that [...
The trendiest of trends
Posted on April 24, 2008“Green trademarks” that is. Green-themed, green-related, green to go, green for action! Well, trends aren’t just for marketers — you can find them in the media too. First, Susan Scafidi — trend-tracker extraordinaire, and, as you will see, a trend-maker too...
Mine goodness!
Posted on April 22, 2008The New York Times: The ?my? prefix has become an easy and increasingly popular shorthand for suggesting that bond between consumers and corporations. Matthew Zook of ZookNIC, a business that analyzes domain names, said domains that start with ?my? more than tripled between 2005 and 2008, to 712,000 from 217,000...
Cyber… what?
Posted on April 21, 2008“Cyberproperty”? A dubious concept, the dubiousness now analyzed and developed theoretically in this article by Michael Carrier and Greg Lastowka, via Marty Schwimmer.
Likelihood of extrusion
Posted on April 18, 2008Reprinting my annual Passover post, adjusted for days of the week as they come out this year: Just as I started hitting some kind of [blogging] pace, I’ve been hit by pre-Passover preparations, plus the need to front-load my law practice to make up for the fact that I will be “out of pocket” Sunday and [...
Ben Stein trips over IP
Posted on April 18, 2008Walter Olson: With all his lawyer chums from Milberg-witness days, you’d think Ben Stein could have saved the makers of his creationist movie from stumbling into textbook IP infringements [Myers, again, WSJ law blog]. Ouch. Ben is an odd guy.
Strange bedfellows
Posted on April 17, 2008Parlous times: John Welch endorses the International Star Registry!
Facing the music
Posted on April 16, 2008It’s war over the trademark for Facebook! Greenspan, 25, argues Zuckerberg, 23, had no right to trademark the Facebook name in 2005 because the term had been used generically for decades at Harvard University, where they first met. What is more, Greenspan maintains he used the term “Face Book” as part of an online service called [...
Chip off the old block
Posted on April 14, 2008Is the Patent and Trademark Office the new venue for gossip-column developments? It appears so: According to public filings, Ivanka Trump recently withdrew applications to [register the] trademark [for] her own name after her father/boss [short-fingered vulgarian Donald Trump] signaled his intent to oppose her effort...
The color purple
Posted on April 14, 2008Cadbury is purple in the face over not being able to secure the wordlwide exclusive rights to the use of the color purple in association with the sale of chocolate — even as against an Australian company that’s been using the two together for almost a century: Cadbury tells me it is ?vigorously appealing? against a [...
Stacking the deck
Posted on April 14, 2008The National Law Journal, understandably skeptical about the U.S. News rankings, does its own analysis. UPDATE: Huh! And they aren’t the only ones: For many prospective lawyers, the best strategy may be a careful evaluation of the regional job market in the area of the country where they want to work...
A lawyer’s day
Posted on April 11, 2008A little off topic, but not so much — a slice of life in the law over at Likelihood of Success.
What’s all this about Roommates.com?
Posted on April 11, 2008It’s probably the most important legal decision involving the Internet of the year, especially because it does not merely affect narrow business or legal segments of the world. Evan Brown rounds everything up.
Stoller update
Posted on April 09, 2008The TTABlog® has the latest. I mean, some things you just have to stay on top of if you travel in our circles!
Metatags and infringement: Eleventh Circuit says, “Yes”
Posted on April 09, 2008Search Engine Land: Eric Goldman reports that an 11th circuit, US Court of Appeals has upheld a district court’s decision that the use of trademark[-protected] terms in meta tags can cause confusion and thus can constitute trademark infringement...
Now you’re what Grammy Hall would call a real…
Posted on April 07, 2008Right of publicity and trademark lawsuit by Woody Allen, that is! Marty Schwimmer reports and links, and has the complaint, too. Plus a picture of the offending billboard, which I can’t exactly figure out how to get a legit “fair use” copy of...
Subpoenas to bloggers
Posted on April 06, 2008Walter Olson rounds up blogosphere reaction to the now-famous “Seidel subpoena,” which kind of underwhelmed me but evidently has everyone else up in arms. New Hampshire blogger Kathleen Seidel, whose weblog Neurodiversity presents a fearless, systematically researched, and frequently brilliant ongoing critique of autism vaccine litigation...
Google on the hook?
Posted on April 04, 2008David Fish sends this along: Vulcan Golf, LLC filed a putative class action lawsuit against Google, Inc. and other defendants, including Oversee.net, Sedo LLC, Dotster, Inc. a/k/a revenuedirect.com. The Defendants sought to have the case thrown out on a motion to dismiss...
“Opening up a dialog”
Posted on April 02, 2008An in-house friend passes this along, with the note, “A good entry for your continuing series on preposterous misapplications of trademark law”: Deutsche Telekom / T-Mobile demands Engadget Mobile discontinue using the color magenta Yeah, a cease and desist letter is one way to “open up a dialog...
Truth, justice and the American way
Posted on April 01, 2008Jeff Trexler writes about what he describes as an historic decision in a case pitting the heirs of Superman co-creator Jerry Siegel and DC Comics, also reported here in the New York Times. “Here’s the stirring conclusion,” he says: After seventy years, Jerome Siegel?s heirs regain what he granted so long ago ? the copyright [...
Little IP
Posted on March 31, 2008Pennywit writes in: Seems to be a minor discussion of elfin IP over at Volokh Conspiracy (look in the comments). I’m curious — even if the elves own the process of forging magic rings, wouldn’t their failure to take action when Sauron crafted the Seven and the Nine contribute to some sort of dilution defense? Patents [...
MLB, IP piggies, strike again
Posted on March 31, 2008Susan Scafidi writes about a guy who was stopped by Major League Baseball from selling “baseball shirts” that look like this (on the right): Huh? Her take: While typefaces themselves are not protected by copyright, their use is frequently an essential trademark element...
Laughs, enlightenment assured
Posted on March 31, 2008Declarations and Exclusions hosts this week’s Blawg Review!
The doomsday patent
Posted on March 28, 2008National Public Radio: The U.S. atomic bomb was such a secret, scientists and engineers sometimes talked in code. It was the Manhattan Project, not “The Atomic Bomb Project.” Plutonium was referred to as “copper,” and the bomb itself as “the gadget...
What Brown can do to you
Posted on March 27, 2008Go figure: United Parcel Service Inc., the world’s largest package-delivery company, sued a lawyer in Lakewood, N.J., for trademark infringement. Samuel Z. Brown, of The Law Offices of Samuel Z. Brown, infringed the parcel-delivery service’s various ?Brown? trademarks, the company claims in its complaint filed March 19 in New York federal court...
Defense not the best offense
Posted on March 26, 2008Evan Brown reports on a failed attempt to utilize the affirmative defense of ?copyright misuse? as an independent cause of action.
Creeping famous-mark-ism
Posted on March 24, 2008The TTABlog® comments on a TTAB decision finding, not surprisingly, that two similar looking trademarks are likely to be confused, but raises a key point about how the brand-equity-rich really are different: I think the marks PLAYBOY and PLAY BODY are just too dang similar in spelling: the latter could easily be misread to be the [...
Copyright belongs to the ages
Posted on March 23, 2008Media Wonk: No wonder they call Economics the Dismal Science. At the Internet Video Policy Symposium in Washington yesterday (co-sponsored by Content Agenda), a chorus line of academic economists postulated that content owners face a far more difficult challenge than they know in monetizing their content on the Internet, and that the odds that we can [...
MLB whiffs on the right of publicity
Posted on March 22, 2008Alec Rogers: In recent decades, Major League Baseball has made great strides in developing its business operation. No longer content to make money from tickets, concession sales, and a few radio and TV contracts, it has created an entirely new joint venture, Major League Baseball Advanced Media (?BAM?), that allows the baseball club owners to fully [...
Trademark rights, speech rights
Posted on March 22, 2008Public Citizen: A federal judge today upheld a Georgia man?s First Amendment right to criticize Wal-Mart?s business practices by using satire to compare its destructive effects on communities to both the Holocaust and al-Qaeda terrorists.In rejecting the company?s claim of trademark infringement, the U...
Number Nine
Posted on March 19, 2008Trademork: On March 11, 2008, two New Yorkers, eager to capitalize on the Eliot Spitzer situation, filed to protect the trademark Client 9 in relation to a variety of clothing items and apparel. Awful, and more or less a repeat of this kind of nonsense.
“Consumer fraud”: The new online speech control law?
Posted on March 19, 2008Get this: New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students. Language on the site ranges from catty to hateful and offensive. One thread, for example, on the “most overrated Princeton student” quickly dissolves into name-calling, homophobia and anti-Semitism...
When worlds collide
Posted on March 19, 2008Patent and trademark… and Bill Patry and the Ninth Circuit (via US Law Blogs).
Update on Lady Voldemort
Posted on March 19, 2008We first wrote about her lawsuit against a fansite operator here. Sam Bayard has the latest. .
“Fraud on the PTO”
Posted on March 18, 2008Here’s a special guest post on the TTABlog that lays out the state of the law regarding the increasingly confusing, and sometimes distressing, issue for trademark lawyers of what constitutes “fraud” in the prosecution and maintenance of federal trademark applications and registrations...
The Web is different
Posted on March 16, 2008It’s a reasonably fair ruling, as reported, but the distinction is not obvious: Craigslist is not liable for discriminatory housing ads posted on its Web site, a federal appeals court has ruled. The decision is a victory for the Internet bulletin board where every month more than 30 million people post offers to buy, sell or rent [...
Who’s yer daddy?
Posted on March 16, 2008Marc Randazza does a great job in explaining, and suggesting at least one answer to the question, “Is GoDaddy a Cybersquatter?”
Modern problems
Posted on March 13, 2008Jonathan Gewirtz: If you submit electronic files e.g., digital photographs on a CD to the US Copyright Office as part of a copyright application, the Copyright Office stores your CD but does not transfer the files on it to its computers or other durable media...
Scrabulous update?
Posted on March 12, 2008We wrote about the attempt by the owners of the SCRABBLE trademark to shut down Scrabulous a while ago. So what ever happened with all that? I have no idea. The application is still up on Facebook. I have never heard of a settlement or resolution, and searching for one via Google, I can’t find any [...
The latest on 47 USC 230
Posted on March 12, 2008Catchy title, eh? Well, I’ll leave it to Eugene Volokh to explain: This statute immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won’t be liable for it to the defamed party, though you [...
What’s in a name?
Posted on March 11, 2008If it’s a “meatball sundae,” perhaps very little you’d want to eat. How much, really, does a name matter in business success? As I have mentioned before, clients have come to me with checkbooks in hand, eager to register trademarks for products or services as yet unproduced and unserved, with no business plan besides what they [...
Patent medicine
Posted on March 11, 2008Victoria Pynchon collects and reflects on some of the recent thinking about whether patent litigation makes any sense for anyone besides patent ligitators.
Campaigning through trademarks
Posted on March 11, 2008TradeMark Express runs down the latest in the horse race among the presidential candidates (and, it seems, those who want to profit somehow from their names) in the trademark registration sweepstakes. It’s a good and original blog post that demonstrates how utterly abused the IP system is in this country...
Prepothterouth Patentth
Posted on March 11, 2008Forbes.com lays out the case for patent reform, the way we “soft IP” guys like it – in pictures.
Dare me!
Posted on March 10, 2008Uncivil Society: If there were ever a must-read Trademark Trial and Appeal Board opinion explaining whether a mark is “merely descriptive” or eligible for registration, In re CauseForce would be it. Talk about throwing down the gauntlet!
Trademark and Branding Updates
Posted on March 07, 2008TM Branding Cap, with yet another roundup feature!
Virtually athletic
Posted on March 04, 2008Marc Edelman at Abovethelaw: On Friday, February 22, Major League Baseball Advanced Media, L.P. (?MLBAM?) and the Major League Baseball Players Association (?MLBPA?) filed a petition for a writ of certiorari to the U.S. Supreme Court (No. 07-1099), seeking to overturn the Eighth Circuit Court of Appeals? ruling that the first amendment protects free use of [...
Tail wagging dog?
Posted on March 04, 2008Or maybe not. Evan Brown reports about a lawsuit by a high-end computer manufacturer, Alienware, over one of those “free laptop” promotions that it claims mostly leans on its brand name: According to Alienware, after accepting the offer, users must purchase a specified amount of goods from various other sites...
No do-overs, no take-backs
Posted on March 04, 2008Hypothetical: We are negotiating a trademark dispute. During those negotiations — which we both agree are being undertaken for purposes of settling our dispute — I, trademark user, promise not to object to (i.e., not to sue for) a certain use by you, other user, but we never actually incorporate that into any [...
Famous marks doctrine dunked again
Posted on March 03, 2008Las Vegas Trademark Attorney reports that the Second Circuit has taken the “advice” of the New York Court of Appeals and rendered a final decision in the BUKHARA ?famous marks doctrine? case. Writing about the original Second Circuit opinion from last year, he says: The court even acknowledged that its decision to reject the ?famous marks? [...
This is a job for…
Posted on March 02, 2008snapped shot, a website now basically shut down by the Associated Press, asks the musical question: As an aside, I’m somewhat befuddled on this point, and hope that some of you can help clarify this for me. How in the world can one provide analysis, commentary, and criticism on news photographs, if they are forbidden from [...
Speaking of prior restraint!
Posted on March 01, 2008We toyed a little bit with the very big idea of prior restraint in constitutional law about a week ago. Now Clarice Feldman writes about “Duke’s boundless chutzpah”: After tarring and feathering and discriminating against the Duke lacrosse members at a critical juncture in their college careers and lives, the Duke Administration has gone [...
The Week That Was This Week
Posted on February 29, 2008Now Marty Schwimmer’s doing “roundups” too. Only more compelling proof that we shouldn’t!
Great moments in trademark trolling
Posted on February 29, 2008CrunchGear: With Nuvio suing Garmin?s Nuviphone on fairly spurious grounds, let?s take a look at famous trademark wars of times past. A little more on the bit-sized scale than a survey of warfare, but decent enough filler.
Luxury goods rental
Posted on February 28, 2008“Bag Borrow or Steal? - Borrow or Rent the Latest Authentic Designer Handbags Purses Jewelry and Accessories.” You know they — the Big IP guys — are sitting in conference rooms trying to figure out how to stop this. Soon enough when you buy a Gucci bag, it will come with a non-transferable “licensing” agreement! My actual prediction: [...
In your head
Posted on February 27, 2008Rebecca Tushnet: Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that “Kodak soap” was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark...
Spinnin’ at 78
Posted on February 26, 2008I mean Counterfeit Chic, of course, and the 78th edition of the still remarkably well-stocked Knockoff News feature. Not that Susan Scafidi is remotely old enough to understand the reference in the title of this post. But as worn as my grooves are, I have no idea how she gets so many links, so often, [...
Pure evil
Posted on February 25, 2008And it doesn’t even exactly involve the Red Sox: Various buildings overlook Wrigley Field, home of the Chicago Cubs. Entities unrelated to the Cubs operate businesses on those buidlings’ rooftops, charging admission and selling food and drink during Cubs games...
No social networking privilege
Posted on February 24, 2008On Point reports that a New Jersey federal magistrate has, to the surprise of no actual attorney I could imagine, ruled that MySpace and Facebook postings and other social networking communications are discoverable in civil litigation. A New Jersey judge has allowed an insurance company being sued for denying benefits to children with eating disorders to [...
Brett Trout hosts Blawg Review
Posted on February 24, 2008Brett Trout’s BlawgIT comprehensive and informative IP blog, BlawgIT, hosts Blawg Review # 148!
Spiritual balm for clerkship-seeking law students
Posted on February 23, 2008In a totally random way, I ended up linking to an old piece about my adventures seeking a first-year summer associate position at my other blog. Then after some very flattering feedback, I figured some readers of this blog might enjoy it, especially law students, so here it is, freshly warmed from 1987...
Wile E. Coyote, Cybergenius
Posted on February 22, 2008Eric Goldman updates us on the “Cyberlaw” trademark preposterousness: Despite his initial blustery defense of the application (which, as a reader noted to me, violated the First Rule of Holes), Menhart has now backed off his claim to own the term “CyberLaw...
Litigation Guy, updated
Posted on February 22, 2008Eleven months ago I wrote about Carol Burnett’s lawsuit against 20th Century Fox, based on a tasteless parody of her “signature” charwoman character. I worked so hard on that post and it looks so purty, I’m going to drop it in here again, which will also increase the suspense about the opinion in [...
Plugging leaks
Posted on February 21, 2008In 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...
Let it flow
Posted on February 21, 2008The Invent Blog® reports on the latest fashion (and maybe a good idea) for IP lawyers: Flowcharts on IP for Clients to help them understand the options and contingencies before them. Good for clients; good for lawyers… if they’re done right.
Reproducing book covers?
Posted on February 18, 2008Nolo?s Patent, Copyright, and Trademark Blog engages a common type of inquiry: Dear Rich: I have a question. I?m starting a literary website and I?d like to put up a lot of book covers. Do I have to get permission from the book publishers? I?m so glad you asked...
Dubious on “Rock ‘Em”
Posted on February 17, 2008The TTABlog expresses considerable dubiosity about a Trademark Trial and Appeal Board finding of confusing similarity between “SOCK-UM” for a parlor game and “ROCK’EM SOCK’EM ROBOTS” for the action game everyone in their 40’s or so remembers so vividly from ’60’s and ’70’s TV commercials...
Patent Troll Tracker
Posted on February 16, 2008Had everyone known about the Patent Troll Tracker and was just sneakily leaving me out of it? Did everyone else already know about this blog that takes A look behind the curtain at the people or organizations behind the many patent lawsuits brought by corporations that make or sell no goods or services[?] Well I caught [...
Eric Goldman’s Quick Links
Posted on February 16, 2008I’m so glad other people do roundup type stuff. For me, it’s just too much work. I’m even gladder when it’s guys like Eric Goldman! Here are his January 2008 Quick Links (IP Edition).
Bookmark this
Posted on February 15, 2008If you do legal research, this is where things are going. Lexis, Westlaw… hope you enjoyed the ride.
No respect
Posted on February 15, 2008More aggressive branding gone bad: A Singapore cosmetics company has withdrawn a line of makeup based on whimsical connections to the founder of Christianity: The products included a “Virtuous vanilla” lip balm and a “Get Tight with Christ” hand and body cream, featuring a picture of Christ flanked by two adoring women...
Diluting dilution
Posted on February 14, 2008Michael Atkins says, “Here we go again”: With the Northern District of California?s understandable decision this week in Phase Forward Inc. v. Adams (STL post here) to follow its appellate court?s lead in Jada Toys, Inc. v. Mattel, Inc. (STL post here), I can?t help but face the fact that we have another split in the [...
All hail marks of Lennon!
Posted on February 13, 2008Item: Yoko Ono Sues “Lennon” for Trademark Dilution.
Counterfeit Chic: Knockoff News 77
Posted on February 13, 2008If you get your kicks on 66, imagine the heaven of 77!
Ban that man!
Posted on February 12, 2008London’s Times: People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week.Internet service providers (ISPs) will be legally required to take action against users who access pirated material, The Times has learnt...
National Inventor?s Day 2008
Posted on February 12, 2008I missed it, I guess, but “Anticipate This!” didn’t.
Blawg Review at The Invent Blog®
Posted on February 11, 2008My friend Steve Nipper hosts this week’s Blawg Review.
Where is the love?
Posted on February 11, 2008Love conquers all — but never, never when it comes to trademarks! The relationship was renewed only three days ago and yet Gucci’s love affair with NY is already hitting a stumbling block. New York City’s Empire State Development Corporation (ESDC) is challenging Gucci’s use of the ‘Gucci (loves as symbolized by a heart) New York’ [...
Fishy business
Posted on February 10, 2008Funny things happen to trademarks in the Casbah. John Burgess at the Crossroads Arabia blog has a story about a recent incident of Saudi Arabia’s religious police overplaying their considerable hand in connection with the arrest of a Saudi woman for having coffee with a colleague at Starbucks...
Legal guidelines for bloggers
Posted on February 10, 2008Everyone’s linking to this: For bloggers: A stay-out-of-jail card.
Damaged China
Posted on February 09, 2008Michael Atkins looks at how China now calculates trademark infringement damages.
Microsoft gets it man
Posted on February 08, 2008Here’s an interesting piece about the lengths Microsoft went to shut down and aid in the apprehension of a $900 million software piracy ring — and just how hard it had to work to stay, or eventually get, ahead of the bad guys: The pirates mimicked complex holograms stamped directly onto disks and packaging materials embedded [...
Getting intellectual about intellectual property
Posted on February 08, 2008Erik Schmidt: Richard Stallman, founder of the Free Software Foundation, and creator of the GNU Public License (GPL) was also present. Stallman is known for his outspoken political beliefs and his attention to semantics. He … took issue with ?intellectual property,? a term he considers propagandistic and misleading...
Clever slogan, yes. Trademark, no.
Posted on February 07, 2008Being a big company doesn’t mean you have to always be wrong — or even always be the plaintiff — in an IP dispute. Take, for instance, this situation, as described by the opinion handed down last week by the Second Circuit Court of Appeals: Many might associate the phrase MY LIFE...
Powerful precedent
Posted on February 06, 2008The TTABlog: Whenever the TTAB issues a precedential decision, I try to discern what point the Board is trying to make. Good idea! When it comes to John Welch, that’s usually a pretty high level of discernment. But in the case linked to, you don’t have too read to hard to figure it out.
Virtual seizure of virtual counterfeits
Posted on February 05, 2008Implicating, of course, real money. Hat tip to Stacia Lay.
Hey, 19
Posted on February 02, 2008More on the dumb trademark-abuse story of the season (we’ve dealt with the SUPER BOWL and trademark overkill here and here already). Now there’s this SUPERcilious beaut: After the Lakers won two straight NBA titles in the late-80’s, their coach Pat Riley trademarked the phrase “three-peat” so he could cash in on merchandising associated with [...
Large game
Posted on February 01, 2008Forbes chimes in on the NFL’s heavy-handed IP campaign, and how much more this year has looked like flag football, or maybe “touch”: Clearly, brand owners need to be proactive to protect their intellectual property rights, which are enormously valuable assets and can be threatened by piracy and unauthorized third-party uses...
Dimming star?
Posted on January 31, 2008Ann Althouse: Starbucks used to seem like a luxury brand, and now it feels like a fallback when you can’t get to the real thing. Ouch. (Via Instapundit.) Ann sees it happening in the automated coffee machines in the shops. But could it have to do with branding incoherence typified by this?
Keyword advertising: Big IP pushing hard
Posted on January 30, 2008Paul Alan Levy has brought my attention to this development, which he rounds up at the Consumer Law & Policy Blog: Corynne McSherry and Eric Goldman have posted a timely joint warning about an effort within the Trademark Litigation Committee of the American Bar Association to put forward a series of resolutions that are [...
Take a letter and get in line
Posted on January 30, 2008John Berryhill: A recurring discussion within certain circles over the years has been the potential assignment of single character domain names in the generic top-level domains (gTLDs). Prior to the formation of ICANN, and despite assignment of a few single character domain names (q...
IP piggies
Posted on January 30, 2008Ars Technica: Not content with the current (and already massive) statutory damages allowed under copyright law, the RIAA is pushing to expand the provision. The issue is compilations, which now are treated as a single work. In the RIAA’s perfect world, each copied track would count as a separate act of infringement, meaning that a copying [...
If you can’t beat ‘em
Posted on January 29, 2008Name Wire: In what Agenda Inc. refers to as a ?highly ironic move,? notorious brand naming counterfeit hotspot Silk Street Market in Beijing has applied for a trademark to its own SilkStreet clothing label and warned counterfeiters not to copy it. In what must be the most lenient criterion for reselling a high end brand in [...
Patent reform
Posted on January 29, 2008We joke about patents here, but it’s from love, believe me. If you have anything to do with intellectual property law, however, you are likely to get buttonholed by someone who wants your opinion about “the new patent law.” So if you have to read just one opinion about it — and I [...
Blawg review for the hobbit set
Posted on January 29, 2008I don’t even know where to start on this topic. Lords of rings were never my things. More like Lords of Flatbush. But if you’re of a mystical bent, you will like this edition of Blawg Review.
EU privacy fetish protects file-sharers
Posted on January 29, 2008No one really likes the record companies anyway: European Union countries can refuse to disclose names of file sharers on the Internet in civil cases, the EU’s top court said on Tuesday in a blow to copyright holders trying to fight digital piracy...
The Spirit of 76!
Posted on January 29, 2008Counterfeit Chic’s Knockoff News is back in its 76th edition, with all due credit being given yours truly, and everyone else paying cash.
Thanks, Thomson!
Posted on January 28, 2008Thomson CompuMark’s home page lists this blog among a cozy coterie of worthy trademark resources. “Legal News and Perspective,” they call it. Thank you, Thomson. I must admit the Thomson people do a fine trademark search and an even better INTA party, unless you want to actually have a conversation with an adult friend...
Copyright in cease and desist letters? Not quite.
Posted on January 26, 2008A law firm’s press release says: The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient (Case No. MS-07-6236-EJL-MHW). The copyright decision, in pertinent part, has been made available by Dozier Internet Law, and is the first known court decision in the [...
Libel per se
Posted on January 25, 2008Glenn Reynolds, writing about the dustup at Brandeis over this letter (”marked up” here): And I think that false charges of racism aimed at a professor today are like false charges of unchastity or “loathsome disease” aimed at a woman in 1890 — libelous per se...
Digital analysis of images and counterfeiting
Posted on January 24, 2008Yahoo! News: Swedish start-up Polar Rose plans to make its face recognition service publicly available on the Web in the second quarter of 2008 as it tries to become a must-have tool for sorting visual content. The firm says its technology can pick out faces in the swelling crowd of images on the Internet, thereby making digital [...
Don’t play games!
Posted on January 24, 2008Nolo?s Patent, Copyright, and Trademark Blog links to this story here in answering the question, “How do I create a non-infringing board game”?”
Keeping tabs on the worst
Posted on January 22, 2008John Welch presents the “Ten Worst TTAB Decisions of 2007.” I love stuff like this!
“I Have a Dream (C)”
Posted on January 21, 2008This is one of the first posts on this blog, and remains one of the most-likely to get hit by a search engine. It hasn’t seen the front page in three years, though, so I thought this would be a good day to re-post it: The online Globe and Mail has an important item on [...
Lady Voldemart
Posted on January 21, 2008We wrote about the piggish nature of billionairess J. K. Rowling last fall in connection with her Death Eater-like persecution of an unauthorized fan site. Now copyright maven Tim Wu (yes, him again!) weighs in: Author J.K. Rowling and publisher Warner Brothers have sued the Lexicon for copyright infringement, exposing the big unanswered question: Are [...
Wicked roundups
Posted on January 21, 2008I fell behind on keeping readers up to date on Counterfeit Chic’s Knockoff News, but it’s okay — Susan Scafidi is a little behind, too, so this one from just before New Year’s is still good. She picks up on the Egyptian demand for “royalties” for unauthorized copies of architectural monuments such as the [...
Crush on me
Posted on January 21, 2008Above The Law has a place in its heart for the losers among the winners: Our Second Favorite Blog Of The Year After ATL survey, sponsored by ATL and Lateral Link, is still dominated by the Wall Street Journal. But the Volokh Conspiracy, Patently-O, and SCOTUSblog are putting up a fight, write-in candidate taxgirl is creeping [...
It’s good to the be the king
Posted on January 19, 2008Michael Atkins: Western District [of Washington] Judge John Coughenour appears to have stopped taking new trademark cases. New matters assigned to him reportedly are reassigned to other judges with the statement that ?Judge Coughenour does not accept trademark cases...
I’m a CYBERLAWYER, too!
Posted on January 19, 2008Slashdot: BigTimOBrien writes to mention the EFF is reporting that self-proclaimed cyberlawyer, Eric Menhart, has decided to trademark use of the term “cyberlaw” and is threatening other lawyers with legal action over the term. Describing yourself as a “cyberlaw” expert is pretty lame, but I just may start right now...
SUPER BOWL® Trademark Watch and Contest I
Posted on January 17, 2008Every 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 [...
The latest on Internet-based jurisdiction
Posted on January 17, 2008In the New York Law Journal (subscription required): As a practical matter, most jurisdictional analysis in the Internet context focuses on specific jurisdiction. A “Web presence” in New York has not been considered enough, standing alone, to establish broad, general personal jurisdiction; such jurisdiction typically requires a substantial presence, such as an office in New York, [...
Not so Scrabulous
Posted on January 16, 2008CNET News / Reuters: The makers of Scrabble have asked Facebook to remove a popular online version of the word game, Scrabulous, which they say infringes their copyright. The U.S. and Canada rights to Scrabble are owned by Hasbro, the world’s second-largest toy and game company, while the biggest, Mattel, has rights to the game in the [...
Lookalike “house brands”
Posted on January 15, 2008The 43(B)log discusses a recent Third Circuit opinion on this topic — one that people ask me about all the time. Well, ask Rebecca Tushnet! Her bottom line: Essentially, the court of appeals thought that the district court had created a near-absolute ?house brand? defense independent of the confusion factors, which was inappropriate...
Who are you to say?
Posted on January 15, 2008We all love loopholes. Concurring Opinions writes here about the Seinfeld defamation lawsuit, and asks: How broad, really, is the “opinion” loophole? Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the [...
More on toy models as trademark infringements
Posted on January 14, 2008Ara Rubyan sends along this link to Boing Boing: Josh sez, “The folks at BMC (Black Mustang Club) automotive forum wanted to put together a calendar featuring members’ cars, and print it through CafePress. Photos were submitted, the layout was set, and… CafePress notifies the site admin that pictures of Ford cars cannot be printed...
Pinching out the bad things
Posted on January 11, 2008Scott Kirwin sends this along: Ron I would be interested to see you post on this [New York Times: “AT&T and Other I.S.P.?s May Be Getting Ready to Filter”]. Specifically, wouldn’t such control over traffic negate the “carrier” argument advanced over the past few decades that they were simply carrying the traffic and weren’t responsible for the [...
Little people, big lawsuits
Posted on January 10, 2008The Washington Post reports on legal action taken by ordinary folk against Big IP Content Generating institutions for lifting and using “user-generated” content, i.e., pictures and stuff uploaded onto blogs and galleries by regular people...
A lawsuit about nothing
Posted on January 09, 2008The New York Times Blog reports on the Seinfeld cookbook case. This quote from copyright domain master Tim Wu is reason enough to click on through: ?Frankly, I read the complaint. It should be thrown out. It?s close to frivolous. It?s terrible.? Not that there’s anything wrong with that?
CREATINE writing
Posted on January 09, 2008The TTABlog examines, so to speak, an almost metaphysical TTAB discussion of when a trademark is or is not “unitary” for purposes of the requirement to disclaim non-registrable elements: “When a compound word mark is formed by hyphenating two words or terms, one of which would be unregistrable alone, the mark is deemed unitary and no [...
Other people’s money
Posted on January 08, 2008WSJ.com’s Law Blog reports about the seven-figure effect in the Central District of California for a one-minute-late filing: A judgment in favor of [Morrison & Foster’s] client was entered on Sept. 26, giving Toshiba?s attorneys 14 days - until Oct...
Luxury IP’s dilemma
Posted on January 08, 2008A new website called “BP Council” (a brand protection thing) asks, “Can Luxury Brands Counterfeiting Really Be Stopped“? [I]n their report, “The Piracy Paradox,” legal scholars Kal Raustiala and Christopher Sprigman, say that: “Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected–and economically successful? ? [...
Go for the Gold, man!
Posted on January 08, 2008Get up to speed with the best and most popular links from last year’s edition of Technology & Marketing Law Blog, by Eric Goldman.
The seven horsemen of the Ablawgalypse
Posted on January 06, 2008I hadn’t picked up on this — as part of its “ABA 100” story, the ABA Journal published brief profiles of the seven “revolutionaries” of law blogging, as they see it: Denise Howell Thomas Goldstein David Lat Eugene Volokh Judge Richard Posner Glenn Greenwald Howard Bashman All good choices...
England folds
Posted on January 04, 2008Instapundit reports about England shutting down a blogger for “inciting racial hatred” — which is illegal. At least it is when it’s against certain “races.” In case you ever harbored any doubts about the wisdom of the American Revolution.
Virtual seizures
Posted on January 03, 2008Andrew Cory tipped me off to this article in the Law of the Game blog involving a judicial “seizure” of gaming-world “assets.” Talking to Andrew and tackling the article, I have the impression something very interesting is going on here...
Three’s a charm
Posted on January 02, 2008Today marks the third “blogiversary” (ugh!) of LIKELIHOOD OF CONFUSION®! Kudos to bRight & Early blog for reminding me by linking here, and, as I explained last year, to Dean Esmay. It’s been a very good year for the blog. Not only has traffic grown, but so has the quality of links from within [...
Chilled Apple
Posted on December 31, 2007Via Vodkapundit – from the People’s Ministry of Litigation, Information and Sublimation: Apple and Think Secret have settled their lawsuit, reaching an agreement that results in a positive solution for both sides. As part of the confidential settlement, no sources were revealed and Think Secret will no longer be published...
“The Victorian compromise”
Posted on December 30, 2007Defamation and reputation management are issues of intense interest at LIKELIHOOD OF CONFUSION®. Obviously cultural context means a lot when considering these two related topics. Here Daniel Solove reviews Professor Lawrence Friedman’s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy: Friedman focuses much of his book on the Victorian [...
Unchained melodies
Posted on December 30, 2007Instapundit: WARNER BROTHERS goes copy-protection free with DRM-less MP3 downloads at Amazon. This is a good trend. A technological war of attrition can be very costly. UPDATE: But not for the stupid! As Glenn says, “When the corpse twitches, the jaws snap...
Pyramid scheme
Posted on December 28, 2007Overlawyered reports: Egypt wants to copyright pyramids, Sphinx Under the proposed law, backed by Supreme Council of Antiquities chief Zahi Hawass, persons around the world would be forbidden to sphinxbycaviglia.jpg make copies, even for private use, of the country’s famous monuments, scarabs and other Pharaonic survivals...
How important is copyright registration?
Posted on December 28, 2007This important (pdf). As a New York Law Journal article (sub. reqd.) puts it, The Second Circuit’s decision in In re Literary Works substantially limits the use of class actions as a vehicle to settle copyright infringement cases. Survey evidence cited by the parties in the case showed that freelancers register less than one percent of [...
My favorite infringements
Posted on December 28, 2007Boing Boing: “Copyright infringement is your best entertainment value.” I can think of others, frankly, but fine. As long as we’re calling a spade a spade!
“I’m looking over a four-leaf clover…”
Posted on December 27, 2007“That I overlooked,” says Bugs Bunny, “be-three!” Well, this one has not been overlooked — by anyone.
Show me the money
Posted on December 27, 2007Just registering or making minimal use of a domain name, much less “parking” it, is not “use in commerce.” There’s got to be some… commerce! Most lawyers practicing in the area of trademark law know this, but LIKELIHOOD OF CONFUSION® exceeds ordinary aspirations and speaks directly to its people — the people who call up [...
A free market moment
Posted on December 25, 2007Stephen Laniel finds, in trademark law, reason not to throw the whole thing over: The public-health justification for trademark law is pretty clear: if the law defends my product brand at the point of a gun, I have an incentive to strengthen that brand...
Not much hope for “Famous Marks” in the Empire State
Posted on December 25, 2007The TTABlog reports that the New York [State] Court of Appeals, on certification from the U.S. Court of Appeals for the Second Circuit (don’t confuse those two courts of appeals!), has put the kibosh on attempts to breathe much life into the “famous marks” doctrine as a matter of New York state law...
Search or destroy
Posted on December 24, 2007The Cincinnati Enquirer reports this chilling story: A local attorney and instructor in legal studies at the University of Cincinnati?s Clermont College has been hit with a $1.3 million malpractice judgment for negligence that helped put a local company out of business...
The usual stupidity
Posted on December 23, 2007I?m Not A Trademark, Bro!: AT! admires the entrepreneurial nature of the applicants for the following marks: DON?T TASE ME, BRO! for various shirts, DON?T TAZE ME BRO! for books, puzzles, posters, and the line, and DON?T TASE ME, BRO! for jackets, pants, and other clothing...
Likelihood of Success
Posted on December 22, 2007(This is kind of an advertisement, the kind for which you get no money. Right — blogging.) Likelihood of Success is my “general interest”/politics blog. Go ahead, click. Unlike LIKELIHOOD OF CONFUSION®, it has a great jawline, an aquiline nose and perfectly white teeth!
The Nutty Ninth
Posted on December 21, 2007Michael Atkins: The Ninth Circuit yesterday addressed the question: ?whether an award of statutory damages for trademark counterfeiting under 15 U.S.C. § 1117(c) precludes an award of attorney?s fees under 15 U.S.C. § 1117(b).? Reversing the Central District of California in the case of K and N Engineering, Inc...
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