Intellectual Property Law

“Truth made you a trader, as it often does in a time of scoundrels”

Posted on January 11, 2009
And 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, 2009
Congenital 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, 2009
Here’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, 2009
The 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...

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I can’t stands no more!

Posted on January 06, 2009
The 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, 2009
Usually 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, 2009
Whether 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, 2009
Posted 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, 2008
This 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, 2008
YouTube 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, 2008
First 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, 2008
This 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, 2008
This 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, 2008
This 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, 2008
This 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, 2008
This 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, 2008
This 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, 2008
This 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, 2008
Originally 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, 2008
LIKELIHOOD 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, 2008
LIKELIHOOD 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, 2008
A 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, 2008
The 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, 2008
Yesterday’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, 2008
And 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, 2008
Today 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, 2008
Maybe 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, 2008
Anticipate 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, 2008
Glenn 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, 2008
General 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...

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