One Small Company’s Successful Fight Against An Infringer

An amazing blow-by-blow log of a software company going after an infringer (via Slashdot).

A couple of my initial reactions to this story:

1.  This is why IP lawyers need to be forensic scientists;

2.  This is why IP lawyers go after ‘middlemen’ such as ISPs;

3.  This is why anonymity on the ‘selling’ side is against public policy.  The way to resolve the privacy vs. consumer debate in arenas such as whois is to create commercial zones on the Web.  If you want to sell, do so from a ‘.cert” and say who you are.




Reading Other People's Mail: MPAA v. LokiTorrent

A demand letter sent by an unidentified law firm representing the MPAA to LokiTorrent, a site allegedly facilitating unauthorized distribution of digitized movies using BitTorrent, a PTP protocol. Via Slashdot.


Test For A Little Tenderness

Here’s the thing to remember that gets forgotten.  One of the functions of trademarks and appellations of origin is to act as shorthand.  As Judge Posner might put it, consumers save time and money searching products by choosing a brand, as opposed to doing exhaustive analysis of propsective purchases.

One such shorthand is BLACK ANGUS.  Angus is a breed of cattle that tends to be more tender than, say, beef from Herefords.  As a result, beef bearing the name ANGUS began to earn a premium.  For reasons not quite clear in this NPR story, at some point the FDA allowed cattlemen to use the term ANGUS to refer to any predominantly black cow that doesn’t ‘show the traits of other breeds.’  So cattlemen breed their cows to look predominantly black.

The result was diminution of the quality of ANGUS beef.  ViaGen, a life sciences company, did DNA testing of beef sold under the  ANGUS name, and discovered that some samples came from cows that had more genetic material in common with Brahmin cattle than with Angus.  Brahmin apparently is less tender.

Now ViaGen is developing a DNA test so that only beef that meets such a test can bear an Angus certification mark.

However, this is where the shorthand part gets forgotten.  Customers don’t want Angus beef in and of itself – they want tender beef.  As a scientist in the NPR story points out – the term ANGUS is not a guarantee that 100% of all such cattle carry the tenderness gene. 

A different approach would be to develop a test not for Angus genes but for tenderness genes.

Interesting thought: brands and appellations of origin can deliver best guesses as to quality but science can, maybe, deliver on such promises.


More People Find This Post On Puffery Informative

NY Times article on puffery and truthfulness in advertising claims.

Prior posts on puffery here and here.


New Trademark Fees

Effective January 31, 2005, trademark fees will change as follows:

Initial Applications:

    (1) $325 per international class if using the Trademark Electronic Application System (TEAS)
    (2) $375 per international class if submitting paper

Amendments or Responses to Office Actions:

    (1) $325 per additional international class when the fee is paid as part of a TEAS amendment or response
    (2) $375 per additional international class when the fee is paid as part of a paper amendment or response

The new fee requirements will apply to any fees filed on or after January 31, 2005. See Consolidated Appropriations


Trademark Blog's Red Carpet Moment.

The Trademark Blog has been awarded the ‘Best Practice-Specific Legal Blog’ title by Dennis Kennedy of DennisKennedy.com. OK, I know Dennis, but still, there are a lot of good legal blogs listed and discussed here.


If You Saw The Lemony Snicket Movie . . .

. . . and you are a trademark lawyer that can’t leave work at the office, then you laughed at the Realtor gag and wondered if the NAR would write a nasty letter to the film’s producers because it used REALTOR as a generic term.

Then I got home and saw the “Hello, Trademark Infringement?” commercial from McDonalds.

Better times for REALTORS, uh, REALTOR brand real estate agents, here, a different setback for the REALTOR trademark here.



Popular Google Search Terms For 2004

These and others from Google’s Zeitgeist for 2004 (ING is the third most searched company name?):


Popular Brand Names

     1. louis vuitton

     2. nikon

     3. canon

     4. treo

     5. tiffany

     6. rolex

     7. roomba

     8. armani

     9. aeron

   10. ray-bans


Top Company Queries

     1. sco

     2. johnson & johnson

     3. ing

     4. ge aircraft engines

     5. fleet


Popular Retail Chains

     1. walmart

     2. home depot

     3. best buy

     4. costco

     5. walgreens

     6. barnes & noble

     7. blockbuster video

     8. office depot

     9. kinko’s

   10. circuit city



Heartless TTAB Decision

A TTAB decision holding that the consumer placing a heart on a plush toy does not constittue trademark use, via TTABLOG.


The Beer Of Kings

A Reuters article regarding a World Trade Organization report on EEC treatment of appellations of origin (like FLORIDA ORANGES or IDAHO POTATOS but not, apparently BUDEJOVICKE BEER).