Wading Into the Posner/Hot News/Linking Brouhaha

Judge Posner started the discussion with this blog post which concludes:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

TechDirt criticized the conclusion
, as did Jeff Jarvis.
Then Cleveland Plain Dealer columnist Connie Schultz, wrote “Tighter Copyright Law Could Save Newspapers,” proposing a 24 hour window of ‘hot news exclusivity,’ which Jarvis critiqued and Schultz responded.
I’m not an expert on the ills of the newspaper industry but it seems to me if Craigslist is the problem, why is copyright law and hot news doctrine the solution? If someone has a good cause of action under copyright law or ‘hot news’ misappropriation, by all means, bring it, but really – – –
. . . if the cost of a Kindle is less than the cost of printing a hard copy edition of a newspaper over a year . . .
and the newspapers aren’t rapidly exploring handing out Kindles with the purchase of a subscription, then is it appropriate for the law be amended to hamper the dissemination of news?
Maybe hot news doctrine has to be re-evauated in the era of Twitter, but I can’t read a headline like “Tighter copyright law could save the newspapers” without hearing Bill Patry shouting in my ear that the principal function of IP law these days is to preserve failed business models.


PLATO Modeling Compound

From here.


Text of Decision in Davidoff v CVS (Removal of UPC Code On Grey Goods Is Actionable)

As a result of a prior injunction, Plaintiff Manufacturer had right to inspect Defendant retailer’s inventory, and uncovered 16,000 units of its product, with the UPC code removed (either cut off or chemically ‘erased.’). As a result, Plaintiff could not determine if the product was counterfeit or merely ‘grey good’ (goods that were authorized by the manufacturer but imported without the trademark owner’s permission). Defendant alleged that it purchased the product with the UPCs already removed. Defendant refused to cease sale.

Davidoff asserts that its codes serve as a control of quality in two ways: (1) the codes permit the easy detection of counterfeits, and (2) they improve Davidoff’s ability to identify defective products, effectuate a targeted recall, and remedy production defects. We ruled in Warner-Lambert Co. v. Northside Dev. Corp., 86 F.3d 3 (2d Cir. 1996), that a trademark holder is entitled to an injunction against one who would subvert its quality control measures upon a showing that (i) the asserted quality control procedures are established, legitimate, substantial, and nonpretextual, (ii) it abides by these procedures, and (iii) sales of products that fail to conform to these procedures will diminish the value of the mark. Id. at 6. The district court found that these requirements were met. We agree.

The mutiation of the packaging was found to be a second rationale for enjoining the sale:

Furthermore, fragrances are often purchased to be offered as romantic gifts. Mutilated packaging makes the item less appealing to such a purchaser, who runs the risk that thegift will be viewed by the recipient as a sketchy, cheap purchase from an illicit source or of the sort given by Tony Soprano to Carmela. In short, trademarked goods whose luxury packaging is damaged are materially different from those that are intact. Int’l Corp., 263 F.3d 1297, 1303-04 (11th Cir. 2001).

As an aside, Defendant had argued that recent legislative attempts to amend the Lanham Act to specify alteration of packaging to remove identification systems, was evidence that the existing statute isn’t intended to cover such behavior as actionable. The Court noted that failed legislative attempts are not determinative of a statute’s interpretation, as they may merely be an attempt to clarify, not to add.
davidoff v cvs

Filed under: Grey Goods


Michael Jackson Was A Credited Inventor For A Patent For Moon Walking!

Text not available
Method and means for creating anti-gravity illusion Michael J. Jackson et al
I’m serious. I thought I would distinguish myself by not mentioning Michael Jackson today, but then someone posted a link to patent 5,255,452 for “Method and means for creating anti-gravity illusions.” I’m told that this is (was) a real patent!


"The Bug, the Worm and the Death Star"

Identity Forum: The Bug, the Worm and the Death Star (nicknames for trademarks).

Filed under: Branding


Trade Dress Complaint Bounced For Failure To Allege Factus of Non-Functionality

Via Loeb and Loeb: Do Denim v Fried Denim:

Although Plaintiff’s opposition papers contain various generalized assertions about the nature of the jeans industry and the extent to which jeans designers rely on back-pocket-embroidered designs that may or may not be similar ot the Dragon Design, the Amended Compaint itself contains no factual allegation as to whether protecting the Dragon Design in the manner contemplated by the Plaintiff would put competitors at a significant non-reputation-related disadvantage.

Any suggestions as to how you would plead that back pocket embroidery is non-functional in a specific non-conclusory manner? “The stuff stays in the pocket regardless”?


Are You A Fantastic TM Paralegal In The NY Area?

Are you a fantastic trademark paralegal in the NY area, with experience in domestic and international trademarks, as well as domain names? If you’re contemplating a move, please send a resume to mschwimmer (at symbol) mosessinger dot com. Note: if you are a recent law school grad, then this would not be a good opportunity for you.


Puzzlemaster v Apple re Parking Lot

Puzzlemaster sues Apple over allegedly infringing puzzle game on iPhone. Background here.
Complaint Apple


Ray's, Famous Ray's, Famous Original Ray's, and I Am Absolutely The Ray That You Wanted To Buy Pizza From vs. Every Other Pizza Place With Ray In The Name

rays pizza.jpg
Some background from 1991 here. Photo taken by famous John Welch.
Complaint Famous Ray


Attention Every Other Trademark Firm In The Word

You only have a few more hours left to send me client alerts about the Facebook username thing.