Recommended Summer Reading

Delivering Happiness by Tony Hsieh, CEO of Zappos. Interesting quote:

Brand is a lagging indicator of a company’s culture.

Are there any law firms with a Zappos-like culture?


That's Who That Is? SwipeBids v QuiBids – Fake Blogs, Fake Reviews and Melissa Theuriau

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SwipeBids and QuiBids are ‘pay per bid’ auction sites. They will promote prior sales of popular consumer electronics and other items for very low prices. For example, on SwipeBids right now, it indicates that it sold an Apple MacBook Pro for $387, and a $20 Amazon Gift Card for $2. How do they do it? Bidders pay a membership fee, and then pay some small amount (say .50) to bid. The economics are similar to those of a lottery – the bidder buys a cheap ticket, the house’s revenues of the bids tends to exceed the value of the item (especially since people likely place multiple bids on an item).
SwipeBids alleges that QuiBids stole copyrighted content, fabricated news stories, fabricated customer testimonials and wrongfully misappropriated the image of French news anchor Melissa Theuriau. This is the second SDNY case this summer containing allegations of ‘fake reviews’ as false advertising.
And If you know Melissa Theuriau, please tell her that her image may have been wrongfully used.
Complaint Swipebids Quibids Copyright False Advertising


Ticker Symbol Lawsuit

Coverage here:

Invesco Ltd., the Atlanta-based investment management company, has been sued by a Boston-based trust claiming infringement of its trademarks for exchange- traded funds.
Select Sector SPDR Trust said Invesco began marketing its PowerShares funds using the same XL ticker symbols SPDR has been using, in a complaint filed today in U.S. District Court in Houston.

Intrestingly, SPDR is a registered trademark of Standard & Poor’s.
Complaint SPDR Invesco Ticker Symbol Trademark


Mix-in's as Grey Goods: Identifying Third-party Ingredients By Brand Names

Defendant bakery identifies branded cookies and candies as toppings for its cakes. Plaintiff See’s Candies alleges that defendant’s ‘manufacture, storage, sales and storage’ processes don’t meet See’s standards, therefore the See’s candies offered are materially different and therefore infringing.
Complaint Sees Aunt Joy


Text of Ninth Circuit Opinion Reversing BRATZ Constructive Trust

Coverage here.
Decision Bratz


'Appeal' Of UDRP To District Court

Plaintiff is a re-seller of Defendant’s NUPRO product. It registered the NUPRO.COM name and used it as landing page to promote the NUPRO product (linking to its multi-brand site). Defendant brought a UDRP and for the reasons described in this decision, the panelist held that plaintiff’s use exceeded a four part test of fair use by a re-seller:

1 the respondent must actually be offering the goods or services at issue;
2 the respondent must use the site to sell only the trademarked goods; otherwise, it could be using the trademark to bait internet users and then switch them to other goods;
3 the site must accurately disclose the registrant’s relationship with the trademark owner; it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, if, in fact, it is only one of many sales agents;
4 the respondent must not try to corner the market in all domain names, thus depriving the trademark owner of reflecting its own mark in a domain name.

Under the ‘appeal’ procedure of the UDRP, plaintiff has now moved to stay the transfer and seeks a declaration of non-infringement in the SDNY (note that this is properly a de novo review by the district court).
Complaint Udrp Appeal


Truthy More Protectable Than Truth

Plaintiff publishes “database compilations and market research performance indices known as BanxQuote National Average Money Market and CD Rates.” Defendants allegedly used indices beyond scope of license in offering bank services and Plaintiff moved on a variety of theories including copyright. Defendant moved to dismiss, arguing in part that plaintiff had not validly alleged infringement of protectable elements of plaintiff’s work.
The decision constitutes Judge Karas’ distillation of the Second Circuit’s New York Merc decsion and other ‘final value’ cases – cases where unprotectible raw data is converted into ‘final values’ such as estimates or valuations. The Court comes up with:
(1) If unprotectable raw data is used, and
(2) the method of converting raw data was an industry standard or otherwise accepted as an objective methodology; and
(3) the final value attempted to measure an empirical reality;
then the final value is not protected by copyright.
To be protected, plaintiff must show that:
(1) the raw data was protectable [for example subjectivity was used in selection]; OR
(2) the method of converting the raw data into a final value was an original (but not necessarily novel) process that is neither widely accepted as objective, nor an industry standard; OR
(3) the final value did not attempt to measure an empirical reality.
Decision at pp 11-12.
The Court notes the paradox:

Though at first counter-intuitive, it is actually to be expected that the more acceptance a financial measure obtains (i.e. the more successful it is), the more ‘fact-like’ it becomes.

Decision at fn. 7.
Here, plaintiff alleged a set of facts where it was plausible that it was selective enough in its construction of its indices that such ‘final values’ may be protectable.
Decision Banxquote Copyright


The PTO As Straight-Man In Monty Python Sketch

TTablog reports on the examination of an application for STEALTH that may or may not have been submitted by an entity associated with Leo Stoller . For those of you late to the party, Stoller is an ‘unusual’ guy and one of the objects of his obsessions is the PTO. Here, the Stoller ‘Pension Plan’ has filed a multi-class application for STEALTH, bounced the filing fee check, and the examiner notes that all the specimens seem to have the word STEALTH photo-shopped in (see above). The post reminds me of the Monty Python sketch where after the lunatic tries to prove that he owns a cat license, the government clerk says ‘that’s not a cat license, that’s a dog license with the word ‘dog’ crossed out and the word ‘cat’ written in in crayon.’


Mr. Olbermann, Please Retain Me

Tucker Carlson works for The Daily Caller. He is on the opposite side of the political spectrum from Keith Olbermann. The Daily Caller purchased the name KEITHOLBERMANN.COM. Yesterday it ran a story on it entitled “WE OWN YOU.” As of this writing, the lead story on KEITHOLBERMANN.COM is not about Keith Olbermann but about Mitt Romney. Carlson indicated that his new personal email was [email protected] Today they are offering KeithOlbermann.com email addresses.
Tucker Carlson is presumably familiar with the elements of cybersquatting, as in 2008 he brought a UDRP to obtain tuckercarlson.com.
Salon has now reportedly registered tuckercarlson.net.


Pairs of Images Similar Visually In One Way Or Another

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Similarities via Flickr:

The pairs of images in this “Similarities” set are similar visually in one way or another. They are presented without judgement as to the motives of their creators. The viewers of the pieces can form their own opinion(s) about what they see.