30
Dec/16

Lombardo v Seuss Enterprises – Fair Use of Grinch?


Playwright sues for damages after copyright complaint by Seuss estate results in cancelation of play. Plaintiff seeks declaration of non infringement (fair use), and damages from tortious interference.

NY Times coverage here.



23
Dec/16

US Trade Representative Report on Notorious Markets (Bad Guy List)


From the introduction:

The Office of the United States Trade Representative (USTR) has developed the List under the auspices of the annual Special 301 process. USTR solicited comments regarding potential markets to highlight in this year’s List through a Request for Public Comments published in the Federal Register (WWW.REGULATIONS.GOV, Docket Number USTR-2016-0013). The List is based on publicly-available information.

USTR highlights these markets not only because they exemplify global counterfeiting and piracy concerns, but also because the scale of infringing activity in such markets can cause significant economic harm to U.S. intellectual property rights (IPR) holders. Some of the identified markets reportedly host a combination of legitimate and unauthorized activities. Others reportedly exist solely to engage in or facilitate unauthorized activity. The List is not an exhaustive.

The list of bad guys begins on page 7.



22
Dec/16

Text of 2d Cir Summary Order Dismissing LV Claim re ‘My Other Bag’ Parody


classic-zoey-mono2

my-other-bag-beige-zoey-tote-product-1-16432681-3-104253920-normal

2d Circuit dismisses LV infringement suit re MY OTHER BAG, canvas bag with photo of LV bag on one side, words ‘My Other Bar’ on the other side. Canvas bag is ‘conscious departure’ from LV bag.

Text of lower court decision in LV v My Other Bag.



21
Dec/16

Your LinkedIn Endorsements May Get You In Trouble


endorsements

I recently became aware of this opinion of the Ohio Board of Professional Conduct regarding “Client Testimonials in Lawyer Advertising and Online Services” It suggests that lawyers have an obligation to monitor testimonials they publish or allow to be published in social media, which would seem to include endorsements on LinkedIn. In relevant part:

A lawyer may place information about his or her services on a website or online
legal directory. This information is a form of advertisement that a lawyer must ensure
complies with Prof.Cond.R. 7.1 and 7.2. A variety of websites, online legal directories,
and social media permit clients and others to endorse or post a review about a lawyer. A
client typically provides a review on his or her own volition and waives the attorneyclient
privilege as to any information revealed in the review or comment. A lawyer with
an online presence, who is able to control the content of his or her online profile, should
periodically monitor the content of the profile to ensure the communications about the
lawyer or the lawyer’s services comply with Prof.Cond.R. 7.1. False, misleading, or
nonverified testimonials in the form of client comments or endorsements should be
removed by the lawyer when he or she has control over the content of the profile. See
Penn. Adv. Op 2014-300 (2014). Emphasis added.

I have never paid a great deal of attention to my endorsements on LinkedIn, and I worry more about complying with New York law than that of Ohio, but this opinion motivated me to look at my LinkedIn profile and endorsements just now, to see if anything could be thought of as misleading. OK, I don’t do patent prosecution so I deleted those endorsements. ‘Patents’ is a skill of mine if by skill you mean do I have world-class patent partners. One or two endorsements are from people I’ve never worked with (I did not see a method of deleting a specific endorsement). To paraphrase a joke “I love your lawyering, I heard it was great.”

Its always something.

HT Law for Lawyers Blog



19
Dec/16

Trade Dress Complaint: BULLEIT Whiskey (Diageo) v DR McGILLICUDDY Whiskey


This is Diageo’s BULLEIT RYE Whiskey:

bulleit-straight-american-95_-rye-whiskey-1

It is sold in a (1) clear (2) canteen-shaped bottle with the trademark in (3) arched (4) embossed lettering above a (5) rectangular label (6) two thirds of the way down the bottle with (7) a divider between the trademark and product descriptor and (8) a border on the label, all intended to (9) evoke the rugged look and feel of the American frontier.

This is Sazerac’s DR. McGILLICUDDY Whiskey:

dr mcguillicuddy

This is Diageo’s trade dress complaint:



16
Dec/16

McAfee’s Moving Brief re Prelim Against Intel re use of MCAFEE


McAfee v Intel lawsuit previously discussed here.



8
Dec/16

Should Intermediaries (Such as Retailers) Collect and Pay IP Royalties?


We had an expert from an accounting firm give us a presentation yesterday about royalty audits. All sorts of bad things can occur with regard to collecting royalties from the licensee – the licensee may under count, may go bankrupt, etc. (hence the need to attend a presentation about royalty audits, so that we’ll draft better royalty audit clauses in our licenses.

Royalty audits (and disputes) are expensive. The thought occurs: can an intermediary (say, the retailer, or a payment processor) collect patent and trademark royalties on behalf of the licensor? Wal-Mart is told, for example, that if if it sells SKU 1234, then it will remit the designated royalty amount to an agent of the licensor. The licensor would not mind doing without the headache that the licensee may, for example, disappear without paying the royalties. The licensor might even be prepared to grant the licensee a lower royalty rate (or grant other favorable terms) in exchange for the licensee agreeing to this scheme. The intermediary might have two motivations for participating in this: (1) it will make itself a slightly more attractive distribution channel by offering this service; and (2) it would likely be compensated by the licensor for this.

What are the arguments for and against? I’m not really envisioning a copyright collective licensing model. More of a ‘withholding lien’ model.



7
Dec/16

Anatomy of “Anatomy of a Rumor”


I was reading about the Pizzagate affair, where a 28 year-old, with an arrest record and substance-abuse problems, walked into a DC pizza place named Comet Ping Pong, and fired an AR-16 rifle several times. It was reported that he had driven up from North Carolina to ‘investigate’ rumors on the Internet that the restaurant was connected in some way to a pedophilia ring that was itself, somehow connected to Hillary Clinton and John Podesta.

As I read how vicious allegations were fabricated, amplified across the Internet, and then given such credence that a young man felt compelled to ‘investigate’ (not with a notepad but with a rifle), I was reminded of “Anatomy of a Rumor,” a post I had written about an incident 11 years ago. This was the beginning of the blogging era, and the rise of ‘amateurs’ giving their opinions on all topics. I was happily part of this movement. In addition to writing The Trademark Blog, I wrote for a group blog named “Between Lawyers”

This is what I remember about the post. In July 2005, John Roberts had been nominated to SCOTUS. The New York Times ran a background profile. There was something about the Times’ choice of photos, and some facts that it identified, that could put into the reader’s mind the ‘notion’ that the Times was hinting that Roberts was gay. Addicted to social media even then, I regularly read blogs by Wonkette, Ann Althouse (a law professor) and Powerline (one of whose writers was a conservative lawyer named Hinderacker), and I noticed a peculiar game of ‘telephone’ that started with the Times article. I suppose now you would call it ‘transmission of a meme.’ Professor Althouse made a note about the Times’ seeming implication and Wonkette made a joke about it as well. Some conservative blogs repeated but mischaracterized these two passing observations, and by the time Hinderacker got to it, he was claiming that ‘some Democrats’, who were ‘beneath contempt,’ had begun a smear campaign against Roberts. If you only read the Powerline story, then your take-away was that the Democrats who were ‘beneath contempt’ had begun a smear campaign against Roberts.

Unfortunately, the “Between Lawyers” blog and its archive have apparently gone to File Not Found land, but fortunately Professor Althouse still exists and you can read her account (she disagreed with the way I characterized her impression of the Times article but she agrees with the general point, which is that Hinderacker’s allegations simply wasn’t supported by reality)

Professor Althouse ends her post by asking about whether this was Powerline’s modus operandi.

As much as I hate linking to Powerline, I ask that you do the following. Read the Washington Post story. Read Powerline’s story on Pizzagate here. My thought is: a man, with an arrest record and a substance abuse problem, walked into a restaurant, with an AR-16, because he had read that Hillary Clinton and John Podesta were part of a satanic pedophile ring. He fired the rifle. Yes, there are other horrible things in the world but children frequent this restaurant. This isn’t ok. What are we going to do?



29
Nov/16

Infographic Explaining Top Level Domain System


Infographic explaining top level domain name system, courtesy of HostingFacts.com

SourceHosting Facts



29
Nov/16

In Rem Complaint re Conversion of CostaRica.com


Plaintiffs owned CostaRica.com. Defendants allegedly hacked the admin info and substituted themselves as registrant (statement of facts begins at paragraph 13). They didn’t re-direct the site at first so Plaintiff’s website continued to resolve, and thus it didn’t learn of the hack at first. Now, plaintiff brings an in rem action, alleging rights in the trademarks COSTA RICA and CostaRica.com.