Copyfight is provoking me, in a friendly way, to comment on the proposed dilution revision bill.  EFF is soliciting opposition to the bill. I honestly have been too wrapped up with client work to comment meaningfully.

My initial reaction to EFF’s hypo regarding UPS suing Brown’s Record Store may be off the mark,.  UPS’s rights are in the color brown as applied to clothes and to vehicles, but its word marks are THE AMAZING COLOR BROWN and WHAT CAN BROWN DO FOR YOU (I based this on a review of UPS’ trademark list on its website), neither of which would give much traction here.  I’m therefore  a little skeptical that UPS could or would go after BROWN’S RECORD STORE (or DR BROWN’S CEL RAY TONIC).

But UPS can plausibly say that a brown delivery truck signifies UPS as source. 

So what should be the result if:

1. FedEx painted its trucks ‘UPS Brown’ but left FEDEX on them.

2. FlyByNight Courier used UPS Brown trucks.

3. Your pizza place used UPS Brown trucks.

4. Your gay lover dressed up as a UPS delivery man for halloween.

The situation for Google in France gets a little worse.  An appellate court in this decision rules against Google for selling keywords.  One EEC colleague speculates that Google may have a hard time receiving any joy from the European Court of Justice and that its hopes will rest on the French Supreme Court.   The translated decision is a little unclear to me as to whether the Court believes that Google should have known that the keywords were infringing or whether Google took too long to remove the names after it was placed on actual notice.

 

The IP situation in the law is, how do I put it, screwed up.  The U.S. taxpayer finances the creation of the case law, but there is no unfettered free public access to comprehensive indexed databases of decisional law (the access to US COA decisions being a much-appreciated first step).

As for commentary on the law, law review writers (some of them salaried professors of public or nfp institutions) are not paid, but that doesn’t mean (1) that their works are freely accessible; and (2) that somebody doesn’t profit from their writing.

Professor Lessig is no longer ok with that.

Hypo 1.  Acme Lock-Up, a private for-profit security and incarceration provider to municipalities, releases an advertisement that states “Fewer prisoners are killed or seriously injured in our facilities, than in those of our competitors.”  This statement is false and Acme knew it was false when making it (the “False Claim”).

Hypo 2.  Same facts as Hypo 1 except the False Claim is made by an Acme officer to a reporter from LazyEyewitnessNews TV (“LENS TV”).  The reporter is too lazy to corroborate it and LENS TV  runs the footage of the officer making the False Claim without commenting on it.

Hypo 3 Same facts as Hypo 2 except LENS TV knows of the falsity of the claim.

Hypo 4.  Same facts as Hypo 3 except the reporter makes the False Claim him or herself on air as an unattributed statement of fact.

Hypo 5.  Acme prepares a news report on private incarceration services for the purpose of affecting public opinion on the topic.  The report includes the False Claim.  Acme creates an entity styled as an independent news service to distribute the ‘report.’  LENS TV receives the report from the news service and runs it as news.

Hypo 6.  Hypos 1 through 5, except instead of a private actor, it’s the U.S. Government.

Discuss possible causes of action under the Lanham Act and state statutes against Acme/USG and/or Lens, and who may have standing to bring them.