Strange article in the Wall Street Journal on Friday in the Informed Patient column.  The column discusses medication errors and although the major graphic is a box of  ‘some common drug name mix-ups’ (such as ZYRTEC and ZYPREXA and CELEBREX and CELEXA), there is no way to determine if this is in fact a major problem, as the article itself deals with an apparently more prevalent type of error – dosage mistakes.

NY Post reports that the owner of the SOHO GRAND and TRIBECA GRAND Hotels is protesting the third-party use of CHELSEA GRAND.

Contrary opinions are coming in response to my question regarding innocent infringement.  To recap: a retailer is unsure if a batch of goods is counterfeit.  It asks a clerk in the trademark owner’s outlet store, who (erroneously) states that they are genuine.  The retailer also submits the goods to the trademark owner’s repair department, which repairs the sample without comment.  The court referred to this retailer as an innocent infringer.  As a preliminary point, I think that this retailer will be the last one allowed to use this fact pattern to establish innocence, now that we know that counterfiets fool even the repair department.

Some readers comment that the retailer should have gone to the trademark owner’s legal department.

However one reader, Pamela Chestek, notes that:

. . . [S]elling gray market goods can sometimes be perfectly legal, but there’s no manufacturer that LIKES it.  Once Gucci finds out it will quite likely sue (even if the goods are authentic and legal), so why send them an invitation?  They would also wind up with pretty nice evidence that there was no material difference, in support of the legality of the importation of what they thought were just parallel, not counterfeit, goods

So, between the possibility that ‘covert’ questioning like that done here can produce a false positive, and overt questioning may produce a false negative, what should a retailer do?   There is the maxim that you shouldn’t ask a question if you’re not prepared to abide by the answer.

Defendant can continue to sell round thermostats, Seventh Circuit not accepting for purposes of preliminary relief, Honeywell’s argument, in part, that what once was functional, may today be merely ornamental.

Eco Manufacturing v. Honeywell, 03-2704 (7th Circuit Dec 31, 2003).

Plaintiff fails to establish secondary meaning in the mark LAW OFFICES.  Sixth Circuit opinion here.

Thanks to Sports Law Blog for the tip.

Estate of J.R.R. Tolkein wins domain name case regarding jrrtolkein.com here.

If Dr. Seuss wrote Lord of the Rings here.

Herman Miller settles trade dress case regarding AERON chair (left) and the Nightingale CXO (right), via PR Newswire.

The Ninth Circuit has reversed and remanded the District Court decision in Playboy v. Netscape, holding that Playboy did in fact state a good cause of action in arguing that search engines may be either infringing or diluting trademarks by selling keywords. 

Will this affect Yahoo’s stock price?  Google’s IPO?

Concurring decision takes well-deserved swipe at Brookfield.

Playboy v. Netscape, 00-56648 (Jan 14 2004).