"He A9.com'ed Him" Just Rolls Off The Tongue
Tech Law Advisor on what might be a paid attempt to verbify the A9 trademark. 'A9'ed' has a chance but I don't think 'A9.com'ed' will become street slang soon.
« December 2004 | Main | February 2005 »
January 28, 2005
Better Living Through Technology
When I began practicing trademark law there was no TESS, TARR, eTEAS and no quick way to look at file wrappers. It sucked.
Thank you Trademark Office.
January 27, 2005
PTO Makes File Wrappers Available Online
The Trademark Office is now making file wrappers (the trademark application file) available online.
Here's the link.
It's pretty impressive.
Important Law Review Article on Keyword Sales
Excellent article: 'Deregulating Relevancy in Internet Trademark Law' by Professor Eric Goldman. A must read in analyzing the sale of keywords.
Nestle Gets Break On Acquired Distinctiveness
Advertising Law Conference in Seattle, April 15
Seattle University is presenting its Advertising Law Conference April 15. Speakers from, among others, Nike, Microsoft, Nintendo, Hasbro, Expedia, Perkins Coie and Graham Dunn, will discuss corporate speech, spam and 'stealth advertising.' I will be participating on a panel on targeted advertising.
Brochure here.
A9 Announces Visual Yellow Pages
Amazon's A9 search engine is rolling out a visual yellow pages, providing phoos of the busiensses listed. This may have some effect in reducing consumer fraud, but also removes a primary advantage of the Internet, which is that nobody knows you're a dog.
January 26, 2005
Vioxx, Branding of Pharmaceuticals, and Tort Law
Interesting article by James Surowiecki in The New Yorker primarily about the Vioxx matter and tort law, but also contains an insight about the branding of pharmaceutical drugs and its unintended consequences.
English Translation of French Meridien/Google Decision
English translation of French decision regarding Google's sale of MERIDIEN as keyword to competitors of Meridien Hotel chain.
The decision places importance on Google's suggestion in its AdWords promotional materials, that the potential advertiser select a keyword more effective than the generic term for the advertised goods or services.
Not Work Friendly Fifth Circuit Copyright Decision
Not work friendly: Fifth Circuit case holding that defendant's song 'Back That Azz Up' does not infringe copyright of plaintiff's song 'Back That Ass Up.' Discussion of proper jury instructions in copyright case and of concept of probative similarity.
Postive Black Talk, Inc. v. Cash Money Records, 03-30625 (5th Cir Dec 17, 2004).
January 24, 2005
Pew Report: 5 of 6 Can't Distinguish Paid From Unpaid Search?
The Pew Internet & Americna Life Project has released a provocative report suggesting that the majority of U.S. Internet users cannot tell the different between paid and unpaid search results.
From the abstract:
Only 38% of users are aware of the distinction between paid or sponsored results and unpaid results. And only one in six say they can always tell which results are paid or sponsored and which are not. This finding is ironic, since nearly half of all users say they would stop using search engines if they thought engines were not being clear about how they presented paid results.
An important cavaet is that this appears to be a 'self-reporting' telephone survey. Full Pew Report here.
Consumer Reports WebWatch report on best-practices for disclosure from November 2004 (and finding that search engines have much to improve on in this area), here.
Search Engine Watch coverage of the Pew Report here.
Geico v. Google discussion of how to conduct a survey to test likelihood of confusion in keyword ads here.
January 21, 2005
Adam Smith, Esq. on The Billable Hour
Not trademark law but worth reading: Adam Smith, Esq. on The Billable Hour.
More on Google in France
News.com article on Google's loss in France to Hotels Meridien re sale of keywords. Google indicates that it will appeal. Text of decision in French here.
EEC: BIOKNOWLEDGE describes Bio Knowledge.
Court of First Instance decision of ECJ holding that BIOKNOWLEDGE descriptive of scientific databases and ancillary services - BIOKNOWLEDGE not being syntactically unusual. Via IPKat.
10% Of Whatever A Spider Can, As Defined Herein
Stan Lee prevails in lawsuit against Marvel re contractual clause giving him 10% of 'haul' from Spiderman profits, via NY Lawyer.
January 20, 2005
If He Doesn't Like Bloglines, Why Does He Make a RSS Feed Available?
If my major complaint with RSS was that it strips the frame from my content, then those who have posted to the effect 'if he doesn't like that, he should not make an RSS feed available' would be correct.
However, as I have been making a full text RSS feed available since May of 2002, I am well aware that I, not the aggregator, am 'stripping' the frame. That is not my primary concern - commercial use of my content by aggregators, specifically contextual advertising and subscription data mining without my consent, is my primary concern.
Right now, among the million bloggers, there are bird watching blogs, and anti-Michael Moore blogs, and Linux blogs.
Those bloggers do or do not view their blogs as part of a commercial pursuit, and do or do not wish to run advertising, and do or do not wish make use of information about their readership.
As far as I can tell, based on its stated intentions, the leading web-based aggregator is reserving the right to, for example, place Windows-based software ads on Linux blogs, and Anne Coulter ads on pro-Michael Moore sites, and to sell everybody's subscription list to anyone.
All without notification or authorization by the blogger.
At least it hasn't said otherwise in response to this brou-ha-ha.
This type of commercial use is, in my opinion, clearly copyright infringement, but since my protest is prospective in nature, people may not realize it until they see their own content serving as 'editorial' for someone else's ads. Or until a reader emails them to demand that they be taken off a mailing list the blogger didn't know existed.
To argue that the creation of a RSS feed impliedly allows this type of uncontrolled commercial re-use is to argue that RSS strips all content of effective copyright protection. I have not seen a compelling legal or policy argument as to why all RSS content should be public domain in this way.
HTML content isn't automatically public content. The implied license is for the user's browser to make the copy necessary to read the content. You can't re-purpose HTML content without consent.
As far as I can see, from a copyright point of view, the only thing different about RSS content is that the template formatting isn't part of the work.
Regardless of whether the blogger has signed up for a CC license or whatever, he or she can prevent commercial re-use of the feed. But should he or she? Many posters have criticized my post not on the legal issue but as a business decision.
Maybe they're right.
So the question is not why, if I don't like Bloglines, do I make a RSS feed available.
The question ought to be:
Is there a compelling business case for the blogger to waive effective commercial control of content in order so that the aggregator can make a full-text web-based feed available?
Or can aggregators accomodate bloggers who wish to maintain the non-commercial nature of their feeds? I will guess that if Bloglines offers a commercial opt-out, its business model will still work.
January 19, 2005
France: Hotels Meridien Prevails Against Google
Text in French of decision against Google re use of MERIDIEN trademark.
No online English reporting as of yet.
January 18, 2005
How To Put A Registrar Lock On Your Domain Name
There was another high-profile domain name highjacking this weekend of NYC's ISP PANIX.COM, whose customers apparently suffered outages of service when the domain name was apparently transferred without authorization.
ICANN has a transfer policy that was born out of the Ack v. Nack wars between registrars, which policy specifies the quality and quantity of 'acknowledgment' between the 'winning' and 'losing' registrars and the registrant(s). One article suggests that the winning registrar simply didn't follow the protocol here.
In the meanwhile, you should consider putting a 'registrar lock' on your domain name, which prevents this sort of thing.
A typical FAQ on registrar lock from Go Daddy is here.
Info on Domain Protect from NSI is here.
Dot Registrar's DomSecure is here.
Act Now To Become the .NET Registry
If you would like to take over responsibility from Verisign for running the 5 million name .NET registry, you have until midnight to submit a bid to ICANN.
You may want to review the existing agreement between ICANN and Verisign before submitting your bid.
TTABlog on the Man Who Would Own Stealth
TTaBlog continues its tracking of Leo Stoller and his STEALTH portfolio. In today's installment, Stoller opposed the GROUND ZERO STEALTH kicking tee.
January 16, 2005
Clarifying Some Points As To Why I Asked Bloglines To Remove My Feed
Well, Winerized and Scoblized in one day. And many emails, some from subscribers, some not.
To clarify and answer some FAQs on my post below:
1. This was not an attack on RSS or full-text aggregators as a class. My concern is with a specific type of unauthorized commercial use of my feed.
2. It's not so much the stripping of the frame thing that bothers me - it's the prospect of:
Creating the free content for advertisements that Bloglines will sell to other trademark law firms. This isn't baseless conjecture - read this discusssion of Bloglines' plans for advertising keyed to the content of blogs. At least with Google's contextual ad program, the blog creator gets some money.
Bloglines is also accumulating and possibly selling a list of my subscribers without so much as a hello, how are you, may we do this? My decision to remove my site, viewed as rash by some, was triggered as much as what I viewed as the disingenuous nature of the response I received from Blogline when I wrote them.
That bothers me more than the frame stripping. I know that other RSS readers frame strip.
3. "If he doesn't like this, then he shouldn't make a RSS Feed available."
Can I record NBC TV's VHF broadcast and re-distribute the feed inserting my own paid advertisements? If NBC doesn't like it, then it shouldn't broadcast over the air.
4. Legally, this is not a close case. The content is copyrightable. This blog is published pursuant to a NON-COMMERCIAL USE LICENSE. Selling lists of my subscribers and running advertising would be commercial.
5. Having said that - let's discuss what is a fair RSS environment. I'm well aware that full-text aggregators is a preferred means of reading blog content and Blogline's market share indicates that many prefer the web-based approach.
But the number of posts and emails that said "how can he lose 190 readers like that? is he crazy?" suggests a fear and a perception that a model where no blogger has control over the commercial re-use of their feed is the only model - and that's unfair and plain wrong.
January 15, 2005
Why I Have Asked Bloglines To Remove My Site From Its 'Service'
This website is published under a Creative Commons license that allows for non-commercial use, provided there is attribution. Commercial use and derivative works are prohibited.
It was brought to my attention that a website named Bloglines was reproducing the Trademark Blog, surrounding it with its own frame, stripping the page of my contact info. It identifies itself as a news aggregator. It is not authorized to reproduce my content nor to change the appearance of my pages, which it does. In response to my inquiry to Blogline's CEO as to whether they sell advertising, he indicated that they 'are not currently running advertising.' Nevertheless, the Blogline's home page currently is soliciting 'targeted advertisements.' I would also assume that Blogline is accumulating commercially-useful mailing lists (its privacy policy appears to allow it to sell information). The privacy policy also has a provision entitled 'mergers and acquisitions' clearly allowing it to sell its lists.
Thus, in my view, Bloglines' reproduction of my site is a commercial derivative work. Bloglines has agreed to remove my site from its service and I thank it in advance for its cooperation.
I create content in part to promote my law firm, which I cannot do effectively if my contact info is removed. I do not participate in targeted advertising programs because the majority of advertisers that target the keyword 'trademark' are competitors. I cannot prevent such advertising when my page is reproduced and 'framed' by a third party.
For the 190 of you who subscribe to this site through Bloglines, I apologize for any inconvenience, but I think that you will still find my site easily accessible, here.
If anyone desires the convenience of being notified only when this blog (or most any blog) is updated, then I recommend subscribing to one of the many RSS programs available.
January 14, 2005
Cross-Border Cigarette Vendor Has Issues
The Blog previously posted on Philip Morris' obtaining the domain YESMOKE.COM from Otamedia SA, the largest seller of cigarettes on the Internet. Otamedia conitnues to do business as YESSMOKES.COM and DUTYFREECIGS.COM, where it appears to offer grey good cigarettes. It has now run afoul of the Attorney General of Oregon, which accuses it of multiple racketeering counts.
Music Plagiarism Project
The Music Plagiarism Project from Columbia Law School is pretty amazing. It assembles the important music copyright cases and provides background materials including audio files of plaintiff's and defendant's works, allowing you to play 'You be the Judge.'
The Most Useful Trademark Website
I was doing some international trademark research this week and the first place I looked was Gregory Guillot's All About Trademarks. It occurred to me that it is the first place I look for a lot of international trademark resources such as links to online searching and national trademark offices. I have been remiss in never mentioning the site here before. It is the most useful trademark website.
January 13, 2005
Three Stripes And You're Sued
Adidas, discoverer of the three stripe design, has sued Abercrombie and Fitch, purveyor of salacious reading material and boycott target, for allegedly infringing the three stripe design on sportswear. The news stories don't identify the particular items involved other than to refer to running pants with parallel stripes down the pant leg - so maybe this image from the Abercromie site is the subject of the suit and maybe it isn't.
Prior Abercrombie posts here and here.
Prior Adidas 3 stripe post here.
Now, On To The Golden Globes
How should I feel about this? Managing Intellectual Property magazine indicated that it was presenting its top 10 IP blogs in no particular order, then listed The Trademark Blog first. Free trial sub. required to view the article.
The 9 other blogs are: Invent Blog, IP Updates, TTABlog, Lessig Blog, Eliopoulos IP Law, IPKat, IP Litigation, AUTSMBM, and PHOSITA.
January 11, 2005
GHETTOPOLY To Be Destroyed?
Infringing copies of GHETTOPOLY with a 'street value' of $2.5 million seized by Customs to be destroyed by the Feds (pending defendant's appeal). Via Smoking Gun.
Pop-Up Ads Are Not Email
Utah court rules that pop-up ads are not emails and therefore not subject to Utah's unsolicited email statute. Via KSL TV.
January 10, 2005
Most Mentioned Brands In Popular Music
Guess which brand was mentioned the most in songs in 2004. Answer here via American Brandstand.
My client SIZZURP (a cognac that sort of rhymes with dessert) was tied for 50th!
Jerry Garcia Estate v. Moe's Burritos
The estate of Jerry Garcia has sued Moe's Southwestern Burritos LLC, owners of a burrito chain, over the unauthorized use of Garcia's image and lyrics.
Authorized CHERRY GARCIA ice cream pictured right.
Discussion of Flying Burrito Brothers here.
First Seizure Of Counterfeit Goods in Libya
NJQ & Associates writes to inform us of the first seizure of counterfeit goods in Libya, made on behalf of its client, Jotun.
PARMALAT To Remain PARMALAT
Wall Street Journal (no free online version): "For Parmalat, the Name Smells Sweet" - Parmalat, the company from Parma that sells latte, was a pioneer in expanding branding for milk. After experiencing one of the largest corporate frauds ever, the management will not re-brand, unlike other successors to scandal: TELCOVE (Adelphia), PRISMA and CROSSCOUNTRY (Enron spin-offs), and MCI (WorldCom, although to be accurate it was MCI before it was WorldCom).
Branding Blogs
Branding/marketing oriented blogs:
January 07, 2005
Listerine Is Not The Same As Flossing
Listerine is not the same as flossing and to say otherwise is enjoinable.
HONEYWELL Famous in China
HONEYWELL has been declared to be a famous mark in China. Honeywell prevailed in a civil suit against Wuxi Honeywell Precision Manufacture. Via Bloomberg.
Honeywell was represented by my friend Spring Chang, at Chang Tsi & Partners of Beijing.
Suing Once The Cat Is Out Of The Bag
Think Secret posted an article speculating on new Apple iMac computer. Apple sued alleging disclosure of trade secrets. News.com pointed out that the suit had the effect of confirming the rumors. Daring Fireball analyzes Apple's prior behavior with regard to leaks and opines that Apple has brought a weak suit against Think Secret in order to identify the source of the leaks (who likely violated a NDA), as this site has been a source of potentially damaging incorrect information in the past.
FindLaw article on trade secret protection here.
January 06, 2005
New IP Blog: Likelihood of Confusion
Ron Coleman, who's New Jersey-based law firm utilizes the slogan 'Smart Lawyers For Smart People,' (see previous posts on puffery), has started an IP-oriented blog entitled LIKELIHOOD OF CONFUSION. Recent posts mention Howard Stern, Uncle Floyd, Evel Knievel, Pet Rocks, Google and Cabbage Patch Kids.
January 05, 2005
January 04, 2005
The Return of Music Industry Self-Tarnishment
In July of 2002 I posted a piece entitled "The Trademark Implications of Spoofing Music Downloads - Self-Tarnshment?" regarding the (alleged) practice of the music industry and its representatives to upload defective and mis-labeled audio files. The implied purpose was to degrade the quality of the libraries of music files on peer to peer networks such as Kazaa. I commented at the time that, however noble the motivation of fighting copyright infringement, the intentional distribution of a defective and/or fraudulently marked product by the trademark owner or authorized licensee (remembering that the artist's name is often a trademark licensed to the record company), was, to put in mildly, unusual.
With the disclaimer that maybe every fact in this PC World article is wrong, the record industry may have outdone itself. A company named Overpeer that may or may not be hired by the record companies to do so, is allegedly uploading mis-labeled music files that contain adware and browser-hijackers.
Commentary here, here, and here.
Today's Moment of Zen Branding
Craigslist has an unconventional approach to investing in its 'brand': it doesn't do anything. "We never even use that word internally," Mr. Buckmaster [Craigslist's CEO] said. "We do zero advertising. We don't have a logo. Now we're told that we have the strongest brand ever for a company our size."
from "Rebels With A Cause, and a Business Plan," NY Times.
January 03, 2005
State of The Fried Chicken
Blog compilation of fried chicken stores named after any state in the Union other than Kentucky. Hat tip Kevin.
AFP v. AFP.INFO (French domain name case)
Via Heise Online, a report of a French decision awarding the domain name AFP.INFO to Agence France Press, from a German entity that alleged that it registered the name to provide information regarding 'Agentur fur Privatschulen' (Agency for Private Schools). In view of the interesting jurisdictional issues, is anyone aware of an English translation of the French appellate decision?