A court has declined to dismiss the trademark action by the giant law firm upset at a local real estate publication that had gossiped about condominium purchases by two of the law firm’s associates. (Levy/CL&P, Bayard/Citizen Media Law, Ron Coleman). Earlier coverage here and here.

• Thanks to guestbloggers Victoria Pynchon (of Negotiation Law Blog) and Jason Barney for lending a hand last week;
• Will the U.S. government need to sponsor its own motorcycle gang in order to hold on to trademark confiscated from “Mongols” group? [WSJ law blog]
• With a little help for its friends: Florida Supreme Court strikes down legislated limits on fees charged by workers’ comp attorneys [St. Petersburg Times, Insurance Journal]
• Stripper, 44, files age discrimination complaint after losing job at Ontario club [YorkRegion.com, Blazing Cat Fur via Blog of Walker] The stripper age bias complaint we covered eight years ago was also from Ontario;
• Federal judge green-lights First Amendment suit by college instructor who says he was discriminated against for conservative political beliefs [NYLJ] (link fixed now)
• Judge orders parties to settle dispute over noisy parrots after it reaches £45,700 in legal costs [Telegraph]
• How to make sure you’re turned down when applying for admittance to the bar [Ambrogi, Massachusetts]
• Questions at depositions can be intended to humiliate and embarrass, not just extract relevant information [John Bratt, Baltimore Injury Lawyer via Miller]

Ron Coleman is still puzzling over the size of the legal fees (at least $93 million) in the Mattel/MGA Bratz doll trademark litigation (Oct. 16).

• Litigants’ “not about the money” assertions: Mark Obbie has further thoughts on reporters’ uncritical deployment of this cliche, and kind words for our archive of posts on the subject [LawBeat]
• Lawyer on the other side of that much-circulated “I’m sorry” deposition-dispute letter has his say [Markland and Hanley via Turkewitz and Above the Law]
• Local authority in England tells gardener to remove barbed wire from wall surrounding his allotment, thieves might get hurt on it and sue [Never Yet Melted, Steyn/NRO Corner]
• Same-sex marriage in Connecticut through judicial fiat? Jonathan Rauch says no thanks [IGF]
• Lawyers are back suing despite reform of FACTA, the credit-card-receipt “gotcha” law, but insurance might just dry up [Randy Maniloff at Point of Law]
• “Racing to the trough” — auto lenders latest to ask bailout though original TARP rationale of liquidity fix seems remote [Naked Capitalism]
• “To be a green-certified property (pretty important in crunchy Portland) there must be an absolute prohibition on smoking, including outdoor spaces.” [Katherine Mangu-Ward, Reason "Hit and Run"]
• (Failed) claim in trademark case: “the term ‘electric’ is not commonly used by the general public to describe a source of power for watches” [TTAB via Ron Coleman]

Prof. Obbie (LawBeat) wonders (Oct. 7) whether an NPR interviewer could have been bolder in challenging the owner of Rin Tin Tin Inc. when she asserted that her trademark lawsuit against a Hollywood studio was not about the you-know-whats.

Waving threats of “contributory trademark infringement” and the like, Virginia lawyer and emerging Overlawyered favorite John Dozier has gotten more than one hosting intermediary to yank the Dozier-critical websites of opponent Ronald Riley. (Paul Alan Levy, Consumer Law & Policy, Oct. 3). “Unfortunately, when faced with a legal threat, many hosting sites will sacrifice your freedom of speech and send you looking for a new home on the Internet.” (David Ardia, Citizen Media Law Project, Oct. 9)(earlier). More: Ryan Gile, Las Vegas Trademark Attorney (via Ron Coleman).

• Jones Day catching more flak over heavy-handed trademark lawsuit against BlockShopper real estate news service [Levy/CL&P, Ambrogi/Legal Blog Watch, earlier; more, EFF, Plain Dealer]
• California state bar ethics complaint against serial ADA lawyer Thomas Frankovich, mostly over Jarek Molski cases [ABA Journal]
• When suing your community college professor, it’s not a good idea to include death threats [KSAT, Strange in San Antonio]
• Australia: school bans cartwheels, handstands on playground [Oz-ABC via Common Good]
• Myron Levin, whose L.A. Times journalism was known to induce hair-pulling at this site, turns up among plaintiffs in Joe Cotchett lawsuit seeking to eject Chicago meanie Sam Zell from paper’s ownership; and did you know co-plaintiff Henry Weinstein’s a founding faculty member of Chemerinsky’s new ideologically charged UC Irvine law school? [Editor & Publisher Fitz and Jen, Portfolio, PaidContent.org via Class Action Blawg; Forbes]
• Well-known Manhattan criminal defense lawyer arrested on charges of trying to “eliminate” and “neutralize” witnesses against drug dealer client [NYLJ, Greenfield]
• More coverage of Pearson pants appeal [Legal Times "BLT"]
• Swiping Nicole Black’s content and running it without credit on a splog is an ill-advised way to boost NYC services of attorney Michael Rehm [Sui Generis, Greenfield, viaTweet @nikiblack]
• Update on Barnstable harbor dredging blogger defamation suit [Cape Cod Today, earlier]
• “Ten things your lawyer won’t tell you” [five years ago on Overlawyered]

• Raft-flip mishap at Riviera Beach, Fla. water park: family’s collective weight far exceeded posted limit on warning signs, they’re mulling suit [Palm Beach Post]
• New Rigsby/Katrina depositions include sensational new allegations of Scruggs misconduct as well as touches of pathos [Point of Law]
• “Al Gore Places Infant Son In Rocket To Escape Dying Planet” [The Onion]
• So much coverage of Hasbro vs. Scrabulous but so little solid reportage by which readers might judge strength of copyright infringement claims [Obbie]
• City of Seattle spokesman says police actions in shootout with gunman might have “saved countless other lives”, which hasn’t saved city from being sued by injured bystander [Seattle Times]
• First the vaccine-autism scare, now this? “Mercury militia” crows after FDA agrees to move forward with statement on possible risks of dental amalgam, but maybe there’s not a whole lot for them to chew on [Harriet Hall, Science-Based Medicine]
• Of lurid allegations in paralegal Angela Robinson’s suit against Texas plaintiff potentate Richard Laminack, the most printable are the ones about chiseling fen-phen clients and not paying overtime [American Lawyer; Laminack response]
• U.K. attorney suing former bosses for £19 million: that wasn’t me at the interview, that was my alternative personality [Times Online]
• Allegation: Foxwoods croupier thought he could mutter lewd comments in Spanish about Anglo female patrons, but guess what, one was entirely fluent [NY Post]
• “Richard Branson claims to own all uses of ‘Virgin’” [three years ago on Overlawyered]

Selling a dozen or two t-shirts and onesies with that slogan was enough to get Alaska artist Barbara Holmes a cease and desist letter from the milk marketing people (the supermarket cow kind of milk). Holmes explains that the commodities underlying the two slogans are unlikely to be confused with each other in the marketplace: “They’re two different kind of jugs.” (Elefant, Legal Blog Watch, Jul. 25; Roger Shuy, Language Log, Jul. 28). More: David Giacalone, who also has some very kind words for us toward the end.

The ruling (Slashdot) seems relatively unsurprising given the favorable posture of U.S. law toward online middlemen like eBay, but a number of readers have asked about how it relates to the ruling the other week by a French court in favor of much more sweeping claims against eBay by luxury goods maker LVMH (Louis Vuitton Moët Hennessy). The answer, unfortunately, may not be simply that the various eBay sites have to follow different local rules depending on where they are based or to whom a purchase is being shipped. Per Roger Parloff’s Fortune piece, the earlier ruling “applies to all eBay sites worldwide to the extent that they are accessible from France, and not merely to the company’s French site at ebay.fr, according to [French lawyers on both sides]“.

The developer of a $3.9 billion casino resort on the Las Vegas Strip with the proposed name Cosmopolitan is being sued for trademark infringement by Hearst, publisher of Cosmopolitan magazine. A local IP attorney not involved with either side says the claim could “go either way” and is “not a frivolous lawsuit”. Does this mean there is evidence that the casino people were seeking to sow confusion about which business was which, or just that another valuable English word is falling prey to the trademark Enclosures? (Arnold Knightly, “Fashion mag publisher sues Strip project”, Las Vegas Business Press, Jul. 2).

In a 23-page opinion, Judge Denny Chin of the Southern District of New York ruled yesterday that confectioner Mars inc. did not violate the right of publicity of well-known Times Square entertainer Robert Burck, AKA the Naked Cowboy.

Mars had run a billboard video of its iconic M&M cartoon character in a variety of NY-centric contexts, including one scene in which the character was “wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar–Burck’s regular get-up.

New York’s publicity law (Sections 50 and 51 of the state’s Civil Rights Code) is among the most stringent in the nation, applying to “any recognizable likeness” of a person used in a commercial context, making the win an especially sweet one for Mars. An M&M in underpants and cowboy hat, said the court, was simply not a depiction of Burck.

The court, however, refused to render summary judgment on the Naked Cowboy’s Lanham Act claim of false endorsement, on the grounds that passers-by might confuse the M&M video for the Cowboy’s (somewhat dubious?) endorsement. (Earlier coverage).

For something like two decades, your computer firm has been known for the cult-like devotion of its followers and its single-button mice, so when it comes time to introduce a two-button mouse, how to placate the hurt feelings of those who’ve spent 20 years arguing that the One Way is One Button? First, it helps if the new device doesn’t actually appear to have two buttons—maybe they won’t notice?—and second, you give it a slightly-deprecating-yet-somehow-still-smug name: “Mighty Mouse” is the all-too-obvious choice and the one that Apple inc., in fact, made.

Don’t assume, just because this is Overlawyered, that Apple is being sued by CBS, which owns the rights to the cartoon superhero—too obvious.

Continue Reading »

“Three years ago, Purina sent a cease-and-desist letter to Chow, Baby!, a Baltimore area pet supply shop and Web site owned by Robin McDonald, asserting that its use of the ‘Chow, Baby!’ name was likely to cause confusion with Purina’s CHOW trademarks and would dilute the distinctive quality of those marks. … According to the dictionary, ‘chow’ is defined as food, a meaning that dates back to 1860.” (Carolyn Elefant, Legal Blog Watch, May 2). More from Ron Coleman:

But companies such as Purina are not interested in discussing the matter. Brand management isn’t a seminar. They are interesting in executing and maintaining a policy of complete domination of not only their brand equity space, but a comfortable semiotic buffer all around that space to the full extent that they can get away with it. Judges simply do not award fees or otherwise penalize brand owners for overreaching under the Lanham Act, though the Act empowers them to do so (the exceptions are notable and hence reportable). For this reason it is worth it to Purina and companies like it — it is a rational economic and corporate choice — to litigate these cases at the small risk of actually getting to a final adverse judgment regarding a trademark they have no right to anyway, as weighed against the much higher possibility that the other side will surrender $10,000, $25,000 or even $100,000 worth of fees into the process — dollars that are orders of magnitude more significant to the defendant (or declaratory judgment plaintiff) than for a corporation that probably has counsel on a retainer anyway.

In Baltimore; loser pays; trademark; trademarks

Another bunch of things not to do if you’re a member of the legal profession.

• Send insulting letters to opposing counsel. (G.F. Pignato, ordered to write an article about civility.) [Legal Profession Blog via ABA Journal]
• Leave your innocent client in jail by failing to act on new evidence. (William S. Gebbie, surrenders his California license; also accused of stealing client funds.) [ABA Journal]
• Use the NY Yankees trademark without permission in advertising for asbestos clients. [ATL]
• Make “jerk-off” motions in court. (Adam Reposa, Texas, sentenced to ninety days for contempt of court; many in blogosphere are appalled at what they call an overreaction.) [ATL; Simple Justice; Mark Bennett and again; and Patterico notes an interesting coincidence]
• Mock the plaintiffs’ attorney at a jury trial with “Overruled” signs and soccer-style red cards. (Judge James M. Brooks, admonished.) [ATL]
• As a prosecutor, conceal exculpatory evidence. (Former Sonoma County Deputy District Attorney Brooke Halsey Jr., suspended.) [ABA Journal]
• And even if you’re a pro se, don’t send a death threat to opposing counsel by fax. [Milwaukee Journal-Sentinel]

Earlier: Feb. 24.

Updating our Mar. 29, 2006 post: “Computer store owner Charles Smith has won a two-year legal battle with Wal-Mart, which has demanded he stop making and selling T-shirts and other items with slogans such as ‘Wal-ocaust’ and ‘Wal-Qaeda.’ U.S. District Judge Timothy C. Batten Sr. found that Smith’s products qualified as protected noncommercial speech because his goal was to criticize Wal-Mart, not to make a profit from his products. The judge noted that Smith had sold only 62 T-shirts, including 15 to one of Wal-Mart’s outside law firms.” (Janet L. Conley, “Parody of Wal-Mart Trumps Its Trademark”, Fulton County Daily Report, Mar. 26; Likelihood of Confusion, Mar. 22; Randazza, Mar. 23).

Meatpacker Hormel has met with defeat in its courtroom attempt to invalidate the registration of the trademark SpamArrest for an email-screening service (Ron Coleman (Nov. 27; TTABlog, Nov. 28). Our earlier coverage: Jul. 9, 2003 and Apr. 19, 2007.

Writes Jack Bogdanich (Oct. 25): “‘Sam Adams’ is a very, very, very common name. People who brand their companies with a very, very, very common name have to live with the consequences. Letting supporters of a real politician named Sam Adams express their support for him with an appropriately named web domain or two is just something that Boston Beer is going to have to live with.” More: Lattman, Oct. 25.