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.
Posts Tagged ‘trademarks’
October 25 roundup
- Lawyer for Mothers Against Drunk Driving: better not call yourself Mothers Against Anything Else without our say-so [Phoenix New Times]
- Ohio insurer agrees to refund $51 million in premiums, but it’s a mutual, so money’s more or less moving from customers’ left to right pockets — except for a big chunk payable to charity, and $16 million to you-know-who [Business First of Columbus; Grange Mutual Casualty]
- Sources say Judge Pearson, of pants suit fame, isn’t getting reappointed to his D.C. administrative law judge post [WaPo]
- Between tighter safety rules and rising liability costs, more British towns are having to do without Christmas light displays [Telegraph]
- So strong are the incentives to settle class-action securities suits that only four have been tried to a verdict in past twelve years [WSJ law blog]. More: D&O Diary.
- It’s so cute when a family’s small kids all max out at exactly the same $2,300 donation to a candidate, like when they dress in matching outfits or something [WaPo via Althouse]
- Idea of SueEasy.com website for potential injury plaintiffs [Oct. 19] deemed “incredibly stupid” [Turkewitz]
- New at Point of Law: med-mal reports from Texas and Colorado; Lynne-Stewart-at-Hofstra wrap-up (more); immune to reason on vaccines; turning tax informants into bounty-hunters?; and much more;
- $800,000 race-bias suit filed after restaurant declines to provide free extra lemons with water [Madison County Record]
- Settling disabled-rights suit, biggest card banking network agrees to install voice-guidance systems on 30,000 ATMs to assist blind customers [NFB]
- Think twice before publishing “ratings” of Pennsylvania judges [six years ago on Overlawyered]
October 19 roundup
- SueEasy.com is new website that will take in complaints from potential plaintiffs and relay them (OK, sell them, actually) to lawyers [TechCrunch]
- 6-year-old girl in Park Slope, Brooklyn, faces $300 fine for drawing pictures with sidewalk chalk [Brooklyn Paper]
- 30-year-old presents at ER with chest pain. Better order up the works, right? [Shadowfax first and second posts; more on emergency rooms/care here, here, here, etc.]
- More on donor bundling, lawyers and candidate John Edwards [WSJ sub-only, yesterday; Edwards-critical site]
- Monsanto, criticized for aggressive lawsuit campaign against farmers over its patented seeds, loses a patent case against four seed companies [BLT; Liptak/NYT 2003; critics of company]
- A corpse is a corpse, of course, of course/And no one can sue for a corpse, of course: more on that class action that keeps going with dead guy as named client [Madison County Record; earlier]
- While mom is taking bath in motel room her two young daughters somehow manage to change the channel to pr0n; jury awards mom $85,000 [L.A. Times]
- Another case history in how you can buy yourself a world of trouble when you try to fire your contingent-fee lawyer [Texas Lawyer (Law Offices of Windle Turley v. Robert L. French et al.)]
- Hey, you’re pretty good yourself [Marty Schwimmer, Trademark Blog]; just one link can give such a thrill [Cal Blog of Appeal]
- Tuck it in and turn out the light? Court won’t reopen Pooh heirs’ long-running suit against Disney [Reuters/NYT; earlier]
- Texas couple ordered to pay $57,000 for campaign ads criticizing judge [eight years ago on Overlawyered]
Apple sued for dropping iPhone price
Queens, N.Y. resident Dongmei Li has sued the tech giant, along with AT&T and Steve Jobs, over the $200 slash in the price of the much-ballyhooed cellphone less than two months after its launch. Among her many claims are that Apple unfairly deprived her of the chance to sell her early-bought iPhone at a profit, and that the $100 store credit Apple offered early buyers was inferior to the full refund they could have obtained if they decided they didn’t like the product right away. (Kasper Jade, “Apple, Jobs, AT&T sued over iPhone price cut, rebates”, AppleInsider, Sept. 28; Tom Krazit, “One More Thing”, CNet, Sept. 28; more comments at TechMeme; Katherine Mangu-Ward, “When Bad PR Happens to Good Economics”, Reason, Sept. 14). At the Apple Insider Forums, commenter Ken Laws quotes a passage describing another part of the suit:
“The lawsuit goes on to accuse Apple, Jobs and AT&T of forcing customers into 2-year service agreements with AT&T and imposing hefty $175 termination fees.”
I’ll never forget that terrifying night. I was just sitting at home, minding my own business, when Steve Jobs and a platoon of AT&T thugs burst through my front door…. Hovering helicopters and troops with vicious, snarling dogs kept the damned in line as we waited, huddled in fear, knowing our only choices were to sign the two year contract or be put up against the back wall of the Apple Store and shot.
I survived that night. But I know a lot of people who didn’t. I see their faces whenever I get a call on my iPhone, because I screwed up my contacts list and all the portraits are wrong.
Earlier iPhone suits: Jul. 30, Sept. 25, and (trademark claim): Jan. 10.
Disparaging a trademark
Can a court really issue an injunction ordering someone to refrain from engaging in such disparagement in blog comments and other such public forums? A federal court did so in the case of Freecycle Network, Inc. v. Oey (Eugene Volokh, Aug. 14).
Web disputes of the future two weeks
A popular blog meme is the Mingle blog rating (e.g. Bainbridge, Opinio Juris). You won’t see it here: movie ratings are trademarked by the Motion Picture Association of America, and they come down like a hammer on those who use the trademarks, and this blog-meme not only uses the letter rating, but the actual MPAA symbol. Unfortunately, US trademark law forces the MPAA to take a heavy-handed approach, because of the alternative: forty years ago, they did not seek trademark protection for their new “X” rating and as a result, the rating became a generic symbol for hard-core pornography (and infantilized the commercial moviegoing public: because now most theaters and brick-and-mortar video stores refuse to offer anything rated harder than “R”, we no longer get such movies, unlike the early 1970s when major studios would make X-rated movies with stars like Marlon Brando or Dustin Hoffman).
(And how well does the blog meme work? Well, the gizmo shares the MPAA’s left-leaning sensibilities: we got bumped to a “PG” because of multiple uses of the word “gun.”)
The civil right to be cruel
But first, a greeting, and a thank you to the Overlawyered boys for inviting me to guest-blog this week. I’m Ron Coleman, proprietor of the LIKELIHOOD OF CONFUSION® blog on trademark, copyright and free speech law, and a contributor to Dean’s World and other things. In short, I love practicing law so much that I spend most of the day blogging.
So much for self-promotion (if you can call it that) — now to the promotion of animal cruelty — it’s all the rage, after all:
A new state law against fighting roosters violates a treaty that ended the Mexican-American War, a cockfighting association claims in a lawsuit.
The New Mexico Gamefowl Breeders Association and six businessmen argued that the law infringes on rights protected under the 1848 Treaty of Guadalupe Hidalgo, which made New Mexico a U.S. territory.
The lawsuit contends the treaty guarantees civil, political and religious rights, privileges and immunities to the people of New Mexico.
Many of the association’s 2,000 members “are devoted to rural lifestyles, of which gamefowl breeding and-or participating in gamefowl shows and fights are, in New Mexico, long-standing, culturally bound and significant activities,” the lawsuit said.
Wow, some treaty! It guarantees the right to — well, to do what, exactly? Let’s ask the Humane Society:
Cockfighting is a centuries-old blood sport in which two or more specially bred birds, known as gamecocks, are placed in an enclosure to fight, for the primary purposes of gambling and entertainment. A cockfight usually results in the death of one of the birds; sometimes it ends in the death of both. A typical cockfight can last anywhere from several minutes to more than half an hour.
The birds, even those who do not die, suffer in cockfights. The birds cannot escape from the fight, regardless of how exhausted or injured they become. Common injuries include punctured lungs, broken bones, and pierced eyes. Such severe injuries occur because the birds’ legs are usually fitted with razor-sharp steel blades or with gaffs, which resemble three-inch-long, curved ice picks. These artificial spurs are designed to puncture and mutilate.
Nice. And, best of all, tanto auténtico! What judge could resist such a rootsy appeal to heartless blood lust? Plus there’s dinero at stake, too.
Okay, so what’s the legal theory again? Oh, yeah, that’s right: This novel civil right — the right to engage in any “long-standing, culturally bound and significant activities” — is enshrined in the Treaty of Guadalupe Hidalgo. Well, here’s the Treaty: You see the clause guaranteeing the inalienable right to “long-standing, culturally bound and significant activities”?
No? Okay, well how about just the piece about roosters? Any specifications for ice picks?
Me neither. The only thing I remember about the unlikely juxtaposition of ice picks and Mexico is a certain unpleasantness involving some murderous Bolsheviks. Now, we saw then that “breaking a few eggs” can be unpleasant, but these poor chickens deserve better. Plaintiffs in this lawsuit, however, don’t.
UPDATE: Wow. There’s more to this civil right than I thought!
Trademark abuses of the month
Although trademark law certainly has plenty of intricacies, the essence of trademarks is the protection of consumers from confusion in the marketplace. When one buys goods or services, one should be able to know the manufacturer of those goods or provider of those services. Except, of course, when lawyers get involved; then trademarks are just used by large businesses to stifle competition. Infoworld reports on how some companies are abusing trademarks to shut down smaller competitors on EBay. EBay, to avoid liability for trademark infringement by its sellers, is quick to shut down any auction when a trademark holder complains. And then makes it difficult for the seller to reverse the decision:
As she began the process of getting EBay to reinstate her account – which includes having to take a condescending online tutorial on intellectual property and swearing that you’ll never be bad again – the reader also was able to contact with other EBay sellers whose Don Ed Hardy auctions had been taken down. “Some sellers who had not yet actually sold any Don Ed Hardy goods were told by the fraud department that ‘test purchases’ had proven their goods were counterfeit,” the reader wrote. “Some were told that it didn’t matter they could prove their merchandise was authentic – Don Ed Hardy would continue to take down their listings via VeRO by citing ‘violation of a trade agreement’ between the company and its distributors. And all were threatened as I was with trademark litigation that could result in treble damages, paying their legal costs, etc.”
But the threat of running up legal fees with trademark lawsuits isn’t just felt by individual EBay sellers; even large companies — like ABC television — are afraid to fight ridiculous claims of trademark infringement:
“Sam I Am” isn’t—anymore.
The planned ABC fall comedy starring Christina Applegate has changed its name to “Samantha Be Good” after receiving a “cease-and-desist” letter from lawyers representing the rights-holder to Dr. Seuss characters, an attorney said Tuesday.
[…]
“We asserted a trademark infringement claim,” in a May 17 letter to ABC, said Jonathan B. Sokol, an attorney representing San Diego-based Dr. Seuss Enterprises, LP.
“People worldwide associate those characters with Dr. Seuss books and … Dr. Seuss vigilantly protects its trademark rights,” Sokol said.
The TV show’s original title might have confused people as to whether the company was sponsoring or otherwise involved with the program, Sokol said.
This is just a guess, but it’s unlikely that someone watching a sitcom in which Christina Applegate has amnesia is going to confuse it with Green Eggs And Ham, a book in which a cartoon character tries to entice another cartoon character to eat unkosher food with classic lines like “Could you, would you, with a goat?”
June 11 roundup
Updating earlier stories:
- The Judge Pearson consumer fraud suit starts today. It’s exceedingly silly, but ATLA’s attack on Judge Pearson is hypocritical: the only difference between this consumer fraud suit and the consumer fraud suits ATLA supports is that it’s an African-American pro se going against a shallow pocket instead of a well-funded bunch of millionaires going against a deep pocket. The Fisher blog @ WaPo notes a publicity-stunt settlement offer. [via TaxProf blog]
- Wesley Snipes playing the race card in his tax evasion prosecution would have more resonance if his white co-defendant weren’t still in jail while he’s out on bail. [Tax Prof; earlier, Nov. 22]
- “Party mom host set for Virginia jail term” for daring to ensure high school students didn’t drink and drive by providing a safe haven for underage drinking. Earlier: June 2005. [WaPo]
- Sorry, schadenfreude fans: Fred Baron settles with Baron & Budd. [Texas Lawyer; earlier Sep. 4]
- Blackmail-through-civil discovery lawyer Ted Roberts (Mar. 19 and links therein) seeks new trial. [Texas Lawyer]
- Second Circuit doesn’t quite yet decide Ehrenfeld v. Bin Mahfouz libel tourism suit (Oct. 2003). [Bashman roundup of links]
- NFL drops claims to trademarking “The Big Game” as a euphemism for the trademarked “Super Bowl” (Jan. 31) [Lattman]
- More on the Supreme Court’s “fake mental retardation to get out of the death penalty” decision, Atkins v. Virginia (Feb. 2005; Sep. 2003). [LA Times]
- What does Overlawyered favorite Rex deGeorge (Sep. 2004) have to do with The Apprentice? [Real Estalker]
Scotts sues TerraCycle
According to litigation filed by giant gardening-supplies company Scotts Miracle-Gro, the 
package on the right infringes the “trade dress” of the package on the left. Comments reader/blogger Amy Alkon: “Terracycle’s package looks like Scotts’ like Betty White looks like Shaquille O’Neill.” TerraCycle has set up a website called SuedByScotts.com, and bad publicity for the larger firm has been ubiquitous. A sampling: Inc. magazine, Sustainable is Good, Consumerist, 10,000 Marshmallows.