We regularly cover how big business can abuse trademark litigation to attempt to squelch critical commentary or creativity. (E.g., Jan. 3, May 28, Jan. 4, 2005, Nov. 7, 2004, Jun. 29, 2004, Aug. 31, 2003). The Senate is contemplating legislation, already passed by the House, H.R. 683, that would make such litigation easier “regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury”: more “Harm-Less Lawsuits.” The bill is meant to undo the Supreme Court interpretation of the Lanham Act in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115 (2003). The Electronic Frontier Foundation is on the case. Chris Rush Cohen commented back on March 16.
Posts Tagged ‘trademarks’
Blawg Review #39 — and “best name” honors
Blawg Review #39, the carnival of law bloggers, is hosted this week at Bruce MacEwen’s Adam Smith Esq., which is an invaluable source for those interested in the economic aspects of law-firm practice. Calling me “ever-reliable”, he links to last week’s item on the Dallas restaurateur who sued over a bad review.
Speaking of Blawg Review, the anonymous organizer of that endeavor has announced the winners of “Blawg Awards 2005”, and Overlawyered is happy to have won for Best Name for a Legal Blog. Among those commenting: Patent Baristas and the naming-and-branding site WordLab.
Ollie v. the world
The Oxford English Dictionary recognizes “ollie” as a skateboarding move, but now Alan “Ollie” Gelfand, who invented the move as a teenager in 1976, and got around to registering a trademark in 2002, claims exclusive use of the term, and is suing Disney, Sega, and numerous other defendants $20 million for their use of the word. (Patrick Danner, “If you use the ‘ollie,’ pay Ollie”, Miami Herald, Dec. 7).
Open season to hack trademark infringers?
Some years back attorneys Ronald Coleman, of Likelihood of Confusion fame, and Matthew W. Carlin, who has represented the interests of Barney, the children’s purple dinosaur, proposed that when other remedies fail intellectual property owners should request court permission to hack the websites of court-order-defying trademark infringers (“Hacker with a White Hat”, reprinted at Coleman Law Firm site). Declan McCullagh (Oct. 17) and Jonathan B. Wilson (Oct. 20) don’t think that’s such a great idea at all, nor do McCullagh’s commenters.
Garrison Keillor
“Richard Branson claims to own all uses of ‘Virgin'”
Boing Boing (Jul. 27) and Chilling Effects (Jul. 10) have details. See Amanda Cantrell, “Branson trademark suit sparks debate”, CNN/Money, Jun. 29. Update: Jan. 3, 2006.
Says he owns “stealth”, “hoax”, “chutzpah”
Abuses of trademark law:
Over the last few years, Leo Stoller has written dozens of letters to companies and organizations and individuals stating that he owns the trademark to “stealth.” He has threatened to sue people who have used the word without his permission. In some cases, he has offered to drop objections in exchange for thousands of dollars. And in a few of those instances, people or companies have paid up….
Mr. Stoller owns and runs a company called Rentamark.com, which offers, among other things, advice on sending cease-and-desist letters and Mr. Stoller’s services as an expert witness in trademark trials. Through Rentamark, Mr. Stoller offers licensing agreements for other words he says he owns and controls, such as bootlegger, hoax and chutzpah, and sells t-shirts and other merchandise through what the Web site calls its “stealth mall.”
Stanford lawprof Mark A. Lemley says Mr. Stoller’s sweeping claims are “based on a misunderstanding of how trademark law works” and that courts would be unlikely to assign liability unless a rival company’s use of a word led to consumer confusion with some product or service offered by his enterprises. However, many companies he has targeted are reluctant to incur the legal fees involved in defending their use of the words; one of his companies appeared before one federal judge in Chicago 33 times between 1995 and 1997 alone to assert its rights. (Colin Moynihan, “He Says He Owns the Word ‘Stealth’ (Actually, He Claims ‘Chutzpah,’ Too)”, New York Times, Jul. 4).
Comics and IP law
Trademark and copyright battles, it turns out, have helped shape the course of development of comic-book superheroes, including their names, histories and even the array of powers they wield. Jon Rowe (Jun. 12) sorts out some of the complications.
“Brand Name Bullies”
Unreviewed, but sounds promising: Brand Name Bullies, by David Bollier (website), published last December, bills itself as an “impassioned, darkly amusing look at how corporations misuse copyright and trademark law to stifle creativity and free speech.” The publisher, John Wiley & Sons, has a website with excerpts. For many examples of that phenomenon, see our pages on intellectual property/technology and free speech/media law.
Wal-Mart vs. Kevin Brancato
Kevin Brancato, a Ph.D. candidate at George Mason who heads the masthead at the economics blog Truck and Barter, also publishes a weblog entirely devoted to following the fortunes (policy and otherwise) of the Wal-Mart Corporation, by the name of AlwaysLowPrices.net (see our cites to it on Apr. 13, 2004 and Apr. 6, 2005). In contrast to the Wal-Mart-bashing line taken by so many other sites, Brancato frequently, though not invariably, rises to the defense of the company and the efficiencies of its way of doing business. This has done nothing to prevent Wal-Mart’s lawyers from sending him a cease and desist letter ordering him to vacate the name and URL “AlwaysLowPrices”, a phrase which is of course Wal-Mart’s service mark. (T&B, Apr. 5). Kevin Heller at TechLawAdvisor (Apr. 6) doesn’t think he stands much of a chance if Wal-Mart goes to court.