Trademarks, the Psychology of Commercial Symbols

Justice Frankfurter in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203 (1942) makes the case for protecting your trademark:

“The protection of trade-marks is the law’s recognition of the psychological function of symbols. . . . Whatever the means employed, the aim is the same – to convey through the mark, in the minds of potential customers, the desireablity of the commodity upon which it appears.  Once this is attained, the trademark owner has something of value.”

IP Addresses Are Not People

This is probably not news to anyone. But it has been a significant issue in copyright litigation lately. A judge in the of the Northern District of Illinois dismissed a suit filed by the Steele Law Firm on the grounds that it hadn’t identified any individuals as defendants and hadn’t served anyone either. A list of IP addresses would not suffice. Much of the fury over the copyright troll litigation has been that the plaintiffs have a list of IP addresses and nothing more. They then subpoena ISP’s who disclose the name of the subscriber who was assigned the IP address. Plaintiff’s then contact that subscriber demanding money.

This leads to a number of problems, not least of which is that the person who’s name appears on the ISP billing statements is often not the person who did any infringing activities. The infringer, if there is one, might not be in the household or even known to the person being identified. There is often a great deal of pressure to settle however, even if the person identified by the IP address is totally blameless.

Story on Techdirt with Judge Baker’s Opinion

FTC Moves Towards “Do Not Track” List

The FTC recently testified before Congress that there should be a function in browsers to allow a “Do Not Track” option. I am a bit cynical about how effective this might be considering I get robo-calls offering to lower my interest despite the “Do Not Call” list and I still get spam despite CAN-SPAM and other legislation. But as always, details matter. Is this going to work or cripple the free ad-supported Internet we have grown to love and loathe? I offer for your consideration a links:

FTC’s Statement
CNN’s “Do Not Track Would Cripple Web Giants”
Statement from the EFF
How Would Do Not Track Work?

“Tweakers” and “Pioneers” in innovation

I came across this post in the Freakonomics blog about how we value “pioneers” or people who make something entirely new and the “tweakers” who take existing works and improve them. Its a good article about an interesting problem because both “pioneers” and “tweakers” make art and technology better, but in different ways.

Fair Use – Priority Marketing Blog

I missed this when it was originally published. I spoke to the IABC a couple of weeks ago about internet law for marketing and public relations professionals. In attendance was Jen Carlton of Priority Marketing who blogged about the copyright and fair use portion of my talk. Thank you Jen!

I’m not surprised that the group found fair use to be interesting because its one of the more frequently contested and misunderstood areas of copyright law. You can read Jen’s post for a bit of fair use law and I’ll probably be blogging about it again soon.

“Is a trademark lawsuit worth it?”

Trademarks are fickle things. You only have them so long as people know and associate you (and only you) with that trademark. Whether or not you have a registration, your rights exist only exist if that trademark continues to distinguish you from everyone else.

So, if you have found a potential infringer do you have to sue or can you let it slide? The tough answer is that you have to stop them, and here’s why:

If you and your competitor are selling the same or similar goods or services, how will consumers know which is which? Even if your product isn’t exactly the same, consumers might think that you could have expanded your offerings into that area if its not too far off. If someone out there now sells products related to your own with the same name, you have to try to stop them if you want to keep your trademark distinctive.

If the other trademark is a little different, but still sounds the same, means the same, or looks the same as your own trademark and its used on the same product you have to stop them as well. Consider differently spelled trademarks that sound the same. If a customer is telling a friend about your great product, will they be able to hear the difference between “BISCOH Brand Product” and “BIZCO Brand Product,” or “BOSCO Brand Product?” Probably not. The longer those sound a like products are on the market, the less consumers can be expected to consider one the original and the other the knockoff.

Courts have also developed a doctrine called “laches.” That is basically a doctrine considering the fairness of bringing a lawsuit years after you knew or should have known about a legal problem. If you allow your competitor to continue building their market, investing time and money in their own infringing trademark and could have stopped them before they invested all that money, courts aren’t as willing to enforce those trademarks. There is no absolute cutoff point for laches to take effect, but as years go by, the chances you will be able to win your trademark lawsuit get slimmer and slimmer.

A registered trademark gives you a tool to keep competitors at bay, but it wont do it for you. Policing your trademark and occasionally bringing a lawsuit is the only way you can actually keep your trademark. No one is going to stop a competitor from infringing your marks if you don’t. The longer you wait, the less likely it is that you will be able to stop them.

“A republic, if you can keep it.”

So said Ben Franklin when asked what kind of government we had after the Constitutional Convention. Do your part in keeping it. Vote.

FCC Tweets Baseball Updates To Avoid Blackouts

Those disclaimers spoken on Major League Baseball broadcasts, you know:

“Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited,”

Well, after Fox and Cablevision couldn’t agree and blackouts during the playoffs ensued, the FCC stepped in with Twitter updates of the games in progress. Its not particularly interesting that someone would tweet about baseball games. I’ve checked the #twins hashtag on Twitter during a Twins just to see what other people think of the game. That the FCC would do it, more interesting. I’m fairly certain that MLB won’t sue the FCC, partly because facts, such as what’s the score aren’t copyrightable (not withstanding the “account of this game” language).

H/T to Consumerist

Is Libel Online Going Away?

I found two interesting articles this weekend on the topic of libel online. The first is a post by Daniel Solove talking about the slow demise of privacy torts as well as libel and slander. The most interesting point to me was that the New York Times currently does not have any libel cases pending right now, whereas they used to have several at any given time.

Is Libel really going away? The next post made me think not. This one is a story of police officer is suing YouTube over parody videos of him. Apparently he was caught on video being particularly aggressive with a protester armed with bubbles. Yes, bubbles. He isn’t a public figure, but I don’t think any of the videos were doing anything beyond commenting on the reasonableness of his behavior.

I won’t comment on the merits of the case but I think its probably more representative of a growing type of libel case and why the lack of libel suits against the NYT probably doesn’t mean that libel is going away. With more people publishing there is more nasty stuff published, and probably more lawsuits. Professor Solove’s broader point was that we still should have access to justice for libel. I think we will, but the nature of the likely defendant is probably changing.

Constitution Day

On September 17, 1787, the final draft of the U.S. Constitution was signed.