There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.
from Notes on a law lecture (1850)
I had the pleasure of talking to Harold Slawik of New Counsel about choice of entity, funding and securities law issues for startups. Check out the article and podcast at TechdotMN.
The art of giving your product or service a name is challenging. Making sure that name can also be protected as a trademark can make things more difficult. But there are a few things you can consider as guides when choosing a name.
What you can’t use as a trademark:
– Offensive or disparaging words.
– Names that are primarily a surname
– Names that sound like, look like or mean the same as another competing trademark.
– Words that merely describe a feature of the product.
In my experience, the last two are the source of the most frequent problems. A different spelling or adding one more word to a trademark that already exists is still too close. The USPTO wants to help you register your trademark, but they also want to make sure there isn’t confusion in the marketplace. Foreign translations of trademarks are also a problem “Pomme Ordinatuer” doesn’t look like or sound like “Apple Computer” but it means the same thing. Descriptive words are helpful for telling consumers what your product does, but can’t be registered trademarks.
So what works? I am not an ad wizard but I have noticed a few things that are both clever and capable of being registered.
– Words that are associated with good qualities, but don’t literally describe the product. (e.g. EVEREADY)
– Words or images that are symbols for values that are important to your company. (e.g. FIDELITY, APPLE)
– Puns. Especially if you have a fun product (e.g. GARDEN OF EATIN)
– Just make up a word that sounds good but doesn’t mean anything. (e.g. KODAK)
A large part of a brand’s success has to do with how consumers feel about the products and not so much to do with having chosen the perfect name. I have no idea what “kodak” means (apparently nothing), but I do recognize the name and associate it with quality photography equipment. In the long run, so long as you keep you customers happy, and they know how to identify you, any name might work.
May 1st is Law Day which was first recognized by President Eisenhower to observe that we are a nation that has a government of laws. While there are plenty of problems with the legal system in the United States, we often forget how essential rule of law is and how much we rely upon it.
Although not conclusively proven, it has been asserted that lawyers have feelings too. So don’t forget to celebrate “Be Kind To Lawyers Day.”
If you’re not sure how to celebrate such a holiday, here are some suggestions.
David Kappos at William Mitchell College of Law
I was only able to attend the first 45 minutes of this event. Thank you to William Mitchell College of Law for making the whole program available online so I could see the rest. Director Kappos seems to be exactly the kind of person we should want to be heading up the U.S. Patent and Trademark Office.
Novell recently won a 7 year battle against the SCO Group over the copyright to UNIX source code. A jury in Utah found that Novell was the owner of the copyrights in question. Its a victory for open source software generally, because it was probably the most serious legal threat to development of Linux, an open source UNIX-like operating system. SCO had alleged that Linux infringed copyrights it held in UNIX. Though Novell’s offerings have changed over the years, currently it offers SUSE Linux and related software and services.
The blog Groklaw has been following this case in great detail over the years. There is an unbelievable amount of information there which illustrates how much work can go into litigating a case of this scale.
The FCC has created a tool that allows people to quickly see how spectrum is allocated. You can use a map to find all the licensees in a particular county or state. All this is particularly interesting now as there is currently some interest in reallocating spectrum that was used for television broadcast and allowing more wireless broadband services.
FCC Spectrum Dashboard
HT to the CommLawBlog.
Apple Loeses Battle for Control of the Letter I
The offending trademark was DOPi which is iPod spelled backwards, but otherwise doesn’t really sound like or look like Apple’s IPOD trademark. Interesting to note that Apple wasn’t the first or only user of the names “iPhone” or “iPad” either. As I type this on my MacBook, I wonder what was wrong with the iBook name?
Pink Floyd recently won a case in the UK against its record company EMI over the rights to sell copies of Pink Floyd songs as individual digital downloads. The contract which was signed in 1999 limited EMI’s ability to sell singles of the songs and Pink Floyd successfully argued that that should apply to digital downloads as well. This case raises a potential moral rights issue in the age of the digital downloads.
While albums were still the norm ten years ago, increasingly people are looking for their music by the track. Apple’s iTunes store prices by the album, but you are still left with individual files that are downloaded to your computer. Should artists like Pink Floyd be able to sell their music only in the form of an album? US Copyright law is distinctly economic in nature and the idea of “moral rights” or droit d’auteur play a very small role here. While artists in many countries can control how their works appear well after the works are sold; here in the US, artists are limited to rights granted under copyright law such as reproduction, public performance, etc.
Perhaps we will see more one track albums in the future. Or perhaps its time to move past the album, a format that exists largely due to the technical specifications of LPs (60 minute capacity) and to some extent Compact Disc (80 minute capacity). Not all music needs to be one hour divided into 10 songs. Digital downloads can be just about any size. The only effective limitations are what a person might want to listen to and what an artist feels is appropriate*. Perhaps now is a good time to rethink the album.
*There is at least one song that could cause problems for digital downloads. As Slow As Possible by John Cage has been performed since 2001 in Halberstadt, Germany and the performance is expected to continue for another 639 years.