Aggessive trademark protection

I am a criminal defense lawyer- I have represented killers and rapists, thieves and thugs. And none of them are nearly so slimy as IP attorneys.

A stay-at-home-mom in Ohio and breastfeeding activist has gotten a C&D letter from the National Pork Board, because her Cafepress store carried a t-shirt that reads "The Other White Milk." I say carried because it seems that shirt may have been taken down. Oh, and all the sales go directly to the Mother's Milk Bank of Ohio.

I understand that they have to protect their trademark, but this paragraph actually infuriated me:

In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board's mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan "The Other White Milk." "Dairy Diva," "Nursing, Nature's Own Breast Enhancement," "Eat at Mom's, fast-fresh-from the breast," and "My Milk is the Breast.

Your apparent attempt to promote the use of breastmilk beyond merely infant consumption? It would appear that the good people at the National Pork Board have profoundly dirty minds, as well as being utterly humorless prigs, in light of their apparent attempt to be human beings.

That alone is bad enough, but let us not forget that not all hog farmers actually like the slogan- pork becomes white when factory farmed- organic pork, raised on pasture, is actually red. In fact, a majority of hog farmers voted to undo the slogan, only to have been saved by the Bush Administration.

So who benefits from aggressively protecting this trademark? Not the hog farmers, not the public, certainly a stay-at-home-mom in Ohio. So let me ask the Pork Council's lawyer, Jennifer Daniel Collins with Faegre & Benson a question that people ask me, defender of killers and rapists, all the time- how can you sleep at night?

Super Copyright Nonsense

There is a story making the rounds that the No Fun League has sent C&D letters to various churches planning to host Super Bowl parties. Apparently a church in Indiana was planning to host a "Super Bowl Bash" as a fundraiser. The NFL faxed a letter advising that the words "Super Bowl" are trademarked and that the league prohibits charging admission to watch the game. So far, the League was perfectly within its rights- so, the Pastor changed the name of the party and dropped the fee for admission.

Not good enough. The NFL claimed that the law prohibited displaying the game on a television larger than 55 inches. Legally, the NFL is correct- the Copyright Act generally holds that watching television is not an infringement, unless:

[In] an establishment other than a food service or drinking establishment, and... if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches.... 17 USC 110(5)(B)(i)(II).

This just demonstrates how technology is now outpacing the law. I'm sure there was a time when 55 inches seemed like the largest television possible, but you can now HDTVs twice that size. In any event, it hardly makes sense that infringement is based on the television you are watching on. This is a bad law that will need to be fixed, and soon.

Tyranny of the Uncool

By now you have probably heard about the Great Aqua Teen Hunger Force Fake Bomb Scare. If you haven't, I can summarize it this way- to promote the upcoming ATHF movie, viral marketers placed LED Mooninites around various cities, including Boston (where quite frankly, I would expect them to know better). Somebody who had never heard of ATHF and who did not recogize a little pixelized Space Invader flipping the bird as a cartoon character panicked and called in a possible bomb threat. The bomb squad was called out, much merriment ensued yadda yadda yadda.

Two people have been arrested and are now facing felony charges of placing a hoax device.

What I find so interesting about this case is that if you know what the Mooninites are, then it is clearly not a hoax device at all. However, some square who didn't get the joke decided it was a bomb (which if you ask me also makes him stupid- who places a bomb in plain view and then lights it up in bright green LEDs?). In other words, a person can be charged if somebody thinks it looks like a bomb, not whether the maker thinks it looks like a bomb.

These are interesting times for street artists and culturejammers. There is the Obey the Giant meme, there's Mark Jenkins' brilliant (and slightly creepy) tape sculptures, and there is Invader's use of the Space Invaders Mooninites (to bring it all back around to the ATHF). It is understood among street artists that some people will not get the point- I would argue that causing confusion is the point of most street art. Here, someone who didn't get the joke interpreted it in the worst possible way, and now two people face jail based on that man's stupidity.

Creativity is often lost on the masses. I would not expect someone whose cultural experience is limited to Oprah, Tom Clancy, and pretty pictures to get ATHF. I would not expect someone to get a felony charge for it either.

Yet another state suspends executions

I haven't posted in a bit, as I sorted through something I have written about on my personal blog. Not that there hasn't been news, I have just paid some attention to me. But now- back to the law stuff.

In a bit of news without analysis, these are happy times for death penalty opponents. A North Carolina court handed down a ruling that amounts to a moratorium on executions. The law in NC is that a doctor must attend to the proceedings, but the state medical ethics board ruled that to supervise an execution is inconsistent with medical ethics. No doctors will supervise, therefore no execution.

Finding procedural loopholes are a time-honored practice in the profession to avoid having to make a potentially unpopular decision on the merits. Last month, the Maryland Court of Appeals stayed all executions (171 page PDF file) because the Department of Corrections did not follow the necessary administrative processes in developing their execution protocols. If the Court really wanted to stop the machinery of death, their chosen method is cowardly- however, it had the effect of bringing the death penalty back to floor of the Maryland legislature, and the Governor announced that he would sign a bill to abolish. Given that Maryland has no substantial history of executions, I would venture to guess that it will pass.

My beloved home state of New Jersey- a state that has only sent about 20-odd people to death row, had more than half of the sentences overturned, and hasn't executed anyone since the sixties- is on the verge of abolishing the death penalty. In all, twelve states have suspended executions for one reason or another. Even a Federal judge has bullied prosecutors over what he believes is an unnecessary death case.

The tide is turning in this area. Analysis later.

Apple vs. Cisco

If you have been paying any attention to my shared news feeds down the right column, then you will see many stories about the Apple iPhone. I am a Mac geek, I have been waiting for this phone, and I may be in the market for a new one. So my interests and my needs may converge.

Well, iPhone was registered as a trademark by Cisco for its new line of VOIP phones. Although Cisco and Apple were in talks over licensing the iPhone name, those discussions broke down literally hours before the announcement at MacWorld. Predictably, Cisco sued. Apple's response- bring it on.

Since a lawyer's most important task is to predict likely outcomes based on the facts and the law, let me make a prediction: Cisco is going to get iBitchslapped.

For one thing, Cisco's trademark is specifically registered for use with "computer hardware and software for providing integrated telephone communication with computerized global information networks." Apple's iPhone is at root level a cell phone. Also, Cisco is not the only company to lay claim to the iPhone mark.

While both of those facts are important considerations, neither one is dispositive in my estimation. What carries the day for Apple is that everyone already associates electronics branded "iSomething" with Apple- think iPod, iBook, iMac, etc- while no one has ever heard of Cisco's iPhone. In fact, I would venture to say that if you had randomly polled 100 people
before the announcement and asked them who made the iPhone, the vast majority would guess Apple.

Trademarks are only infringing if they are confusingly similar. Here, they are not just similar, they are identical. And yet, I don't think Cisco has a chance.

Two rulings today

The Supreme Court decided two cases today. Well, they decided one, and punted on the other.

In the first ruling, the Court held that paying royalties to a putative patentee under a license agreement does not foreclose the licensee from challenging the validity of the patent at issue in the license itself. This is a great turn of events for innovation- patent trolls have basically choked the system, and anyone developing new technologies is at risk from the increasingly frivolous patent system.

In the second case, the Court granted cert to decide one question (whether a defect in the indictment can be harmless error), but decided a different question altogether (that the indictment wasn't really defective after all). This is the second case this term in which the Court dodged an important Constitutional question, the first being Musladin. I sense in this the work of the Chief Justice, who wants the Court to issue narrowly crafted decisions on the most minute of grounds. Meaning useless precedent.

Back to regular blogging tomorrow.

And the Rodney goes to....

Greg has handed out the PD Blogger Awards in a lavish ceremony at the Kodak Theatre in Hollywood, and what can I say- it was an honor to be nominated. I was totally gobsmacked when Blonde Justice did the one-armed pushups. I just wish I knew how Marisa Tomei got an award.

Seriously- congrats to all the winners! I read you all everyday!