Intellectual Property Law

“I Have a Dream (C)”

Posted on January 21, 2008
This is one of the first posts on this blog, and remains one of the most-likely to get hit by a search engine. It hasn’t seen the front page in three years, though, so I thought this would be a good day to re-post it: The online Globe and Mail has an important item on [...

Lady Voldemart

Posted on January 21, 2008
We wrote about the piggish nature of billionairess J. K. Rowling last fall in connection with her Death Eater-like persecution of an unauthorized fan site. Now copyright maven Tim Wu (yes, him again!) weighs in: Author J.K. Rowling and publisher Warner Brothers have sued the Lexicon for copyright infringement, exposing the big unanswered question: Are [...

Wicked roundups

Posted on January 21, 2008
I fell behind on keeping readers up to date on Counterfeit Chic’s Knockoff News, but it’s okay — Susan Scafidi is a little behind, too, so this one from just before New Year’s is still good. She picks up on the Egyptian demand for “royalties” for unauthorized copies of architectural monuments such as the [...

Crush on me

Posted on January 21, 2008
Above The Law has a place in its heart for the losers among the winners: Our Second Favorite Blog Of The Year After ATL survey, sponsored by ATL and Lateral Link, is still dominated by the Wall Street Journal. But the Volokh Conspiracy, Patently-O, and SCOTUSblog are putting up a fight, write-in candidate taxgirl is creeping [...

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It’s good to the be the king

Posted on January 19, 2008
Michael Atkins: Western District [of Washington] Judge John Coughenour appears to have stopped taking new trademark cases. New matters assigned to him reportedly are reassigned to other judges with the statement that ?Judge Coughenour does not accept trademark cases...

I’m a CYBERLAWYER, too!

Posted on January 19, 2008
Slashdot: BigTimOBrien writes to mention the EFF is reporting that self-proclaimed cyberlawyer, Eric Menhart, has decided to trademark use of the term “cyberlaw” and is threatening other lawyers with legal action over the term. Describing yourself as a “cyberlaw” expert is pretty lame, but I just may start right now...

SUPER BOWL® Trademark Watch and Contest I

Posted on January 17, 2008
Every year it’s the same thing: Several weeks before the Super Bowl®, people and businesses wishing to promote events related to the timing of the biggest sporting event of the season — the Super Bowl®, that is, the National Football League’s championship game — go through all sorts of contortions to avoid saying the [...

The latest on Internet-based jurisdiction

Posted on January 17, 2008
In the New York Law Journal (subscription required): As a practical matter, most jurisdictional analysis in the Internet context focuses on specific jurisdiction. A “Web presence” in New York has not been considered enough, standing alone, to establish broad, general personal jurisdiction; such jurisdiction typically requires a substantial presence, such as an office in New York, [...

Not so Scrabulous

Posted on January 16, 2008
CNET News / Reuters: The makers of Scrabble have asked Facebook to remove a popular online version of the word game, Scrabulous, which they say infringes their copyright. The U.S. and Canada rights to Scrabble are owned by Hasbro, the world’s second-largest toy and game company, while the biggest, Mattel, has rights to the game in the [...

Lookalike “house brands”

Posted on January 15, 2008
The 43(B)log discusses a recent Third Circuit opinion on this topic — one that people ask me about all the time.  Well, ask Rebecca Tushnet!  Her bottom line: Essentially, the court of appeals thought that the district court had created a near-absolute ?house brand? defense independent of the confusion factors, which was inappropriate...

Who are you to say?

Posted on January 15, 2008
We all love loopholes. Concurring Opinions writes here about the Seinfeld defamation lawsuit, and asks: How broad, really, is the “opinion” loophole? Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the [...

A letter to a new lawyer

Posted on January 14, 2008
In the form of Blawg Review!

More on toy models as trademark infringements

Posted on January 14, 2008
Ara Rubyan sends along this link to Boing Boing: Josh sez, “The folks at BMC (Black Mustang Club) automotive forum wanted to put together a calendar featuring members’ cars, and print it through CafePress. Photos were submitted, the layout was set, and… CafePress notifies the site admin that pictures of Ford cars cannot be printed...

Pinching out the bad things

Posted on January 11, 2008
Scott Kirwin sends this along: Ron I would be interested to see you post on this [New York Times: “AT&T and Other I.S.P.?s May Be Getting Ready to Filter”]. Specifically, wouldn’t such control over traffic negate the “carrier” argument advanced over the past few decades that they were simply carrying the traffic and weren’t responsible for the [...

Little people, big lawsuits

Posted on January 10, 2008
The Washington Post reports on legal action taken by ordinary folk against Big IP Content Generating institutions for lifting and using “user-generated” content, i.e., pictures and stuff uploaded onto blogs and galleries by regular people...

A lawsuit about nothing

Posted on January 09, 2008
The New York Times Blog reports on the Seinfeld cookbook case. This quote from copyright domain master Tim Wu is reason enough to click on through: ?Frankly, I read the complaint. It should be thrown out. It?s close to frivolous. It?s terrible.? Not that there’s anything wrong with that?

CREATINE writing

Posted on January 09, 2008
The TTABlog examines, so to speak, an almost metaphysical TTAB discussion of when a trademark is or is not “unitary” for purposes of the requirement to disclaim non-registrable elements: “When a compound word mark is formed by hyphenating two words or terms, one of which would be unregistrable alone, the mark is deemed unitary and no [...

Other people’s money

Posted on January 08, 2008
WSJ.com’s Law Blog reports about the seven-figure effect in the Central District of California for a one-minute-late filing: A judgment in favor of [Morrison & Foster’s] client was entered on Sept. 26, giving Toshiba?s attorneys 14 days - until Oct...

Luxury IP’s dilemma

Posted on January 08, 2008
A new website called “BP Council” (a brand protection thing) asks, “Can Luxury Brands Counterfeiting Really Be Stopped“? [I]n their report, “The Piracy Paradox,” legal scholars Kal Raustiala and Christopher Sprigman, say that: “Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected–and economically successful? ? [...

Go for the Gold, man!

Posted on January 08, 2008
Get up to speed with the best and most popular links from last year’s edition of Technology & Marketing Law Blog, by Eric Goldman.

The seven horsemen of the Ablawgalypse

Posted on January 06, 2008
I hadn’t picked up on this — as part of its “ABA 100” story, the ABA Journal published brief profiles of the seven “revolutionaries” of law blogging, as they see it: Denise Howell Thomas Goldstein David Lat Eugene Volokh Judge Richard Posner Glenn Greenwald Howard Bashman All good choices...

England folds

Posted on January 04, 2008
Instapundit reports about England shutting down a blogger for “inciting racial hatred” — which is illegal.  At least it is when it’s against certain “races.” In case you ever harbored any doubts about the wisdom of the American Revolution.

Virtual seizures

Posted on January 03, 2008
Andrew Cory tipped me off to this article in the Law of the Game blog involving a judicial “seizure” of gaming-world “assets.” Talking to Andrew and tackling the article, I have the impression something very interesting is going on here...

Three’s a charm

Posted on January 02, 2008
Today marks the third “blogiversary” (ugh!) of LIKELIHOOD OF CONFUSION®! Kudos to bRight & Early blog for reminding me by linking here, and, as I explained last year, to Dean Esmay. It’s been a very good year for the blog. Not only has traffic grown, but so has the quality of links from within [...

Chilled Apple

Posted on December 31, 2007
Via Vodkapundit – from the People’s Ministry of Litigation, Information and Sublimation: Apple and Think Secret have settled their lawsuit, reaching an agreement that results in a positive solution for both sides. As part of the confidential settlement, no sources were revealed and Think Secret will no longer be published...

“The Victorian compromise”

Posted on December 30, 2007
Defamation and reputation management are issues of intense interest at LIKELIHOOD OF CONFUSION®. Obviously cultural context means a lot when considering these two related topics. Here Daniel Solove reviews Professor Lawrence Friedman’s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy: Friedman focuses much of his book on the Victorian [...

Unchained melodies

Posted on December 30, 2007
Instapundit: WARNER BROTHERS goes copy-protection free with DRM-less MP3 downloads at Amazon. This is a good trend. A technological war of attrition can be very costly. UPDATE: But not for the stupid! As Glenn says, “When the corpse twitches, the jaws snap...

Rat on the stand

Posted on December 28, 2007
Marty Schwimmer gets all the best stories!

Pyramid scheme

Posted on December 28, 2007
Overlawyered reports: Egypt wants to copyright pyramids, Sphinx  Under the proposed law, backed by Supreme Council of Antiquities chief Zahi Hawass, persons around the world would be forbidden to sphinxbycaviglia.jpg make copies, even for private use, of the country’s famous monuments, scarabs and other Pharaonic survivals...

How important is copyright registration?

Posted on December 28, 2007
This important  (pdf). As a New York Law Journal article (sub. reqd.) puts it, The Second Circuit’s decision in In re Literary Works substantially limits the use of class actions as a vehicle to settle copyright infringement cases. Survey evidence cited by the parties in the case showed that freelancers register less than one percent of [...

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