Jeanne Heifetz discovered the New York Regents English exams for a few years have been bowdlerizing passages of and attributed to famous authors to remove references to race, religion, ethnicity, sex, nudity, alcohol, profanity, and other words that someone might think someone might object to. The NY Education Department acknowledged modifying the excerpts to satisfy "sensitivity review guidelines." For additional perspectives on Bowdler and sensitivity, see Diane Ravitch, "Education after the culture wars," and a flock of commentaries in Daedalus, Summer 2002.
The University of Illinois has had a controversy over its use of mascot Chief Illiniwek. In July 2002, four professors and a former student were awarded $1,000 each after a federal judge ruled they were harmed by the university's efforts to keep them from talking to prospective students about the controversy.
In the search for additional loyalty and/or income, colleges are paying increasing attention to trademarks. In the 1970s, many big football schools began registering their trademarks. The PTO Official Gazette now often publishes academic trademarks with first use 50 or 100 years ago. Colleges are now selling credit cards, insurance, and savings accounts (NYTimes Bu 8, 25Aaug02). Perhaps the cutting edge, some universities are offering burial plots for alumni. (WSJ D1, 10July02).
Non-food brand names are increasingly being linked to packaged foods (NY Times Bu 8, 30Jun02). Food and beverage companies are collaborating in manufacturing and marketing also (NYTimes C12, 18Jun02). Herbal Enterprise, known for Arizona Iced Tea, is making Kahlua Iced Coffee for Kahlua's parent Allied Domecq. Evaluating what may be a confusingly related good and service becomes more complex.
Trademark attorneys often review preproduction labels for new products, providing an opportunity to review not only trademark usage but also compliance with other laws and regulations. Packaged food is often branded. Unpackaged fruits are now often stickered. The FDA rules nicotine-laced water is a drug, not a food (NYTimes C11, 3July02). Product recalls are rising amid concern that the public ignores them (WSJ B1, 22Mar02). Recalls by the Food and Drug Administration, which regulates products accounting for a quarter of all consumer spending, jumped 24 percent in 2001 from 2000. At the Department of Agriculture, which regulates meat, recalls increased 14 percent. The Consumer Product Safety Commission also experienced increased recalls. From about 2,000 recalls a decade ago, FDA recalls were about 4,500 last year.
The 100 percent Recycled Paperboard Alliance devised the "recycle" symbol--three arrows in a triangular loop--for the first Earth Day in April 1970. The Alliance never registered the mark, and, says Bradley Currey Jr, it "lost control of it" (WSJ B1, 6Mar02). Initially, the logo was to indicate recycled paperboard, but use expanded to plastics and other products. Currey said, "nobody even dreamed of actually having to protect the logo because nobody was even recycling" in 1970.
The Smithsonian Institute's National Zoo has asserted that viewing animal medical records violates the animal's right to privacy and intrudes into the zookeeper-animal relationship. (ISBA Trial Practice Update 9May02, reporting in the Washington Post 5May02).
Want insight into the minds of prospective purchasers? Jerre Swann, "Dilution Redefined for the Year 2002," 92 Trademark R, May-June 2002, applies cognitive psychology principles and empirical data to trademark dilution.
Former Securities and Exchange Commission Chairman Arthur Levitt decried current business ethics. (WSJ C7, 17Jun02). "Enron is not an aberration. What troubles me is that what is fueling these corporate implosions are not strategic misjudgments, the rise of new competitors, the sudden appearance of rival technologies, or even basic managerial mistakes. Instead, it's the uncovering of accounting irregularities, inflated balance sheets, and outright corporate deceit and malfeasance."
Judge Henry Friendly, in U.S. v. Simon (1970) held that if literal compliance with Generally Accepted Accounting Principles created a fraudulent or materially misleading impression in the minds of shareholders, the accountants could be held criminally liable. (NYTimes C1, 1Mar02). The case was recently cited by Harvey Pitt, SEC chair.
Back in January 1996, Harvard's Max Bazerman and Northwestern's David Messick published "Ethical leadership and the psychology of decision making." (WSJ A15, 28Aug02). They suggest "unethical business decisions may stem not from the traditionally assumed trade-off between ethics and profits but from psychological tendencies that foster poor decision making." Abstracted principles include:
* People tend to reduce the set of possible consequences to make the decision manageable;
* People exaggerate the extent they can control random events;
* People overestimate the likelihood of good future events and underestimate the likelihood of bad future events;
* People believe their wants are fair; and
* People are erroneously confident in their knowledge, underestimating the odds that their information or beliefs will be proved wrong.
There is also a long tradition explaining ethical lapses by seven major factors, greed and avarice, being two favorites ("Bedazzled," Dudley Moore & Peter Cook). Cf a perspective from WTO TRIPS. "Like most laws, international rules are rarely enforced, but usually obeyed. Harold Koh, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2603, 1997, quoted in Ruth Okediji, RIPs Dispute Settlement and the Sources of (International) Copyright Law, 49 J Copyright Society USA 585, 591, Winter 2001.
Accounting rules for valuation of goodwill are changing. Trademarks generally are assigned with their associated goodwill. For guidance, you and your accountants may wish to review the 2002 Cumulative Supplement of Gordon Smith and Russell Parr's Valuation of Intellectual Property and Intangible Assets (Wiley 2002). Its two major sections are "New Developments in Accounting for Intangible Assets" and "The Valuation of Naming Rights."
ISBA Intellectual Property contents
Volume 41, 2001-02
Issue Number 1, December 2001
Baron, Steven L. and Anne C. Brynn. "Another roadblock on the way to proving trade dress in product configuration: Traffix Devices, Inc. v. Marketing Displays, Inc."
Loundy, David. "When is "notice" really notice? Service provider liability under the DMCA."
Free ISBA case service.
Copyright Office e-mail newsletter, NewsNet, available.
Issue Number 2, January 2002
Loundy, David. "Is that boat really intended for this safe harbor?" (Barrett v. Clark).
"Establishing a presence on the World Wide Web: an Internet primer" (ISBA IP Seminar Apr01).
"Organic foods and labels."
Issue Number 3, April 2002
Resis, Robert H. "Inventor rights: Chou v. The University of Chicago."
Lyhus, John E. "Trademark Trial and Appeal Board issues first dilution decision" (The Toro Company v. ToroHead, Inc).
Friedman, Eugene F. "UCITA is coming! UCITA is coming! (One if by land, two if by C)."
Issue Number 4, June 2002
Baron, Steven L & Rebecca Greene. "Second Circuit upholds denial of Random House injunction request" (Random House Inc v. Rosetta Books LLC).
Hablutzel, Margo Lynn. "A new cybertool against cybersquatters--and they can only blame it on Rio."
Loundy, David. "Property v. Privacy" (Schmidt v. Ameritech Illinois).
Kegan, Daniel. "Intellectual Improbabilities.™"
Volume 42, 2002-03
Issue Number 1, October 2002
Brooks, Aaron. "The law of privacy: past, present and future."
Long, Doris. "Recent activities before the WTO raise new questions about international protection for intellectual property rights."
Kegan, Daniel. "Copyright birth & death announcements."
Loweth, Christopher. "Constitution.com: U.S. constitutional arguments in ICANN arbitration hearings."
Morris, Adria. "ICANN stockholm fallout."
Kegan, Daniel. "Intellectual Improbabilities™."
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