Intellectual improbabilities(TM)
By Daniel Kegan, Kegan & Kegan, Ltd.,daniel@keganlaw.com
© Daniel Kegan 2002
Douglas Dorhauer, a student at Louisiana State University school of law maintains the lsulaw.com Web site. The site includes a school calendar, law-related link, and comments by Dorhauer. The university has sued him for trademark infringement. His site uses the colors of the school's sport teams, purple and gold. He says he chose the colors because he liked them, but they are different hues than the official colors. (NY Times A12, 6May02).
Good example
When Apple Computer rolled out its iPod small FireWire Gigabit hard drive, it had reporters download music from 22 digitized CDs onto the iPod, taking about two minutes to transfer 1.3 Gb, and gave the reporters the iPods. But since sharing copyrighted music is generally illegal, Apple also gave copies of all 22 CDs to the two hundred reporters. Music included The Beatles, Bob Dylan, and Yo-Yo Ma. (Interactive Week 29Oct01).
Copyright chills
Some property owners sometimes overstep their rights. Chilling Effects Clearinghouse, www.chillingeffects.org, is a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of Maine and University of San Francisco law school clinics. It offers general copyright information to those wishing to obey copyright law and those having received a copyright demand notice. Concerned that some are using intellectual property and other laws to silence other online users, the Chilling Effects Web site offers background material and explanations of the law for people whose Web sites deal with topics such as Fan Fiction, Copyright, Domain Names and Trademarks, Anonymous Speech, and Defamation. It also hosts a searchable database of Cease and Desist notices linking the legalese in the letters to FAQs that explain the allegations in plain English. Periodically, the site issues "weather reports" assessing the climate for Internet activity based on the letters we receive and news reports.
Chilled out
Frederick James, defendant against criminal charges of dealing less than 50 kg of marijuana and various firearms violations, has billed his federal judge and public defender $151 million for using his name 302 times in court proceedings. James claims he has copyrighted his name, his "private property." A psychological evaluation found no evidence of mental illness. Trial is scheduled to start June 4. James is a member of the Cahokia Great Seal Moors, a sect founded in 1913 which believes its members' ancestors pre-dated Europeans in America and so should not be subject to U.S. laws. (Chicago Daily Law B. 1, 14May02).
Internet copyright
The Librarian of Congress, James H. Billington, in May 2002, rejected the copyright arbitration panel's proposed royalty rates for use of songs on the Internet: $0.14 cents per song per listener; radio companies would pay half for the added Internet royalty; non-commercial Web casters would pay lower rates. The proposed rates were about triple current radio broadcast rates. (Wall Street J B5, 22May02).
You can't tell a book by its cover
Author David Baldacci won a preliminary injunction stopping publication by New Millennium Press of an anthology of mystery stories by him and four other authors. Baldacci had agreed to contribute a story to an anthology about football with fourteen different authors and accepted a token $2,000 rather than his typical million dollar advance. Baldacci submitted his 90-page story, "The Mighty Johns." In February 2002 the book was published with the cover showing in large foil letters Baldacci's name above the slightly smaller foil lettered title of his story. The book was listed on Amazon.com as "The Mighty Johns by David Baldacci." He concluded the book was designed to mislead consumers into thinking it was his next block-buster novel. New Millennium had printed 100,000 copies. (New York Times C11, 13May02).
Wind gone
The estate of Margaret Mitchell settled its copyright infringement lawsuit against Houghton Mifflin, part of Vivendi Universal, over Alice Randall's parody "The Wind Done Gone," recounting "Gone With The Wind" from a slave's perspective. Both sides affirmed their legal positions. A financial contribution will be made to Morehouse College. The settlement does not affect rights to film adaptations or other versions of the parody. Stay tuned for the sequel to the suit. (New York Times C6, 10May02.)
The Institute of Electrical and Electronics Engineers (IEEE) will no longer require its authors to attest that their work does not violate the Digital Millennium Copyright Act. The IEEE published nearly two-thirds of all computer science journals. The DMCA has become quite contentious. Foreign authors did not want to be constrained by the U.S. law. Some U.S. academics fear the DMCA restricts their academic freedom to publish their research. (ZDnet News, 17Apr02).
Serious misconception
Cartoon caption, student talking to teacher, "Really? Someone told me it's not plagiarism if they're dead." (Key Reporter 16, Spring 2002, by Marc Tyler Nobleman, www.mtncartoons.com).
The bigger the trademark...
Microsoft Corporation, if you didn't notice, sells Windows software for computers. Lindows.com, Inc. markets competitive software that supports both Windows and Linux operating systems. Microsoft sued Lindows in Seattle federal court. But the rectangular displays of graphic user interfaces (GUI) have long and still are called windows also. Judge John C. Coughenour concluded WINDOWS is generic for a GUI and denied the motion for injunction. "No degree of secondary meaning will save a generic mark, no matter how much money or effort [one] puts into promoting the sale of the merchandise." (INTA Bulletin 10, 1May02).
Big brand business
The Limited changed its name to Limited Brands because it wanted to reflect its transformation from a collection of specialty retailers to a family of brands. (New York Times C4, 21May02).
Ritz-Carlton owner Millennium Partners claims they are "not hoteliers." "We are about housing. Our customer is buying a brand, exclusivity and service." Millennium has 304 condominium apartments in its Boston Commons Hotel and Towers, and is building a 220-apartment tower that will offer hotel amenities like room service, housekeeping and a health club, but have no overnight accommodations. Ritz-Carlton calculates its brand name accounts for a 25 percent premium in apartment pricing. (New York Times C7, 10Apr02).
Yodel Yahoo
Wylie Gustafson accepted $600 from Yahoo when he recorded his yodel for its 1996 marketing effort. He sued Yahoo for $5 million and to prohibit it from using the sound elsewhere, claiming the sound has been reused in other companies' commercials. (Netscape Marketwatch, 19Apr02).
Chestnut Publications is planning to issue trading cards featuring September 11th victims. The first series is planned to profile 160 victims and 42 cards with the World Trade Center and other images. Chestnut principal Kingsley Barham produced in 1998 a trading card series depicting marijuana. Participating family members will receive $1 for every $5,760 of gross revenue. (Wall Street J B1, 18Apr02).
The U.S. Supreme Court has accepted Victor's Little Secret v. Victoria's Secret. Victor and Cathy Moseley opened their adult toy and lingerie store in central Kentucky in 1998 under the name Victor's Secret. Victoria's Secret complained, and the defendants added a small "Little" over the name.
Local trademarks
Federally unregistered trademarks develop rights in their trading areas. Increasingly, due to Internet popularity, local businesses are using overnight delivery services to extend their reach. Chicago's Lou Malnati's ships 100,000 pizzas a year, double from four years ago. Prima Pizza in Cornwall, NY has had similar growth. (Wall Street Journal W1, 26Apr02).
Eric Grimm offers this seed of well-known trademarks used by different companies (INTA TmTopics 10Apr02). Please send your A to Z completions to the editor.
* Apple recorded music, computers;
* Bass beer, shoes;
* Champion sporting goods, auto parts, forest products;
* Delta plumbing, travel services;
* Harris financial services, office machines, clothing and textiles.
At your service
Copies of federal trademark registrations are now available online from the Patent and Trademark Office, currently at $3. www.uspto.gov/main/trademarks.htm. The Copyright Office has launched a redesigned, more user-friendly website, www.copyright.gov.
The PTO plans to eliminate the paper patent and trademark registration collections from it public search facilities, replacing them with electronic information collections. Any interested governmental or non-profit entity may contact the PTO if it desires to acquire the paper collections. (1258 TMOG 18, 7May02).
Fragile patent papers
In most instances a patent application paper filed after allowance will be electronically scanned in the Office of Patent Publication, and the original paper will be discarded. (1257 TMOG 171, 30Apr02.) The PTO publishes about 3,400 patents a week and has an average of 40,000 allowed applications awaiting payment of issue fee and patent issuance. Some of the mail the PTO receives now "has been irreparably damaged by irradiation" by the U.S. Postal Service. As much as 60 percent of the mail the PTO receives since mid-October 2001 is fragile.
The PTO has reminded registrants of the procedure to request reinstatement of canceled or expired registrations when papers mailed to or by the PTO are not received (1257 TMOG 136). A registrant should file any request for reinstatement promptly upon becoming aware that it has not received an official action or notice from the PTO, or that the PTO has no evidence of receipt of registrant's use affidavit, renewal application, or response to a post registration action. While the PTO is concerned about the loss of a registrant's rights in an inadvertently canceled or expired registration, the Office must balance this concern with the interests of third parties, who may diligently search PTO records and rely on the canceled or expired status of a registration. To avoid prejudice to third parties, the PTO will deny a request for reinstatement untimely if it is not filed within one year of the date of cancellation or expiration of the registration.
Clone patent concern
The University of Missouri in April 2001 received a patent for a way of turning unfertilized eggs into embryos and the production of cloned mammals using that technique. Unlike most previous U.S. patents on living things, humans were not excluded from the patent. Some are concerned that such a patent turns humans into biological machines and subjects humans to slavery. (Chicago Daily Law B 1, 17May02).
Court electrons
Pleadings, motions, briefs and court orders may sometimes now be used in federal courts. Rule amendments proposed by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States went into effect December 2001. Conference members include Chief Judge Joel M. Flaum of the Seventh Circuit and Chief Judge Marvin E. Aspen of the Northern District of Illinois. (Chicago Daily Law B 1, 4Dec01).
European Union gets solid
Three-dimensional shapes may be trademarks, the Fourth Chamber of the Court of First Instance in Luxenbourg held, upholding the Office for the Harmonization in the Internal Market (OHIM) decision in Mag Instrument, Inc. v. OHIM, 7Feb02. The court confirmed that the "essential function of a trademark is to guarantee the origin of the marked goods or services to the consumer or end user" and that the mark must enable the targeted public, "an average consumer who is reasonably well-informed and reasonably observant and circumspect," to distinguish the goods or services from those of other undertakings. However, the Mag Instrument flashlight configurations were denied trademark registration. (INTA Bulletin 6, 1May02).
EU Palmer method handwriting
The First Board of Appeal at OHIM has recognized that medical professionals may be overworked and likely to write prescriptions with illegible handwriting. EMOVATE, TEMPOVATE, EUMOVATE were involved in Glaxo Group Limited v Medrel GmbH. (INTA Bulletin 7, 1May02).
Consumer expectations
After four decades observing our financial markets, Arthur Levitt, former chair of the Securities and Exchange Commission, commented he was dismayed by the ethical deterioration of corporate America. (Crain's Chicago Business 10May02).
Lawfulness and psychology
While civil practice often disputes liability and money, criminal law attorneys have long dealt with issues of good and evil. Philip G. Zimbardo, President of the American Psychology Association, has an insightful two-page article on "Opposing Terrorism By Understanding The Human Capacity For Evil," APA Monitor on Psychology 48, November 2001. (APA, 750 First St. NE, DC 20002-4242, www.apa.org, public.affairs@apa.org). "If the identifiable terrorist leaders were to be eliminated, would that stop future terrorism? Unlikely, unless we know what are the root causes of the hatred against America, unless the ideological, political and social bases of the mentalities of the next generation of potential terrorists are more fully appreciated and efforts to change them are engaged." Zimbardo has conducted some of the most practical, empirically sound social psychological experiments. He suggests that calling the terrorist attacks "insane" makes us "disrespectful of the high level of reasoned intellect behind these deeds, however distorted or diabolical it may be."
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