LIKELIHOOD OF CONFUSION®

Well, maybe we’ve been too hard on the Democrats here at LIKELIHOOD OF CONFUSION®.  Perhaps unlike the GOP, they’ve got good, progressive IP counsel out there, and maybe an Obama Administration will take a more realistic view of what you can and can’t do on the Internet.  At least we know they don’t have any hangups about “deceptive key word advertising” or “Internet traffic diversion,” the modern bugaboos of Internet trademark litigation.  Turns out they think those things are pretty keen!

Here’s a screen shot (click for full size) of a search result you get if you search Google for SARAH PALIN SPEECH — note the sponsored link on top, in color, that links to the Democratic Convention website, DemConvention.com:

The link actually tells Internet users they’re going to a page called DemCovention.com/RNC.  Wow, are they showing the Palin speech in order to get you to compare it critically to what the DNC has to offer?  It’s comparison shopping, right?  A modern-day Miracle on 34th Street!

Well, no.  Here’s what you actually get:

Yeah, no Sarah Palin.  At all.  (Here’s the whole page.) You’d think they were afraid of her or something!

Well, what’s going on here?  Some kind of bait and switch, right?  (Does Google let people do that sort of thing?!)

You know, I’d heard about that young Palin woman and her fine speech, but having clicked this link and now looking at this somewhat older fellow with the spray-on hair, why, I think I like what I hear!

Well, maybe, but you must agree with what we have argued at LIKELIHOOD OF CONFUSION® (and in a courtroom or two) for years:  This is not a deceptive trade practice, it’s free speech and consumer choice!  Wait — even when there’s “no Sarah Palin” at all at the link?!  Well, actually… look: No one is going to confuse Sarah Palin with Joseph Biden.  And trademarks, after all, are about one thing only: LIKELIHOOD OF CONFUSION.

So no problem.  In any case, SARAH PALIN SPEECH isn’t a trademark, so analogies to the old “it’s like tricking people to get off the highway using a phony sign” rationale for “initial interest confusion” in trademark law go only so far.

Not actionable, in other words.  And as far as ethics go — well, you know, politics, bedfellows, The Prince, all that sort of thing.

This is a change, right?

Not that the plaintiffs in the Designer Skin case didn’t get an injunction:  They did (here it is); a narrow one utilizing proposed language by defendants explicitly permitting S&L to use its own photographs of Designer Skin merchandise on its website (see the prior post).  But the Court ruled that they were not entitled to it merely by virtue of proving copyright infringement.  Here’s an excerpt from the opinion, discussing the point:

The parties dispute the law governing the issuance of a permanent injunction in a copyright-infringement case. Relying on MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993), Designer Skin argues that “a permanent injunction [should] be granted in a copyright infringement case when liability has been established and there is a threat of continuing violations.”  Conversely, S & L Vitamins argues that the MAI rule has been overruled by the recent Supreme Court opinion in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), and that the traditional four-factor test reaffirmed by eBay applies.

MAI’s general rule may accurately describe the result of applying the four-factor test to a copyright-infringement case in which liability has been established and there is a threat of continuing violations. Nevertheless, as Judge Wilson persuasively demonstrated in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1209-10 (C.D. Cal. 2007), this general rule, as a rule, is clearly inconsistent with the Supreme Court’s decision in eBay. Thus, for the reasons given by Judge White in Grokster, Designer Skin’s reliance on this pre-eBay rule is unavailing, and the Court will apply the traditional four-factor test. . . .

This is an important holding, making the District of Arizona among the handful of earliest courts to apply the rule of eBay to copyright infringement.  After the jump, you can see how the court did apply it to one particular factor of interest, the need for a plaintiff seeking an injunction to prove irreparable harm.  The court agreed with S&L that past infringement does not lead to a presumption of future infringement. Unfortunately, to our client’s (nominal) detriment, and despite our argument that, seeing as how Designer Skin enunciated no coherent description of harm it suffered by the infringement — and that, in fact, it probably benefited from it — an injunction should not issue, the court found that there was irreparable harm, for reasons best expressed in its own words. Read the rest of this entry »

The District of Arizona ruled today in a case we defended through trial and have reported on here extensively.  The decision is here; the minute entry on the electronic docket reads as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW - that S & L Vitamins has infringed Designer Skin’s copyrights in the electronic renderings of the 42 products styled [by various brand names] and that Designer Skin is entitled to a permanent injunction enjoining S & L Vitamins from any such future infringement of these copyrights;

FURTHER ORDERED that S & L Vitamins has not infringed Designer Skin’s copyrights in the electronic renderings of the 12 products styled [by various brand names];

FURTHER ORDERED that each party shall bear its own costs in this matter.

Signed by Judge James A Teilborg

No attorneys’ fees for either side.  The injunction reads as follows (per the minute entry); prefatory language is omitted and emphasis is added:

FINAL JUDGMENT AND PERMANENT INJUNCTION in favor of Designer Skin, LLC against S&L Vitamins, Inc. . . . S & L Vitamins . . . are hereby immediately and permanently ENJOINED from publicly displaying, using, copying, or otherwise infringing Designer Skin’s copyrights in these electronic renderings for any purpose whatsoever. Nothing herein, however, shall be construed to enjoin S & L Vitamins from taking, using, or displaying original photographs of the physical Products themselves in connection with S & L Vitamins’ sale of the Products on the internet.

Signed by Judge James A Teilborg

Interested persons may wish to ponder how, and to what extent, the Court addressed the issues framed by the counsel for the respective parties, including identification of what indeed are “Designer Skin’s copyrights in [its] electronic renderings,” by considering the proposed findings and facts and conclusions of law submitted by the plaintiffs, and by the defendants, respectively.

For practitioners interested in the law of injunctions, the most interesting part of the decision concerns the court’s application of the rule in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) that there is no automatic entitlement to an injunction upon a finding of infringement to a copyright infringement case.  We have made a separate post addressing that part of the decision.

S&L’s website is here, by the way.  Buy Designer Skin lotion from S&L!  It’s the way both sides pay their lawyers!

The New York Times:

“Trademark is the sleeping giant of intellectual property,” said Paul Goldstein, a professor at the Stanford law school.

Who’s sleeping?  No one sleeps around here, believe me.

Could there be a mouse hole in Mickey’s larder?  The Los Angeles Times reports:

All signs pointed to a Hollywood ending with Disney and Mickey Mouse living happily ever after - at least until a grumpy former employee looked closely at fine print long forgotten in company archives. . . .

Copyright questions apply to an older incarnation, a rendition of Mickey still recognizable but slightly different. Original Mickey, the star of the first synchronized sound cartoon, “Steamboat Willie,” and other early classics, had longer arms, smaller ears and a more pointy nose. . .

The issue has been chewed over by law students as class projects and debated by professors. It produced one little-noticed law review article: A 23-page essay in a 2003 University of Virginia legal journal argued that “there are no grounds in copyright law for protecting” the Mickey of those early films.

Roger Schechter, a George Washington University expert on copyright, called the article’s argument “a plausible, solid, careful case.”

By contrast, a Disney lawyer once threatened the author with legal action for “slander of title” under California law. No suit was filed.

Garsh, Mick!

Having recently had a pleasant experience beginning an alumni group on LinkedIn, we thought it might be a fun idea to have a group for law bloggers.

That’s about the best rationale we have for it, okay?  It could be a fun idea.  “A fun idea.”

Lame, yes.  But we’re not asking for VC funding here.  If you’re into those kinds of things, and you blog about the law, here’s a link to the group’s page.

Enough said.  Vacation’s over and there’s work to be done!

This story won’t die — especially judging from the prominence of related words among search terms that reach this blog.  The latest, which we missed when it came out in July and we were otherwise engaged, is that the NFL’s Washington Redskins again prevailed in a lawsuit brought by a group of American Indians, but by all lights not on the central question of whether the REDSKINS trademark should be canceled on the ground that it is “immoral” or “scandalous”:

In a ruling dated June 25 and first circulated [in early July], U.S. District Judge Colleen Kollar-Kotelly ruled that the youngest of the seven Native American plaintiffs waited too long after turning 18 to file the lawsuit that attempts to revoke the Redskins trademarks.

The lead plaintiff, Suzan Shown Harjo, said Friday the group will appeal.

“She ruled as we anticipated she would: for the loophole that would allow everyone to avoid the merits of the case,” said Harjo, president of the Washington-based Morning Star Institute that advances Native American causes.

Harjo and her fellow plaintiffs have been working since 1992 to have the Redskins trademarks declared invalid. They initially won — the U.S. Patent and Trademark Office panel canceled the trademarks in 1999 — but Kollar-Kotelly overturned the ruling in 2003 in part because the suit was filed decades after the first Redskins trademark was issued in 1967.

The U.S. Court of Appeals then sent the case back to Kollar-Kotelly, noting that the youngest of the plaintiffs was only 1 year old in 1967 and therefore could not have taken legal action at the time.

But Kollar-Kotelly’s new ruling rejects that possible argument. She wrote that the youngest plaintiff turned 18 in 1984 and therefore “waited almost eight years” after coming of age to join the lawsuit.

The judge did not address whether the Redskins name is offensive or racist. She wrote that her decision was not based on the larger issue of “the appropriateness of Native American imagery for team names.”

Well, from our point of view, “avoiding” the merits is the right thing for a judge to do when “mere technicalities” actually preclude a court’s legal authority to decide the merits.  But sooner or later, we’re going to have to deal with this claim, and the whole rat’s nest of problems arising from the “immoral and scandalous” provision of the Trademark Act.

Steve Nipper notes a number of changes in the US Patent and Trademark Office’s regulations that make it really obvious what a bad idea, and how sore they will be, if a non-patent-admitted attorney or other agent tries to get a piece of the patent action in any form.

Steve suggests these new rules are mostly aimed at invention promotion firms and “third-party patent application mills,” but to me they screamed out “don’t play patent lawyer” at prosecution time to lawyers who know a little bit about patents and would like to bill a little time on the file themselves.

UPDATE: Clinton Cusick of Muskin & Cusick notes, on the INTA List, “[Regarding] the new PTO rules about non-practitioners producing papers at least ‘contemplated’ to be filed with the PTO, . . . I read the new rules to encompass their TM services. It seems that the new language was primarily directed to invention submission companies, but trademark ’submission companies’ seem to fit the language of the rules as well.”

Clinton also notes, speaking of “submission companies,” that a class action lawsuit claims that non-lawyer legal services hucksters LegalZoom “charges consumers a ‘U.S. Government Filing Fee (required)’ of $325 and a $159 service fee to file a trademark application with the USPTO. But LegalZoom pays $275, the actual fee for the USPTO’s TEAS Plus (Trademark Electronic Application Service), and has been overcharging consumers since July 2005, when the TEAS Plus application service [discount] took effect . . .”

We don’t mince words at LIKELIHOOD OF CONFUSION® regarding the misuse of copyright and trademark, but we’re having trouble finding anything wrong with this at-first-blush shocking story from the Reuters “news agency”:

Federal officials on Wednesday arrested a man on suspicion of violating copyright laws for placing songs on the Internet from an unreleased album by rock band Guns N’ Roses. . . .

Cogill, who appeared in court on Wednesday on a charge of unlawfully leaking the songs, faces a maximum of three years in prison if convicted, and five years if it’s found that he did it for commercial gain. He was released on bail.

It’s just stealing.  Oddly, Bill Patry, when he was blogging, and who is basically my hero for 2008, nonetheless seemed to view it differently when responding to a music industry lawyer’s complaint last year.  The argument was that “If you add up all the various kinds of property crimes in this country, everything from theft, to fraud, to burglary, bank-robbing, all of it, it costs the country $16 billion a year. But intellectual property crime runs to hundreds of billions [of dollars] a year. We’re having intensive consultations with the leadership in Congress, and we’ll be consulting closely with the appropriate committee chairman to try to put the agenda into the appropriate legislative vehicles.”  Bill wrote:

I am not opposed to all criminal copyright provisions. . . .  Very few acts of infringement[, however,] warrant criminal prosecution, which should be limited to large-scale commercial enterprises. . . .  I think that taxpayers’ money should not be used to enforce private rights which are more than adequately protected by civil remedies . . .

We agree with Bill that violent crime is, on any given day, a more appropriate use of the marginal law enforcement resource than just about anything having to do with intellectual property rights (assuming they are never related).  But this is, itself, not an argument; for by such analysis, virtually all policymaking becomes impossible.  It is basically the “man in the moon fallacy,” as we call it: Read the rest of this entry »

These days you’d think that perhaps — maybe from reading this blog — free expression, commercial or otherwise, were solely an Internet issue, and the MSM is mostly on the other side of it, hiding behind some pretextual body of law or another. (And perhaps you’d think free expression were solely a suntan lotion issue!)  But it’s not:

DENVER–Police in Denver arrested an ABC News producer today as he and a camera crew were attempting to take pictures on a public sidewalk of Democratic Senators and VIP donors leaving a private meeting at the Brown Palace Hotel.

Police on the scene refused to tell ABC lawyers the charges against the producer, Asa Eslocker, who works with the ABC News investigative unit. . . .

A police official later told lawyers for ABC News that Eslocker is being charged with trespass, interference, and failure to follow a lawful order. He also said the arrest followed a signed complaint from the Brown Palace Hotel.

Read the whole article (via Glenn Reynolds), which includes language we don’t even bleep out at LIKELIHOOD OF CONFUSION®, and video.

Pretty bad.  It’s actually chilling when they don’t merely have lawyers send letters but use blue muscle to prevent the press from doing its job.  I think they call that “prior restraint”?  I don’t know what could possibly be in that “signed complaint” from the Brown Palace Hotel to justify this — should we ask them?

Maybe this is one Floyd Abrams could actually win?

Read the rest of this entry »

History repeating and all, ya know.  First time, tragedy.  Second time — farce.

Susan Scafidi reports:

If Dad says no, ask Mom. And if the Federal District Court for the Southern District of New York says no, ask the 2nd Circuit.

As expected, Tiffany has filed a notice of appeal of its loss last month to eBay in a lawsuit alleging, among other things, that eBay should bear more responsibility for shutting down hundreds of thousands of listings for counterfeit Tiffany silver jewelry. . . .

eBay may have won a bit of a Pyrrhic victory. Yes, it has avoided the legal responsibility and cost of policing Tiffany’s (and others’) trademarks, at least for now, but at the expense of being identified as a site where counterfeits may outnumber the real thing and the official policy is “caveat emptor.”

Yes — which we’ve always found a bit obnoxious, considering the profit margins. As Susan points out in another recent item, back in the market where they actually kind of speak Latin — Europe — that argument is not selling so well.

A classic explanation, via the case method, of trademark law’s doctrine of foreign equivalents:

Affirming a Section 2(d) refusal, the Board found Applicant’s mark AMMIRAGLIA for “wines, sparkling wines, liqueurs,” likely to cause confusion with the registered mark FLAGSHIP for vodka. The Board concluded that AMMIRAGLIA means flagship in Italian, and it found no evidence that AMMIRAGLIA would not be translated by the ordinary American purchaser who is knowledgeable in the English and Italian languages. In re Marchesi de’ Frescobaldi Societa’ Agricola S.p.A., Serial No. 79021733 (August 11, 2008) [not precedential].

Plus, now you know how to say “flagship” in Italian!

Dell’s CLOUD COMPUTING trademark application has gone up in a vapory mass of smoke:

Dell cannot register “cloud computing” as a trademark because the term is a generic one describing services offered by many companies, the U.S. Patent and Trademark Office (USPTO) has said in an initial ruling.

In denying Dell’s application, the USPTO included dozens of news stories and other material supporting its contention that cloud computing is a widely-used term of art for the technology industry.

Indeed, if you click through the “application” link above to the “trademark document retrieval” link at top, then to the link for the August 12th office action, you can survey that extensive literature.

Lots of people have their trademark applications denied, and indeed many of the best trademark practitioners get a lot of them bounced because they’re pushing the envelope.  So it isn’t all that fair that Dell’s fell off its cloud so loudly.

Anyone see any silver linings lying around?

Urk.  Remember when I told you the GOP was getting lousy IP advice?  It hasn’t gotten better:

Singer, songwriter, liberal activist and now John McCain scourge Jackson Browne filed a lawsuit today against the presumptive GOP nominee and the Republican Party for failing to obtain a license to use one of his songs in a television commercial… This is the second time in a week a celebrity has chastised the McCain camp for allegedly illegally using his or her material. Mike Myers, earlier this week, insisted that the Arizona Republican take down a web ad that … used a “we’re not worthy” clip from his movie Wayne’s World.

And yes, I did just link to Huffington Post (credit to “metoo“).  Having said all this — the copyright claim does seem pretty cut and dried — the high level of detached professionalism in what follows is something else altogether (link added):

Lawrence Iser of the Santa Monica, California law firm Kinsella Weitzman Iser Kump & Aldisert said in a press release. “In light of Jackson Browne’s lifelong commitment to Democratic ideals and political candidates, the misappropriation of Jackson Browne’s endorsement is entirely reprehensible, and I have no doubt that a jury will agree.”

“Endorsement”?

“Reprehensible”?

And that’s for John McCain.  Can you imagine if the GOP nominee-apparent were an actual right-winger? That would make copyright infringement genocide, probably.

Well, we don’t know about the suggestion of “endorsement” from a wealthy has-been soft-rock advocate for dependance on foreign oil who evidently trolls the boulevards looking for infringement litigation opportunities, or the scale of human misery that places what is obviously mere negligence or stupidity by someone in the category of “reprehensible” … but it does look like a copyright infringement — by someone.

Larry Lessig (links added):

So for non-lawgeeks, this won’t seem important. But trust me, this is huge.

[T]he Court of Appeals for the Federal Circuit (THE “IP” court in the US) has upheld a free (ok, they call them “open source”) copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.)

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL [General Public License] and all CC [Creative Commons] licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Here’s yesterday’s decision, which is styled Jacobsen v. Katzer.  It involved a claim of copyright infringement arising from a model-train company’s violation of a free software license restricting the use of its software.  The court held that conditions over the use of the software demonstrated an intention to maintain control of how it is used, and that notwithstanding the lack of an exchange of money, there was ample consideration to support the assertion that the license could be enforced.

Dennis Crouch, incidentally, points out an interesting angle:

This decision['s] impact on patent law may be a reminder that the court will allow patent infringement actions even when the infringement is based on violation of an intricate or exotic licensing contract.

Read the rest of this entry »

Would Barack Obama’s election lead to revival of the “Fairness Doctrine” — and if so, how would that affect bloggers, who basically didn’t exist as of the last time the Fairness Doctrine governed political speech in the media?  The FCC’s chairman, Robert McDowell, suggests that bloggers wouldn’t be too happy about such a development. (Hat tip to Van Helsing.)

McDowell is a Bush appointee, and was speaking to the conservative Heritage Foundation.  Now that we’ve gotten that out of the way, what exactly is the principled defense of the Fairness Doctrine?

Ryan Gile reports that Cartier is upping the ante on its efforts to assert its IP rights in the “Tank watch,” shown below, and has sued Donna Karen over its knockoffs of El Tanque.

This is interesting to LIKELIHOOD OF CONFUSION®, because we have some background in watch trademark work and represented Cartier in what seems to have been the first of these suits (in terms of recent vintage) several years ago.  It was based on infringement of a number of Cartier models on several different theories.  In that matter we were proceeding against a Diamond District producer of fairly rank knockoffs.  Now, the infringement claim as to the Tank may be more attenuated, or perhaps not; but the change of defendants to a known fashion-industry company is certainly newsworthy.  It represents a distinct announcement of seriousness by Cartier’s IP management that it will not overly defer to the sort of “gentlemen’s agreement” that often keeps lawsuits such as this one between known names from happening.

Or not.  There is a difference between the “fine Swiss watches” category and “designer watches” category, even when the latter constitutes fine jewelry of very high quality and value.  The best Donna Karen, Ralph Lauren or Roberto Coin watch will never be considered, in the watch world, the equal of an entry-level Rolex or Cartier watch, much less a Patek Philippe, Blancpain or Piaget.  Cartier may seem to bridge this gap, being both in the fine jewelry and watch spaces, but in fact it transcends it:  It has, for over a century, designed and produced very high quality watches (unlike the typical Johnny-come-latelies that merely have expanded across the glass showcase) that have also established high-water marks for design, both in terms of beauty and influence.

Not that we’re trying to get the Cartier work back or anything (long story, and I love the boys who are handling it now!).  But we would sure like a genuine Tank watch!

Free (and apolitical) IP advice for bloggers over at Right Wing News.

A peeling machine.

Tiffany’s is, not surprisingly, appealing the decision dismissing its claims against eBay.

We’ve written before about the preposterous concept of asserting that stuff you buy and put into the trunk of your car and stick in a closet at home is really just a “license” to use that stuff.  Well, here’s something even “better” — and while it may make users fume, it may be completely legal, and it doesn’t require judges, statutory damages or even any kinds of lawyers to work:

Apple apparently can disable App Store software remotely on your iPhone 3G. The iPhone calls home and poof the application is nuked.

Needless to say that this has caused a bit of a blog ruckus (Techmeme). MacRumors notes that Apple has come under fire for removing App Store software without notification and the ability to simply deauthorize apps already installed on an iPhone is worrisome. iPhone Atlas points out that Jonathan Zdziarski found Apple’s blacklist in a forensic analysis of the iPhone 3G.

Yeahbut.  We can understand why zap-ees would find this annoying, though we kind of like the self-help aspect of it.  From a DRM prospective, though, it’s absolutely progressive.  Or, alternatively, intolerably regressive.  One of those things.

The obvious questions, of course, will come up when someone, or more likely a class of someones, sues Apple for the tort of wrongful nuking.  Will that sound in breach of warranty?  Breach of contract?  Some new and exciting cause of action?  Either way, of course, the lawyers win.  That’s what IP is all about, right? (Hat tip to Instapundit.)

Has anyone figured this out?

Dell’s newly-acquired trademark for the term “cloud computing” may have all the durability of a glass hammer, meaning it will shatter the first time they try to use it. The law is not exactly on the company’s side in this argument. . . .

The problem for a “cloud computing” trademark is that the term has become generic, widely adopted by the industry at large in the 18 months since Dell first applied for the trademark. . . .

“By now everybody’s using [the term 'cloud computing'], and the law is quite clear that even though it’s not Dell’s fault, if the phrase is now a generic phrase for that kind of computing, nobody can own a trademark for it, because people need to be able to describe the generic product,” [Jessica Litman, professor of Law and Information at the University of Michigan,] added.

But it could be too late, said Litman. “Dell was unfortunate to pick a phrase that was too close to the kind of phrase everybody was going to use,” she said.

Or, it appears, did use. What appears to be the case is that Dell hoped to get out in front, or close to the front, of the use curve and capture the secondary meaning. It looks as if that’s not going to happen. On the other hand, there’s already LIKELIHOOD OF CONFUSION, of a sort:

“A registered trademark on this term would not give Dell the exclusive use of it,” [Dell's spokesman] wrote in an e-mail to InternetNews.com. “It would protect us from others using the term specifically as it relates to our solution.”

No it wouldn’t. In fact, by Dell’s lights, you should only be able to use the term — in the only context that matters — as it relates to Dell’s “solution.” That’s what you get with a trademark. But as the clouds disperse and the sun shines its clarifying light on the matter, it appears that notwithstanding a registration, Dell doesn’t really have a trademark anyway.

UPDATE: And now, evidently… it doesn’t even have the registration: The Notice of Allowance was withdrawn today and the application has been “returned to examination.”  Why?  The PTO isn’t saying.  Does “the PTO” read blogs?

Copyright doyen Bill Patry explains why he shut down his brilliant copyright law blog. Some of it had to do with his inability to prevent people from ascribing his personal views to his employer, Google. Some of it had to do with a sort of spiritual exhaustion (despite being a pretty spiritual guy). But naturally, this is the reason that got my attention:

This leads me to my final reason for closing the blog which is independent of the first reason: my fear that the blog was becoming too negative in tone. I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

It’s depressing, and he’s probably right. Again: He says copyright’s “principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners.”

What ever kind of thing could he be talking about? (Hat tip to Carol Ruth Shepard.)

Cross-posted on Likelihood of Success.

In a way: See this week’s edition at Victoria Pynchon’s IP ADR Blog!

Another one:

A blogger on ZDNet had a post about “enterprise communities” where the phrase “branded community” was used. That’s a descriptive use and a perfectly reasonable one. Yet, the owner of some marketing firm wrote a semi-threatening letter claiming to hold the trademark on “branded community” and demanding that the blogger “refrain from using the phrase in any other current or future materials.”

You read that right:  Not only is this — arguably — descriptive phrase a registered trademark, but the registrant purports to have the right over any “use of the phrase”!  Here’s what the letter said:

The term Branded Community® is a Federally registered trademark of ours. Your company should not be using the term at all without our express written consent. The article in this link is an example of your unauthorized use of the term:

http://blogs.zdnet.com/feeds/?p=155 Building or creating a “branded” community by either using open source technology like Drupal OR it can employ the services of a white label community provider like Awareness, Jive Software or Mzinga (the company I work for). This approach provides companies with benefits like: [...]

Please refrain from using the phrase in any other current or future materials.

Hope one of those letters doesn’t come to us or any member of any BRANDED COMMUNITY of which we may be a member. Because that would be bad for our BRANDED COMMUNITY.  Such BRANDED COMMUNITY as we might have.