Republican candidate Scott Brown has successfully knocked off his Democrat opponent Martha Coakley in a Massachusetts special election to fill the late Ted Kennedy’s Senate seat. In doing so, the people of Massachusetts have all but doomed President Obama’s hopes for getting the currently proposed health care reform legislation passed. The message to our government seems clear: “We don’t like what you’re doing!” The surprising part is that it comes from Massachusetts. Massachusetts!! (Maybe Marco’s right about them folks being smarter than the average American.) If one of the bluest states in the nation (Obama won Mass. by 26 points just over a year ago) is turning its back on the party in charge, hopefully the liberal leadership will shut up and listen, rather than loudly asserting that they know what’s best for us all. (Personally, I hope they keep their fingers in their ears, and this story repeats in November.)
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One of the partners at my law firm, Mark Malek, and I put together a quick overview (800-words-or-less) about patents and copyrights for Space Coast Business Magazine. They ran it in their January issue, and you can read the full text here.
This special kind of nonverbal communication of information only works, however, if we let a single shirt maker to use the polo playing man silhouette. If three different companies used the same symbol, no one would know which one is the good one and which one’s seams come undone after one washing. This phenomenon is aptly named, in the parlance of trademark law, consumer confusion – where two or more companies use marks that are so similar that consumers have trouble associating a single producer with a particular product. As a method of preserving the economic advantage embodied in this product/producer association, our federal government, and each state, has created a legal cause of action, which allows a producer to sue others who try to use her trademark in a way that creates consumer confusion. It makes sense to put the job of enforcement into the hands of the parties whose interests are most closely aligned with the government’s, keeping the size of government down and minimizing taxpayer costs. Toyota will be as motivated as the government, if not more, in preventing someone from selling lemons with a rounded “T” symbol on them.
As an entrepreneur, registering and enforcing your trademarks can be an incredibly powerful way of building your brand and, as a result, your business. Just be careful to keep in mind the real reason why the government has given you the power to sue and try to use an attorney who is experienced in these matters, who can help you see the unintended consequences of filing an infringement suit. This article was originally published on The Tactical IP Blog.
In an effort (I’m assuming) to be hip and relevant, my alma mater (and Randazza’s previous teaching gig) has begun adding courses to their curriculum that have little to do with the law or lawyering. One example is a course called “Popular Culture and the Law,” to which the registrar has assigned the following course description:
Normally, I’m not the one in this forum to bitch about the state of legal education. Marco & Co. do it regularly enough that I don’t have to. (See here, here, and here.) On the whole, my law school experience was a good one. I took as much advantage of our externship program as I could, and I went out of my way to take classes from adjunct professors who I knew actually practiced what they were preaching. What I object to is courses that have students watch reruns of “L.A. Law” (1986), or other fictional portrayals, as a means for teaching about the practice of law. Aren’t there other subjects that could be presented that have more merit?
If you look closely, you can see the heart. Design patent protection is similar to copyright protection, in that the alleged infringer is in trouble if they’ve produced something that is substantially similar to the protected design. However, while the government simply gives out copyright registrations, upon request, design patents are only awarded after an examination is done and it has been determined that the proposed design is novel (i.e., no one else has previously designed a product like this). 
Gwyneth’s design The prize for successfully prosecuting a design patent application? Complete national monopoly for 14 years. Since copyright protection lasts for a minimum of 70 years, some people would argue that a design patent is hardly worth the effort and cost. The problem with that logic is that copyrights come with a whole boatload of limitations, leaving room for potential defendants to get away free. As a key example, fair use and independent creation are no defense to a charge of design patent infringement. Just ask Paris Hilton, who undoubtedly has just learned about this little wrinkle from her attorney. This article was originally posted on The Tactical IP Blog
No. It was those champions of copyright policy, the Rosemont Police. As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission. See 720 Ill. Comp. Stat. 5/21-10. Now, don’t get me started about what a moron this woman is. Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron. Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement. Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor. With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well. And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.
Continue reading “Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?” It is a well known axiom of U.S. intellectual property law that there is no protection afforded to mere ideas. In order to employ the force and power of our legal system to enforce your intellectual property rights, you must have something more concrete than an idea. In patent law, for example, you must have reduced your invention to practice (although constructive reduction to practice can be used to satisfy the requirement). In trademark law, you must have actually used your mark in association with goods or services. In the realm of copyrights, an author must fix her expression in a tangible form before the government will recognize any exclusive rights. The bottom line is that you can’t sue anyone for “stealing your idea” or “taking that movie plot you thought of.” This concept is hard for some to grasp, and every so often, a big player in the IP world may take advantage of this common misunderstanding. While perusing sites that sell graphic tees (one of my favorite forms of communication – e.g., here, here, or here), I came across an example of this that I think is worth sharing. It seems that Ian Bogost, a video game professional, associate professor, blogger, and amateur t-shirt designer, decided that it would be clever to put a Spanish phrase, “Por favor manténgase alejado de las puertas,” on a t-shirt, adjacent to various theme park graphics. If you’ve spent any time in a Disney theme park, you may recognize the foreign equivalent for “Please stand clear of doors,” which can be heard over and over on the monorail, as the automated recording paternally berates passengers.
“Awe! Come ON! I made a movie about it. That proves it’s true.” Director Kappos, of the United States Patent & Trademark Office (USPTO), writes on his blog this week about how the Office intends to fast-track the examination of patent applications that deal with so-called “green” technologies. Great headline for a month ago, when the popularized position was that anthropogenic climate change (formerly known as “global warming”) was a *proven* phenomenon. However, recent developments have put those findings in serious doubt. In case you haven’t been keeping up, as Director Kappos clearly hasn’t, emails were leaked last month from the University of East Anglia’s Climatic Research Unit – a world-renowned climate change research center – which reveal a “trick” being employed by researchers to massage temperature statistics (source). Seems that a decline in temperature didn’t fit into the doomsday scenario that’s being thrown about to justify new grant money, new cap-and-trade legislation, and new taxes. The emails openly discuss the deletion of historic source data and ways to discredit scientific journals that have published skeptic papers, as a couple of examples (source). Moving back to the IP tie-in, the USPTO is continuing to drink the climate change kool aid by proposing that so-called “green” patent applications should be given priority treatment in examination. Kappos’s announcement of the policy was timed to coincide with the start of the United Nations Climate Change Conference in Copenhagen, Denmark. In that announcement, the Director explains the impetus for such an initiative:
One has to wonder what other types of applications will be “de-prioritized,” in order to let climate-change-fighting inventors skip the line. It seems clear that this initiative would do absolutely nothing to improve the average pendency time across all patent applications. It is truly odd that, at the Patent Office, where a science degree is required to prosecute or examine applications, they’re not letting a silly thing like the absence of a scientific foundation stop them from disparaging the majority of the inventing community. It certainly isn’t stopping the charlatan proponents of climate change theory from generating a city-sized carbon belch to gather and talk about how to reduce carbon emissions. Once again, the Director concludes his blog post, claiming that he welcomes comments and feedback, but somehow my comments thereto on this subject failed to clear moderation. File under “can they do that?” Facebook notified me of a class settlement agreement, by sending me an in-network message:
I never got the email. |
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Trademarks are a huge part of everyone’s daily lives; yet the laws that dictate their use and abuse are not nearly as well known. A single trip to the grocery store may expose you to literally thousands of trademarks. There are the ones you expect to see (e.g., the word “
As an example, when someone goes shopping for clothing, they are able to quickly pick out which garments are desirable, and which ones are not, simply by looking at the tag or emblem stitched on the left breast. If you see 
The only potential problem with this enforcement schema is that some producers, usually because they are not informed, misunderstand the purpose of trademarks and try suing anyone who uses their mark, even when there is little or no danger for consumer confusion. Usually, those mark owners believe that they “own” a particular word that they’ve used as a trademark, such that they can prevent the whole world from using that word without their permission. This perception of trademark ownership, while completely incorrect, is unfortunately held by many. As a result, many a demand letter is sent to an unhappy customer who wrote about their unpleasant experience with a particular company, for example, on their Facebook or Twitter page. Preventing criticism couldn’t be further from the intended goal of trademark law, and many companies find out the hard way that trying to use your trademark rights to silence an unfavorable review only draws attention to a bad customer experience – one which is likely an anomaly.
My understanding is that this course is just another excuse for chicks in law school to watch 
After 
Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new 
As I have often said, the USPTO is committed to dramatically reducing the backlog and average patent pendency time across the board. As we work toward this goal, we are going to pilot a program that will give priority to applications that combat climate change and foster job creation in the green tech sector. The Green Tech patent pilot program will decrease the time it takes to obtain patent protection for green tech innovations by an average of 12 months. (
