About this Author
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
Copyfight
LawMeme
Listen to the weekly audio edition on IT Conversations:
The Importance Of ... Law and IT.
Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
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July 13, 2005
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Coca Cola Threatening Lawsuit Against Political Art
The India Resource Center reports that the Coca Cola company is going after an Indian artist whose commentary on Coca Cola's policies incorporates their logo (Coca-Cola Threatens Top Indian Photographer with Lawsuit). Mr. Haksar, a leading international photographer and winner of the 2005 Cannes Silver Lion, has placed a large billboard in one of Chennai's busiest areas - one of India's largest cities - with his own "work (which) is solely an expression of creativity." The billboard features the ubiquitous red Coca-Cola wall painting, commonly found across India. Directly preceding the Coca-Cola ad, and part of the billboard, is a dry water hand-pump, with empty vessels waiting to be filled up with water - a common scene in India, particularly in Chennai. On July 11, 2005, the law firm of Daniel & Gladys, who represent Coca-Cola's Indian subsidiary, sent a letter to Mr. Haksar threatening him with serious legal actions unless the billboard was replaced 'unconditionally and immediately'. Coca-Cola would seek Indian Rupees 2 million (US$ 45,000) for "incalculable damage to the goodwill and reputation" of Coca-Cola, and also sought an 'unconditional apology in writing'. Mr. Haksar said, "I have no intentions of issuing any apology. Because I have not committed anything wrong. If Coke pursues this legal course, my lawyers shall take appropriate counter action." via Furdlog
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July 04, 2005
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Profile of a Trademark Abuser
The New York Times has a good article on a trademark abuser (He Says He Owns the Word 'Stealth' (Actually, He Claims 'Chutzpah,' Too)). Over the last few years, Leo Stoller has written dozens of letters to companies and organizations and individuals stating that he owns the trademark to "stealth." He has threatened to sue people who have used the word without his permission. In some cases, he has offered to drop objections in exchange for thousands of dollars. And in a few of those instances, people or companies have paid up.... "We're entitled to own it with all goods and services," he said. "We were there first."... Mr. Stoller has taken his claims to federal court - with unusual frequency, in at least one judge's view. In one case in 1999, United States District Judge Joan B. Gottschall in Chicago noted in a decision against Mr. Stoller and S. Industries that the company had appeared before the court 33 times from 1995 to 1997. via A Blog Doesn't Need a Clever Name UPDATE 1145PT - Joe Gratz has more, including links to the actual complaint/letters ( Idiotic Trademark Abuse).
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June 29, 2005
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EFF Files Trademark Lawsuit for Use of Trademark in Magazine Name
Derek Slater, blogging for EFF's DeepLinks brings news of a new trademark case to prove the right of a magazine to use the trademark of the item it covers in the name of a magazine (Yet More Lost in the Shuffle). EFF announced Monday that it has filed a lawsuit against French pharmaceutical giant Sanofi-Aventis Group on behalf of Medical Week News, publishers of the medical news website AcompliaReport.com. The website reports news about Acomplia, a forthcoming Sanofi-Aventis drug. Based on use of the drug's name in the website domain name, Sanofi-Aventis recently threatened Medical Week News with legal action. Read the press release: AcompliaReport.com Sues for Right to Use Trademark to Report on New Drug. Read the 6-page complaint: Acomplia Initial Complaint [PDF].
posted by Ernest Miller |
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June 28, 2005
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When U Beats 1-800-Contacts
Eric Goldman has a must-read summary of a recent trademark/internet keywords case (Important 2d Circuit Adware Case--1-800 Contacts v. WhenU). The court found that WhenU was not liable for trademark infringement as a matter of law: "We hold that, as a matter of law, WhenU does not 'use' 1-800's trademarks within the meaning of the Lanham Act, 15 U.S.C. 1127, when it (1) includes 1-800's website address, which is almost identical to 1-800's trademark, in an unpublished directory of terms that trigger delivery of WhenU's contextually relevant advertising to C-users; or (2) causes separate, branded pop-up ads to appear on a C-user's computer screen either above, below, or along the bottom edge of the 1-800 website window." The appeals court overturned a terrible district court opinion. Read the whole thing.
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June 20, 2005
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No Trademark for Clear Containers?
Over on the Technology & Marketing Law Blog attorney John Ottaviani notes that the Federal Circuit affirmed, per curiam, the Trademark Trial and Appeal Board, which had denied Pennzoil's attempt to trademark a clear motor oil container (Federal Circuit Refuses to Register Pennzoil's Clear Motor Oil Bottle as a Trademark). In this case, the most damaging evidence to Pennzoil’s position that the clear container is not functional is that Pennzoil introduced its clear container after it determined that there was an obvious competitive advantage to displaying the colorization of its synthetic oils and blends in a transparent bottle. Because there were numerous non-reputation related reasons for adopting a clear container, and these were competitive reasons that should not be denied to Pennzoil’s competitors, the Board found that Pennzoil did not have a right to appropriate the use of a clear container exclusively for its motor oils.... Will this decision have implications for other products that are marketed in clear packaging and containers? The Board was careful to note that it did not want to set out a per se rule about whether or not there may be other circumstances under which a clear container could function as a source indicator. However, I cannot think of an example where a clear package would both be non-functional and have acquired secondary meaning. At least for now, then, the world is safe from those who would require us to purchase all of our products in opaque containers and packages. Read the 28-page Board decision: Texaco Inc. v. Pennzoil-Quaker State Co. [PDF]
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Expertise in Tween Girls Questioned
This is Australian law, not US law, but Inchoate found quite an amusing passage in a trademark case involving magazines aimed at young girls between 6-13 years ("tweens"). (Girl Power?). From the decision: I am not satisfied that Mr Lindstrom’s evidence in this case can be accepted as expert evidence in relation to the perception of tween girls. It is not based on any identified or specific empiric examinations referred to by him in his material. He claims to be a leading expert with many years of experience, however, the prime nature of this experience is unclear.
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Hey, That's My Handbag (Design)!
Good article in the New York Times on small fashion creators and how the big manufacturers knock off their designs (That Looks Familiar. Didn't I Design It?). How creativity and intellectual property work in the fashion industry is fascinating and this article provides some of the reasons why. I particularly like the conclusion: Many designers adapt by simply withdrawing from the public eye. After a particularly traumatic knockoff experience, said Amanda Keidan, a jewelry designer in New York, she did just that. She now primarily designs jewelry for private clients. Not Ms. Dreyfuss, however. She says she has added a larger bag with a circular handle to her collection. In the next few months, she said, she will invest much time marketing her latest creation - and not worry about possible knockoffs.
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June 18, 2005
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History of the Starbucks Siren
posted by Ernest Miller |
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June 17, 2005
Posted by Ernest Miller
GloFish are fluorescent fish that were originally bred to help detect environmental pollutants. Read the GloFish FAQ: About GloFish. Of course, who wouldn't want a flourescent fish for the dull, unexciting fish tank at home? So, they are now available for sale to the general public (Buy GloFish Fluorescent Fish). But be aware. These fish are licensed (GLOFISH FLUORESCENT FISH LICENSE NOTICE): The GloFish fluorescent ornamental fish are intended solely for visual enjoyment as aquarium fish by end users who have purchased these fish from authorized resellers, and not for commercial reproduction. These fish are the subject of various intellectual property rights owned or controlled by Yorktown Technologies, Inc. (“Yorktown”), both in the U.S. and internationally. These rights include (1) patent rights, including published patent applications (2) copyrights; and (3) trademark rights, including slogans and service marks.
By accepting these fish, and as part of the consideration therefor, the recipient agrees: (1) not to, breed or propagate these fish, permit or encourage others to breed or propagate these fish, or otherwise intentionally engage in any activity that may result in or lead to the breeding or propagation of these fish by anyone without the express written consent of Yorktown; (2) not to sell or transfer these fish to anyone in the State of California, or to possess or otherwise engage in any activity that results in the possession of these fish in the State of California. These fish are copyrighted? And why aren't Californians allowed to have any?
via Ed Foster's Gripe Log
UPDATE 1255PT A commentor notes that the fish were banned in California. CNN with an AP wirestory (California Blocks Sales of 'Glofish' Pets).
Comments (4)
+ TrackBacks (0) | Category: Copyright | Oddities | Patent | Trademark
June 16, 2005
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Trademark Problems for Firefox?
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June 01, 2005
Posted by Ernest Miller
Comments (1)
+ TrackBacks (0) | Category: Internet | Rating and Filtering | Trademark
May 29, 2005
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Where Does Fan Fiction End and Copyright/Trademark Begin?
Scrivener's Error posts a coda to what has been a long and very illuminating discussion about what place fan fiction should play in copyright law. His conclusion? Basically, it should be part of trademark law: Fan Fiction: The End (of the Beginning). Must reading, can't wait for the article, though I wish someone would organize and index the entire blog discussion. UPDATE 20 May 2005, 0930PT. A rough draft of the essay is up: Fan Fiction.
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May 27, 2005
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Trademark Parody Okay Says South Africa's Constitutional Court
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May 26, 2005
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Nuanced View of Relevant Market in Antitrust Case
On the Trademark Blog Martin Schwimmer notes an antitrust case that has a nuanced view of relevant markets for antitrust based upon trademarks (Exclusive Licensed Products May Constitute Separate Market For Antitrust Analysis): The defendants had argued trademarks only indicate the source or sponsorship of goods or services and say nothing about which other products consumers might see as substitutes. While that is usually true, the judge said, here the NFL team logos can be viewed as the actual product. While some people might buy a T-shirt or hat with a logo just because they need a T-shirt or hat, most people who buy logo-bearing merchandise are fans who would not see other kinds of apparel as a reasonable substitute, the judge said. And congratulations on the start of your fourth year of blogging Martin!
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March 22, 2004
Posted by Ernest Miller
Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.
I'll continue to post here, of course, especially my longer pieces.
Comments (0)
+ TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark
February 07, 2004
Posted by Ernest Miller
The Trademark Blog posts a interesting disturbing image of Miss Piggy with a breast baring pose obviously reminiscent of Miss Janet at the Super Bowl (Warning: the image may upset the sensitive) (Parody - Discuss Amongst Yourselves). Marty asks whether the image is a non-infringing parody (which comments on Miss Piggy) or an infringing satire (which merely uses Miss Piggy to comment on Miss Jackson). The case is point is the famous Dr. Seuss case which held that a satire of OJ Simpson in the style of Dr. Seuss was infringement.
Tech Law Advisor is quick to take up the discussion and quickly concludes that (Not Parody):
Miss Piggy baring her breast does not comment on Janet Jackson's exposed breast. The work shown here is quite simply infringement.
The problem here as in the Dr. Seuss case that Marty cites is that the supposed parodist merely use the work [Miss Piggy] as a vehicle to satirize something completely different [Miss Nasty]. [comments/links in original]
I disagree. To me this is a fairly clear case of parody of a parody.
Miss Piggy, afterall, is a sanitized, child-friendly parody of celebrity divadom, of which Miss Janet Jackson is an example. Miss Piggy was originally called "Miss Piggy Lee" after diva singer Peggy Lee. Since then, Miss Piggy has vamped in parodic versions of Calvin Klein, Guess? Jeans, Pulp Fiction, Sports Illustrated Swimsuit Edition, and Pretty Woman, not to mention so many, many others, including a Pigtoria's Secret shoot.
Miss Piggy clearly is meant to parody the sexuality of modern female celebrity-dom. Nevertheless, like all the Muppets, Miss Piggy's parody is sanitized for family consumption. Clearly, such sanitized family entertainment is itself ripe for parody, see, for example, directorial genius Peter Jackson's Muppet parody Meet the Feebles, in which Muppet-like creatures do drugs, porn and engage in other degenerate acts.
How better to parody Miss Piggy then to push her parody of female celebrity-dom into the realm of the absurd? The humor of this parody lies not simply in its reference to Janet Jackson's breast episode, but to our recognition of Miss Piggy as following in Janet's footsteps (as Miss Piggy has followed in the footsteps of so many other divas). The image is funny because it pushes our expectations of the sanitized parody of Miss Piggy beyond what her creators would have chosen. In the words of the Dr. Seuss decision, this image of Miss Piggy "mimics an author's characteristic style and holds it up to ridicule."
Comments (2)
| Category: Copyright | Freedom of Expression | Trademark
January 14, 2004
Posted by Ernest Miller
The Court of Appeals for the Ninth Circuit has overruled the district court which granted summary judgement to Netscape, which was accused of violating trademark law by selling keywords to advertisers in association with Netscape's search engine. The plaintiff is Playboy which has become to internet trademark law what Scientology is to copyright law.
The decision is an unfortunate extension of Brookfield's initial confusion doctrine beyond URLs and meta-tags to search engine keywords. However, this relatively limited decision merely gets Playboy over the hurdle of summary judgement and does not necessarily mean they will win the case. Read the decision: Playboy v. Netscape [PDF], 00-56648 (Jan 14 2004).
In particular, there is a very nice concurring opinion that attacks the foundations of Brookfield itself, and I highly recommend reading it.
Of course, the decision itself has some amusing lines. For example, in analyzing the eight Sleekcraft factors, the court determines that pornography is easily substitutable, particlarly graphic pornography:
We presume that the average searcher seeking adult-oriented materials on the Internet is easily diverted from a specific product he or she is seeking if other options, particularly graphic ones, appear more quickly. Thus, the adult-oriented and graphic nature of the materials weighs in PEI’s favor as well.
There is no citation for this admitted "assertion," so one wonders whether this assumption is based on the court's personal experiences. And what do they mean by "graphic" here? If one were searching for graphic pornography, one would be unlikely to be interested in Playboy.
via The Trademark Blog
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November 20, 2003
Posted by Ernest Miller
...continue reading.
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+ TrackBacks (0) | Category: Copyright | Trademark
November 19, 2003
Posted by Ernest Miller
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+ TrackBacks (0) | Category: Internet | Trademark
November 12, 2003
Posted by Ernest Miller
The San Diego Union-Tribune runs a Reuters wirestory on the difficulties some have taking time off from their TiVo (PluggedIn: TV viewers find TiVo addictive). A long list of recorded shows on TiVo apparently makes some feel guilty not watching them. While in the past, if you missed a show, you simply missed it. Now the show sits on TiVo's hard drive waiting for you to watch it. I can imagine this can be a problem for some, but most people have experienced similar feelings at one time or another. Have you ever felt guilty about not keeping up with a newspaper subscription, for example? Do you have a stack of magazines waiting to be read, eventually?
Though I don't think this phenomena particularly compelling, I do think that the social ramifications of TiVo are going to be quite interesting, as we increasingly switch from traditional broadcast to new hybrid models.
Side note ... who else thinks that the TiVo trademark is in danger of becoming genericized?
via Techdirt, see also BoingBoing
Comments (0)
+ TrackBacks (0) | Category: Culture | Tools | Trademark
November 11, 2003
Posted by Ernest Miller
I found this C|Net News story a little disturbing (Search engines face drug test). Apparently, the National Association of Boards of Pharmacy (NABP) is meeting with search engine providers in order to encourage the search engines to "clean up" ads for prescription drugs - by running only ads from those certified by, surprise, the NABP. This seems to be yet another move by major companies to control search engine results to favor their interests, following in the wake of eBay (Google ads a threat to eBay trademark?) and Netflix (Trademarks cast shadow on paid search), not to mention countries like France setting some unfortunate trademark precedent (Google France fined for trademark violation).
Of course, this issue is a little more complicated, since there are safety issues involved. However, isn't that why we have an FDA? Well, yes we do, but the FTC sounds a warning note about private lawsuits:
"I'm not convinced that they [search engines] won't (face private lawsuits) if some minor purchases a controlled substance through facilities based on ads they've allowed to run," Cleland [the FTC's assistant director for the division of advertising practices] said."
No doubt some attorney will try to run with that ball, but we can only hope the lawsuit fails. After all, do we allow billboard owners to be sued when minors buy alcohol advertised on billboards?
Commercial speech, though subject to different levels of protection than other speech, is still important from a freedom of expression point of view. Advertising via search engines is going to be an important aspect of this speech on the internet. We should be concerned about how search engines restrict this form of speech.
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+ TrackBacks (0) | Category: Freedom of Expression | Internet | Trademark
Posted by Ernest Miller
I've spoken with Merriam-Webster's publicist and although he had no immediate comment as to why the term McJob was removed from the new word samples page (see, McWimps - Merriam-Webster Caving to McDonalds Threats), he did provide me the following statement:
SPRINGFIELD, MA., NOVEMBER 2003—Merriam -Webster Inc., publisher of Merriam-Webster’s Collegiate® Dictionary, Eleventh Edition, stands by the accuracy and appropriateness of its definition for McJob:
“a low-paying job that requires little skill and provides little opportunity for advancementâ€
Words qualify for inclusion in the dictionary because they are widely and commonly used in a broad range of carefully edited sources. For more than 17 years, “McJob†has been used as we are defining it in a broad range of publications, including The New York Times, U.S. News & World Report, Publishers Weekly, Rolling Stone, The Times (London), The Boston Globe, Ms., Harper’s, The New Republic, Utne Reader, The Vancouver Sun, Sunday Times of South Africa, and Queensland Australia’s Courier Mail.
In editing the Collegiate Dictionary, we bear in mind the guidance offered by Noah Webster that “the business of the lexicographer is to collect, arrange, and define, as far as possible, all the words that belong to a language, and leave the author to select from them at his pleasure and according to his judgment.†The English language is constantly changing and evolving, and it is the duty of Merriam-Webster editors to record and reflect these changes.
I'm glad to see this statement, but I still wonder about the removal of the word from the sample page.
In a related post, Dana Blankenhorn looks at the economics behind the phrase (McEconomics).
UPDATE 1310 PT
Merriam-Webster responds to the question of the removal of the word from the sampling page:
The "New Words Sampler" on the free site was not the Collegiate Dictionary--it was a marketing tool to promote the dictionary. "McJob" has not been removed from the Collegiate Dictionary, which can be found in print, CD-ROM, or online at www.merriam-webstercollegiate.com. Because people were confusing the content of the marketing piece with the full content of the Eleventh Edition of the Collegiate Dictionary, it is currently under revision; a new version will be restored soon online.
Hmmmm ...
UPDATED 1630 PT
Don't know why I misspelled Merriam "Mirriam", but I did. It is now corrected.
Comments (3)
+ TrackBacks (0) | Category: Freedom of Expression | Trademark
Posted by Ernest Miller
On Saturday, I took a look at McDonalds claim to be upset by the inclusion of the word McJob in the eleventh edition of the Merriam-Webster dictionary (McTrademark Follies). As I noted, the complaint seems quite specious since the word has been in common usage for nearly a decade and is found in many other dictionaries.
However, yesterday, Blind Höna | På Kornet noticed that the Merriam-Webster website has removed the term "McJob" from their page touting new words added in the 11th edition (McDonald's Newspeak: Unwanted words purged from dictionaries).
The evidence is clear: note this source HTML for the page with a list of some of the new words added to the 11th edition (http://www.merriam-webstercollegiate.com/info/new_words.htm):
<!-- pulled 11/10/03 <p>
<a name="McJob"></a><strong>McJob</strong> . . . . <em>noun</em> (1986) <strong>:</strong> a low-paying job that requires little skill and provides little opportunity for advancement
-->
via BoingBoing
UPDATED 1640 PT - Corrected misspelling.
Comments (1)
+ TrackBacks (0) | Category: Freedom of Expression | Trademark
November 08, 2003
Posted by Ernest Miller
MSNBC runs an AP wirestory reporting that hamburger purveyor McDonalds is upset by the inclusion of the word "McJob" in the latest version (11th Ed.) of the Mirriam-Webster dictionary (McDonald’s balks at ‘McJob’ entry):
In an open letter to Merriam-Webster, McDonald’s CEO Jim Cantalupo said the term is “an inaccurate description of restaurant employment†and “a slap in the face to the 12 million men and women†who work in the restaurant industry.
....
“McJOBS is trademarked and we’ve notified them that legally that’s an issue for us as well,†Riker [a spokesman for McDonalds] said.
...continue reading.
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+ TrackBacks (0) | Category: Trademark
November 04, 2003
Posted by Ernest Miller
David Galbraith has an interesting post about Google's Trademark Complaint Procedure (Trademarking search terms). He wonders whether there is a "possibility of people trademarking terms and expressions specifically so that they can use them within Google ads?" In other words, whether people will trademark "Blog" candy, in order to control the use of the term "Blog" in Google ads - whether or not the ads had anything to do with candy. Given that Google has already been hit with court-imposed fines for trademarked keywords triggering ads, they certainly would be reticent to stop people from abusing the system this way (Google France fined for trademark violation). Thanks, France.
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October 26, 2003
Posted by Ernest Miller
As noted here earlier (Yang Liwei © 2003 CNSA All Rights Reserved), Chinese businesses are very interested in using names associated with the successful Chinese space program. The Times of India has the latest, as well as an interesting quote about Chinese trademark law (Spaced-out Chinese cash in on spaceman's fame):
Shenzhou V, the spacecraft which took Yang on 14 orbits around the earth last week, is also the object of several trademark applications but these hopefuls are likely to be out of luck.
"Shenzhou V is a special name that has significant political meaning," said Xun Xianzong, a trademark official.
"So far, there is no precedent for the use of such names as trademarks."
Shenzhou means "Divine Vessel" in Chinese. I wonder what other "special names" have "significant political meaning."
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+ TrackBacks (0) | Category: Oddities | Trademark
October 19, 2003
Posted by Ernest Miller
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+ TrackBacks (0) | Category: Copyright | Oddities | Trademark
October 17, 2003
Posted by Ernest Miller
The Trademark Blog brings word that Malaco, makers of Original Swedish Fish and holders of the associated trademark/trade dress, has lost on summary judgement a trademark suit against Promotions in Motion, marketers of Famous Sqwish Candy Fish (not to mention Nuclear Sqworms) (The Aesthetically Functional Swedish Fish). The opinion, which can be read on Juris Notes (Malaco Leaf, AB v. Promotion in Motion, Inc.), is pretty devastating. This case is a real good example of how not to protect trade dress. For example, you might want to avoid cases where the judge can write lines like this:
Malaco's contention that its Marks are entitled to a finding of acquired distinctiveness is further belied by its own internal marketing reports, including one dated a day before it filed this complaint, reporting that "[m]ost respondents consider 'Swedish Fish' a generic term of fish-shaped gummi candy," and that its Marks enjoy "weak trademark protection."
Anyways, I just like cases that have lots of discussion concerning gummy. While there is not a thigh-slapper in the decision, I find that reading stuff like, "Notably, animal-shaped gummy candy is common in the candy industry" amuses me. Apparently, I amuse easily. Among other highlights, the case also features a discussion of the functionality of gummy designs and the following footnote:
Soft and chewy candy is generally categorized by the industry as either "gummy" if it has a primarily gelatin base, or "juju," if it has primarily a starch base. (Deposition of Frank Galatolie, dated March 20, 2002 ("Galatolie Dep.") at 130-31; Defendants' 56.1 Statement ("Def.'s 56.1 Stmt.") ¶ 3.) For purposes of uniformity, this Court refers to the parties' products as "gummy" candy.
Bet you not many people are aware of that distinction.
Perhaps Malaco should look for other designs carved by gummy artisans who work exclusivly in the medium of gummy ... too bad that Gummy Mummy is already taken.
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