Recent Articles in Intellectual Property Law from LexMonitor

Who Dat? The NFL and Trademarks

Tue, 09 Feb 2010 05:13:15 GMT

Whether you were looking for false advertising claims on the Super Bowl commercials, roving the streets of Miami looking for counterfeit merchandise or just enjoying the game, the Super Bowl had a little something for everyone.

The NFL even threw those who have a special interest in trademarks a big meaty bone to chew on when the NFL claimed trademark rights in the chant: "Who Dat?"

The origins of "Who Dat" are not entirely clear, but it certainly has been used for many years and most recently by New Orleans Saints fans who chant: "Who dat? Who dat? Who dat say dey gunna beat them Saints?"

A furor immediately broke out when the NFL sent cease and desist letters to T-shirt shops in New Orleans selling merchandise with "Who Dat" on them. Days before the Super Bowl, the NFL appeared to change its position when it claimed that it would only pursue those who use "Who Dat" in connection with other Saints trademarks.

But, there are plenty of others besides the NFL who claim to own a trademark in "Who Dat". A search at the United States Trademark Office shows registrations for "Who Dat" for pretty much any kind of apparel that you can think of, action figures and variations of the mark including "Who Dat!!" for more apparel, "Who Dat? Blues Band" for entertainment and "Who Dat' Je Crois" for T-shirts. For a store owner such as Lauren Thom, the NFL's announcement that it is no longer laying claim on "Who Dat" only provides some relief given the myriad of claims on the phrase.

I thought it was interesting to see that the USPTO registered "Who Dat", "Who Dat?" and "Who Dat!!" for apparel. The only difference between the registrations, of course, being that one has no punctuation mark and the others have either a question mark or two exclamation marks. Likewise, it was apparently enough for the USPTO to simply add "Je Crois" to "Who Dat" for someone else to register its mark for apparel. While these registrations may be of limited use to one defending against claims of trademark infringement, they do give attorneys who are untangling this web a lot to talk about.

Regardless, the Saints and their fans had a lot to cheer about this weekend. In the space of a few days, they not only beat the Indianapolis Colts to win the Super Bowl, but they also beat the NFL itself. Who Dat!

CO2 Effects Not So Nice? Use it Twice, Says Carbon Sciences

elane@luce.com. (Eric Lane) — Tue, 09 Feb 2010 01:35:35 GMT

Carbon Sciences is a Santa Barbara, California company that has developed a proprietary process to recycle carbon dioxide emissions into gasoline and other liquid fuels. The company breaks down CO2 and extracts the carbon atoms to make new hydrocarbon chains. According to its web site, Carbon Sciences’ process requires less energy and is more scalable than previous [...]

Carbon Sciences is a Santa Barbara, California company that has developed a proprietary process to recycle carbon dioxide emissions into gasoline and other liquid fuels.

The company breaks down CO2 and extracts the carbon atoms to make new hydrocarbon chains. According to its web site, Carbon Sciences’ process requires less energy and is more scalable than previous known techniques, which used expensive inorganic catalysts.

The key to the process is a multi-step biocatalysis that uses organic biocatalysts. The company’s biocatalytic method uses inexpensive, renewable biomolecules to catalyze certain chemical reactions required to transform CO2 and water into fuel molecules.

Through nano-engineering of the biocatalysts and efficient process design, Carbon Sciences can operate these catalysis steps on a large industrial scale. In particular, the company’s smart particle technology provides improved encapsulation of the enzymes that prolongs their effective lives and allows them to perform many reaction cycles.

The major components of the process are a CO2 Flue Gas Processor, a a Biocatalyst Unit, a Biocatalytic Reactor Matrix, a Filtration system and a conversion and polishing unit.

The Biocatalytic Reactor Matrix is the heart of the process. It is here, in a matrix of liquid reaction chambers, that the large quantities of biocatalysts perform the multi-stage breakdown of CO2 and transformation to hydrocarbons.

The company’s CEO, Byron Elton, told me that Carbon Sciences has filed four as yet unpublished patent applications directed to its CO2 recycling process. Elton expects the company to file 4-6 more new patent applications this year.

Carbon Sciences owns U.S. Patent Application Publication No. 2008/0277319 (’319 Application), entitled “Fine particle carbon dioxide transformation and sequestration.” According to Elton, the ‘319 Application covers the company’s initial forays into carbon capture and sequestration.

The ‘319 Application is directed to methods and systems for breaking down carbon dioxide into micron- or sub-micron-sized particles, classifying or separating out the particles of a desired size and reacting those particles to form mineral carbonates.

Carbon Sciences’ technology extends into several aspects of CO2 capture, sequestration and recycling, including advanced chemical processes that can use flue gas and brackish water to capture CO2 emissions and scrub it to yield pure CO2.

Because the market for gasoline and liquid fuels is likely to remain quite large for some time, Carbon Sciences’ recycling process provides an interim carbon mitigation option: use the CO2 molecule twice.

Halliburton/KBR Files Cert. in Jones v. Halliburton

karl@karlbayer.com (Karl Bayer) — Tue, 09 Feb 2010 00:15:12 GMT

Via On Point News, we learned that Halliburton/KBR has recently filed a petition for certiorari with the U.S. Supreme Court on the case Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009). The issue is whether the arbitration provision in an employment contract includes the tort claim of sexual assault. The petition presents this [...]

Via On Point News, we learned that Halliburton/KBR has recently filed a petition for certiorari with the U.S. Supreme Court on the case Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009). The issue is whether the arbitration provision in an employment contract includes the tort claim of sexual assault. The petition presents this question:

Respondent Jamie Leigh Jones filed a complaint in federal district court against her employer, seeking redress of injuries she allegedly sustained from a sexual assault by another employee in overseas employer-provided housing in which she was required to reside as a condition of her employment. Jones’s employment contract required arbitration of “any and all claims that you might have against Employer related to your employment,” including “any personal injury allegedly incurred in or about a Company workplace.” A divided United States Court of Appeals for the Fifth Circuit narrowly construed the arbitration clause to exclude Jones’s claim. The court reasoned that sexual assault claims should be deemed generally excluded from such clauses. It imported into the “related to” clause a requirement that the claim was only arbitrable if “significantly” related to employment, and rejected application of the general rule that overseas employer-provided sleeping quarters are part of the workplace. The question presented is:
Under the Federal Arbitration Act’s presumption of arbitrability, which requires courts to give arbitration agreements the broadest pro-arbitration construction of which they are susceptible, may a court develop rules of exclusion to narrow standard broad arbitration clauses?

See Professor Marcia L. McCormick from the Workplace Prof Blog for comments about this case. (post available here)

Employment Arbitration: Issues Implementing the ‘Franken Amendment’ (Feb. 2, 2010)
U.S. Arbitration and Mediation Legislative Update (Jan. 25, 2010)
Guest-Post Part II | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 7, 2010)
Guest-Post Part I | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 6, 2010)
2009 Developments: Consumer and Employment Arbitration (Dec. 23, 2009)
Defense Contractor Mandatory Arbitration Passes Senate (Oct. 13, 2009)
Jones v. Halliburton: Fifth Circuit Rules on Arbitration of Tort Claims by an Employee (Sept. 18, 2009)
Employment and Consumer Arbitration: NPR Article (June 10, 2009)

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Licensing - The grant clause.

Mon, 08 Feb 2010 20:33:43 GMT

One of the most important clauses in a license agreement is the “grant clause”. The grant clause defines the scope of the legal rights that the patent holder (or “Licensor”) gives to the user (“Licensee”). The scope of the grant clause has significant implications for the commercial use of the invention.

Here is a typical grant clause that could be found in a license agreement – there are many ways to grant rights in a patent, the one below will suffice for illustrative purposes:

“The Licensor hereby grants the Licensee an exclusive, royalty bearing license in US Patent 9,999,999 in the territory defined as the United States.”

The grant clause is full of important information.

First, the grant clause states the license is exclusive. This means that nobody except the Licensee will have the right to make, use or sell the technology. The parties have agreed that only this one user will have the right to commercialize this invention. This is in contrast to a “non-exclusive” license. A non-exclusive license gives the patent holder the right to grant additional licenses to other users. In some cases, the license can be drafted in a way to start as an exclusive license, then change to a non-exclusive license. This can be conditioned to happen if the user does not meet certain conditions of the license, such as minimum sales requirements. Sometimes, the patent holder agrees to give a time advantage to the first user, then after a year open the market to other users.

Second, the grant clause above states that the license is royalty bearing. This means that the user will pay the licensor a fee for the right to use the technology. Usually, the royalty is paid on a per unit sold basis, although other methods of calculation are possible. The royalty can be paid on a net profit or a gross profit basis. Royalty rates, or the percentage paid per unit, can very greatly depending on the product and industry. The percentage is usually an important focal point of the negotiations.

The grant clause also refers to a specific patent, here fictionally referred to as US Patent No. 9.999.999. It could also refer to several patents, a patent portfolio, or even to just one or more claims to a patent. So a license can grant rights in multiple patents as well as

a single patent.

The last part of the clause states the geographical region in which the license is granted. In this case, the grant is in the United States. This can be altered to be a region or territory, or expanded to be global, or a region.

Remix As Social Activity

Mon, 08 Feb 2010 20:05:31 GMT

Boingboing pointed to a very interesting YouTube video on "The Evolution of Remix Culture". The video is, in lovely recursive fashion, also something of a mash-up of previous videos. In a short eight minutes, the author identifies a generational change in how remixes are being used.

First generation remixes involved the appropriation of pop culture material for the creation of new work, as has been done since oral storytellers sat around a fire listening to each others' tales and improving on them. Second generation remixes, the argument goes, are "social" remixes, in that the purpose of the remix isn't just to create a new work but to provide a response in a conversation or other interchange. Social media sites such as YouTube facilitate this by providing things like video response links as well as by popularizing user-created content across thousands (or more) of likely respondents.

This is nice, but not particularly revolutionary. What gets added here is that the creation of the remix itself performs social functions. People choose which video they want to remake for themselves - check out the vast number of groups of people redoing Michael Jackson's "Thriller" video, for example. And in the way they stage their own productions they're also making statements about themselves and often their own locales and local social networks. It's not a hugely revelatory thing for someone (or a group of someones) to say "Yes, we're like them" for some particular them depicted in pop media. What's new is that this statement becomes embedded in a conversation and also itself becomes fodder for further remixing by others down the conversational line.

In about the last 1:30 of the piece, the author (called "Normative" according to boingboing) touches on some of the copyright problems that influence this kind of thing. And, shockingly, he identifies control as the central issue. No, really, I did not pay him to say that. The Copyright Wars that have waged for the past 12 years or so really are about control, over expression, over technology, and ultimately over the shape of the culture in which we live.

I continue to be bored and frustrated by the grinding, trench warfare-like nature of the conflict these days. But videos like this give me hope that precisely because the war has ground on so long we may see it end. We've raised up a generation that sees its self-expression as intimately tied to the appropriation and reuse of... well, everything. Remix culture has become normative culture and trying to suppress that is just patently doomed to fail.

Jim Singer

singerj@pepperlaw.com (Jim Singer) — Mon, 08 Feb 2010 19:39:33 GMT

On February 23, 2010, my partners Josh Slavitt and Susan Krembs will host a webinar that focuses on IP issues and opportunities facing companies that do business in both the U.S. and Canada. The webinar will address similarities and differences between U.S. and Canadian patent laws. In addition, the webinar will review some of the most significant recent U.S. court decisions on patent law, with a focus on how those cases present new risks and opportunities for Canadian and U.S. companies, including new areas of inquiry for conducting due diligence in acquisition and financing transactions.

More details about the webinar are available via this link.

Click here to register for the webinar.

Filed under: Patents

FCC Okays More Body Scanners

Mon, 08 Feb 2010 19:24:39 GMT

Action adds more time, more quantities to 2006 waiver

Just two weeks after affirming a 2006 waiver for body-scanning security devices, the FCC has now extended that waiver by another year and upped the allowable sales by another 200 units.

The action coincides with news reports that the Transportation Safety Administration is increasing the numbers of body scanners at U.S. airports in response to security threats, including an individual who allegedly smuggled explosives aboard a U.S. aircraft in his clothing last Christmas.

Read the FCC’s order here.

The Secret To Launching A Successful Fashion Line: Recap

Mon, 08 Feb 2010 19:19:57 GMT

by ChristaChan-Pak, Esq., FGI Member and aspiring Fashion Lawyer

Last week emerging Los Angeles based designers gathered to gleam wisdom from established Fashion Business Consultant, Ralinda Harvey, during her presentation “Secrets to Launching a Successful Fashion Line” hosted by Macala Wright and FashionablyMarketing.Me.

Ralinda gave the attendees a step by step guide to launching their own successful fashion business that had three phases -- planning your business, creating a profitable collection and marketing and selling your line.

For those of you who could not be there, Ralinda outlined 16 steps to success as follows:

Start with a simple plan. Write down the following: a strategy for what you want to do, how to get it done, who will help you, how you will sell it and how much it will cost.
Work and learn at a small company. If possible, work at a small company. Ralinda started at Gap, Inc. but learned the most during her tenure at Michael Stars.
Start one business at a time. Wholesale, retail and e-commerce are all separate businesses. Ralinda recommends focusing on one at a time and expanding into others once the first is operational.
Cover your budget. This includes your startup budget, your operating budget to cover vendors, marketing and overhead, and your production finance budget to finance the period between when you receive orders and get paid.
Position yourself for investors. To strengthen your position when negotiating with investors get your line going and get sales.
Create a signature style. For example, when you think Calvin Klein, you think simplicity; when you think Missoni, you think of a harmony of colors
Focus your line. Think the Juicy Couture sweat suit, the Dianne von Furstenburg wrap dress. To build brand integrity, do one thing perfectly and build your collection using trimmings, colors, and details in fabric
Use keystone pricing. The wholesale price should equal cost multiplied by a factor of anywhere from 2.0 to 2.8. The retail price should equal the wholesale price multiplied by a factor of anywhere from 2.0 to 2.8.
Price at perceived value. If your product looks like $100 retail, divide that by 2.2, for example, to get the wholesale price of $45. When you divide the wholesale cost by actual cost, your result should be between 2.0 and 2.8. If it’s not, you need to tweak costs or adjust the product to stay at perceived value, i.e. the price of similar items.
Time your launch. Your launch should coincide with the trade shows, i.e. when buyers are buying. Check infomat.com for trade show dates. Don’t forget to make your launch an event.
Create a cost effective, goal oriented marketing plan. Think social media, a marketing kit, and/or a multi-purpose website. Social media is useful to get in contact with customers if you are doing retail. Your marketing kit includes flexible line sheets, press releases, order forms and your look book. Even if you’re not doing e-commerce, you should still have a website to showcase your current collection.
Know your sales options. While you could try to obtain a rep, Ralinda recommends selling yourself.
Selling yourself. Give your line momentum. Get your product in stores, especially brand building stores like Fred Segal, Kitson and Intermix. Work on getting press to position yourself for good representation.
Create a trade show marketing plan. Trade shows are great for exposure but are costly and unpredictable. If you are investing in going to a trade show, get the list of buyers who will be there and send them postcards and press kits via FedEx before the show. After the show, resend your materials to the buyers you connected with and provide them with order by and delivery cut off dates.
Deliver on time. Buyers can be unforgiving. Don’t take more orders than you can deliver
Make sure you get paid. Stick to cash on delivery or credit cards.

This sounds like a fantastic presentation and I would have been there, but was speaking in Philadelphia. Thank you Christa, for this fantastic summary. And in cased you missed these last two presentations, I am speaking at MAGIC on February 16, 2010 (blog post to come) so I can meet you there!

COPYRIGHT TERMINATION - WATCH OUT FOR WORK FOR HIRE

Mon, 08 Feb 2010 16:57:52 GMT

I predict a continuing stream of litigation arising from the termination provision of the Copyright Act in coming years. In extremely bold strokes, the termination law permits authors of works, or their heirs, to terminate any transfer or exclusive license within certain time periods after the date of the grant. To terminate, an author or his heirs needs to give a prescribed form of written notice to the grantee within a certain window of time. Affected parties may dispute the timing and sufficiency of the termination notice, as well as whether the work at issue is eligible for termination. Works made for hire are not subject to termination.

An example of the type of litigation we may continue to see in the eligibility category is Marvel Worldwide v. Kirby . That case looks like it could be a battle royale concerning whether Jack Kirby’s heirs can terminate Marvel’s rights in certain comics, with mega law firms on both sides.

The Kirby heirs contend that Jack Kirby is the author of certain comics published by Marvel. Kirby is known as the creator of the fantastic Four, X-Men and the Incredible Hulk. The Kirby heirs served termination notices purporting to end Marvel’s rights to publish the comics. The Marvel companies contend that the comics at issue are works made for hire, which would make Marvel the “author” and prevent Kirby heirs from terminating their rights.

Work made for hire issues are often fertile ground for litigation. Disputes concerning termination rights are just another context in which such disputes may arise.

Snickers Scores With Super Bowl Spot

Mon, 08 Feb 2010 16:08:12 GMT

With more than a little help from Betty White and Abe Vigoda, Mars topped USA Today's AdMeter for 2010 Super Bowl television advertisements.

For anyone out there who thought Abe Vigoda had passed on, and Mars' ad was just another technological resurrection of a dead actor to sell products, like me, you're operating on old and incorrect information, really old and incorrect information.

People magazine apparently jumped the gun back in 1982, and I never caught the correction or the many running jokes that followed his premature obituary. OK, so I apparently missed every one of his film and television appearances since then too.

While we're on the subject of missing information, for those of you who never caught my previous post about whether Mars could pursue the cross-section of a Snickers candy bar -- as a trademark -- here you go. For those of you who never caught Dan's post about Snickers apparent efforts to establish non-traditional trademark rights, here you go.

Note the prominent candy bar cross-section in the final scene of the Snickers commercial?

Mars, us hungry trademark types are waiting. . . .

Court Proposes Dismissing Declaratory Judgment Counterclaims as Duplicative of Plaintiff's Patent Claims

david.donoghue@hklaw.com (R. David Donoghue) — Mon, 08 Feb 2010 10:47:58 GMT

Continental Datalabel, Inc. v. Avery Dennison Corp., No. 09 C 5980, Slip. Op. (N.D. Ill. Dec. 9, 2009 (Shadur, Sen. J.).

Judge Shadur ordered the parties to be prepared to discuss at a status conference why defendants' respective noninfringement and invalidity declaratory judgment counterclaims should not be stricken as duplicative of plaintiff's patent infringement claims.

* Click here for more on this case in the Blog's archives.

adammizera

mizera@robic.com (Adam Mizera) — Mon, 08 Feb 2010 09:57:14 GMT

Voir un article de Patently-O sur le niveau d’expérience moyen des examinateurs de brevets Voir un article de Patently-O sur les taux de renouvellement/paiement de taxes de maintien de brevets au USPTO

Voir un article de Patently-O sur le niveau d’expérience moyen des examinateurs de brevets

Voir un article de Patently-O sur les taux de renouvellement/paiement de taxes de maintien de brevets au USPTO

Marc Jacobs Sues Christian Audigier’s Company For Trade Dress and Trademark Infringement

Mon, 08 Feb 2010 07:46:02 GMT

Los Angeles, CA – Designer Christian Audigier’s Nervous Tattoo, Inc. is being sued by Marc Jacobs’ company for trade dress and trademark infringement over purse designs. Marc Jacobs designs apparel and accessories, including purses, and has a pending application for its random “Marc Jacobs” scrambled trademark. Marc Jacobs has applied the scrambled trademark to the inside lining of the “Marc Jacobs Pretty Nylon” tote bag. And the tote bag’s “size, shape, color or color combinations, product design, texture, and selection and arrangement of materials and accessories” are claimed to serve as its trade dress.

Plaintiffs accuse Defendants of selling tote bags that “bear trade dress that unlawfully copies or imitates Plaintiffs’ unique, distinctive, and non-functional Marc Jacobs Pretty Nylon Tote Trade Dress and/or that unlawfully bear marks confusingly similar to the Marc Jacobs Scrambled Trademark.” In addition, Plaintiffs assert claims for unfair competition under Cal. Bus. & Prof. Code § 17200 and constructive trust.

Since the parties’ products apparently bear their respective trademarks, it will be interesting to see if customers are confused about the source of the products. See Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045-46 (2nd Cir. 1992) (holding that prominently displayed trade names on the respective products "weigh[ed] heavily against a finding of consumer confusion resulting from the overall look of the packaging") (preliminary injunction denied).

The case is Marc Jacobs Trademarks, LLC et al. v. Eagles Clubs International, Inc., et al., CV10-00456 CBM (C.D. Cal. 2010).

Angel Investing in Hong Kong: Part V Government Tech Policies

Mon, 08 Feb 2010 06:45:02 GMT

By John Lo, Partner, Corporate, King & Wood–Hong Kong

Nurturing the growth of a science and technology focused sector became a significant part of the government policies of the first post-1997 administration. Under the guidance of the late Professor Tien Chang-lin, former chancellor of University of California, Berkeley, the government issued a technology blueprint for Hong Kong shortly after the changeover, which led to a new period of innovation and growth in the tech sector.

These included the establishment of the following:

Hong Kong Science & Technology Parks
Hong Kong Applied Science and Technology Research Institute
Various funding schemes managed by the Innovation and Technology Commission

The main location of the Hong Kong Science Parks located at Pak Shek Kok - now comprising around a dozen state-of-the-art multi-story buildings under its first two phases of construction - stands as a visible testimony to Hong Kong's attempt to put itself on the yellow brick road of innovation and technology. In addition to established tech companies and R&D facilities, its current occupants include some 100 startup companies under its incubation program. Since the program's inception, more than 200 incubatees have graduated.

The Hong Kong Applied Science and Technology Research Institute (“ASTRI”), modeled after the successful Industrial Technology Research Institute (“ITRI”) of Taiwan, was established in 2000 and is engaged in mid-stream R&D in IC designs, communications technologies, enterprise & consumer electronics, and material & packaging technologies. At the end of 2008, ASTRI employed more than 340 researchers.

The Innovation and Technology Commission is an executive government body under the Communications and Technology Branch of the Commerce and Economic Development Bureau. It manages various government innovation and technology funds focused on helping local businesses in the relevant sectors. Among various funding schemes pertinent to startup financing, is the Small Entrepreneur Research Assistance Program (“SERAP”), which provides pre-VC stage financing to startups.

In addition to the above initiatives, the government has had a long-standing policy to invest substantially in higher education. Despite its relatively small size, Hong Kong has eight universities, some of which have won academic acclaim worldwide and are highly ranked in selected fields. Universities in Hong Kong have regularly achieved breakthroughs and successes in their research efforts. Many made significant efforts to commercialize their research results.

In April 2009, based on the recommendation of a government appointed economic advisory committee, Chief Executive Donald Tsang announced that Hong Kong should focus on and encourage businesses in six major industrial areas where Hong Kong is believed to have competitive advantages. These areas include innovation and technology, the cultural and creative industry and the environmental industry.

Some critics charge that much more could have been done by the government to help innovation and technology based entrepreneurial pursuits. None would dispute that the policies now in place, however, are vast improvements compared with the virtual absence of government support under the so-called “Positive Non-interventionist” policies of the pre-1997 British administrations.

Question Mark Brands?

Mon, 08 Feb 2010 06:27:27 GMT

A couple of months ago I blogged about Branding Exclamations!

Before that I blogged about Increasingly Intense Ellipsis Branding . . . .

Now, it appears I must revisit the subject of punctuation mark branding given Cadbury Adams' new Mega Mystery Stride brand gum, prominently featuring a question mark logo on the packaging where the S logo normally appears.

The mystery apparently surrounds the presently undisclosed flavor of the gum. The unknown flavor appears to be part of Stride's claimed Ridiculously Long Lasting Gum, not to be confused, of course, with Wrigley's Curiously Strong mints and gum (Altoids).

Anyway, my daughter brought a pack of the ? gum home and said, "Daddy, you should blog about this," so now you know the inspiration for my curiously strong or ridiculously long attention to this subject.

I fully expected to find a pending trademark application filed by Cadbury Adams for the "?" symbol, given its ridiculously flavorful interest in single letter chewing gum brands. To my surprise, however, I found none, at least yet.

As you might have imagined, I did find some "?" trademarks of others, as shown below. Do you recognize any of them? Each "?" image is linked to the corresponding trademark record at the U.S. Trademark Office.

Turns out, there is a ? trademark battle heating up too. Not in the world of confections, but rather in the world of fashion. Just days ago, Guess IP Holder L.P., owner of the famous Guess brand, filed a Trademark Opposition against one of the above Question Mark logos, guess which one?

It asserted ownership of these federally-registered trademarks:

But not any of these, for some reason:

To find out, click here for a link to a copy of the Notice of Opposition.

Any more questions?

Offensive Game on Yahoo Kids Teaches Girls Age 6-12 to Win By Dressing (or not) To Please Boys

info@usefularts.us (Dave Wieneke) — Sun, 07 Feb 2010 21:44:09 GMT

A few months ago we got the most offensive legal advertising ever taken down. (Remember, it advertised a sex offender defense practice using a photo of a girl showing skin and looking guilty….and an adult hand keeping a scared child from speaking.) As the father of two girls who have never watched television, I’m astounded by [...]

As the father of two girls who have never watched television, I’m astounded by the messages lots of family accept as normative “becuase” they are on “insert the network name of your choice.” We we on Yahoo! Kids, which provides select games for kids age six through twelve. and came across a game called “Dress Up the Cheerleader” which is infact trains girls to dress to please others….and the others who matter want them semi-nude.

Girls, Please a Crowd of Boys to Win!

Set up: A crowd of boys watches a dress a girl from the underwear up. The “Crowd-o-Meter” registers their full approval of her in underwear. As she dresses ,their approval wains. However, fixing up her hair, and selecting more revealing clothing can regain their approval.

The challenge: Will your girl tramp herself up enough to make the boys happy and win.

The choice: your character can end up smiling and happy if she gets the crowds approval. However, dressing her in long pants and not fixing her hair results in a low score and a very sad face.

Three Simlple Messages for Girls:

An audience of boys will judge you.
Victory is external, so follow social signals carefully.
You can win if you fit the box boys want you in. (and that box requires showing skin.)

Stupid or reprehensible?

The game’s developer is MiniMe Media, who can be contacted via <charles.lee@minimemedia.com>. However, its more likely that linking to this description and expressing concern about Yahoo! Kids wil get a better result.

New EU Council Resolution In The Making: 'Enhancing The Enforcement Of Intellectual Property Rights In The Internal Market'

horns@ipjur.com (Axel H. Horns) — Sun, 07 Feb 2010 21:15:00 GMT

On February 05, 2010, the General Secretariat of the EU Council has published Document 6164/10 titled “Commission communication 'Enhancing the enforcement of intellectual property rights in the internal market' - Revised proposal for a Council Resolution” replacing its predecessor published in Document 5808/10. It has been drawn up by the EU Presidency for discussion at the meeting of the Intellectual Property Attachés on 9 February 2010. As was to be expected, the EU Council is, inter alia, about to

Continue reading "New EU Council Resolution In The Making: 'Enhancing The Enforcement Of Intellectual Property Rights In The Internal Market'"

The Patent Troll Problem

Sun, 07 Feb 2010 19:12:44 GMT

What a corporation needs to know about patent law...

I'm sorry if I insult anybody by using the derogatory term "Patent Troll" for a non-practicing entity (NPE) or patent dealer that claims patent rights to technology and demands a licensing payment for the use of the technology. But if the name fits...

I'm not saying that simply suing to protect your patent rights makes you a Patent Troll. But it's clear that there is an industry where patents are obtained, bought and sold for the sole purpose of initiating lawsuits.

"As of January 1, 2010, PatentFreedom has identified and profiled over 315 distinct NPEs (a number which continues to increase). Since 1985, these NPEs have been involved in litigation with nearly 4,500 different operating companies in over 3,100 distinct actions. And the pace of activity is clearly increasing. Nearly 75% of the suits between these NPEs and operating companies were filed since 2003."

What is a patent troll? When you hear the word troll you visualize the image of a troll underneath the bridge unjustly charging an unwary passerby a duty to cross the bridge. Or maybe you visualize a fisherman trolling for fish. Let's throw a hook out there (a lawsuit) and see what we can get.

After reading through various articles on the internet on this subject we find both sides of the argument. One side of the argument is that non- practicing entities are Patent Trolls that are eroding the economy, see article by Science Progress:

The patent system was created by the nation’s founding fathers not so much to protect individual ownership rights but to foster investment and technological advancement. Some individuals and companies, however, have opted to use the system for a different purpose: They acquire the rights to certain inventions that are crucial for the proper operation of other, larger inventions, and then essentially hold that intellectual property for ransom to be paid by those who need it. These so-called trolls typically do not make any product and, rather than inspiring innovation, tend to have a chilling effect. For a full discussion of the troll issue ...see Daniel P. McCurdy’s article, “Patent Trolls Erode the Foundation of the U.S. Patent System.”

The other side of the argument is that "patent holders" are just enforcing their constitutional rights. (see "Patent Troll:" A Self-Serving Label that Should be Abandoned)

"A 'patent troll' is usually defined as someone who enforces a patent yet does not practice the invention protected by that patent. ...Enablers of innovation have consistently been demonized throughout recent literature and characterized as “trolls,” who systematically extort payment from unknowing victims. Indeed, the cause of many of the lawsuits that 'patent troll' critics abhor is not caused by trolls at all. To the contrary, the cause of patent infringement lawsuits and other enforcement activity is that others are using patented technology without authorization. This fact can be and has consistently been addressed in the system as it exists today. Whether coined “patent trolls” or not, intellectual property companies, small companies, non-manufacturing companies, and other “enforcers” ensure that the system operates as the Constitution directed."

There is public outcry in the patent community that there's a need for patent reform. And there's many suggestions on how to reform the patent system. Some people think that the examiners are are inefficient and allow patent claims that are drawn too broadly. With regard to the"'patent troll" issue it is argued that broad patent claims should be eliminated at the examination stage, and examiners should be better trained at stopping these types of patents from being issued.

Robert C. Pozen of the NY Times, says patent cases end up in court because " The quality of American patents has been deteriorating for years; they are increasingly issued for products and processes that are not truly innovative" and that patent rules should "...[allow] experts in the field to submit explanatory or critical comments on patent applications." This will help inexperienced examiners make better decisions and improve the quality of allowed patents.

Patent experts argue better patents will stop patent trolls. But others such as Timo Fisher and Joachim Henkel's aren't convinced. See paper, titled "Patent Trolls on Markets for Technology - An Empirical Analysis of Trolls' Patent Acquisition":One Reason Why Improving Patent Quality Won't Solve the "Troll Problem"

"Surprisingly, and contrary to common belief, we find that troll patents are of significantly higher quality than those in the control group. This result implies that elevating minimum patent quality will not put an end to the patent troll business"

I'm not sure if patent quality is the problem. I think lawsuits are started by non-practicing entities regardless whether or not there is a strong case that a product or process infringes on the subject patent. Suits are brought knowing that the party being sued would rather settle even if they know it can be proved at trial that there is no infringement. So there's money to be made in these lawsuits.

In addition, non- practicing entities form corporations around individual patents or groups of patents to limit their liability and farm these cases out to attorneys who specialize in patent infringement cases on a contingency fee basis. The attorneys know that they will be supplied with an endless steam of infringement cases based on multiple patents, so it's worth their while to take a case and put it into suit regardless of the strength of the case. It is not uncommon that these cases are put into suit based on patents that arguably do not cover the product or process that is alleged to be the basis of infringement.

To say that the patent doesn't apply at all may be a stretch, however if it's in the ballpark and there can be an argument made that there is infringement and there is a deep pocket, then a lawsuit is filed. The pressure is on corporate America to either pay up or fight it out in the courts. And everybody knows how expensive a patent litigation is. As a result non-practicing entities get the unwanted moniker "patent troll."

There is Rule 11 of the Federal Rules of Civil Procedure that is supposed to stop frivolous lawsuits. However it appears that once a lawsuit is filed it is very difficult to prove that the lawyer or the entity filed it knowing there was no meritorious case. You don't often see Rule 11 enforced in these cases.

Often the patent troll files a lawsuit based on a patent where there a modicum of an argument that there is an infringement. In these case the biggest concern of the party being sued is not whether they are going to lose the lawsuit, but whether or not it will cost them a fortune to prove they're not infringing. Patent trolls, and particularly those who regularly make infringement allegations know that the enormous cost of patent litigation is a major deterrent against fighting the case through trail and that they will likely receive settlement offers.

So it's not a bad financial strategy for a Patent Troll to sue a patent infringement case whether or not there is a strong likelihood that the product actually infringes. In fact, patent trolls have been known to structure settlement offers around anticipated litigation costs, rather than around the alleged infringer’s sales figures.

I wouldn't want to defame any non-practicing entities or their attorney's by saying that they know when they initiate a lawsuit that the patent which is the basis of the lawsuit really doesn't cover the product or process of the defendant corporation. Call me "an attorney trying to circle the defense wagons, using the common rallying cry of “patent trolls,” but does anyone really believe that out of thousands of cases filed by Patent Trolls that Rule 11 doesn't apply to any of them?

I guess each law suit has to be evaluated on a case-by-case basis and we shouldn't stereotype any group or demonize their chosen path to make a living. My experience in life is that the truth often lies someplace in the middle. But I also believe that where there is smoke there is fire.

Novell Motion in Limine No. 1 - Let's All Live by the Mandate Rule, Shall We?

Sun, 07 Feb 2010 16:41:00 GMT

Novell has filed its first motion in limine [PDF], the full title of which is Motion in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate. It's making me chuckle.

Ah! The mandate rule. Since the judge, the Hon. Ted Stewart, highlighted it in one of his recent orders, as had Judge Cahn before him, Novell's response is, Fine. Let's all live by the mandate rule. Judge Stewart denied one of Novell's summary judgment motions, holding that the Tenth Circuit "remanded this matter to the Court for trial on those four specific issues identified in the mandate," and that "[b]ecause of the specific nature of the mandate, the Court is not free to explore matters outside of it."

So what's good for the goose should be good for the gander. Obviously, we'll find out now what Judge Stewart is made of, since it was his order that brings this motion in limine's argument to the fore. To deny Novell's motion, Judge Stewart has to more or less admit he goofed in his order on Novell's summary judgment motion on the slander of title special damages claim (or alternatively that he was too strict about the mandate rule), which I earlier said I thought he had. What to do? What to do?

Now, judges are used to acknowledging their own errors, as it's part of their job to be reviewed by their superiors in the chain if not always by their betters. So that isn't likely to be a problem. I discern, then, that unless the fix is in, as they say, this motion in a normal universe would be granted. In short, I think we are about to find out if we are in a normal universe in Utah for the upcoming SCO v. Novell trial, beginning on March 8, or not.

Litigants Are Often Caregivers Who Need Help Too: Online Tools Help Bring Community In

info@usefularts.us (Dave Wieneke) — Sun, 07 Feb 2010 14:33:19 GMT

Last week a family member had serious enough surgery that I took time away from my job to be a caregiver. Surprisingly, this has connected me more to social networks and this blog. You see, our hospital has wi-fi in its waiting areas, so writing online is productive way to pass time, and absorb the waiting with grace. When I wake up at night to give medication, the online community is there and I appreciate it. I’m finishing this in a waiting room now.

Research shows that more than three in ten U.S. households (31.2%) report that at least one person has served as an unpaid family caregiver within the last twelve months, leading to an estimate of 36.5 million households with a caregiver present. My own experience illustrates what sociologists have told us about caregiving for decades: caregiving is a social role that needs to be balanced.

You see, once someone in the family is the identified patient, their caretakers become reluctant to receive care or to be patients themselves. Many caretakers have untreated medical issues, preventative health needs, or just a chronic need for relief. When your job is to be the one who helps, it’s easy to skip self-care.

Community Beats Isolation: It Keeps Drama in Check
Fortunately for me, our friends are instinctively hip to this. Our kids have had lots of play dates, church friends have dropped off some meals, and our extended family made all that hospital waiting-room time possible. Which brings me to introducing this free online workspace for caregivers and their friends, Lotsa Helping Hands.

It enables the loose networks around people to self-organize and communicate. Such community tools let caregivers focus more on the person they’re helping, and empower them to share responsibility, which improves their own health and quality of life.

Communities allow caregivers who may not see each other in person to share knowledge and plans so everyone knows who is responsible for what. (I’ve been logging medication and pain history, keeping track of appointments and play dates, and have probably not reached out as much as I would have if some of these people were not in a shared workspace.)

Community Tools for Caregivers?
A decade or so ago, I helped our state’s public schools create community tools for online learning. Schools have much more organizational structure than the ad hoc relationships that help our friends and families through tough times. Imagine how neighbors, health staff, family, and civic and religious groups could plug in to help people better with the same kind of organizing tools we’ve seen in grassroots politics.

As someone who works in legal marketing, I think about this as I consider the audience of caregivers, who often come to us as litigants. There’s a good chance that someone you know might benefit by having community tools, and that means you might benefit from being able to plug in to a group supporting them. The next time my life shifts me into a caregiving role, I’ll have a bag of tricks that includes some community tools. How about you?