"If the facts don't fit the theory, change the facts" - Albert Einstein.
You changed the facts. The actual fact is that this was tweeted as a commercial endorsement, probably a false one, not as an observed fact. It did not say "K. Heigl seen coming out of Duane Reade store", it said "Even @KatieHeigl can't resist shopping #NYC's favorite drugstore." That is using her for an endorsement, saying she can't resist shopping there. Chances are very high she CAN resist it and will probably never shop there again. So it's not only an endorsement, it is a false and misleading statement. Right result. Duane Reade, Inc. needs to think before tweeting.
The "idiots" who proposed and passed the laws are your elected representatives. The real idiots are those who think simplistically that because it is a fact that a celeb shopped in your store, you are entitled to use their image for commercial purposes to get a free endorsement. Heck with Heigel's rights, and heck with the law your representatives passed. Just make your own laws.
You logic is flawed. Publicity rights are not copyrights, so even if A is true, B can also be true. Simplistic flawed logic does not change the facts. What Duane Reade, Inc. did is probably illegal. And, in the end, they had to pay to compensate for violating publicity rights. Right result.
Publicity rights serve to compensate celebrities for unauthorized use of their reputation for commercial purposes by freeloading opportunists like Duane Reade, Inc. It's the law, you know. If you don't like it, lobby for a change. If you have enough to spend enough the best Congress money can buy might change the law to benefit you and Duane Reade, but for now they are ripping off Heigle. You would also want to be compensated by those trying to get free endorsements from you, except that you don't have fame and fortune. Have-nots seem to always feel a sense of entitlement when they want an unearned share of what the "haves" have. Would you also feel entitled to jump and rape her because she is in the public, right? I mean, facts are facts, right - she asked for it. Or to jump her fence and use her pool because it's unfair she has one and you don't, so you should be entitled to an unearned share and just take it.
I noticed on another site that a legal debate entitled "Software Patents Encourage Innovation" will take place on Aug. 24 at noon at the Computer History Museum in Mountain View, CA (Mountain View is where Google is headquartered) between Bob Zaidman (well known expert witness for plaintiffs in software patent enforcement litigation)arguing for software patents and Edward Lee (head of the Electrical Engineering and Computer Science Dept. of UC Berkeley)arguing against software patents. I bet Masnick and his moronic Techdirt dittoheads are afraid to show up for fear of embarrassment.
Donnicton, you show your prejudices and biases when you say patent trolls lose more than they win. In your, dreams my friend, but not in reality. In reality, the opposite is true. Even with Zimmerman, the court found he had won enough to pay a $600K+ judgment, so you have your head up your rear to think things turn against trolls more often than not. Zimmerman claimed poverty only to avoid the judgment and the Judge saw through that. Intellectual Ventures, Acacia, General Patent, Lodsys, etc. - all making fortunes. The TSA analogy is really misplaced and inapplicable. With much, much more at stake than $600K, we have not had a commercial airplane successfully terrorized since TSA was formed, so it is actually a great success story, much like patent enforcement companies are a great success story with MS, Apple & their team coughing up $4.5 billion to keep Nortel patents out of the hands of Google or the patent trolls. $4.5 billion evidences the level of their fear.
If I patent the wheel and you invent a wheeled cart your cart infringes my patent because it uses my patented invention, the wheel. But, you could patent your cart and stop me from putting my wheel on a cart, since you not me invented that combination. This has been the law for 220 years. What is LOL is you not understanding it and embarrassing yourself by posting to show your ignorance. "Better to be silent and thought a fool than to speak up and remove all doubt" - A. Lincoln
Clear and convincing is the right standard. The USPTO has examined every patent application prior to issuing a patent. That is a prior adjudication by a trained expert in the field, in fact arguably the best trained experts in the world.
If we returned to a registration system for patents, and I think we should, then a preponderance would be the right standard, since there would have been no prior adjudication. But, that is not where we are, we are here with a thorough examination having been made that deserves respect. Sure Mike and the other invention theives that post on this site would like to more easily steal inventions, but Mike and the thieves are going to lose this case, and lose badly.
That examination is a prior quasi-judicial finding which is entitled to respect in court, just as prior decisions of lower courts are given respect by higher courts. That is what the "clear and convincing" standard accomplishes.
The only aspect of Mike's analysis that is correct is that "it is simple, really."
There is a huge difference in evidence between a dubious preponderance and clear and convincing. . I am in that field and I think you are an idiot, as the potential difference would be huge on 99% of patent cases. Nice to see the Government on the side of patent validity rather than patent theft.
This reminds me of the political saying "Go ahead and call me any name you want, just use my name and use it a lot. Be sure to spell it right and publicize it widely. Then, when I protest and defend myself, I'll be even better known and even more famous." As a TM lawyer, I think Mike is basically right on this, but is missing the logic in it. Even bad publicity is often good. The suit is likely part of an advertising campaign. The fair should probably spend its money putting out ads protesting its association and claiming it is honest. All that publicity will make the fair more famous and their trademark more valuable not less. In fact, the suit is probably just that, more an advertising ploy than anything. Sometimes, if the press grabs onto a suit like this, it is huge free advertising of great value. Even if the fair loses the suit, the fair probably wins due to the publicity it brings. Most people going to a fair care whether it is exciting and fun, not whether it is corrupt. And, they are more likely to go if they know about it and there is a big fuss about it, perhaps even to see for themselves what all the fuss is about. Like rubbernecks at a traffic accident, you can tell people they should stay clear and not slow down, but they won't. They want to be there and see it and tell others they saw it. Advertising 101.
Mike has apparently been inhaling lithium smoke from your exothermic backup battery. Not to worry, we are not buying his misguided "patents are bad" nonsense either on this post or any other. MS should enforce their patents but should pay for those they infringe. R&D gets rewarded that way, not piracy.
Mike, you are either a fool or a liar to say that nothing in lowering the standard would impact good patents. With district judges the best of patents are at risk because they generally are neither scientists nor interested in technology cases, as you well know. Lowering the standard will merely let them dump patent cases that much easier so big business can kill creativity. It is MS that is bad not patents. Look at your other post for confirmation.