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  • Feb 7th, 2012 @ 9:10am

    Re: Re: Re:

    Absolutely. To me it seems like an issue for the FTC, in the realm of consumer fraud or deceptive practices. There are reasonable consumer expectations about the characteristics of products labeled "Pyrex," and those expectations have been dangerously violated.

    It's certainly not an issue for TM law, but it does point to an interesting difference between the law and a layman's experience of the law.

  • Feb 7th, 2012 @ 8:26am


    All legally sound argument, but I think the point here is to show how TM's objective differs from modern real-world expectations.

    TM protects indications of source and seeks to prevent confusion of source, affiliation, or sponsorship. But we also know that consumers don't even need to actually know the source of the good for it to be a valid trademark. Consumers may not know where "Ajax" comes from, but they expect a consistent product and quality whenever they buy that brand.

    TM law assumes that a product under the same name from the same source will be the same product. The mark as an indication of source is a proxy for a given quality or a particular consumer expectation. When the quality changes, it's primarily the mark owner that is harmed, so the owner has the incentive to maintain that quality.

    But when a TM is registered for a confusingly similar product that differs in a material way that consumers cannot determine at the point of sale, that's a "gotcha" point of confusion that TM simply doesn't prevent.

    There's nothing in TM law itself to prevent Apple from selling a version of the "iPhone" that looks the same but requires a $1000 licensing fee to operate as a phone. But the average consumer would expect every "iPhone" to be materially the same, or at least to advertise its differences.

  • Feb 7th, 2012 @ 7:23am

    (untitled comment)

    Seems to me one could make a good argument for not registering or enforcing the second mark under either Lanham 2(d) or 2(e) for being deceptively misdescriptive or a mark in prior use. Why the PTO let it pass I don't know. Consumers, or at least consumer watch groups, should have standing to go after this sort of misuse.

  • Oct 20th, 2011 @ 10:49am

    (untitled comment)

    The Internet has largely replaced the "public square" forum for discourse. Sure, anonymity can be abused when the speech is defamatory, but this action is the very definition of over-inclusiveness. I'll let SCOTUS say it:

    “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960)

  • Oct 11th, 2011 @ 10:36pm

    Re: Re: Re: Re:

    All good points, and I think the AIA is going to shrink what is patentable and make many of the patent troll claims harder to make.

    I am not saying that a statute should define every nuance, but that we often need some understanding of the nuances to practice every day. We need litigation to define the scope of patentability under the existing scheme in order to counsel meritorious inventors. If I have a client walk into my office with a device that resembles an mp3 player but has a cool new feature, I couldn't issue a patentability opinion if all I knew was that a patent must be "novel." I need the decades of case law that defines that word, and I need to apply that law to the prior art.

    What I am getting at is there will be holes in this statute, like any other, that will drastically affect legitimate business (ie not patent trolls) with the uncertainty that words bring. We need lawyers and lawsuits to figure out what those words mean, so a short-term uptick in the demand for patent lawyers should not be a surprise.

  • Oct 11th, 2011 @ 9:29pm

    Re: Re:

    The answer is that no amount of language in a statute can possibly cover every question, outcome, or nuance of real life. I'm reminded of my state's Rules of Professional Conduct, in which a one sentence Rule is explained and examined with four or five pages of Comments.

    The patent system is inherently difficult to legislate because it is intended to draw lines of what will or will not be patentable in the future, before those inventions could possibly be conceived. This isn't a murder statute in which we could clearly define what qualifies as an unlawful taking of life. How could a patent act originally enacted in the time of record players possibly be sufficient to draw the lines between mp3 players, without litigation to determine the scope of ideas of "novelty"?

    The law always requires interpretation. Patent law is just more intricate because the subject matter necessarily has not been created at the time the legislation was written.

  • Oct 11th, 2011 @ 8:09pm

    Re: Traditional Publishers model

    Well they can take the chance at $25,000 by your numbers, or sue for statutory damages for one act of willful infringement of up to $150,000.

    The problem is the current law encourages suit and does not make the /chance/ of future sales look rosy. It's twisting the "furtherance of the arts" goal of copyright on its head.

  • Oct 11th, 2011 @ 7:51pm

    (untitled comment)

    Hate the game, not the player. Most orphan works are orphaned because they don't make money; suing on copyright is by default a more valuable use. The orphan work problem is a direct result of the excessive copyright term. If we don't want people taking this kind of action we shouldn't give them decades upon decades in which to sue.

  • Oct 11th, 2011 @ 7:31pm

    (untitled comment)

    "A functioning patent system is one where the rules are clear and fewer lawyers are needed. The fact that the clearest immediate impact of the change in the law is the opposite..."

    The patent laws just changed in dramatic ways; of course there is going to be a short-term increase in demand for new patent lawyers to help clients and corporations transition, as well as years of new litigation to determine how the new statute plays out in practice.

    Now, if we have a dramatic increase in patent lawyers as a percentage of the practicing bar over the next twenty years, blame the new scheme, but this is about two decades to early to judge.

  • Oct 6th, 2011 @ 7:49am

    (untitled comment)

    With the words "Energy Armor" directly below the initials EA, I'd wonder what kind of consumers would think of Electronic Arts instead of, you know, Energy Armor.

  • Sep 1st, 2011 @ 9:06am


    Not exactly. Things are a bit different when police and the Fourth Amendment are involved. Basically, because you voluntarily gave your info to your ISP, you have no privacy rights as against the government.

    “Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.” United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010).