Kid Rocks, Rolls

Popular music individual Kid Rock has prevailed in the Sixth Circuit appeal of a District Court ruling dismissing the lawsuit against him that sought to prevent him from using the "Top Dog" trademark. The Circuit Court agreed that the plaintiff, a former business partner, had abandoned the mark by not using it for over a decade.

That was the good news. The bad news -- for Mr. Rock -- is that the performer, who is evidently something of a rough-edged fellow, appears to have been canned as a prospective performer of whatever art or science he performs, at the second inauguration of the Top Dog himself, whom the Kid evidently supported for reelection.

If true, this won't please Jim at RightThoughts! But perhaps there's something to be said for maintaining some degree of gentility at the foremost social event in the country, what? It's not as if he has trouble getting dates, from what one reads in the penny dreadfuls.

One Bloggin' Apple Don't Spoil the Whole Bunch

Bob Cox pointed me in the direction of this coverage of the Apple trade secret litigation: Blogs Persist Despite Apple's Suit:

"The Macintosh maker obtained a court order to subpoena the AppleInsider and PowerPage sites after it filed a suit on Dec. 13 in a Santa Clara court. Apple said it wanted the names behind a post entitled, 'Does 1-20,' which allegedly leaked the information in question.
The EFF countered saying bloggers' sources are protected by the same laws that protect sources providing information to journalists. 'Bloggers break the news, just like journalists do.
They must be able to promise confidentiality in order to maintain the free flow of information,' EFF Staff Attorney Kurt Opsahl said in a statement. 'Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society.'"

I don't agree. The press shield laws are and always have been a legal fiction. They were promulgated after Watergate to carve out a narrow exception for a "the press" to the general rule that civic duties -- such as the requirement to respond to subpoenas -- apply to everyone. They are creatures of a time when mainstream journalism reached its apex of power and truly asserted itself as the Fifth Estate, an unelected power with the prerogative to topple governments. So now we are seeing the artificial barriers of institutional journalism fall. But if every blogger is a journalist, why then every -- every --

everybody's a "journalist." So now all I need is to register with Blogger -- a 15 second process -- and then post whatever I stole, or my best friend stole, or (better yet) what I paid him to steal from someone else -- to be immune to subpoenas? (Thankfully no one has said anything about "information wanting to be free" yet, have they?)

And really, does a "free society" really depend on getting out Apple's latest product developments ahead of when they want it to get out? Not even a little. Even if PowerPage is a blog, do bloggers want to push this point as far as the EFF is doing and demand full press shield privileges? I'll tell them the same thing I tell trademark attorneys who keep push, push, pushing their ever-growing bundle of rights on the rest of the world: Be careful what you wish for.

Courts are there to draw lines. Let's see where they draw this one.

Media Bloggers Legal Defense Project

The Media Bloggers Association is setting up a stable of attorneys "to provide MBA members with first-line counsel on matters relating to the use of intellectual property, defamation and other issues arising from their weblogging." Looks like they got a real crackerjack guy to take the laboring oar.

American Brandstand

Marty Schwimmer (who is a brand unto himself) links to the "American Brandstand" report published by an interesting outfit called AgendaInc. The report runs down last year's top musical questions last year to be answered by well-known brand names. This report is most useful for interpreting some of the lyrics that you've heard a million times but never quite "got" ("I got the Rolly on my arm and I'm pouring Chandon / And I roll the best weed 'cause I got it goin' on" -- these kids today and their nutty lyrics!). The list includes four present-or-recent clients of ours (can't say who, but look on my site under "published cases" for a hint) and about that many "brands" we've litigated against over the years.

The references seem overwhelmingly to come from the gritty "urban" music sector. I am reminded, though, of a kinder, gentler era when Paul Simon sang about Kodachrome. (It's slide film.) (Film -- it's what used to go in cameras.) Well, maybe not quite so innocent, thinking of Lola and her -- his -- uh, Lola's Coca-Cola ...

I don't remember Pepsi getting a pop music mention until much later.

Fools' Blog Responds to "I Read Dead Peoples' Email"

Fools' Blog: After Death E-Privacy:

With regard to the Marine's privacy, does it apply now that he has passed? Many courts have held that privilege (legal, medical, confessional) does not survive death. Why should the privacy of an e-mail account? Why is the e-mail account afforded any greater status than the Marine's U.S. Postal Service mail, which presumably his survivors are entitled (if not obligated) to check?

Great question. I guess to make my point, I have to enunciate a new rule. I am comfortable doing so, because this is all judge-made law anyway. There is plenty of good reason to ask, as Fool says later in his post, whether there is an expectation of great privacy here, and I think the answer is in the affirmative. It's a brave new world. Because, on the Internet, no one knows you're a dog, and by gosh that is something new and different, and people's expectations are that it will be treated that way.

The analogy to the found letters (and the very disturbing Seinfeld episode Fool talks about) is a fair one. I will say this: When physical correspondence is kept, regardless of where they are hidden, the person keeping them knows there is a finite possibility that they will someday be found -- and not only someday but today. You can even make the psychological argument that they want them to be found (if you want to). But people who use email rationally expect that if they do not reveal their passwords to anyone that their email will remain confidential. It's a different medium, a different mindset. And yes, expectations are critical to this examination.

If so, though, an interesting question arises if you posit a case where the email owner would, retrospectively, want his heirs to have access to the email. Suppose there's an email in which a person to whom the email owner lent money to finally admits he owes it. Or where the email owner discusses with a doctor friend his recent discovery, which he has not yet discussed with others, that he has an inheritable disease. These examples, however, are addressed by my proposed solution: a qualified right to access. Given, of course, that the does not, in these examples, know what he is looking for, more discretion is admittedly placed on the third person who, I have posited, is to be given permission to poke his nose into the email of the deceased. Undoubtedly this requires the imposition of a fiduciary duty on that person, as well.

Complicated, yes. Perhaps I will amend my estate plan to instruct my heirs that this is the procedure to follow, and name an email exector. But absent that, and these fairly far-out scenarios, I am inclined to put the burden on the heirs to make the showing as to why a deceased person's email should be their business.

And if the first judge to get this one disagrees with me, I wouldn't be surprised to find a legislature weighing in on my side -- and the California legislature is just the bunch to do it.

Dean's World - All right, already

Here's a great way to help the victims of the tsunami, per Dean's World. It's the right thing to do.

Trade Dress Rights in Musical Instruments

John Welch's TTAB Blog -- which monitors developments at the Trademark Trials and Appeals Board -- picks up this recommended reading from a recent article in the Trademark Reporter journal on the topic of trade dress rights in musical instruments. John quotes authors Robert M. Kunstadt and Ilaria Maggioni commenting on the recent decision in Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 70 UPSQ2d 1911 (M.D. Tenn. 2004), which ruled in essence that under trade dress law, only a Gibson guitar can make a Gibson-looking guitar, to wit:

[H]ad the court properly appreciated how to play a LES PAUL guitar, the court would not have granted summary judgment for Gibson. At a minimum, the functionality of the alleged Gibson trade dress features presents fact issues for trial.

In other words, a Gibson looks like a Gibson because it sounds like a Gibson -- and in trademark law, functional features are not granted trademark protection. (If they're novel, you may be able to get a patent, of course.)

I don't know as much about guitars as these authors, I guess, but back in the day when I used to play bass guitar on my Gibson SG copy! -- I sure knew that it wasn't playing like the real thing. But it did look enough like a Gibson and, what I found most valuable, had a guitar-proportioned fret board unlike the long Fender basses that were most popular but which I found harder to play. So on the one hand I, as the consumer, was driven by functionality. On the other hand, I wanted a bass that looked like a real big-boy bass. Considering the fairly low quality of my instrument, it's hard to imagine that the product configuration had much if anything to do with how it sounded. At the end of the day, and on a quick read of the excerpts, I might agree with the TTAB here.

UPDATE: On the other hand, the issue isn't how my Acme guitar's sound was affected by its shape, it's how the Gibson was -- that's what drives the functionality argument. So perhaps I should reconsider after I read the whole opinion and the article.

I Read Dead People's Email

When you reach a certain age you begin to wonder... what happens to my hard drive when I... you know. How do my Internet buddies find out that it's, er, nothing personal that I didn't respond to their IM -- no, I'm just... you know. Not living any more.

And my email? Yale Law's LawMeme blog has a great item about Yahoo!'s refusal to accede to the demand of the parents of a marine -- who was killed in Iraq -- that they be provided with his Yahoo! email password. (I found this blog on Instapundit's blogroll. He doesn't need another link.) They say they want more to remember him by. Yahoo!'s terms of service pretty clearly address this, and the company is sticking to it.

According to the item, it's possible that the parents could get the password via a subpoena or, more likely in this case I think, a court order. Should a court grant such an order? It will have to consider California law on inheritance, contract and privacy. And those "public policy" factors that find their way into decision in any number of ways? I say that absent a specific compelling reason to get the email information -- i.e., the location of his will or the buried treasure or something like that -- it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

Another blow to religious freedom

Did I tell you I'm a muckety-muck on the Religious Liberties Practice Group of the feared Federalist Society? Yeah, well. I am, and let me tell you, this is going to get us all burning up the phone lines on the private extension to John Ashcroft:

The drifter and self-proclaimed prophet accused of kidnapping Elizabeth Smart showed up to his competency hearing 90 minutes late Thursday and was kicked out after he started singing a Bible verse.

Exactly: In my faith, at least, showing up 90 minutes late is a religious obligation. When do we start flexing those mandate muscles, Mr. President?

Stern warning on Free Speech

One of the more interesting developments in media, law and culture -- don't worry, I left out medicine and animal husbandry -- is the radical change taking place in the broadcasting world, notably radio. Because of the traditional big three TV networks from last century, TV has always been a largely nationally-oriented medium besides local news and the occasional Uncle Floyd. But radio is different. I used to be the sales manager for my college radio station and I saw the change from a local advertising market beginning in the early and mid-'80's in central New Jersey. Local businesses lost the ability to make advertising decisions -- because they were giving way or selling out to franchises, chains and other regional powers with professional media management staffs, budgets and the like. Still, even then radio content was entirely local, besides network news feeds that came over the phone lines on the half hour or so. That changed with the advent of Howard Stern and Rush Limbaugh and radio syndication.

This article in The American Spectator is a good summary of what the move by Howard Stern -- whom I regard as simply unlistenable, for what it's worth -- means for the changing broadcasting industry. It's notable because it's honest and non-condescending about Stern's undeniable appeal, and it is fascinating to observe what strange bedfellows the far-out, quasi-counter-culture Stern makes with Rush Limbaugh -- who has jumped to Stern's defense as whipping boy for factions favoring more content control over radio by the FCC.

We also call "content control" censorship, of course, and while I understand and am sympathetic to the sensibility, I hope perhaps changes coming in the Supreme Court will cause it to reconsider the ancient fib that "radio is different" in terms of government censorship because the "ether" is a "public trust." This concept was more or less demolished academically by Ronald Coase and those following him in the 1960's through today. Evidently the current popular argument for continued radio censorship is the free accessibility of radio to young people, because of its ubiquity.

The problem with this argument is that (a) ubiquity of speech is just not a reasonable answer to the First Amendment and (b) whom are we kidding? These kids today see and hear it all on cable TV, movies and on the Internet. If, unlike my kids, your kids have unsupervised access to the modern media culture, Howard Stern will be the least of your problems -- even on the radio.

Do I really think the Supreme Court will recognize this? Well, it sure won't be Congress. Maybe it's on their short list for the 21st century... right under rent control.

UPDATE: Buzz Machine on a related topic.

Insta-Greetings

If you've got a modem, you might get a link: It doesn't get any better for a blogger on his third day in business. Now I feel a little guilty, though.

It will pass. Thanks.

Evel Knievel's tarnished reputation

Yahoo! News reports that the Ninth Circuit (them again!) has ruled that an online photo caption referring to him in the presence of two women as a "pimp" means "pimp in a good way." They must mean in the rapper vocabulary sense of "ladies' man," which assuredly the Bangled One is. But does Evel Knievel have any truck with the world of P. Diddy and 50 Cent? Shouldn't that matter?

It seems that the fate of per se defamation is to go the way of obscenity in the courts: There just will not be any such thing. Context and "community standards," after all, have little relevance in a wired, bloggy world. (I wish the Supreme Court's steady abandonment of the concept of obscenity were at least tagged to this point, but it's not.) I don't think that's such a positive development, but we have to come to grips with it.

On the other hand, just how would Evel have proved damages to his reputation? That he was thrown out of the University Club?

Strict construction

No, not more about that constitutional dustup at the Volokh Conspiracy. The delivery guys were supposed to be here yesterday with a blog roll and a direct link on the top to the firm website. But you know how it is -- they just called from Route 3 for directions. Sheesh.

UPDATE: The Dean intimidated me into sticking the darned HTML code in there myself. It's "good enough for government work." Thanks to him (again) and Bob Cox for our first-ever links. But enough log-rolling. Now it's time for objections to document demands. Yes!

For Sale: Cabbage Patch Dolls, Pet Rocks

Aha! See, the Blog Herald is asking the same question I did: Is 2005 the "Year of the Blog Backlash"?

Yaakov Menken of Cross-Currents -- and my law firm's Web host -- asked me why I said that I was finally going to jump on the blogging bandwagon just as the wheels were beginning to wobble sickeningly. Well, this is the first time I've seen anyone validate that at all. (And Lord knows how terribly hard it is to validate whatever pops into your head on the Internet.)

Of course, I also said that about real estate 15 years ago.... ten years ago... five years ago.... Nonetheless, as I said below, if you think of it as a medium -- and not a trend -- I think you can't go wrong.

I guess sooner or later we'll know if we're early adopters, Johnnies-come-lately or whatever it is that comes in the middle.

What is a word mark?

Speaking of Google and trademarks, an interesting article on Google's own trademarks is Don't "Hitchhike"A Ride On Google's Trademarks and URLs by Russell Shaw. Only thing is that he defines a "word mark" as "similar to a trademark, but more of a logo than a business name," which it isn't. I don't blame him for being confused. The term is not found in the index of McCarthy's definitive treatment, nor in the INTA glossary on line. But one thing is for sure: A word mark is a trademark, it's not "like a trademark." And describing it as being like a logo is misleading -- many logos don't have any words in 'em at all. In fact, a word mark is nothing more or less than a trademark consisting of a word or words. (See, e.g., American Home Products Corp. v. Johnson Chemical Co., Inc.,589 F.2d 103, 200 U.S.P.Q. 417 (2nd Cir. 1978). If you must. )

Bloggers and Tsunami Relief

Bob Cox at TheNationalDebate has all the latest on the tsunami relief effort being spearheaded by bloggers via the Media Bloggers Association on their beta site. This is a good thing!

Welcome, Blogads clickers

I'm stuck in a monthlong marketing campaign on Blogads. The rates are really favorable but the diminishing returns are sick-making. So having "spent" the money (well, pledged it -- do you think Amex reads blogs?), we may as well drive some traffic to here, the law firm's new blog.

I have joked that the wheels are about to come off the blogging wagon -- blogs are now so cool I'm afraid they're no longer cool at all. If everyone has one, who wants one? But as a phenomenon of communication, in the sense of information exchange, they are not going away. What's good (for me) is that the legal issues of blogging aren't going away either. They will only increase. Not everyone is interested in more communication -- not if it's a threat to their franchise. That means people will attempt to utilize (or no less likely abuse) the law and the courts in order to compete unfairly. And that's something we have demonstrated we can do something about. (And sometimes we can't, even if down the line courts acknowledge, well, maybe we were right....) One of the reasons I left my my old firm two years ago and founded this office was so that I could spend more time working the leading edge of Internet-related law. I'm happy that we're succeeding, at least somewhat.

We also do house closings. Baby steps, man, baby steps. At least our real estate associate is a blogger.

Anyway, a number of bloggers whose names you must know (I like the sound of that) are banding together to form the Media Bloggers Association. More associations means more lawsuits! It's all good.

UPDATE: A reader asked me about the old firm, Gibney Anthony & Flaherty, in New York. It was a warm, friendly breakup. We are still friends, still work together, and I am still on their letterhead as "counsel." See? Look. So don't get upset.

Marty Schwimmer's blog

By the way, let me be very clear about this: The definitive blog on the topic of trademarks is my friend Marty Schwimmer's Trademark Blog. It's funny also.

SCOTUS: Likelihood of Confusion Bows to Fair Use

(HEADLINE UPDATED) Tilt of the chapeau to law student Joe Gratz's blog for reporting this decision from the U.S. Supreme Court that came down a month ago today. Here's Joe's summary and an excerpt from KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.:

The Supreme Court held, unsurprisingly and unanimously, that the affirmative defense of trademark fair use does not place a burden on the defendant to prove that his use was not only descriptive, but also unlikely to cause consumer confusion.

Now I'm not sure I agree with Joe's comment on his blog that Justice Souter said it all so well; I prefer this pithier summary from the official syllabus: "Nor would it make sense to provide an affirmative defense of no confusion plus good faith, when merely rebutting the plaintiff’s case on confusion would entitle the defendant to judgment, good faith or not."

By the way, want to guess which Circuit Court the Supreme overturned?

"Constitution in Exile" - Visiting with the law prof blogs

I picked up a link on this topic from today's Instapundit and have now gotten a little into this constitutional law tussle on Gene Volokh's website.

I try to get in to constitutional law tussles whenever I can. That's where I got this here scar.