Wednesday, December 16, 2009

Ted Alvin Klaudt - Rapist and IP Moron (updated)

Just a real quick one, because it's a busy day.

This is probably already out there, but I just got wind of this news tidbit, where convicted rapist former South Dakota Rep. Ted Alvin Klaudt (Rapist and IP Moron) has informed various new agencies that... and the only way to do this justice is to quote the article directly:
...Klaudt is reserving a common-law copyright of a trade name or trademark for his name. It said no one can use his name without his consent, and anyone who does would owe him $500,000.
Okay, so how many ways does this make my eyes bleed?

First of all - Yes, there's such a thing as common-law copyright (sort of). And there's even common-law trademark. But you don't copyright a trademark (*). You certainly don't reserve a copyright on a trademark. It just... it hurts my head to see this kind of usage.

Second, and more importantly - Um.... NO. That's really not how it works. Let's pretend for a minute that the name could even serve as a trademark. I mean, after all, names can be trademarks. You have to be the source of a good or service, though. And the only connection being made in my mind is that Ted Alvin Klaudt is a unique source identifier for the service of inappropriately touching little girls. Or at least that was the service. Now there's a new one: Moronic IP claims. It's sad that he's not a unique provider of that particular service, but as of today he's at the top of the list with a bullet.

Third (really 2a) - Using your name to reference you - even if your name is trademarked (**) for some good or service - is pretty much where the phrase "nominal use" came from. You know, use as a name. So... seriously. Shut up.

So, I'm feeling puckish, and here's my idea. This is the perfect opportunity for a Google Bomb, and an interestingly meta one at that.

Right now, if you do a Google search on the phrase "Rapist and IP Moron" there are zero results:

I'd like to propose a Google Bomb connecting Ted Alvin Klaudt with the phrase Rapist and IP Moron.

Now, normally a Google Bomb of this sort would point to the official homepage of the Bomb-ee or something like that. But Klaudt doesn't have one of those that I could find. So here's the cool, post-modern, self-referential bit. Point the bomb at Google itself. That is, point the bomb at the results page for a search on the phrase "Ted Alvin Klaudt."

If you'll note, I've done the link a few times in this post already. If you click Rapist and IP Moron, it takes you to the Google results page for a search on the phrase "Ted Alvin Klaudt."

[UPDATE - Duh. It's been pointed out to me that Google probably doesn't index its own search result pages. So this won't work as originally planned. I'll figure out a new target soon. I'm thinking something along the lines of this link.]

I don't have a lot of readers, and I don't have a lot of Twitter followers, and I know that probably the worst way to get something to go viral is to say, "hey, I hope this goes viral." I also realize that I'm getting pretty worked up over this and it might not really be worthy of all this agita. But this guy hurts my brain, and I wanna swat him like a bug. So please join in.

A few last points need to be made. The first should be obvious, but this is the internet and there are no guarantees. I am in no way setting up a moral equivalency between the two offenses. Rapist is a big bad; being an IP Moron is just annoying, and possibly works against your self-interest. I recognize the moral gulf between the two and condemn Klaudt for the rapist part much more strongly than the IP Moron part. But he's been a rapist for a long time; it's only today that he came to my attention as both a Rapist and IP Moron. (See how I worked that in there? Clever me.)

The second point is a direct message to Klaudt. If you think you can enforce your "reserv[ation of] a common-law copyright of a trade name," please feel free to sue me. Please note, however, that I have reserved a common-law copyright of a trade name or trademark in my own name, "Ben Manevitz" and any use of my name without my consent - including in court filings, press releases, or even letters telling me to cut it out - will carry with it a penalty of $750,000 per violation. (I figure since I'm not a rapist, my name is worth more than yours out of the box.) Good luck with that suit, Mr. Klaudt, and say hello to your prison husband for me.


(*) To my graphic artist readers, I bid you peace. You can, of course, copyright the image or graphic design or whatever that becomes a trademark. And so, litereally and technically, it can be said that you are "copyrighting a trademark." Or more accurately, that a copyright exists in the trademark. (And exactly how that plays out is an interesting question for another day.) But copyright and trademark protect two completely different things, and you can't "reserve a copyright in a trademark" in the sense that this Rapist and IP Moron intends the phrase. ALSO, see (**) re my use of [copyright] as a verb.

(**) I intentionally misuse [trademark] as a verb here; it's a little shout-out to the great and mighty RC.

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Sunday, December 13, 2009

Interesting Take on Consumer Protection in Trademark

In Sunday's New York Times - 2009 Year in Ideas, there was this interesting piece titled The Counterfeit Self. (The #name tag should work, but if not, it's the 4th item down.)

It is not a surprise that small dishonesties insinuate themselves into a person's character, paving the way for greater ones; It's essentially the obverse of the Ben Franklin Effect applied to oneself. But (as far as I know) it hadn't been examined closely in terms of the purchase and "use" of counterfeit merchandise.

There's a running debate about the exact purpose of Trademark protection; Does it protect the consumer in terms of search costs? In terms of some sort of incohate warranty function? Or is it a matter of the manufacturer's property and sweat equity? Or some combination thereof.

I tend to understand it as something that started out as a consumer-protection issue (focusing on search cost) and then got morphed into an issue of manufacturer's property simply because of the way the consumer protection was enforced and analyzed.

I haven't wrapped my brain around exactly how it's going to happen, but it will be interesting to see how the idea of the article gets folded into arguments about the rationales for trademark protection and the breadth and strength of the protection necessary to support those rationales...

"Incredibly Overbroad trademark enforcement protects consumers from themselves!" I just threw up a little in my mouth.

On the plus side, I think I actually blogged about this before LoC, Duets, or CounterfeitChic. So go me!

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Tuesday, December 1, 2009

Fair Use of Videogame Screens

I'm showing my geek roots, here, but it's not like I've been hiding that.

I came across this article which pointed me to three recent paintings by Brock Davis (a/k/a Laser Bread), all of which are the painter's takes on some classic videogames.

I'll put the game names at the bottom, because it should take about half a second for gamers of a certain age to recognize these.

And for those of you think of gaming systems [obSnydeQuipMaskingJealousy], that's Dig Dug, Donkey Kong, and Missile Command.

The geek in me abso-lurves these, for aesthetic and nostalgic value. The lawyer in me went directly to the fair use analysis.

There's no question that the iconic videogame screens that these paintings are based on are subject to copyright. Actually, there is some question, as it can be argued that the Missile Command and Dig Dug screens were jointly created by the end user, but that's a question for another post. Let's just take that point as read.

The fair use analysis is actually fairly straightforward. You've got a transformative use that will have no impact on the market for the games, or even (taking a more controversial reading of the fourth factor) the potential derivative market for the games. That's factors one and four in favor of fair use. Factor four used to be the "first among equals," more recently the question of "transformative use" is filling that role, but in this case both cut in favor of finding fair use.

Admittedly, the game screen is a creative work, which puts factor 2 in the not-fair-use column. and it could be argued that the amount taken is substantial - it would depend on the determination of what, exactly, constituted the work; is it the game overall or individual screens. But these are relatively weak and would bow in any event to the determination mandated by factors 1 and 4.

Another question would be the trademark implications. These images are, I would posit, fairly iconographic, and each of the screenshots then very likely identify a source (Namco, Nintendo, Atari respectively) The proof is in the pudding, in that (as noted) gamers of a certain age probably recognized the game identities from the paintings without any difficulty.

I don't have a link, but I recall seeing sites where you can submit a digital image and get a painting. Presumably to different levels of abstractness. In which case Atari might be able to argue that a consumer seeing the paintings might be confused as to the source or - in this case the stronger argument - sponsorship of the paintings.

Fair use analysis in trademarks tends to concentrate on the whole "nominative use" question, but that won't do any work for us here. Trademark fair use as a doctrine is mainly concerned with trademarks that are also words in the language and limitations on the extent to which trademark rights can curtail the use of language. Which, sadly, also doesn't do much work for us here.

So on a purely doctrinal level, it seems that the game makers could make at least an objectively reasonable (not Rule 11 sanctionable) trademark infringement case against the artist, claiming that consumers might mistakenly believe that the game maker had sponsored the painting. And his defense would have to be "no they won't," which is a poor defense in that it doesn't do any work pre-trial, or at least pre-survey -- which is to say pre-expensive.

The saving grace for Mr. Davis might be the practical factors militating against the manufacturer's bringing suit, to wit, the negative publicity, the paucity of available damages, the relative age (value) of the marks allegedly infringed, etc.

I think that's the right answer on the law, but it disappoints me on the facts. There should be space in the law for exactly this kind of expression. I touch on this briefly in my post about the Carol Burnett - Family Guy dustup here. And this is another example of where the conversation of our world is being impeded by the very laws that were intended to protect that conversation (albeit a different facet of that conversation.)


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Tuesday, November 24, 2009

Do you hear something? Is that my own horn? Why, yes it is. Toot!

I became a lawyer for a lot of reasons, which is a good topic for another post on another day.

But one of those reasons -- and not a small one -- I really like to win. I know it won't happen every time. But when it does, it feels so nice.

(Remind me to tell you sometime about the on-campus interview when I was a 2L, and the callback interview I got for saying just this.)

So I've got this client -- -- in the business of selling, primarily, kits for use in the lodging industry at the website (three guesses)

A while ago, they were named as Respondents in a UDRP brought by Lodging Kit Co., which operates (No hyperlink - I know it's petty, but I'm a litigator by penchant and training, which means there's a level of emotional investment with my client, which means the bad guys get no link love from me.)

Now, during the pendency of the matter, I felt the best interests of my client were served by my silence. Now that it's pretty much over (barring some sort of trademark enforcement litigation on Complainant's part that would be ridiculously ill-advised ), I'm feeling a little more unrestrained.

I don't want to get all ad hominem on the Complainant's counsel, which will require a fair amount of restraint on my part. I will, however, say that the most distinct impression I got from the complaint was that it was done by someone who had no experience with UDRPs and/or who had no interest in winning the case.

That is to say, I don't have the time to do a redline right now, but the Complaint was a barely modified version of the sample complaint available from the Nat'l Arb Forum. I kept thinking of all those comedy movies where someone's administering an oath, and says, "Repeat after me: I, state your name," and the oath taker dutifully repeats, "I, state your name."

The only assertion of rights on which the Complaint was based was a registration of the mark on the Supplemental Register. Which alone wouldn't necessarily be fatal -- which is to say, I could imagine a fact pattern where it would not -- but is generally so, given what the Supplemental Register is all about.

Certainly on the facts of this case, the registration Complainant was relying on was less than useless to them. They had sought registration, been rejected for descriptiveness, and then amended to the Supplemental Register - essentially conceding a lack of secondary meaning.

I don't need to recap the argument too thoroughly; you can read it yourself in an elegantly structured and eloquently argued (if I do say so myself) Response (on JD Supra, here). I ring the no-secondary-meaning bell a bunch of times, in different contexts.

Complainant came back with something only a tiny bit less inane, including an affidavit (without exhibits) and bald assertions attempting to overcome the gross failures of the original Complaint. I had the job on a flat-fee basis, and could have adequately answered the Additional Submission with relative ease. But it was just so... crushable. It was fat, slow one over the plate, and I just had to spend the extra couple of hours knockin' it all the way out. Which is to say, I returned a(nother) elegant and eloquent Supplemental Response (on JD Supra, here).

In any event, the decision came down squarely for my client, agreeing with my primary contention that Complainant had not established rights in the mark in question. I would have liked it if the Panel had agreed with me in all my contentions, but - as is not atypical - once it determined that Complainant had failed to satisfy the first requirement of the Policy, the Panel didn't pass on the other prongs.

Even so, it's a definitive win for me and the client, and it served the client's interests in the obvious way as well as more subtle ways.

I'm happy, client's happy. All manner o' things are well.

Now that's a good day.


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Monday, September 21, 2009

The Penumbra of Protection in Word and Design Marks

The question sometimes comes up as to which is better to register - the word mark or the design/stylized mark. The advice I generally give is that registration of the word mark is usually the better way to go, but - and this is important - I take pains to explain the different effects the registrations might have.

I like to explain it in terms of a graph which is rightly the subject of another post. But if you think of an x-y plane with goods covered on one axis and the mark itself on the other, any particular trademark registration is a point on that graph, and the registration itself (with use, etc) grants protection in a penumbra of indeterminate size and shape around that point.

I like to use the Coca-Cola example, since it's so accessible to so many. You've got your COCA-COLA word mark (Reg. No. 0238145 Sep. 13, 1927) and the Stylized Coca-Cola Lettering mark (Reg. No. 0238146 Jan 31, 1928).

Now, the shape of protection of those two marks are pretty similar, but they're not entirely congruent. Posit a cola product called KOKA-KORA (which is actually the Russian COCA COLA brand, I think) and even in block letters, even in stylized letters completely unlike the stylized letters of the stylized mark, the "shadow" of the word mark would pretty clearly reach to include KOKA-KORA as an infringement.

On the other side, there's this font that can be found online called LOKI-COLA. (link, link, search) The intent of the font is clear, but that's not at issue. It's not untenable to argue that LOKI-COLA would not be an infringement on the word mark. (It's not a lock, but it's at least fairly arguable.)

But as against the stylized mark, on the other hand, LOKI-COLA on a soda product would pretty clearly lose.

That usually - but not always - serves to make the difference clear, and then it's up to the client to figure out where the business risks are coming from. And usually - but not always - the client would be better served by registering the word mark.

Which is all well and good (and clearly explained and insightful if I say so myself), but why am I bringing this up now?

Because I found this new example. It's a little NSFW, but I just think it's really funny. I have an odd sense of humor, true, but there it is.

Check it: TWITTER word mark (Reg. No. 3619911 May 12, 2009), TWITTER stylized (App. No. 77721751 Apr. 24, 2009).

(This is the application image.)

(This is as it's used on the homepage.)

Versus the unregistered CLITTER:

I blurred a word, but the idea is pretty clear. (I think there's a real research project in ways that the adult entertainment industry has served to advance both law and technology.)

In any event, it's a little salacious but I anticipate using the example to help explain this point in the future.


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Monday, March 5, 2007

When Copyright is like Trademark is like Moral Rights

Last week I spent a nice evening at the Arts and Entertainment Law Journal's 25th Anniversary party. My invitation was by dint of my having had an article published therein.

At some point during the festivities the current editors of the journal approached me with a waiver allowing them to put the article (full text) online. (No link, because I don't think the site's up yet.) I had already granted the necessary permissions by email, but they - wisely in my opinion - wanted a signed document to the effect.

I signed off with only a cursory glance at the (admittedly short) document to make sure nothing was being made exclusive. And I joked to my neighbor that as an IP lawyer, signing something so blithely should have sent up some red flags.

But further discussion brought out an interesting point. With regard to "regular" writings, the value the Constitution and the copyright laws protect is essentially a sort of traditional sales value made intangible. That is, I have something, you want it, and I want to get paid for it; in a situation where you're unwilling to pay, I'd be fine with you not being able to get it.

With regard to legal scholarship (and a few other contexts), however, I thought it interesting that the model is flipped. I have something, and I'd love it if you'd read it. Really, please. And if you think it's smart or interesting or worthwhile, pass it on!

The value to the author inheres in the connection of the author's name to the article and the ideas in it. An author doesn't expect you to get paid for the right to read the article, or even to riff on the article. But he or she would like to get paid for being the person who thought those thoughts and expressed them, presumably because it indicates an ability to think other, similar thoughts and express them similarly well.

As long as properly cited and not otherwise passed off as another's, an author generally won't be husbanding the six exclusive rights so exclusively.

What is important to an author, though, is the source-identification aspect of the article and its use. That is, I really want the article connected to me and my name/identity.

And in that sense, it's neat how copyright concerns fold into trademark concerns; particularly the traditional (non-dilution) sorts of trademark concerns.

Taking that a step further, though, I thought it was cool how that sort of copyright/trademark overlap led directly to a set of concerns that look very much like moral rights.

An author's interest in having his or her name identified as the source of an article, and no one else's incorrectly identified tracks nicely to Attribution/Paternity; the author's interest in having that work represented in such a way as to accurately reflect its original meaning tracks similarly to Integrity. (See, Berne article 6bis.)

I thought it was interesting to see the flow as copyright implicated trademark implicated moral rights.

--Ben D. Manevitz

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