THE TRADEMARK TROLL SAYS: WE MUST NOT FORGET NEDA SHE IS THE NEW TRADEMARK THAT SYMBOLIZES IRAN'S STRUGGLE

Today is Father's Day. But it is not a normal Father's Day. Instead of playing baseball with my son I will spend hours glued to CNN. Watching history unfold.

No matter what happens in the next hours and days, Iranian history, indeed world history, has been forever altered. This blog often discusses the foibles of trademarks and trademark owners. The name NEDA is becoming a shorthand expression, yes a trademark, for the new Iranian revolution. Neda was a young woman murdered on the street as she fought for the basic rights that we take for granted. Suddenly, saving the world for designer fragrances, designer hand bags, designer watches and designer toilet paper seems so bloody absurd.

I know that it is a cliche. But this is a moment when we are all Iranians.

WHAT'S THAT SMELL? THE TRADEMARK TROLL SAYS IT'S THE ODOR OF UNFAIR COMPETITION

If you are L'Oreal of course you must fight to the death. After all, your perfumes cost pennies to produce and have profit margins that other industries can only dream of. But competition and self interest being what they are, if profits are sky high and costs to enter are low, L'Oreal gets a competitor.

For years, L'Oreal has been fighting with a Belgian company called Bellure. Bellure produces copycat fragrances that sell for a fraction of the L'Oreal perfumes. L'Oreal has won some and lost some. But on June 18, 2009 the European Court of Justice (ECJ)rendered a verdict that will present new challenges to Bellure and retailers who produce store branded goods that compete with national goods.

In a nutshell the ECJ ruled that Bellure was taking unfair advantage of L"Oreal even though consumers were not confused and L"Oreal sufferd no detriment. After a long, tortured display of circular reasoning, the ECJ reached its important conclusion: the use of L"Oreal trademarks in price comparison sheets was a form of comparative advertising. Since the ECJ had already ruled that use of a mark in comparative advertising could be a form of trademark infringement, it was short( well sort of) work to conclude that the comparative price sheets violated both the comparative advertising regs and trademark laws.

The Trademark Troll freely admits that he has not seen the price sheets at issue. But most price comparison sheets are a factual display of information not a form of comparative advertising. The ECJ"s conclusion that such price sheets are a form of advertising is arguably yet another results oriented decision hidden under a blizzard of circular reasoning.

Not even L"Oreal ssserts that these consumers are confused. And the decision does not suggest that L"Oreal's marks are suffering from dilution. Its really about the discomfort that the ECJ and so called legitimate brand holders feel when others take that infamous free ride.

And what of European consumers? Will they lose the chance to freely choose knock off fragrances? Or in house store brand that often sit side by side with national brands and a " compare the price" blurb. Perhaps they will order their knock offs and store brands off the Internet. For sale in America.

THE TRADEMARK TROLL IS SKEPTICAL ABOUT A LANDRUSH TO FACEBOOK URL'S

Much ink has been spilled recently over a change in facebook's policy. As of June 13,2009 facebook users have been able to register personalized URL's to direct others their facebook home page.

Many commentators have warned that unscrupulous facebook users would incorporate famous trademarks in their personalized URL thus hijacking a famous trademark. Indeed, facebook offered brand owners the chance to register their trademarks BEFORE the open registration began. And facebook has also established a notice procedure whereby brand owners can ask that a URL be removed.

With hundreds of millions of facebook pages there will undoubtedly be some who attempt to abuse the facebook registration process. But the trademark troll doubts that there will be widespread efforts to hijack trademarks.

Why? Because unlike the domain name registration process, that is largely anonymous, a facebook URL leads the world to one's personal doorstep. If I am presenting myself to the world how do I explain that my personalized URL is facebook.com/mcdonalds rather than facebook.com/jtroll?

MEMO TO GOOGLE:: IT'S NOT ABOUT DOING EVIL IT'S ABOUT DOING STUPID- OR IS THAT ANDROID?

There's much to admire about Google. But Google's battle with the owner of the registered trademark ANDROID violates several of the vaunted Ten things that Google has found to be true- set forth on Google's web page.
Apparently Google settled on the term ANDROID to identify operating system hardware and software for mobile devices. Not only that but Google helped create an allliance of others involved in the mobile phone industry. And these other folks are ( or will be) using the term ANDROID.

But wait Houston we have a problem. Turns out a small company in Illinois had federally registered the term ANDROID for computer e-commerce software. And now that company has filed a $100 million dollar lawsuit against Google and the 46 other members of the alliance.

This is simply mind boggling. A fundamental violation of the trademark rules of gravity. And an opportunity for me to ask once again "What in the world were they thinking?"

It is impossible to imagine that Google's lawyers failed to discover the fact that someone had already registered the identical term for similar goods. The internal dynamics of any successful company, especially a cash cow like Google operate ( or should operate) something like this:

Lawyer to Marketing Guy: HOLD ON TIGER- do you want to print a multi million dollar lottery ticket for this guy? Your telling me you want us to make a major commitment to the term ANDROID, AND you want to drag in the other members of our alliance BUT we know of somebody using the identical term for software . All I can say is I WON'T SIGN OFF ON IT.

Lawyers don't win all these battles. Thank goodness!! But somebody with a time horizon longer than the next 90 days needed to win this round.

Did anyone think of discreetly contacting the trademark owner BEFORE filing to register the term ANDROID? Or filing an action to cancel the existing federal registration AND THEN contacting the owner? Apparently not.

So Google blithely went ahead. Got rejected by the Trademark Office based squarley on the existence of the guy they had to know about. Making him a semi instant winner.

What were they thinking?

I REMEMBER THE PURPLE HAZE BUT I'M CONFLICTED ABOUT THE TRADEMARK

Not sure how this one got by me. Though I don't listen to rock anymore I consider Jimi Hendrix to be the greatest rock guitarist of all time. The online site STARPOWER.COM reports that in Feb. the Hendrix estate won a 3 million dollar trademark verdict.
The case involved use of the Hendrix likeness and signature on purple tinged vodka bottles.
Was this meant to call Hendrix to mind? Of course. But I find myself of two minds about such conduct. Yeah yeah I suppose his heirs should be entitled to some loot. Indeed there have been wrangles involving Jimi Hendrix everything for years.
But Hendrix died in 1970. Why shouldn't someone or anyone have free reign to use his image. The more the merrier. With nobody able to claim the exclusive right to do so.

Poor John Squires: Better to Stay In House and Let Someone Else Handle the Losers

Ahh it was so much easier before the Internet. The universe was so well ordered.
Those in command went about the business of running the world. And little people stayed out of the way.
On the rare occasion when a non-master of the universe[NMOTU] actually rose up to say " please sir that's wrong", a sternly worded letter(often filled with nonsense) would silence the rabble. And there was little they could do about it.
But now anyone tell everyone everything. And that can be very disruptive to those whose business it is to really run things. So the lawyer in me feels a certain amount of pain for John Squires, the newly minted head co-chair of IP at the white shoes law firm Chadbourne blah blah LLP. Oh did I mention that before joining Chadbourne, Mr.Squires was head of IP for Goldman Sachs? Not exactly the AIG Goldman connection but worthy of note.

Suddenly, after just settling in, he gets the " Houston we have a problem" problem.


Here's this [please insert epithet] Mike Morgan, a nobody, a NMOTU, who has decided to start publishing uncomfortable information under the blogsite GoldmanSachs666.com
One read of this website and nobody, repeat, nobody would think they are reading from the Goldman Sachs hymnal.
Perhaps it was desperation. Perhaps it was the all to common misreading of trademark law by a patent practitioner. Perhaps it was the vibes from the new Yankee stadium.
But Mr.Squires sent Mr. Morgan a pre Internet "get off the face of the earth" letter. Taken from the Jones Day, Monster Cable form book of letters.
And now Goldman has reaped the whirlwind.

Perhaps the masters of the universe( and their lawyers) need to learn other new rules besides the new rules of investing.

THE ELEPHANT IN THE ROOM IS REALLY A SANDWORM: WHY BIG LAW FIRMS ARE PART OF THE PROBLEM

Yesterday I attended a webinar put on by Gathering 2.0. These folks aspire to become the Facebook of the IP world. The seminar was titled The Elephant in the Room. And it was meant to be a provocative commentary on the prevailing patent strategies employed by those with the biggest stake in the current patent system. The lecturer was a seasoned patent attorney who practices in Silicon Valley for one of America's most well known law firms.

This gentleman trotted out some statistics to demonstrate that filing large numbers of cheap patents is false economy for those companies who depend on patents to protect their interests. He challenged the accepted wisdom of letting technical people drive the patenting strategy. His fundamental point: Large numbers of cheap patents, written by solo practitioners, sought for reasons unrelated to a clear market strategy, produce assets of little or no value at great cost.

So what's the cost effective alternative? Seek quality not quantity. Let experienced patent attorneys, part of a full service law firm, familiar with the companies goals, file a small number of elaborate patents applications. Since, by definition, such attorneys charge $300 to $400 dollars per hour, let them charge by the page instead of by the patent application.

Seems to make a lot of sense. Or does it?

Einstein is famous for noting that we can't solve problems using the same thinking that produced the problems. More prosaically, if you are a hammer then you see the whole world as a nail.

The larger fact is that a revolution is underway. And this revolution is meant to overthrow the old fashioned ways in which legal services have been delivered. Does size matter? You bet it does. SMALLER IS BETTER. More efficient. More nimble. More able to fairly share the risk.

Should companies stop filing large numbers of narrowly written( read worthless) patents? Absolutely. But must they accept the open ended $400.00 per hour alternative? Of course not.

And what's the best evidence? The ever increasing number of biglaw partners who are leaving their firms to go solo or as part of a small group. Why are they leaving? Because they understand that the lock step internal economics of the law firm force them to charge far more for their services than the services are really worth.

By fully embedding themselves in technology, and by adopting an entrepeneureal mindset, lawyers are delivering superb legal products to their clients at a fraction of the cost that biglaw can deliver the same- or less- product. Everyone else in the world must offer fixed fees- why not the lawyers? No reason. Most everyone else offers some form of satisfaction guaranteed. Why not lawyers? No reason.

But there is a more fundamental question that economists and some lawyers are asking about the US patent system. There is a mounting body of evidence to support the radical conclusion that patents inhibit rather than promote innovation.
Here's where we can really apply a different form of thinking than the thinking that brought us to this crisis. Is it time to jettison the patent monopoly grant and consider other ways to reward those who innovate?
Hopefully, the very serious economic challenges we face will mean that all points of view, and new and different ways of thinking, get considered.