Monday, July 18, 2011
SC Johnson Greenlist cases settle
Story here. SC Johnson says it could have been more "transparent" about the meaning of the "seal" on its cleaning products, which I want to say is a pun, but probably not intentionally so.
A link between disparagement and hacking?
As it turns out, this case (later settled) was part of a larger structure of News Corp. misbehavior, discussed in this NYT story.
Third-party subpoena allowed to seek substantiation after the ad
Precision IBC, Inc. v. PCM Capital, LLC., 2011 WL 2728467 (S.D. Ala.)
The parties compete to sell and lease intermediate bulk containers (IBCs) for hazardous, sensitive, and degradable materials. Some of Precision’s inventory was manufactured in China. PCM allegedly advertised that tanks from China are “lower quality” and have "serious quality issues" and advised customers that they should "stay away from" and not "take the chance" with Chinese IBCs and that the "risks borne of using such units far outweigh the apparent savings." Precision sued for violation of the Lanham Act.
The magistrate judge found that portions of PCM’s subpoenas should be quashed because they sought information that wasn’t relied on by PCM when it made the ad claims in question. PCM argued that the material sought was relevant because the majority rule was that a plaintiff is required to prove falsity, not just a lack of preexisting substantiation. (By contrast, the FTC requires substantiation in hand, though its enforcement discretion may take post-ad substantiation into account.)
Precision argued that PCM couldn’t “salvage wholly unsubstantiated statements with arguments cobbled together after the statements were made,” citing Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir. 2002). But this isn’t the majority rule. Precision argued that this case went beyond mere superiority claims to attacking the safety of its products, but the court didn’t find that a relevant distinction. It’s true that safety claims are more than statements of opinion and are likely to be material, and that statements inviting comparison suggest that comparative performance has been tested and verified. Also, PCM was unable to provide any support for its claim that Chinese tanks had serious quality issues or that using them was risky. The Chinese tanks were compliant to the relevant standards, and PCM had no evidence they were unfit for indended purposes.
However, the court noted that Novartis involved a situation in which the defendant didn’t present any evidence to show that its claim was true. The court didn’t refuse to entertain after-acquired evidence of truthfulness, but merely found that lack of substantiation was sufficient to find falsity when the defendant had absolutely nothing. If PCM could present evidence of truthfulness, Precision can’t win merely by showing that PCM didn’t have that evidence in hand at the time it made its statements. Thus, PCM was entitled to seek evidence from third parties about the truth of the statements.
The parties compete to sell and lease intermediate bulk containers (IBCs) for hazardous, sensitive, and degradable materials. Some of Precision’s inventory was manufactured in China. PCM allegedly advertised that tanks from China are “lower quality” and have "serious quality issues" and advised customers that they should "stay away from" and not "take the chance" with Chinese IBCs and that the "risks borne of using such units far outweigh the apparent savings." Precision sued for violation of the Lanham Act.
The magistrate judge found that portions of PCM’s subpoenas should be quashed because they sought information that wasn’t relied on by PCM when it made the ad claims in question. PCM argued that the material sought was relevant because the majority rule was that a plaintiff is required to prove falsity, not just a lack of preexisting substantiation. (By contrast, the FTC requires substantiation in hand, though its enforcement discretion may take post-ad substantiation into account.)
Precision argued that PCM couldn’t “salvage wholly unsubstantiated statements with arguments cobbled together after the statements were made,” citing Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir. 2002). But this isn’t the majority rule. Precision argued that this case went beyond mere superiority claims to attacking the safety of its products, but the court didn’t find that a relevant distinction. It’s true that safety claims are more than statements of opinion and are likely to be material, and that statements inviting comparison suggest that comparative performance has been tested and verified. Also, PCM was unable to provide any support for its claim that Chinese tanks had serious quality issues or that using them was risky. The Chinese tanks were compliant to the relevant standards, and PCM had no evidence they were unfit for indended purposes.
However, the court noted that Novartis involved a situation in which the defendant didn’t present any evidence to show that its claim was true. The court didn’t refuse to entertain after-acquired evidence of truthfulness, but merely found that lack of substantiation was sufficient to find falsity when the defendant had absolutely nothing. If PCM could present evidence of truthfulness, Precision can’t win merely by showing that PCM didn’t have that evidence in hand at the time it made its statements. Thus, PCM was entitled to seek evidence from third parties about the truth of the statements.
Thursday, July 14, 2011
Telling tales out of school: new regs on misleading ads upheld
Career College Ass’n v. Duncan, 2011 WL 2690406 (D.D.C.)
The Secretary of Education adopted new regulations to protect students from using federal money to sign up for classes that don’t help them and that end in loan default. The CCA, doing business as the Association of Private Sector Colleges and Universities, sued under the APA. I’ll omit a lot of the discussion, but the court upheld all the new regulations except for a requirement that distance educators obtain authorization from every state in which they have students, for which the court found that there had been no notice prior to adoption in the final regulations.
“In 2007 and 2008, 93.6% of full-time students at private, for-profit institutions, 56.6% at public institutions, and 70.0% at private, non-profit institutions received federal aid.” The plaintiff represents more than 1500 for-profit schools enrolling more than 1.5 million students.
The Department of Education already had a ban on incentive payments to recruiters based on enrolling students or on enrolling them in financial aid programs. It also banned "substantial misrepresentation of the nature of [a school’s] educational program, its financial charges, or the employability of its graduates." Concerned with insufficient monitoring of existing requirements, the Department issued a notice of proposed rulemaking and, after notice and comment, promulgated final regulations.
Congress was worried about incentives to recruiters because they might lead recruiters to enroll students regardless of qualifications or program success, leading to defaults that left taxpayers on the hook. Older regulations established various safe harbors allowing schools to pay compensation, including when salary adjustments weren’t based solely on the number of students recruited or awarded financial aid; when incentives were tied to students’ successful completion of a program; and when incentives were paid to managers who didn’t directly supervise employees immediately involved in recruiting, admissions, or financial aid. But the Department determined that the safe harbors did more harm than good, allowing unscrupulous parties to circumvent the intent of the law. Thus the amended regulations banned, among other things, pay adjustments based in any part, directly or indirectly, on enrollment or financial aid success. They also covered more people.
The law provides for penalties for a school making a "substantial misrepresentation of the nature of its educational program, its financial charges, or the employability of its graduates." If, "after reasonable notice and opportunity for a hearing," the Secretary determines that a school engaged in such a substantial misrepresentation, the Secretary may fine it, or suspend or terminate its eligibility for funding until the violation has been corrected. The law doesn’t define substantial misrepresentation, so the Department developed new regulations. (The court expressed doubt that concern over aggressive, misleading advertising was sufficient reason for federal action, because it’s the use of federal money to fund opportunities that were substantially misrepresented that allows federal intervention; that seems like slicing the sausage too thin to me.)
The new regs maintain the basic definition from prior regulations that a misrepresentation is a "false, erroneous or misleading statement." They further provide that a "misleading statement includes any statement that has the likelihood or tendency to deceive or confuse." They keep the existing definition of “substantial misrepresentation” as "[a]ny misrepresentation on which the person to whom it was made could reasonably be expected to rely, or has reasonably relied, to that person's detriment." The prior explicit safe harbor for minor misrepresentations, providing that the Department would notify the institution and endeavor to obtain an informal and voluntary correction in such cases, was eliminated. The new regs also cover misrepresentations not just by an eligible institution, but its representatives, and persons with whom the institutions have an agreement to provide educational programs, marketing, advertising, recruiting, or admissions services. And they cover misrepresentations not just to students and their families and the Secretary of Education, but also to any member of the public, an accrediting agency, or a state agency.
APSCU argued that it should be able to pay recruiters based on success in recruiting. But the problem the Department was targeting was “recruiters who sweet talk unqualified students into applications for courses and federal loans when there is no realistic chance that the student will gain from the coursework or be able to repay the loan.” Recruiters could be rewarded in other ways—seniority, job knowledge, or student evaluations. “While APSCU is understandably frustrated at its inability to provide merit-based pay increases to recruiters based on the easiest to measure and, arguably, most logical merit metric--numbers recruited--that does not mean the regulations are themselves impermissible interpretations of the HEA or otherwise unreasonable, especially in light of congressional concerns with recruitment practices and the administrative record.” The Department provided a reasoned basis for eliminating the prior safe harbors based on their use to evade the regs. For example, it eliminated the safe harbor for compensation based on students’ successful completion of coursework or graduation because of the "proliferation of short-time, accelerated programs," creating the potential for pay increases/bonuses without real student advancement, and “‘schools that have devised and operated grading policies that all but ensure that students who enroll will graduate, regardless of their academic performance’ allow manipulated graduation rates that lead to pay increases/bonuses based on false student achievement.”
APSCU didn’t like the new misrepresentation regulations, arguing that they impermissibly expanded the scope and types of statements that could be sanctioned. The basic statute barred a "substantial misrepresentation of the nature of [a school’s] educational program, its financial charges, or the employability of its graduates," while the regulation stated that a school could not make "a substantial misrepresentation regarding the eligible institution, including about the nature of its educational program, its financial charges, or the employability of its graduates." 34 C.F.R. § 668.71(b) (emphasis added).
The court found that APSCU put undue weight on “including.” The Department clarified that its enforcement authority only reaches statements concerning those three things.
APSCU also challenged the revised definition of “substantial misrepresentation” as including statements that are “factually correct, immaterial or minor, and made without an intent to deceive or confuse.” The regs defined misrepresentation as a "false, erroneous or misleading statement" and further defined "misleading statement" to mean "any statement that has the likelihood or tendency to deceive or confuse." Moreover, a “substantial misrepresentation” was any "misrepresentation on which the person to whom it was made could reasonably be expected to rely, or who has reasonably relied, to that person's detriment." APSCU didn’t like the new phrase that a misrepresentation includes any statement that "has the likelihood or tendency to deceive or confuse" because it could cover factually true statements made without the intent to deceive.
The court didn’t like the Secretary’s general reliance on FTCA cases, which treat “deceptive” and “likely to mislead” as related, and even interchangeable, concepts, and don’t require intent to deceive. The court found that the relevant statutory language--“substantial misrepresentation” about limited, specified topics—was significantly different from the FTCA’s “unfair or deceptive acts or practices” (not sure why the “limited, specified topics” are at all relevant here). But despite the overbreadth of the analogy, the court found that the actual definitions adopted by the Secretary were fine given the deference due to formal rule-making.
The definitions were not arbitrary or capricious. “It cannot be gainsaid that a factually correct statement may be misleading, in context, to the detriment of its listener and that many of the ‘listeners’ at issue are young adults. Similarly, since the Department's focus is on worthwhile education and the funding and repayment of federal monies, the Court cannot say the Secretary acted unreasonably by omitting an intention to deceive or confuse from its definition of misrepresentation, nor is an intent to deceive strictly required to comply with the statutory terms of the HEA.” Though unreasonable overapplication of these rules was possible, a facial challenge failed. The Department also explained that, for enforcement purposes, it would consider whether a misrepresentation was intentional or inadvertent.
APSCU also argued that the new regs eliminated materiality, in contravention to the prohibition on “substantial” misrepresentations. But the new regs continued the definition of substantial misrepresentation as "[a]ny misrepresentation on which the person to whom it was made could reasonably be expected to rely, or has reasonably relied, to that person's detriment." What was eliminated from the new regs was the prior statement that a minor, easily corrected misrepresentation should result in efforts at voluntary correction. The Department argued that the current regs still essentially required materiality because only statements about a school's programs, charges, and the employability of its graduates upon which a person could, or did, reasonably rely to his detriment are sanctionable. In addition, the Secretary noted that the Department would continue to consider the full facts and circumstances surrounding any alleged misrepresentation, and there was no record basis to dispute that commitment. The Department removed the prior safe harbor for minor misrepresentations because it had proved simply formulaic, and the court found that this was sufficiently explained.
APSCU argued that the new regs chilled its members’ free speech. “However, the speech targeted by the Department is limited to substantial misrepresentations about the nature of an institution's educational program, its financial charges, or the employability of its graduates, all limited to legitimate concerns with the integrity of a massive government program of financial loans for which repayment is expected.” The regs came from “documented” concern about deception and misleadingness that harmed the effectiveness of the federal loans and impaired their repayment.
The regs governed commercial speech: speech designed to persuade its targets to purchase the speaker’s products. The regs targeted “an institution's representations about facts inextricably linked with the commercial transaction with students for its services--the nature of such services, the costs of such services, and the results (employability) its services supposedly engender.” Inherently misleading commercial speech receives no constitutional protection and may simply be banned.
And here we hit a lacuna: advertising law and First Amendment law talk about deceptive speech differently. Advertising law doesn’t have a category for “inherently” misleading speech, and I have argued that the Supreme Court doesn’t know what it means either, just throwing the term around when it thinks (without ever having empirical support) that disclosure would be better.
The court here reacted by concluding that “false, erroneous or misleading” commercial statements were completely unprotected by the First Amendment. However, "any statement that has the likelihood or tendency to deceive or confuse" was “a weaker expression, and perhaps more worthy of constitutional protection, than one that is ‘inherently likely to deceive’ or ‘inherently likely to mislead.’” Fortunately for the court, this was a facial challenge, so it didn’t have to figure out what the difference was. (Here’s a thought: there isn’t one. If reasonable consumers are likely to be deceived, the statement is “inherently” likely to deceive. “Inherently” has to be understood with reference to the audience. Otherwise, a deceptive statement in English is not inherently likely to deceive because there are many non-English speakers who couldn’t possibly be deceived by it; speaking English is not inherent.) The court was not convinced that there was any actionable chill on protected speech simply “because the Secretary might find some future commercial statement so materially confusing and without mitigation that it is substantially misleading.”
Finally, APSCU argued that the regs were subject to heightened scrutiny because they were content-based regulations directed only at schools. That argument doesn’t work as applied to commercial speech. If the speech at issue is “fundamentally concerned with the nature of its educational program, its financial charges, or the employability of its graduates,” the Department can regulate its truth.
The Secretary of Education adopted new regulations to protect students from using federal money to sign up for classes that don’t help them and that end in loan default. The CCA, doing business as the Association of Private Sector Colleges and Universities, sued under the APA. I’ll omit a lot of the discussion, but the court upheld all the new regulations except for a requirement that distance educators obtain authorization from every state in which they have students, for which the court found that there had been no notice prior to adoption in the final regulations.
“In 2007 and 2008, 93.6% of full-time students at private, for-profit institutions, 56.6% at public institutions, and 70.0% at private, non-profit institutions received federal aid.” The plaintiff represents more than 1500 for-profit schools enrolling more than 1.5 million students.
The Department of Education already had a ban on incentive payments to recruiters based on enrolling students or on enrolling them in financial aid programs. It also banned "substantial misrepresentation of the nature of [a school’s] educational program, its financial charges, or the employability of its graduates." Concerned with insufficient monitoring of existing requirements, the Department issued a notice of proposed rulemaking and, after notice and comment, promulgated final regulations.
Congress was worried about incentives to recruiters because they might lead recruiters to enroll students regardless of qualifications or program success, leading to defaults that left taxpayers on the hook. Older regulations established various safe harbors allowing schools to pay compensation, including when salary adjustments weren’t based solely on the number of students recruited or awarded financial aid; when incentives were tied to students’ successful completion of a program; and when incentives were paid to managers who didn’t directly supervise employees immediately involved in recruiting, admissions, or financial aid. But the Department determined that the safe harbors did more harm than good, allowing unscrupulous parties to circumvent the intent of the law. Thus the amended regulations banned, among other things, pay adjustments based in any part, directly or indirectly, on enrollment or financial aid success. They also covered more people.
The law provides for penalties for a school making a "substantial misrepresentation of the nature of its educational program, its financial charges, or the employability of its graduates." If, "after reasonable notice and opportunity for a hearing," the Secretary determines that a school engaged in such a substantial misrepresentation, the Secretary may fine it, or suspend or terminate its eligibility for funding until the violation has been corrected. The law doesn’t define substantial misrepresentation, so the Department developed new regulations. (The court expressed doubt that concern over aggressive, misleading advertising was sufficient reason for federal action, because it’s the use of federal money to fund opportunities that were substantially misrepresented that allows federal intervention; that seems like slicing the sausage too thin to me.)
The new regs maintain the basic definition from prior regulations that a misrepresentation is a "false, erroneous or misleading statement." They further provide that a "misleading statement includes any statement that has the likelihood or tendency to deceive or confuse." They keep the existing definition of “substantial misrepresentation” as "[a]ny misrepresentation on which the person to whom it was made could reasonably be expected to rely, or has reasonably relied, to that person's detriment." The prior explicit safe harbor for minor misrepresentations, providing that the Department would notify the institution and endeavor to obtain an informal and voluntary correction in such cases, was eliminated. The new regs also cover misrepresentations not just by an eligible institution, but its representatives, and persons with whom the institutions have an agreement to provide educational programs, marketing, advertising, recruiting, or admissions services. And they cover misrepresentations not just to students and their families and the Secretary of Education, but also to any member of the public, an accrediting agency, or a state agency.
APSCU argued that it should be able to pay recruiters based on success in recruiting. But the problem the Department was targeting was “recruiters who sweet talk unqualified students into applications for courses and federal loans when there is no realistic chance that the student will gain from the coursework or be able to repay the loan.” Recruiters could be rewarded in other ways—seniority, job knowledge, or student evaluations. “While APSCU is understandably frustrated at its inability to provide merit-based pay increases to recruiters based on the easiest to measure and, arguably, most logical merit metric--numbers recruited--that does not mean the regulations are themselves impermissible interpretations of the HEA or otherwise unreasonable, especially in light of congressional concerns with recruitment practices and the administrative record.” The Department provided a reasoned basis for eliminating the prior safe harbors based on their use to evade the regs. For example, it eliminated the safe harbor for compensation based on students’ successful completion of coursework or graduation because of the "proliferation of short-time, accelerated programs," creating the potential for pay increases/bonuses without real student advancement, and “‘schools that have devised and operated grading policies that all but ensure that students who enroll will graduate, regardless of their academic performance’ allow manipulated graduation rates that lead to pay increases/bonuses based on false student achievement.”
APSCU didn’t like the new misrepresentation regulations, arguing that they impermissibly expanded the scope and types of statements that could be sanctioned. The basic statute barred a "substantial misrepresentation of the nature of [a school’s] educational program, its financial charges, or the employability of its graduates," while the regulation stated that a school could not make "a substantial misrepresentation regarding the eligible institution, including about the nature of its educational program, its financial charges, or the employability of its graduates." 34 C.F.R. § 668.71(b) (emphasis added).
The court found that APSCU put undue weight on “including.” The Department clarified that its enforcement authority only reaches statements concerning those three things.
APSCU also challenged the revised definition of “substantial misrepresentation” as including statements that are “factually correct, immaterial or minor, and made without an intent to deceive or confuse.” The regs defined misrepresentation as a "false, erroneous or misleading statement" and further defined "misleading statement" to mean "any statement that has the likelihood or tendency to deceive or confuse." Moreover, a “substantial misrepresentation” was any "misrepresentation on which the person to whom it was made could reasonably be expected to rely, or who has reasonably relied, to that person's detriment." APSCU didn’t like the new phrase that a misrepresentation includes any statement that "has the likelihood or tendency to deceive or confuse" because it could cover factually true statements made without the intent to deceive.
The court didn’t like the Secretary’s general reliance on FTCA cases, which treat “deceptive” and “likely to mislead” as related, and even interchangeable, concepts, and don’t require intent to deceive. The court found that the relevant statutory language--“substantial misrepresentation” about limited, specified topics—was significantly different from the FTCA’s “unfair or deceptive acts or practices” (not sure why the “limited, specified topics” are at all relevant here). But despite the overbreadth of the analogy, the court found that the actual definitions adopted by the Secretary were fine given the deference due to formal rule-making.
The definitions were not arbitrary or capricious. “It cannot be gainsaid that a factually correct statement may be misleading, in context, to the detriment of its listener and that many of the ‘listeners’ at issue are young adults. Similarly, since the Department's focus is on worthwhile education and the funding and repayment of federal monies, the Court cannot say the Secretary acted unreasonably by omitting an intention to deceive or confuse from its definition of misrepresentation, nor is an intent to deceive strictly required to comply with the statutory terms of the HEA.” Though unreasonable overapplication of these rules was possible, a facial challenge failed. The Department also explained that, for enforcement purposes, it would consider whether a misrepresentation was intentional or inadvertent.
APSCU also argued that the new regs eliminated materiality, in contravention to the prohibition on “substantial” misrepresentations. But the new regs continued the definition of substantial misrepresentation as "[a]ny misrepresentation on which the person to whom it was made could reasonably be expected to rely, or has reasonably relied, to that person's detriment." What was eliminated from the new regs was the prior statement that a minor, easily corrected misrepresentation should result in efforts at voluntary correction. The Department argued that the current regs still essentially required materiality because only statements about a school's programs, charges, and the employability of its graduates upon which a person could, or did, reasonably rely to his detriment are sanctionable. In addition, the Secretary noted that the Department would continue to consider the full facts and circumstances surrounding any alleged misrepresentation, and there was no record basis to dispute that commitment. The Department removed the prior safe harbor for minor misrepresentations because it had proved simply formulaic, and the court found that this was sufficiently explained.
APSCU argued that the new regs chilled its members’ free speech. “However, the speech targeted by the Department is limited to substantial misrepresentations about the nature of an institution's educational program, its financial charges, or the employability of its graduates, all limited to legitimate concerns with the integrity of a massive government program of financial loans for which repayment is expected.” The regs came from “documented” concern about deception and misleadingness that harmed the effectiveness of the federal loans and impaired their repayment.
The regs governed commercial speech: speech designed to persuade its targets to purchase the speaker’s products. The regs targeted “an institution's representations about facts inextricably linked with the commercial transaction with students for its services--the nature of such services, the costs of such services, and the results (employability) its services supposedly engender.” Inherently misleading commercial speech receives no constitutional protection and may simply be banned.
And here we hit a lacuna: advertising law and First Amendment law talk about deceptive speech differently. Advertising law doesn’t have a category for “inherently” misleading speech, and I have argued that the Supreme Court doesn’t know what it means either, just throwing the term around when it thinks (without ever having empirical support) that disclosure would be better.
The court here reacted by concluding that “false, erroneous or misleading” commercial statements were completely unprotected by the First Amendment. However, "any statement that has the likelihood or tendency to deceive or confuse" was “a weaker expression, and perhaps more worthy of constitutional protection, than one that is ‘inherently likely to deceive’ or ‘inherently likely to mislead.’” Fortunately for the court, this was a facial challenge, so it didn’t have to figure out what the difference was. (Here’s a thought: there isn’t one. If reasonable consumers are likely to be deceived, the statement is “inherently” likely to deceive. “Inherently” has to be understood with reference to the audience. Otherwise, a deceptive statement in English is not inherently likely to deceive because there are many non-English speakers who couldn’t possibly be deceived by it; speaking English is not inherent.) The court was not convinced that there was any actionable chill on protected speech simply “because the Secretary might find some future commercial statement so materially confusing and without mitigation that it is substantially misleading.”
Finally, APSCU argued that the regs were subject to heightened scrutiny because they were content-based regulations directed only at schools. That argument doesn’t work as applied to commercial speech. If the speech at issue is “fundamentally concerned with the nature of its educational program, its financial charges, or the employability of its graduates,” the Department can regulate its truth.
Wednesday, July 13, 2011
small note on Brownmark Films v. Comedy Partners
Contrary to the learned judge, I really don't think the phrases "I said, what what, in the butt" and "you want to do it in my butt, in my butt" are all that "cryptic."
Tuesday, July 12, 2011
A reason to bring coordinate state law claims in Lanham Act cases
I am often dismissive of coordinate unfair trade practices claims in Lanham Act cases. In most circumstances, they add little value, and you get these pro forma paragraphs or even sentences in the briefs and opinions, "the analysis is the same." When courts do it, this can have toxic effects in later cases where the state unfair trade practices law is actually different in some relevant way that wasn't at issue in the earlier Lanham Act case. That is why I don't like the automatic use of such claims: it does nothing to help and may create bad precedent. However, Michael Atkins reports on a case in which the coordinate state claim did help the plaintiff: as a prevailing plaintiff on the Washington state law claims, it automatically received attorneys' fees on those claims, without needing to prove exceptionality on the Lanham Act claims. (I'd think you'd need to segregate out time spent on each, but if the standards are the same .... Also, here, the prevailing plaintiff limited its fee request in other ways that the court found appropriate.)
Monday, July 11, 2011
Job opportunities: IP clinic director and Berkeley fellow
A couple of positions:
Suffolk University Law School located in downtown Boston is seeking to add an IP transactional clinic to our robust clinical offerings. This IP clinic will complement our nationally ranked IP program by giving students the opportunity to engage in actual transactional work under the guidance of a clinical instructor.
We are seeking a candidate who will develop and operate the IP clinic. Candidates can be experienced clinical faculty members or practitioners with a genuine interest in teaching. Candidates must be a member in good standing of a state bar and have at least three years of IP transactional experience. Teaching experience preferred but not required.
Please pass this on to anyone who might be interested. If interested please send a cover letter and resume to [Email submissions preferred]:
Professor Andrew Beckerman-Rodau
Co-Director IP Concentration
Suffolk University Law School
120 Tremont Street – Suite 340A
Boston, MA 02108
arodau / suffolk.edu
___________________________________________________
You can also contact Professor Jeff Pokorak, Director of Clinical
Programs, for additional information on our clinical programs:
Professor Jeff Pokorak
Director Clinical Programs
Suffolk University Law School
120 Tremont Street – Suite 190D
Boston, MA 02108
jpokorak / suffolk.edu
------
Berkeley Law has the nation’s flagship legal program in the high technology and intellectual property fields, featuring both the faculty and resources of the Berkeley Center for Law and Technology (BCLT) (http://www.law.berkeley.edu/bclt.htm) and the Samuelson Law, Technology & Public Policy Clinic (SLTPPC) (http://www.law.berkeley.edu/4391.htm). BCLT and SLTPPC work on cutting-edge scholarship, research, and policy initiatives that help governments, academic institutions, and private entities develop sound technology-related policies and practices in the digital age. In addition, SLTPPC specifically helps train the next generation of lawyers and policy-makers in the hands-on work of advocacy on behalf of public-minded individuals and organizations.
In order to support these current efforts to develop the proper intellectual, legal, policy, and technological frameworks for a robust national public digital library, Berkeley Law seeks to hire a “Digital Library Fellow” beginning September 1, 2011 and continues through August 31, 2013.
The Digital Library Fellow will work under the supervision of Berkeley Law Professors Pamela Samuelson, Jason Schultz, and Jennifer Urban and would focus on a variety of projects that will include, as a minimum, the following:
• Developing the intellectual foundation for legal and policy changes in copyright law needed to support the digital public library efforts, including in areas such as orphan works, library privileges, private ordering initiatives, collective licensing, digital book lending, and metadata ownership.
• Drafting model legislation as well as researching and writing articles, white papers, friend of the court briefs, or other projects of publishable quality on these subjects.
• Organizing and convening programmatic events, including meetings, workshops, and conferences to gather input, disseminate ideas and research efforts, and build a broad-based coalition to support digital public library efforts.
• Prepare materials to help inform key digital public library stakeholders about key issue to enable them to take appropriate advocacy actions with state and federal legislatures and agencies to support their efforts.
Qualifications: A successful candidate for the Digital Library Fellowship will hold a J.D. and will have experience with copyright issues, preferably those facing digital libraries, as well as demonstrated excellent research and writing skills, organizational and planning skills, substantive knowledge of both U.S. and international copyright law, and proven knowledge of and commitment to open access principles.
Salary range is $62,532 – $86,316 depending on experience. The University offers excellent health and retirement benefits which can be viewed online at http://atyourservice.ucop.edu/.
Application Procedure:
E-mail a resume, cover letter, transcript, writing sample, and a list of three (3) references to the address below:
academicpositions / law.berkeley.edu
Sheri Showalter
Director, Human Resources
Room 315 Boalt Hall
University of California, Berkeley, School of Law
Berkeley, CA 94720-7200
Applications must be received no later than August 12, 2011. Minority, female, disabled and GLBT applicants are particularly encouraged to apply.
Inquiries may be addressed to HR Director Showalter at academicpositions / law.berkeley.edu.
Please refer potential reviewers to the UC Berkeley Statement of Confidentiality found at: http://apo.chance.berkeley.edu/evalltr.html.
The University of California is an Affirmative Action/Equal Opportunity Employer
Suffolk University Law School located in downtown Boston is seeking to add an IP transactional clinic to our robust clinical offerings. This IP clinic will complement our nationally ranked IP program by giving students the opportunity to engage in actual transactional work under the guidance of a clinical instructor.
We are seeking a candidate who will develop and operate the IP clinic. Candidates can be experienced clinical faculty members or practitioners with a genuine interest in teaching. Candidates must be a member in good standing of a state bar and have at least three years of IP transactional experience. Teaching experience preferred but not required.
Please pass this on to anyone who might be interested. If interested please send a cover letter and resume to [Email submissions preferred]:
Professor Andrew Beckerman-Rodau
Co-Director IP Concentration
Suffolk University Law School
120 Tremont Street – Suite 340A
Boston, MA 02108
arodau / suffolk.edu
___________________________________________________
You can also contact Professor Jeff Pokorak, Director of Clinical
Programs, for additional information on our clinical programs:
Professor Jeff Pokorak
Director Clinical Programs
Suffolk University Law School
120 Tremont Street – Suite 190D
Boston, MA 02108
jpokorak / suffolk.edu
------
Berkeley Law has the nation’s flagship legal program in the high technology and intellectual property fields, featuring both the faculty and resources of the Berkeley Center for Law and Technology (BCLT) (http://www.law.berkeley.edu/bclt.htm) and the Samuelson Law, Technology & Public Policy Clinic (SLTPPC) (http://www.law.berkeley.edu/4391.htm). BCLT and SLTPPC work on cutting-edge scholarship, research, and policy initiatives that help governments, academic institutions, and private entities develop sound technology-related policies and practices in the digital age. In addition, SLTPPC specifically helps train the next generation of lawyers and policy-makers in the hands-on work of advocacy on behalf of public-minded individuals and organizations.
In order to support these current efforts to develop the proper intellectual, legal, policy, and technological frameworks for a robust national public digital library, Berkeley Law seeks to hire a “Digital Library Fellow” beginning September 1, 2011 and continues through August 31, 2013.
The Digital Library Fellow will work under the supervision of Berkeley Law Professors Pamela Samuelson, Jason Schultz, and Jennifer Urban and would focus on a variety of projects that will include, as a minimum, the following:
• Developing the intellectual foundation for legal and policy changes in copyright law needed to support the digital public library efforts, including in areas such as orphan works, library privileges, private ordering initiatives, collective licensing, digital book lending, and metadata ownership.
• Drafting model legislation as well as researching and writing articles, white papers, friend of the court briefs, or other projects of publishable quality on these subjects.
• Organizing and convening programmatic events, including meetings, workshops, and conferences to gather input, disseminate ideas and research efforts, and build a broad-based coalition to support digital public library efforts.
• Prepare materials to help inform key digital public library stakeholders about key issue to enable them to take appropriate advocacy actions with state and federal legislatures and agencies to support their efforts.
Qualifications: A successful candidate for the Digital Library Fellowship will hold a J.D. and will have experience with copyright issues, preferably those facing digital libraries, as well as demonstrated excellent research and writing skills, organizational and planning skills, substantive knowledge of both U.S. and international copyright law, and proven knowledge of and commitment to open access principles.
Salary range is $62,532 – $86,316 depending on experience. The University offers excellent health and retirement benefits which can be viewed online at http://atyourservice.ucop.edu/.
Application Procedure:
E-mail a resume, cover letter, transcript, writing sample, and a list of three (3) references to the address below:
academicpositions / law.berkeley.edu
Sheri Showalter
Director, Human Resources
Room 315 Boalt Hall
University of California, Berkeley, School of Law
Berkeley, CA 94720-7200
Applications must be received no later than August 12, 2011. Minority, female, disabled and GLBT applicants are particularly encouraged to apply.
Inquiries may be addressed to HR Director Showalter at academicpositions / law.berkeley.edu.
Please refer potential reviewers to the UC Berkeley Statement of Confidentiality found at: http://apo.chance.berkeley.edu/evalltr.html.
The University of California is an Affirmative Action/Equal Opportunity Employer
Rogue site of the week or whack-a-mole?
Beth Winston pointed me to this site, designed to highlight the damage "rogue websites" do. It mostly focuses on TM counterfeiting, but DMCA violations, unauthorized streaming video, and counterfeit DVDs also show up, according to the descriptions. The featured domain names have mainly been seized by ICE; the Rogue Site website, however, itself provides links for half of the featured sites to the new versions of the sites, which remain at large. Query: assuming the truth of the allegations, why isn't the Rogue Site liable for inducing/facilitating infringement by providing these new links?
Friday, July 08, 2011
IP philosophy question of the day
Larry Lessig: Fair use is “nothing more than the right to hire a lawyer.” E.g., here.
Judge S. Jay Plager of the Federal Circuit: Because of the uncertainty of the scope of a granted patent, the patent grant is actually “little more than a right to litigate.” An Interview with Circuit Judge S. Jay Plager, 5 J Proprietary Rts at 2, 6 (Dec 1993).
Are these claims equally true? Are they equally un/desirable? Would your favorite proposal to fix one do anything to fix the other?
Judge S. Jay Plager of the Federal Circuit: Because of the uncertainty of the scope of a granted patent, the patent grant is actually “little more than a right to litigate.” An Interview with Circuit Judge S. Jay Plager, 5 J Proprietary Rts at 2, 6 (Dec 1993).
Are these claims equally true? Are they equally un/desirable? Would your favorite proposal to fix one do anything to fix the other?
Thursday, July 07, 2011
Time story on fan fiction
By Lev Grossman, here. He does a good job, and I particularly like his deconstruction of the
"authors are parents, works are children" trope, because the last time I looked, it was both impossible and also sometimes illegal to lock your kids up and prevent them from being changed in any way by exposure to the outside world.
"authors are parents, works are children" trope, because the last time I looked, it was both impossible and also sometimes illegal to lock your kids up and prevent them from being changed in any way by exposure to the outside world.
Wednesday, July 06, 2011
Pushcart war: false designation of origin counterclaim survives without lost sales
Safco Products Co. v. Welcom Products, Inc., 2011 WL 2601838 (D. Minn.)
Safco sued Welcom and its foreign manufacturer for design patent infringement in its Magna Cart MCX pushcart. Welcom asserted invalidity and a Lanham Act counterclaim that Safco’s pushcarts aren’t in fact manufactured in Taiwan, but actually in China, contrary to their markings, and that Safco ships through Taiwan solely in order to evade a substantial tariff on Chinese-made pushcarts.
Welcom produced evidence that the carts were made in China. Safco argued that a cart in a possibly damning picture was counterfeit, but “the fact that counterfeiting may be common in China does not establish that this particular cart is in fact a counterfeit.” There was also some documentary evidence that Safco investigated the origin after this lawsuit began and discovered that it had in fact been buying carts made in China. There was a material factual dispute requiring resolution at trial.
Safco argued that Welcom lacked standing (again with this unhelpful terminology!) because it failed to produce evidence of actual or likely deception, materiality, or actual damages/injury.
Recovery of damages requires proof of actual damages and a causal link between the violation and the damages. Here, Welcom didn’t produce any evidence of lost sales, and its sales were outstripping Safco’s with respect to this particular model. However, the Lanham Act also allows recovery of defendants’ profits and costs, as well as injunctive relief. So lack of lost sales was no reason to grant summary judgment.
Actual/likely deception: if the pushcarts were made in China, “Made in Taiwan” would be literally false, allowing relief without evidence of consumer reaction. The court commented that it seemed “beyond dispute” that a false origin claim was “at least likely to deceive consumers” into believing the false origin claim. And the Eighth Circuit recently clarified that actual confusion is not required to support an award of disgorged profits, since that would undermine the Lanham Act’s equitable aims of deterrence and avoiding unjust enrichment.
Safco argued that unjust enrichment was only of concern in a trademark infringement case. The court disagreed, based on the statute. There was also no requirement of willfulness to justify an award of profits, though it is a relevant factor; the 1999 amendments to the Lanham Act, clarifying that willful violations of §43(c) can result in an award of profits, shed light on the requirements under §43(a), as to which there is no willfulness language. The court noted that it would have broad discretion to award monetary relief, and it might be that “Welcom's apparent inability to establish a damages claim could likely be due, not to the inherent problems of establishing causation and reliably measuring what sales it lost to Safco due to the false designation of origin, but rather to the fact that Welcom--despite any false designation--has not lost any sales and Safco has not gained any sales.”
Moreover, Safco wasn’t the manufacturer or the labeler; it imported the pushcarts through another party, also not the manufacturer, which purported to have them made in Taiwan by someone else. Thus, because Safco had apparently been blissfully ignorant of the true geographic origin of the products it imported, “equitable considerations could preclude any Lanham Act remedy against Safco.” I realize these are preliminary comments by the court; later consideration should probably take into account the desirability of imposing some duty of care on importers to make sure that the claims on their products are not false; putting their profits at risk in cases of failure to confirm factual claims like the statutorily required designation of origin (or, perhaps, active ingredients in a different case) would, one hopes, have some deterrent effect.
Safco sued Welcom and its foreign manufacturer for design patent infringement in its Magna Cart MCX pushcart. Welcom asserted invalidity and a Lanham Act counterclaim that Safco’s pushcarts aren’t in fact manufactured in Taiwan, but actually in China, contrary to their markings, and that Safco ships through Taiwan solely in order to evade a substantial tariff on Chinese-made pushcarts.
Welcom produced evidence that the carts were made in China. Safco argued that a cart in a possibly damning picture was counterfeit, but “the fact that counterfeiting may be common in China does not establish that this particular cart is in fact a counterfeit.” There was also some documentary evidence that Safco investigated the origin after this lawsuit began and discovered that it had in fact been buying carts made in China. There was a material factual dispute requiring resolution at trial.
Safco argued that Welcom lacked standing (again with this unhelpful terminology!) because it failed to produce evidence of actual or likely deception, materiality, or actual damages/injury.
Recovery of damages requires proof of actual damages and a causal link between the violation and the damages. Here, Welcom didn’t produce any evidence of lost sales, and its sales were outstripping Safco’s with respect to this particular model. However, the Lanham Act also allows recovery of defendants’ profits and costs, as well as injunctive relief. So lack of lost sales was no reason to grant summary judgment.
Actual/likely deception: if the pushcarts were made in China, “Made in Taiwan” would be literally false, allowing relief without evidence of consumer reaction. The court commented that it seemed “beyond dispute” that a false origin claim was “at least likely to deceive consumers” into believing the false origin claim. And the Eighth Circuit recently clarified that actual confusion is not required to support an award of disgorged profits, since that would undermine the Lanham Act’s equitable aims of deterrence and avoiding unjust enrichment.
Safco argued that unjust enrichment was only of concern in a trademark infringement case. The court disagreed, based on the statute. There was also no requirement of willfulness to justify an award of profits, though it is a relevant factor; the 1999 amendments to the Lanham Act, clarifying that willful violations of §43(c) can result in an award of profits, shed light on the requirements under §43(a), as to which there is no willfulness language. The court noted that it would have broad discretion to award monetary relief, and it might be that “Welcom's apparent inability to establish a damages claim could likely be due, not to the inherent problems of establishing causation and reliably measuring what sales it lost to Safco due to the false designation of origin, but rather to the fact that Welcom--despite any false designation--has not lost any sales and Safco has not gained any sales.”
Moreover, Safco wasn’t the manufacturer or the labeler; it imported the pushcarts through another party, also not the manufacturer, which purported to have them made in Taiwan by someone else. Thus, because Safco had apparently been blissfully ignorant of the true geographic origin of the products it imported, “equitable considerations could preclude any Lanham Act remedy against Safco.” I realize these are preliminary comments by the court; later consideration should probably take into account the desirability of imposing some duty of care on importers to make sure that the claims on their products are not false; putting their profits at risk in cases of failure to confirm factual claims like the statutorily required designation of origin (or, perhaps, active ingredients in a different case) would, one hopes, have some deterrent effect.
Copyright gets around the world while the public domain is still putting on its shoes
From Warner Bros. v. X One X:
This principle [that reproducing public domain publicity images on new surfaces doesn't infringe copyright in the characters depicted] would not apply if the new surface itself is independently evocative of the film character. For example, reproducing a publicity image of Judy Garland as Dorothy on a ruby slipper might well infringe the film copyright for The Wizard of Oz.If this is true, why wouldn't making ruby slippers--themselves highly evocative of the film character--also infringe the character copyright? In what way are ruby slippers, whether picture-adorned or not, substantially similar to the film character of Dorothy Gale? Or, what is the copyrightable element that makes the picture-adorned slippers a derivative work of the film rather than a reproduction of the public domain picture? The court's opinion is in other places quite careful; this footnote makes no sense.
Tuesday, July 05, 2011
Law of Advertising treatise review
David H. Bernstein & Bruce P. Keller, The Law of Advertising, Marketing and Promotions (2011)
Disclosure: I was an associate at Debevoise & Plimpton and I worked on an early draft of the treatise around 2001. According to my best recollection, little of my work survives, as one might expect.
Even with my obvious bias, I think this is a great resource for anyone working in advertising law, and will also save a ton in Westlaw charges if you hand it over to associates just learning the ropes. (Before I started clerking, one of the good pieces of advice I received was to read through the relevant treatise on habeas, which made it much easier to handle many of the cases I saw. I’m not suggesting that anybody but me should sit down and read this treatise through, but pointing a lawyer to the relevant chapter/s could be a big timesaver.)
And while I’m doing self-interested endorsements, I should say that the treatise would also be a great complement to the advertising and marketing law casebook Eric Goldman and I are writing. Anyone interested in teaching a class using our materials should contact me—this year, the materials, which are in beta, will be free to everyone, but we may try other low-cost pricing models for students in subsequent years. We are particularly interested in reaching out to potential adjuncts who’d like to have a full set of materials, including slides and my rather detailed notes, available. We do not yet have a teacher’s manual, but that’s on the roadmap.
But back to Bernstein & Keller: The volume begins with a short overview of the relevant law (with the key sources of regulation being the FTC, the NAD, state AGs, consumer class actions, and competitor lawsuits under the Lanham Act), with summaries that are expanded on in later chapters. The authors tend to focus on competitor suits/NAD claims and add information about other sources of regulation from there. In many cases, they offer checklists or guides for particular issues (e.g., required disclosures for business opportunities, prescription drugs, sweepstakes, and so on). Chapters cover deception generally; substantiation; disclosures and disclaimers; surveys; intellectual property rights (at a gallop, naturally); contests and sweepstakes; direct marketing; online advertising; special advertising issues (drugs, cosmetics, and food; professional advertising; alcohol, tobacco, and firearms; financial services and securities; gambling, political ads; and ads to children); procedure; and remedies.
The treatise pays relatively little attention to the FTC’s revised endorsement guidelines, despite the amount of consternation the guidelines caused when announced. This is some indication to me that the guidelines aren’t actually much more than updating standard principles. The treatise spends more time on the FTC’s contemporaneous changes/clarifications with respect to substantiation, which are probably more important to the average advertiser. However, this focus also means that some issues involved in affiliate/multi-intermediary campaigns go by very quickly, particularly the ultimate advertiser’s liability for acts of others further down the chain (and some more attention to the endorsement issues for things like gifts to bloggers would have been welcome).
The survey chapter, like the other chapters, is quite detailed and notes instances where current research knowledge is ahead of the precedents, for example, in terms of the pervasive mismatch between stated purchase intentions and actual behavior, with complicated consequences for defining a relevant survey universe. The treatise suggests that a conservative approach—considering only people who have purchased the product/service at issue and also say they intend to do so again—might be one response to that, but cautions that courts might not like it. It’s also not clear to me that people who say they’re previous purchasers are more reliable when it comes to conforming with stated intent. A footnote then suggests that people who say they’re potential purchasers should be counted, regardless of what they later do, because what they say indicates that they are at least potential purchasers, but I’m not sure that follows either (and still leaves us with the problem of what the ads mean to the people who say, and perhaps even think, that they aren’t potential purchasers but end up buying anyway). In the end, there may not be much a surveyor can do to deal with the mismatch, unless the product/service at issue has particular characteristics that make purchases more predictable (e.g., cigarettes and addicted smokers).
There’s similar research uncertainty about the desirability of a “don’t know” option—courts and the NAD love it and may kick out surveys that lack the option, but it also reduces the response rate from people who do have opinions but just want to coast through the survey without a lot of effort in answering follow-ups. The treatise’s citation of relevant marketing research will be a real benefit to lawyers formulating and preparing criticism of surveys.
The Lanham Act standing section is short and does not mention the recent, abominable rise of the Conte Bros./Phoenix of Broward test, an omission that ideally would be corrected by a Supreme Court decision rejecting the test but probably will have to be fixed with an update. By contrast, the NAD/NARB procedure section is extremely detailed, walking the reader through every step; it would be very useful for lawyers considering a first run at NAD.
One thing to be aware of is that there are a lot of NAD decisions on topics such as substantiation and disclosures/disclaimers, among other things, and the treatise cites them extensively. Because NAD decisions are not binding on federal courts, a Lanham Act litigator excited to find a specifically applicable precedent in the main text should check the footnotes before declaring victory.
The print edition comes with a QR code that can be scanned for updates. I haven’t tried that yet, but I will be very interested to see how that works!
Disclosure: I was an associate at Debevoise & Plimpton and I worked on an early draft of the treatise around 2001. According to my best recollection, little of my work survives, as one might expect.
Even with my obvious bias, I think this is a great resource for anyone working in advertising law, and will also save a ton in Westlaw charges if you hand it over to associates just learning the ropes. (Before I started clerking, one of the good pieces of advice I received was to read through the relevant treatise on habeas, which made it much easier to handle many of the cases I saw. I’m not suggesting that anybody but me should sit down and read this treatise through, but pointing a lawyer to the relevant chapter/s could be a big timesaver.)
And while I’m doing self-interested endorsements, I should say that the treatise would also be a great complement to the advertising and marketing law casebook Eric Goldman and I are writing. Anyone interested in teaching a class using our materials should contact me—this year, the materials, which are in beta, will be free to everyone, but we may try other low-cost pricing models for students in subsequent years. We are particularly interested in reaching out to potential adjuncts who’d like to have a full set of materials, including slides and my rather detailed notes, available. We do not yet have a teacher’s manual, but that’s on the roadmap.
But back to Bernstein & Keller: The volume begins with a short overview of the relevant law (with the key sources of regulation being the FTC, the NAD, state AGs, consumer class actions, and competitor lawsuits under the Lanham Act), with summaries that are expanded on in later chapters. The authors tend to focus on competitor suits/NAD claims and add information about other sources of regulation from there. In many cases, they offer checklists or guides for particular issues (e.g., required disclosures for business opportunities, prescription drugs, sweepstakes, and so on). Chapters cover deception generally; substantiation; disclosures and disclaimers; surveys; intellectual property rights (at a gallop, naturally); contests and sweepstakes; direct marketing; online advertising; special advertising issues (drugs, cosmetics, and food; professional advertising; alcohol, tobacco, and firearms; financial services and securities; gambling, political ads; and ads to children); procedure; and remedies.
The treatise pays relatively little attention to the FTC’s revised endorsement guidelines, despite the amount of consternation the guidelines caused when announced. This is some indication to me that the guidelines aren’t actually much more than updating standard principles. The treatise spends more time on the FTC’s contemporaneous changes/clarifications with respect to substantiation, which are probably more important to the average advertiser. However, this focus also means that some issues involved in affiliate/multi-intermediary campaigns go by very quickly, particularly the ultimate advertiser’s liability for acts of others further down the chain (and some more attention to the endorsement issues for things like gifts to bloggers would have been welcome).
The survey chapter, like the other chapters, is quite detailed and notes instances where current research knowledge is ahead of the precedents, for example, in terms of the pervasive mismatch between stated purchase intentions and actual behavior, with complicated consequences for defining a relevant survey universe. The treatise suggests that a conservative approach—considering only people who have purchased the product/service at issue and also say they intend to do so again—might be one response to that, but cautions that courts might not like it. It’s also not clear to me that people who say they’re previous purchasers are more reliable when it comes to conforming with stated intent. A footnote then suggests that people who say they’re potential purchasers should be counted, regardless of what they later do, because what they say indicates that they are at least potential purchasers, but I’m not sure that follows either (and still leaves us with the problem of what the ads mean to the people who say, and perhaps even think, that they aren’t potential purchasers but end up buying anyway). In the end, there may not be much a surveyor can do to deal with the mismatch, unless the product/service at issue has particular characteristics that make purchases more predictable (e.g., cigarettes and addicted smokers).
There’s similar research uncertainty about the desirability of a “don’t know” option—courts and the NAD love it and may kick out surveys that lack the option, but it also reduces the response rate from people who do have opinions but just want to coast through the survey without a lot of effort in answering follow-ups. The treatise’s citation of relevant marketing research will be a real benefit to lawyers formulating and preparing criticism of surveys.
The Lanham Act standing section is short and does not mention the recent, abominable rise of the Conte Bros./Phoenix of Broward test, an omission that ideally would be corrected by a Supreme Court decision rejecting the test but probably will have to be fixed with an update. By contrast, the NAD/NARB procedure section is extremely detailed, walking the reader through every step; it would be very useful for lawyers considering a first run at NAD.
One thing to be aware of is that there are a lot of NAD decisions on topics such as substantiation and disclosures/disclaimers, among other things, and the treatise cites them extensively. Because NAD decisions are not binding on federal courts, a Lanham Act litigator excited to find a specifically applicable precedent in the main text should check the footnotes before declaring victory.
The print edition comes with a QR code that can be scanned for updates. I haven’t tried that yet, but I will be very interested to see how that works!
Trying Google+
I'm Rebecca Tushnet there. I do not know how I'll be using it. Right now I just repost my blog to Facebook and occasionally comment on other FB posts, but Google+'s circles are much more sympatico with my sense of how I want to use social media, since I learned Livejournal's system first.
Monday, July 04, 2011
Today's trademark question
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