IP LAWSUITS
March 25, 2008
tell us how you really feel
It is getting very "springy" here in Oklahoma and folks are getting a bit goofy - so, I guess it should come as no surprise that we have been chuckling about this snippet from my RSS reader tonight...
If you were wondering what this is about - have a read over at Politico for the full angst, political intrique, a bank heist, and patent rhetoric.
Posted by Douglas Sorocco at 10:08 PM.
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IP LAWSUITS
March 17, 2008
In defense of offense...
A couple of months ago I came across Mike Dillon’s blog – The Legal Thing – covering all things legal from the perspective of General Counsel at Sun.
As GC for Sun, Mike’s daily routine must entail a significant amount of attention to intellectual property issues and his blog plows a lot of ground concerning this topic. The posts are informative – albeit they have a “big corporate shine” to them, much to the dismay of a lot of “anonymous commenters”. If you read many patent blogs, you can probably guess the identities of many of these “anonymous commenters” – but they do make for an interesting peek at the more reactionary component of our niche of the legal world.
That is a lot of setup for a recent post of Mike’s dealing with how Sun defends against patent “troll” lawsuits – namely, a good offense.
I recently shared dinner with a few other GCs of local technology companies. It was a nice evening in which we were able to relax and share insights (and commiserate) about topics of common interest. During the course of our meal while we were discussing rising legal costs, one of my table mates made a statement that I found somewhat bothersome. He said that when faced with patent "troll" litigation, he knows he is going to pay something to get rid of the lawsuit and so he economizes on the use of defense counsel. After all, the thinking goes, if your intent is to settle a case, why spend money on a strong defense?
His view is completely contrary to how we think about this problem at Sun. It's also symptomatic of the way many companies view this issue as a quarterly "cost of doing business" without considering the long term consequences of settlement both for individual companies and our industry.
Before going further, let me state that we respect the intellectual rights of third parties. When a third party claim has been clear and the terms reasonable, we have entered into licenses. However, those situations are easily distinguished from the cases that make up almost all of our present docket of patent litigation. These lawsuits have usually been filed with no advance notice, by plaintiffs that don't commercialize their patents (i.e. create and sell products) and in venues considered favorable to them. It's also almost always the case that these plaintiffs have done little or no investigation to ascertain whether our products infringe prior to filing their lawsuit.
I think the approach that Mike outlines is a good example of how to frame decisions when confronted with a freedom to operate issue – whether the FTO issue is brought to your attention through an offer to license, or a cease and desist, or a patent search, or even when you have been served with a complaint — i.e., “How do we play offense in this particular case or instance?”
As Mike mentions, oftentimes it makes sense strategically and economically to simply license the patent – especially if the license allows you to preclude other competitors in the marketplace.
On the other hand, a careful analysis may lead to a determination that a license is unworkable – e.g., that the patent is invalid or because the license fee does not make economic sense. In such a circumstance, a zealous defense against an accusation of infringement may be in order – including the invalidation of the asserted claims.
In either case – taking a license or defending zealously – the accused infringer is approaching the case in an active/offensive manner and judging each case on its relative merits. Defaulting into paying to settle every case is no better than defaulting into aggresively defending every case.
The best defense to a patent infringement lawsuit?
Early analysis of the case and its relative merits (including the type of entity bringing the lawsuit). As each case and situation is unique, arbitrary “blanket rules” – while being easy to implement – don’t necessarily increase value to the corporation. Licensing everything or defending against everything is not a strategy – it is simply an invitation for disaster.
In any event, go on over and read Mike’s blog – I can guarantee that you will learn something.
The best offense...is a good defense.: the legal thing... by Mike Dillon.
Posted by Douglas Sorocco at 09:33 PM.
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IP LAWSUITS
January 17, 2008
Scrabble v. Scrabulous
Check out this statement from an article that I read today: 
Now, as if you needed more proof that we live in a time in which stuffy lawyers don't dig the digital age, take a look at this: It looks like toy-makers Hasbro and Mattel have sent their legal goons to Facebook and demanded that it remove the immensely popular 'Scrabulous' from its site.
Woah, woah, woah. Come on, that wasn’t very nice. Let me explain. Hasbro and Mattel have probably asked their Intellectual Property attorneys to look into this matter. Intellectual property attorneys dig the digital age. In fact, we are advocates for the digital age. That is why we have chosen to devote our working lives trying to protect the very technology and innovation that you create.
If intellectual property attorneys did not step in and advocate for our clients intellectual rights, like the copyright and trademark rights of Scrabble®, everything would be free game and copying and stealing would suddenly become the norm. In fact it’s legal goons like us that advocate and protect the copyright held in the very article written above.
Trust me, I may be a legal goon, but I dig the digital age.
Posted by Emily Campbell at 02:01 PM.
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IP LAWSUITS
September 21, 2007
Patent Reform Act 2007 - Part 5 . . . Patent Litigation
Not only does the Patent Reform Act of 2007 include changes that effect how patents are prosecuted, but the Act also includes changes that may effect how patents are litigated.
For example, in an effort to reduce damage awards, H.R. 1908, § 5, requires courts and jury’s to use specific valuation methods listed in the Act to determine "reasonable royalty awards." The purpose of the different valuation methods is to ensure that a "reasonable royalty" is applied only to the economic value attributable to the patent’s specific contribution over the prior art. The court determines which valuation method to use and then identifies any relevant factors to be considered under the chosen valuation method.
H.R. 1908 also adds inequitable conduct as a defense to infringement. The Act requires clear and convincing evidence to show that a person with a duty to disclose information to the PTO had the intent to deceive or mislead the examiner or misrepresented or failed to disclose material information. Information is deemed material if an examiner could have maintained a finding of unpatentability from such information and an intent to deceive or mislead may be shown by circumstances that indicate conscious or deliberate behavior not to disclose material information or to submit false information. If the court determines that inequitable conduct has occurred then the court may deny equitable relief or hold the patent unenforceable.
H.R. 1908 continues to set venue where the defendant has a principal place of business or is incorporated, or where the defendant committed acts of infringement and has a physical facility for a substantial portion of its operations. The Act also provides that venue is proper where the plaintiff resides, if the plaintiff is an institution of higher education or a non profit organization; or where the plaintiff is engaged in substantial research and development, manufacturing or the management of research and development or manufacturing which is related to the disputed patent; or where the inventor plaintiff resides, if the inventor has not assigned or is not required to assign the patent. Moreover, a party may not manufacture venue to invoke the venue of a specific district court, in other words no forum shopping.
We will continue to keep you up to date on the Patent Reform Act and any impact these changes may have on patent litigation. Any comments or thoughts are always appreciated.
Posted by Ward Hobson at 01:23 PM.
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IP LAWSUITS
July 20, 2007
say it aint so - incompetence at the USPTO?
Morningstar reports that four individuals have sued Secretary of Commerce Carlos M. Gutierrez for appointing an allegedly unqualified Deputy Director of the USPTO, Margaret Peterlin. But really, incompetence in government, where’s the beef?
Well, as amended in 1999, 35 U.S.C. § 3(b)(1) requires that the Deputy Director be a citizen of the U.S. “who has a professional background and experience in patent or trademark law.”
According to her executive biography, Ms. Peterlin was Counsel for Legal Policy and National Security Advisor for the Speaker of the House, J. Dennis Hastert, . . . where she advised the Speaker, House and Senate leadership, and senior staff on legislative policy and strategy, including judiciary issues such as IP protection . . . .” Prior to that, Ms. Peterlin was General Counsel to Richard Armey, Majority Leader of the House; clerked on the Fifth Circuit Court of Appeals; and served as a Naval Officer in the communications field. Ms. Peterlin also earned her legal degree sum laude from the University of Chicago.
No doubt an impressive resume, but is it really “a professional background and experience” in patent or trademark law? Many patent and trademark practitioners would probably be insulted by the suggestion. In fact, the complaint filed Monday alleges that Ms. Peterlin is not, and could not become, registered to practice before the USPTO; has never drafted or prosecuted a patent or trademark application; and, overall, has never had direct exposure to patent or trademark practice. And so, these four plaintiffs have asked the D.C. District Court to declare Peterlin’s appointment illegal and order appointment of a qualified alternative.
Morningstar quoted the USPTO as responding, in an emailed statement, “Margaret Peterlin is well qualified for her job as Deputy Under Secretary and Deputy Director, having had direct involvement in oversight of the USPTO and every piece of patent, trademark, and copyright-related legislation considered on the House floor over the past five years . . . .” Well there you have it, the USPTO, of which Peterlin is second in command, says Peterlin is qualified.
On a side note, the suit alleges Peterlin’s appointment “perpetuates USPTO management’s inability to handle egregious delays” in processing applications. Suing the Secretary of Commerce does seem like an innovative way of attempting to fast-track their applications. No word yet on whether the plaintiffs plan to file a patent application for a business method of expediting patent prosecution by suing USPTO personnel.
Posted by Eagle H. Robinson at 10:44 AM.
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IP LAWSUITS
May 30, 2007
don't tell anyone, it is a secret
Via IAM Blog (worth adding to the aggregator for IP types):
Speaking today at the second plenary session of the CIP Forum in Gothenburg, Sweden, Randall Rader, a judge who sits on the CAFC in Washington DC, revealed that he believed the recent KSR v Teleflex decision handed down by the Supreme Court would not lead to “great changes” in the way the Federal Circuit looks at obviousness. In fact, he told delegates that the judgment in the first CAFC decision on obviousness post-KSR had actually been written before the Supreme Court’s decision was handed down and “did not require one iota of change”. Make of that what you will.
KSR is going to prove more and more interesting as time goes on. As a very vaunted commentator recently said, "All the patent practitioners went "Huh?" when the KSR decision was released."
Huh, indeed!
Posted by Douglas Sorocco at 07:40 PM.
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IP LAWSUITS
An Adventurous Trademark Weekend: Mystery Science Theater 3000 v. Mr. Sinus Theater and Katie Holmes v. Katee Holmes
Over the Memorial Day weekend my husband and I went to
Other than being the home of the
But don’t worry this was not the end of Mr. Sinus Theater. Mr. Sinus Theater later changed its name to The Sinus Show. Although the comedy group decided later to part ways, in January 2007 one of the original members formed Master Pancake Theater under the same movie-mockery premise. You can see Master Pancake Theater at the Alamo Drafthouse in
Also during my weekend, I woke up after a nap to a television blasting in the background, “Katie Holmes Threatening Legal Action Against Porn Star”. What?! Sure enough, a fashion student who is hoping to launch a career as a porn star recently changed her name to Katee Holmes. Apparently, "Katee is using the name as a tribute to Katie, who has always portrayed in innocence in everything she's done, beginning with '
This could get interesting.
Posted by Emily Campbell at 04:07 PM.
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IP LAWSUITS
May 03, 2007
KSR - an obvious patent opinion from the Supreme Court
The waiting is finally over, or is it. It seems that the Supreme Court’s opinion in KSR v. Teleflex has left patent attorneys, litigators, and holders asking more and more questions about the obviousness standard. Until the dust settles, I suggest heading over to The Legal Talk Network where a couple of patent experts (including our own Matt Buchanan) discuss KSR and the ramifications. Then come on back to PHOSITA where your opinions are welcome on KSR, obviousness, and the next step.
Posted by Laura C. Wood at 11:25 AM.
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IP LAWSUITS
March 30, 2007
No "Big Love" for use of a Mormon Trademark
In a recent article by the Associated Press, the Church of Jesus Christ of Latter-day Saints sent a cease and desist letter to Just Add Coffee, a 
gel holding a trumpet up at an angle as coffee is poured into it. The
Posted by Emily Campbell at 04:47 PM.
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IP LAWSUITS
March 09, 2007
Them's fightin' words
Check out this week’s WAR OF THE WORDS:
Businessweek reports that in Beijing, China, a pharmaceutical company was refused permission to use the name of a disgraced official as a trademark to sell rat poison.
Forbes reports that Jimi Hendrix’s sister, Janie Hendrix, is suing a Seattle company, which is backed by other relatives, for using the legendary guitarist’s image to sell vodka under the name Electric Hendrix.
The Hill reports that two well-known business trade associations, namely the U.S. Hispanic Chamber of Commerce and the U.S. Chamber of Commerce, are embroiled in a legal battle as to the right to use the words "United States" and "chamber of commerce."
JSOnline reports a “food fight” between Palermo's Pizza and Trader Joe's. The complaint claims that Trader Joe's Pizza Palermo frozen pizzas are trading unfairly on the Palermo's Pizza frozen pizza brand. The fun twist to this story is that Palermo is not only the last name of the family that owns the company that makes Palermo's Pizza, Palermo is also a city in Sicily, Italy, having a style of pepperoni pizza distinctive to the region.
Posted by Emily E. Campbell at 03:30 PM.
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IP LAWSUITS
February 15, 2007
New FedCirc.us Search Tool Released
The master plan for the FedCirc.us site includes several web features designed to deliver patent caselaw information in a more effective manner. The first - the GimmeTen! feature - has quickly become the most popular page on the site...and for good reason. Not familiar with it? Simply bookmark http://10.fedcirc.us and visit regularly. That page always provides concise summaries of the ten most recently posted case reviews. We're confident you'll quickly be hooked.
Today we announce the second feature in our bag of tricks - 
the travelling FedCirc.us search engine. By following the steps below, you'll be able to search the FedCirc.us site from anywhere on the web.
The best part is the simplicity -- 5 easy steps (4 for most people). Five minutes tops.
1. Make sure you're using either Internet Explorer 7 or Firefox 2.0 as your browser. If you're not, download the latest IE here or Firefox here (both are free). For the record, FedCirc.us is optimized for Firefox.
2. Start your browser.
3. Visit FedCirc.us.
4. Pull down the drop-down search box in the upper right hand corner and select "Add FedCirc.us" (in Firefox) or select "FedCirc.us" with the gold star next to it (in IE, see image at right).
5. Surf the web. Whenever you want to search the site, simply enter a search string in the box in the right hand corner, pull down the list, select FedCirc.us, and hit return. 
You can do this from any page on the web...and you'll immediately be transported to a listing of search results from the site.
I've quickly gotten used to searching by party name or full case name as I'm reading on the web. This little trick has changed my surfing habits for the better...it's a wonderfully efficient way to find information quickly. We hope you find it useful as well.
As always, if you have any comments or suggestions, please let us know. You can e-mail Matt directly at jmb @ rtipllc.com.
Enjoy!
Posted by Douglas Sorocco at 05:24 PM.
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IP LAWSUITS
February 08, 2007
UT Regents Hacked, I mean Saw'ed Off, with Aggieland Outfitters' Use of Longhorn Logo
As a precursor, I am a graduate from the University of Oklahoma and I have admittedly participated in the OU/TX college rivalry by displaying upside-down longhorns on numerous t-shirts as well as the back windshield of my car. So I simply could not pass up the opportunity to share this story with you about two of OU’s rival schools. 
The University of Texas Board of Regents recently filed suit against Aggieland Outfitters, a Texas A&M apparel store owned by Fadi Kalaouze in College Station, Texas.
Aggieland Outfitters sells various apparel items featuring the "Saw’em off" logo (seen right). The lawsuit asks that Kalaouze destroy all current logos and refrain from using the "Saw’em off" logo in the future. The UT Regents argue that the similarity of the marks is likely to create consumer confusion and that Aggieland has been and continues to be unjustly enriched at UT's expense by the unauthorized use of the "Saw’em off" mark. Kalaouze argues that the mark is a parody and is protected by the First Amendment.
What are your thoughts? Is this a parody? Is this just poor sportsmanship? Do you think consumers would confuse the UT longhorn silhouette with an upside-down longhorn or one with sawed-off horns? Isn’t this just all part of college rivalry?
Boomer Sooner!
P.S. As a side note, Aggieland Outfitters has set up a legal defense fund at, http://www.sawemoff.com.
Posted by Emily E. Campbell at 04:01 PM.
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IP LAWSUITS
January 31, 2007
The Resolution(tm) -- a new Fedcirc.us Product
FedCirc.us (Matt/Steve/and I) announced earlier today the availability of a free preview issue of The Resolution, the inaugural issue of our quarterly magazine, The FedCirc.us Reader. Download the .pdf here.
According to Matt:
The Resolution will give you a sneak-peak at the features of the magazine. It's jam-packed with all sorts of patent-caselaw goodness, including a 'Trend Spotting' article, a featured case review, prosecution- and litigation-focused digests, chronological and alphabetical listings of cases from last quarter (including summaries), and a fun "Quotables" section that includes some of our favorite quotes from cases issued during last quarter.
For this issue, we've even included a brief note about the story behind the FedCirc.us name and domain.
We think you'll agree that the magazine is an exciting and effective new tool for staying current on patent caselaw developments.
Of course, the free preview issue includes subscription details for the magazine. The site will be ready to accept subscription payments starting tomorrow.
Please download our first copy and let us know what you think.
Posted by Douglas Sorocco at 10:20 AM.
Permalink: The Resolution(tm) -- a new Fedcirc.us Product
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IP LAWSUITS
January 02, 2007
A Little Something New - Fedcirc.us
Happy New Year! – and – Happy Birthday PHOSITA!
Wow – it is amazing to think we just stepped into 2007. When we started PHOSITA three long years ago, we had no idea how this little project would turn out or even how long it would stay in existence. Thanks to all of our readers for the great tips, the snarky criticisms and the amazing friendships that have occurred. We are looking forward to our fourth year and we have a couple of new things up our sleeves to trot out down the road.
Speaking of friendships and new things, Matt, Steve and I are happy to announce the launch of FedCirc.us – the patent caselaw portal! Built largely upon Matt’s stellar leadership and insightful writing, we have been tiddying up the tents and getting the main ring ready for y’all to come and explore. A few folks have been testing the lines and unfurling the flags for us, but today…. well, today – WE GO LIVE!
Yes – it lives. FedCirc.us is alive. Visit it at http://www.fedcirc.us (and just because we have a wierd sense of humor, http://www.fedcircus.com will work, too).
Currently, FedCirc.us is a website that allows patent professionals and other patent stakeholders to access, digest and manage patent caselaw information. The site is built on a foundation of timely, accurate, and considered reviews of patent decisions from the Supreme Court of the United States and the Court of Appeals for the Federal Circuit.
Check out some of these great features:
- GimmeTen!(tm) - Get concise summaries of the last ten case reviews written...all on one page. Bookmark it at http://10.fedcirc.us.
- Read the Latest Review - Hit this button in the left menu to immediately get the full monty on the last case review written.
- Case Data - Check out the Case Data box that appears in every case review. There's a bunch of goodness in that box, including citation information and a link to download a .pdf of the opinion.
- Case Flags - Red flags. Big red flags. Believe us, you'll known 'em when you see 'em.
- Tags - Navigate the site by keywords. Conduct legal research with your head in the tag cloud.
- Practice Alerts - We issue specific practice alerts when we detect something important. Sign up to receive these alerts, free!
- Feature article - We're working to put together a team of authors that will publish timely and insightful analyses of the latest developments. We'll provide more details on this soon.
- E-mail and RSS subscriptions - A lot of the FedCirc.us content is available without even visiting the website. Go ahead and subscribe.
We're extremely excited about this project, mostly because the website is just the beginning. FedCirc.us is merely the leading edge of the most ambitious and significant RTIP LLC (otherwise known as the Rethink(IP) guys…) project yet. We've got a slate of informational products and services - all built around the FedCirc.us foundation of case reviews - that we'll be announcing over the next several months.
So come on by and stay awhile – we just might buy you some Circus Peanuts!
Posted by Douglas Sorocco at 06:49 PM.
Permalink: A Little Something New - Fedcirc.us
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IP LAWSUITS
November 17, 2006
andy griffith sues andrew griffith
And you thought all the news about political campaigns and intellectual property would be over now that elections have ended. Don’t worry, it’s not over yet. Check out this story. William H. Fenrick, candidate for sheriff in Grant County Wisconsin, recently legally changed his name to Andy Griffith, allegedly in hopes of increasing his chances of winning the election. Andy Griffith, the actor, found out and recently filed suit against Fenrick alleging he violated various trademark, copyright, and privacy laws. The actor claims that Fenrick changed his name for the "sole purpose of taking advantage of Griffith’s notoriety in an attempt to gain votes." Fenrick argues that he did not benefit from the name change as he lost the election and that the lawsuit is absurd because no one would actually think that he was the actor. Looks like he should have tried appropriating a different name. One of the posted comments to this story suggested that Fenrick should hire Matlock as his attorney.
Posted by Emily E. Campbell at 02:33 PM.
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IP LAWSUITS
November 10, 2006
Alleged Copyright Infringement: Jodi Cobb v. Geisha House
Jodi Cobb, a photojournalist, recently filed suit against the LA restaurant, Geisha House, alleging that the restaurant used the picture from the cover of her book Geisha: The Life, the Voices, the Art (seen on the right at the top). A
llegedly, Ms. Cobb’s picture was used in the restaurant’s signage on Hollywood Boulevard (seen on the right at the bottom), on business cards, matchbooks, menus, and even chopstick holders. The Geisha House argues that it is not the same photograph.
The restaurant stated that they wanted to use Cobb’s picture however, her licensing fees
were too high. Instead, the restaurant argues that they created their own version of Cobb’s picture. It appears that the restaurant may have been trying to assert the defense of independent creation by arguing that they independently created the work. However, according to Nimmer on Copyright, evidence of access and substantial similarity are sufficient to create an inference of copying. It seems to me that the Geisha House may be in a bit of Geisha-trouble.
Posted by Emily E. Campbell at 03:36 PM.
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IP LAWSUITS
November 02, 2006
Flickr Interestingness Rankings Patents Released
Over at the SEO by the SEA blog, William Slawski has posted on newly published patent applications filed by Yahoo convering an implementation of the concept of “interestingness search.”
There is a pretty good exchange in the comments between William and Thomas Hawk – a celebrated photographer on the Internet and someone who is directly involved with the Zooomr web photo service.
Zoomr is a direct competitor with Flickr, which is now owned by Yahoo. Presumably Zoomr may have some issues if the patents are ever issued. As a word of caution to Thomas (and all other bloggers out there) – I would be very careful in what you say about your technology and when/how/who it was developed. All of your comments could be used as admissions down the line.
Anyway…
While the discussion between Thomas and William follows the typical “software patent discussion framework”(TM) of outrage, more outrage, denial, and chest thumping about how “Person X, Y, Z” came up with the idea 1, 2, 4 or 100 years ago… I was pleased to notice that William and Thomas actually took some time to thoughtfully discuss what Yahoo was trying to do with its patent applications and how they fit in with the overall search and photo-sharing market out there.
My only quarrel with their discussion: like all that fall within the “software patent discussion framework”(TM) — they failed to look at the actual claims of the patent and instead debated the description that the inventor drafted. Once again – it is the claims that control the scope of the patent, not the description directly.
All discussion of patents or patent applications should start first and foremost with the claims… it is the claims that control.
As a taste of what to expect over at SEO by the SEA:
Flickr Interestingness Rankings Patents Released
posted @ 2:17 am in [ Social Search ] by William Slawski
I’ve posted some pictures to Flickr, but I’ve never really paid much attention to the “interestingness” rankings the site uses.
Interestingness and clustering were first used in August of last year, as announced by Stewart Butterfield on the Yahoo Search Blog and the Flickr blog.
Blog posts about Flickr’s interestingness, and a February Flickr forum post on changes to the interestingness rankings, show a lot of interest in the “secret sauce” on how photos are determined to be interesting. A couple of patent applications were published by Yahoo this week that delve into interestingness rankings, clustering of pictures, and metadata associated with Flickr images.
Posted by Douglas Sorocco at 12:32 PM.
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IP LAWSUITS
October 16, 2006
Starbucks v. Starpreya: The Branded-Beverage Battle
First off, does anyone know how to say “Grande Soy Latte with Sugar-Free Hazelnut” in Korean?
On Wednesday, South Korea’s patent court ruled against Starbucks in a trademark infringement suit against Elpreya. Elpreya, a Seoul-based company, was established in 1999 and operates about 40 coffee shops mostly out of roving trucks (similar to ice-cream trucks). Elpreya sells its products under the brand name Starpreya.
Kim Woo Ki, chairman of Elpreya, stated that the brand name Starpreya was derived from the name Freja, a Norse goddess. He stated that Starpreya has nothing to do with Starbucks and that the letters of the name Freja were changed to make it easier for Koreans to pronounce.
Starbucks claimed that consumers confused the Starpreya-branded products with its corporate and brand name. The Korean Intellectual Property Tribunal disagreed and held that the marks were too dissimilar to be confused.
Starbucks Korea opened its first store in South Korea in 1999 and currently operates 177 stores. This is not Starbucks first bout with Elpreya. Last year the Starbucks filed suit against Elpreya arguing that their logo, a woman’s face within a green circle, was too similar to the symbol of Starbucks. The court rejected Starbucks’ claim that the marks were too alike, noting the mermaid versus goddess distinction.
What are your thoughts? Does the mark Starpreya infringe the mark Starbucks?
Posted by Emily E. Campbell at 09:46 AM.
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IP LAWSUITS
October 08, 2006
the definition of 'pro se' is fairly broad
In a recent case before the Federal Circuit – In re Martin G. Reiffin – the Federal Circuit went to great lengths to excuse the form and substance of the appeal due to the fact that the appellant was “pro se”.
For those who don’t know, ‘pro se’ means “a person who does not hire a lawyer and appears for himself/herself in court”.
So, you would assume that there was no lawyer involved in the appeal – well, you would assume wrong.
It turns out that the appellant himself – i.e., Martin G. Reiffin – is an attorney at law (New York Bar admission is marked as delinquent), a registered patent attorney and previously worked for IBM as a patent attorney. In fact, Mr. Reiffin was quoted in a Wired magazine article in 1998 about his lawsuit he was bringing against Microsoft for patent infringement. When asked why he was suing Microsoft, he responded:
Virtually all commercial software on the market uses multithreading - which allows two or more sets of operations to be executed simultaneously in a single program - but Reiffin says he's suing Microsoft "because they have 90 percent of the market."
"They asked Willie Sutton: 'Why do you rob a bank?' And he answered, 'Because that's where the money is,'" said Reiffin, a former IBM patent attorney who says he retired after his hobby of tinkering with hi-fi amplifiers turned him into a multimillionaire.
Did the Federal Circuit erroneously go easy on Mr. Reiffin? Some might say yes… but considering that the Federal Circuit invalidated all of the claims in Mr. Reiffin’s patent on computer hyperthreading (U.S. Patent No. 5,694,603) – it doesn’t look like Mr. Reiffin got off all that easy.
Posted by Douglas Sorocco at 06:31 AM.
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IP LAWSUITS
October 05, 2006
Oyez! Oyez! Oyez!
We’ve done it again! Yes, that’s right, we’ve discovered yet another way to cure your boredom blues. But seriously, this is actually interesting stuff. When you get a chance, check out www.oyez.com. Oyez® provides access to over 2,000 hours of Supreme Court audio, biographical information about the justices, and a virtual tour of portions of the Supreme Court building including the judges chambers.
I first learned of Oyez® in my constitutional law class when my professor played audio clips of oral arguments from several first amendment cases. In addition to first amendment cases, Oyez® offers a variety of other cases including several noted patent, trademark, and copyright cases.
If you are curious where the term Oyez comes from or want to know other facts about Oyez®, you can check it out here. F.Y.I., the phrase “Oyez! Oyez! Oyez!” (AKA “Here ye! Here ye!”) is used by a court marshal to introduce the opening of the court.
Posted by Emily E. Campbell at 04:25 PM.
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IP LAWSUITS
July 24, 2006
Marshall is back on our radar
My plans for giving lawyers things to do while in Marshall, Tx may have just been trumped by Johnny Taylor. After seeing the amount of lawyers flocking to his small town, Johnny saw an opportunity and went with it. His website, MarshallOfficeSpace.com is tailored to legal professionals and gives information beyond the available office space in town. So far there are only a couple of advertisers listed, but it sounds as if the site is in for expansion and may be worth taking a look at if a visit to the Eastern District of Texas Federal Court is in your future.
Posted by Laura Wood at 12:00 PM.
Permalink: Marshall is back on our radar
IP LAWSUITS
July 23, 2006
as martha would say, patent infringement is not "a good thing"
Incorrect naming of inventors on a patent is “not a good thing” — the curse of Martha appears to not be letting up on 
ImClone (which experienced strong revenue growth last quarter.)
Complex biomedical research leads to complex determinations of individual contribution: questions of inventorship and ownership often arise at very inopportune moments – for example, when a licensee appears, when tenure is debated and so forth. Many researchers view patents in the same light as journal articles – the more contributors listed as authors, the merrier.
Unfortunately, such a cavalier attitude can result in the invalidity/unenforceability of any patent that issues with an incorrect naming of inventors and especially with regards to joint inventors (which is covered by 35 USC 116).
In the U.S. patents are issued in the name of individuals and not to corporations/assignees as is the case in many non-US jurisdictions. Incorrect naming of inventors goes against the specific outline of patent protection set forth in the Constitution “…by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Constitution Art. I, Section 8
ImClone System Inc., the company at the heart of the Martha Stewart stock scandal, is finding this out the hard way while being embroiled in a “bitter patent dispute that threatens its bottom line and has led some world-renowned cancer researchers into a courtroom for a highly unusual showdown.”
Judge Naomi Reice Buchwald, of the U.S. District Court for the Southern District of New York, is deciding who is the rightful owner of a patent used for ImClone Systems Inc.'s blockbuster cancer drug Erbitux. The case no is 1:03-cv-08484-NRB entitled Yeda Research v. Imclone Systems, et al.
According to the complaint (which is unfortnately not available on the court’s electronic database), a team of three esteemed scientists from Israel who pioneered a cancer treatment technique claim a former colleague stole their idea and was credited on a patent now owned by Aventis Pharmaceuticals Inc. and licensed to ImClone.
In the 2003 suit, Yeda Research and Development Co. of Israel sued ImClone -- which has an exclusive license for the formula used in Erbitux to inhibit tumor cells -- and Aventis, claiming three of its researchers should be named as the inventors. The current patent names Dr. Joseph Schlessinger, Chairman of Pharmacology at the Yale School of Medicine, as the inventor along with six others, three of whom even the defense has agreed do not belong on the patent.
You know that things are not looking good for you when the judge “telegraphs” her intentions in the case. For example, according to the MercuryNews article:
Several times, the judge indicated she believed ImClone and Aventis should have settled when Yeda approached the company before trial to seek a deal. ``I cannot decide this based on what the economic consequences may be. That's the risk you take when you don't resolve it,'' she told the Aventis lawyer.
She seemed poised to at least put the Weizmann scientists on the patent, telling one defense lawyer: ``One might wonder why you didn't put the Weizmann people on your patent in the first place.''
Hmmmmm….. That is a pretty clear sign of which way the judge is leaning and I would expect that there would be some serious settlement negotiations going on right now. Moral of the story – spend some time when determining inventorship: you don’t want the curse of Martha to show up now – would you?
Posted by Douglas Sorocco at 12:12 PM.
Permalink: as martha would say, patent infringement is not "a good thing"
IP LAWSUITS
July 20, 2006
stem cell patents in jeopardy...
With stem cells grazing the headlines again, it was only a matter of time before patents entered into the debate. So is it the President or the patents that are holding back stem cells this time?
According to the Foundation for Taxpayer and Consumer Rights (FTCR), patents held by the Wisconsin Alumni Research Foundation (WARF), are holding back stem cell research. The patents were awarded to University of Wisconsin researcher James Thomson, who you may remember from the Time magazine cover in 2001. James Thomson was credited with the first successful isolation of human embryonic stem cell lines in 1998 that led to three separate patents now under scrutiny. The FTCR claims two of the patents are invalid because they cover techniques published back in a 1992 Australian patent and that a 1990 paper and two textbooks render Thomson’s stem cell work obvious.
Of course the FTCR wants the patents declared invalid, as does every for-profit researcher in the country because of WARF’s licensing fees. Yet WARF is hardly holding back stem cell research in protecting their patent. In fact, WARF provides free licenses and cells to over 300 non-profit research groups. However, WARF says if you are going to use the technology “commercially” then not surprisingly, they want a cut of the profits.
What is the most surprising is that James Thomson can find himself on the cover of Time magazine in 2001 with a caption that reads, “The man who brought you stem cells is one of America’s best in science and medicine,” but 5 years later his research and work is thought of by others as obvious. Interesting….
Posted by Laura Wood at 05:39 PM.
Permalink: stem cell patents in jeopardy...
IP LAWSUITS
June 26, 2006
I guess size DOES matter
The Eastern District of Texas is one of the first out of the gate in the eBay permanent injunction race with the z4 Technologies, Inc. v. Microsoft decision. Using the four-factor principles of equity test for patent permanent injunctions set out last month in eBay, the Court determined a permanent injunction against Microsoft was not necessary and that monetary damages were sufficient to compensate z4 Technologies.
In reading the opinion, it seems that a majority of the Court’s decision revolves around the fact that z4's Technologies patented invention is only a "small component" of Microsoft’s product. Two of the four factors use this "small component" language.Regarding the first factor, in determining whether z4 Technologies will suffer irreparable harm from Microsoft using their patented invention, the Court stated z4's small component in the overall Microsoft product doesn’t deter others from licensing the small component from z4 Technologies. The only harm z4 Technologies really suffers is being able to sell or license directly to Microsoft.
In the second factor, whether monetary damages are considered an adequate remedy, the Court cites Justice Kennedy’s concurring opinion in eBay stating in situations where the invention is but a small component, legal damages may be sufficient for compensation and an injunction may not serve the public interest.
So here is where it gets tricky, although it is only a "small component" in satisfying the first and second factors of the four-factor test, the Court then agrees with Microsoft for the third factor that taking out this "small component" may follow the hypothetical potential hardships set out by Microsoft that borderline on an economic meltdown. It is curious how such a "small component" can have such devastating effects.
Finally, regarding the fourth factor of public interest, the Court states that it "is unaware of any negative effects that might befall the public in the absence of an injunction." However, there is one giant "negative effect". One of the real promotions of the useful arts is in the full disclosure of ideas for a limited monopoly that spurs others to improve upon ideas in order to secure their own monopoly. Microsoft didn’t improve upon the idea, they just used it, and willfully at that.
Condoning this patent parasite behavior that in essence sucks the life blood out of a patent (i.e. the right to exclude others from making, selling, etc.), is a negative effect for the public regardless of how successful Microsoft is at implementing z4 Technologies’ "small component". Scary thought, but is the Court giving the go ahead to infringe valid patents as long is there is money and means to be successful at it?
The courts really need to evaluate what promotion of the useful arts actually is. Promotion of the useful arts doesn’t necessarily come about just because the product can be held in the hand, and the public’s only benefit from an invention isn’t just its physical use. The knowledge is given to the public for a reason. Full disclosure of an idea in a patent allows other to improve upon the idea. Injunctive relief should be following an improve it or lose it theory. Microsoft didn’t improve upon the "small component," so they should have to lose it in their product.
Posted by Laura Wood at 09:45 AM.
Permalink: I guess size DOES matter
IP LAWSUITS
June 13, 2006
Rethink(IP) Announcement: New Weekly Newsletter Covering Trademark Litigation
The fine folks over at Rethink(IP) (ok – it is Steve, Matt and I) announce a new service based upon our highly successful “lawsuit filing” email subscription service.
The fact that a lawsuit has been filed can be an incredibly valuable piece of information, especially in the practice of trademark law. To wit, Rethink(IP) has released a new weekly e-mail newsletter. Called Trademark Lawsuit Mojo, the newsletter consists of a list of Federal trademark lawsuits that surfaced in the previous week.
Why is the existence of a lawsuit being filed such a valuable piece of information?
First, the defendant might not know that he/she/it has been sued!
Your company, or your client, might have no idea that a lawsuit has been filed. How can this be? Remember that in the United States, a plaintiff has 120 days from the date of filing to serve a Complaint upon the defendant(s). To reserve a preferred venue/forum, many times a plaintiff will preemptively file the suit and not serve the Complaint, spending up to the next 120 days putting their case together, acquiring additional evidence, and (sometimes) attempting to settle the dispute.
Knowing that your company or client has been sued (but hasn't been served) can be priceless information when counseling them. How's that for a valuable "heads up?"
Second, the filing of a lawsuit can also be a valuable piece of competitive intelligence.
Knowing that competitor X just sued competitor Y may change discussions you're having with competitor X, Y, and/or A! It could also help in decision-making on several issues, such as marketing and product development. Best of all, it may allow you to monitor the case for information that might be helpful in a variety of situations.
As one reader recently put it:
I subscribed last week and already impressed a client yesterday by being aware of a lawsuit filed by one of its competitors.
You can subscribe to Trademark Lawsuit Mojo using one of the below links. Current rates are $99.99 a year or $9.99 a month. The first three weeks are free (free trial). After the free trial expires you can decide whether you would like to continue your subscription.
We don't expect any of us will be quitting our day jobs anytime soon … commercialization of this project (and eventually Copyright and Patent newsletters) is done to fund the “Rethink(IP) Projects Account” and let us provide additional cool tools and services to the legal community. Apparently computer programmers don’t work for free.
Please contact Stephen M. Nipper at steve@rethinkip.com for additional information.
| $99.99/year | |
| $9.99/mo |
Posted by Douglas Sorocco at 04:48 PM.
Permalink: Rethink(IP) Announcement: New Weekly Newsletter Covering Trademark Litigation
IP LAWSUITS
May 29, 2006
Recently on Rethink(IP)'s RSS Mojo Blog
- Listings of recently filed IP Lawsuits
- Trademark Lawsuit Filing Update (through May 27, 2006)
- Patent Lawsuit Filing Update (through May 27, 2006)
- Copyright Lawsuit Filing Update (through May 27, 2006)
- Trademark Lawsuit Filing Update (through May 21, 2006)
- Patent Lawsuit Filing Update (through May 21, 2006)
- Copyright Lawsuit Filing Update (through May 21, 2006)
- USPTO Notices:
- Patent Prosecution Highway Pilot Program between the United States Patent and Trademark Office and the Japan Patent Office (signed 22May2006)
- Notice of Collection of Practitioners’ E-mail Addresses
- Commerce Deputy Under Secretary to Address Midwest Businesses On U.S. Government Efforts to Combat Counterfeiting and Piracy in China
- USPTO Exam Guide for Geographical Indications Used on Wines and Spirits
- Request for Comments on Patents Search Templates (16May2006)
- Commerce Deputy Secretary to Speak at USPTO's Community Day
- U.S. GOVERNMENT BRINGS ANTI-COUNTERFEITING AND PIRACY PROGRAM TO OHIO
Posted by Douglas Sorocco at 10:58 AM.
Permalink: Recently on Rethink(IP)'s RSS Mojo Blog
IP LAWSUITS
May 11, 2006
Abe Lincoln was a Patent Troll?
I guess he could be – he didn’t commercially exploit his patented technology, afterall.
That “patent troll” definitional thing is a bit tricky when you actually think about it.
But who is and who isn't exploiting the system is a grey area. Abe Lincoln obtained a patent, noted Brian Halla, CEO of National Semiconductor. He got it for inventing an inflatable pontoon that helped boats get past sandbars and other obstacles on canals. It's patent number 6469--see reference here.
via Abe Lincoln: patent troll? | News.blog | CNET News.com.
Posted by Douglas Sorocco at 09:11 PM.
Permalink: Abe Lincoln was a Patent Troll?
| Comments (2)
IP LAWSUITS
May 07, 2006
universities as patent trolls?
Ahh… someone finally put into print what a lot of us patent practitioners have wondered for awhile – when would someone claim that universities are patent trolls?
The managing director of the Wisconsin Alumni Research Foundation – i.e., WARF – does a nice job battling the inference, but still – it does seem to be a narrow line one must walk to avoid the obvious connection.
Carl Gulbrandsen, managing director of WARF, takes it a step further. Patent trolls "don't exist. Trolls are imaginary creatures," Gulbrandsen said. "I think the whole issue is overblown."
WARF, a middleman organization that owns patents on discoveries made at the UW and licenses them, could be considered a patent troll under some definitions, he said.
"Patents are a piece of property. To say that it's wrong that a company acquires property and then expects to be paid for use of that property, I think, is a pretty simplistic approach," Gulbrandsen said.
Once again, those who seek to define the phrase “patent troll” better use carefully crafted language – the company/institution/individual/innovator you love today, just might be the patent troll of tomorrow.
Posted by Douglas Sorocco at 05:00 PM.
Permalink: universities as patent trolls?
| Comments (8)
IP LAWSUITS
April 28, 2006
The Marshall Metropolis
I am very happy that Doug and Matt have forced me into a blogging career (this is even despite the giant picture of me posted below). In fact, for the past few years it seems I have been a traitor to my generation by failing to start my own blog or even open a MySpace account. Because you only have your first blog once, there was enormous pressure on what subject to cover. All in all, it became clear that my first subject had to be the one subject near and dear to my heart....Texas.
It is amazing what an infestation of patent litigators can do to a sleepy east Texas town. Attorneys from all over the world are crawling into the Marshall federal courthouse to try their luck in big time, high dollar patent cases and big media (i.e. the Austin American Statesman) is starting to take notice.
U.S. District Judge T. John Ward is the head honcho spurring the cattle drive of cases through the system. The hype of the Eastern District of Texas is growing so big you can now check out a blog strictly devoted to its issues with an almost daily update providing a who’s who (or at least who’s right now) of patent litigation. Is Marshall being booked faster than Vegas because of accommodating juries siding with the little guy? Or is this gold rush all for its rocket docket?
Regardless, I am on a mission to help my fellow attorney who is right now shacking up at the local Motel 6 in Marshall. This past week I contacted several Texans I know and asked them to provide personal knowledge of things to see and do that could not be found on the Internet or in guidebooks. Two of the most frequent responses were "are you proposing that there are actually guidebooks for Marshall?" and "does this mean you are moving back to TX?" Answer for both, no. What I have done is scrape together a fun filled Marshall itinerary for Mr. or Ms. P. Litigator to use when it is not possible to drive across the border into Louisiana and catch a flight out.
In order to start your day off right, head over to Southern Maid Donuts off of Highway 80. Although not part of the national chain, this place is known for their kolaches and it is a must for any visitor. Once you are full, move on to Marshall Pottery, known as the number one producer of red clay pots in America. Don’t go diggin’ into your 401(k) there, because it’s time to take a mini gambling road trip to Shreveport (less than an hour away...and that’s dangerous). Before leaving Marshall though, fill up on lunch with the HUGE burgers served up at Jucy’s on Highway 80 just east of Highway 59.
Your other options for the afternoon are cruising the local mall, (noted by one response as "dead, but still a mall"), or checking out the local Supercenter to answer the question of whether all Walmart’s look alike on the inside. Also, the movie theater boasts very cheap tickets which may surprise some big city attorneys.
Follow up your afternoon with dinner at Lupe’s Mexican Restaurant on Highway 59 between Highway 80 and the mall. Be sure to ask for Shirley and tell her hello from Roni and me.
If Marshall continues to be this hotbed of patent activity, you may see my face around the courthouse. If so, let’s meet for a beer, and I will fill you in on the many other places to see and be seen. Until then, you are on your own.
Posted by Laura Wood at 12:30 PM.
Permalink: The Marshall Metropolis
| Comments (2)
IP LAWSUITS
April 18, 2006
Trying to Burst the bubble - Just another troll?
So last week we asked ya'll to give us your best shot at a litmus-test definition for the term "patent troll." It's an understatement to say that the response was somewhat underwhelming. We received a grand total of......zero definitions.
We've decided to take that as an indication of the difficulty associated with defining the term and not a statement about the readership of the blog (which, for the record, is reaching all time highs right now).
We do believe that the issue is important enough for a follow-up, though. How about a real life example?
Check this out - Burst.com recently filed a patent infringement suit against Apple Computer. The patents at issue relate to technology that speed the delivery of data, including audio and video files, over a network.
We've got a question for you. A simple one. Is Burst.com a patent troll?
Wait...don't answer. Consider a few facts first:
The company has two (count 'em, 2) employees and a portfolio of ten (count 'em, 10) U.S. patents. It routinely asks companies to license its patents, and sues them if they don't. It focuses on software and high-technology companies for some reason (must have something to do with the fact that the technology relates to that area). Just last year, it successfully settled a dispute with Microsoft for a reported $60 million.
Hmmm...smacks of a patent troll by most definitions, right?
Consider this description from the company's web site:
The company focuses exclusively on licensing activities and strategic relationships.
(emphasis is ours)
Are you serious? An exclusive focus on licensing and strategic relationships? Does that mean they don't actually produce anything? (based on the web site, it's hard to tell if any "products" are available from the company at this time)
Surely there must be a bridge running over the Burst.com headquarters in Santa Rosa.
But, don't answer the question yet...Here's a few more facts:
According to a recent article in BusinessWeek, the Microsoft settlement reportedly earned the lawyers a fee of about $20 million. That lawsuit was apparently financed by "an investor." Oh, and the company openly states that its goal in the Apple lawsuit is to seek a chunk of the growing revenues for online music distribution.
A troll for sure, right? These guys are Pure Evil. Damn trolls.
Humor me, though. Don't answer yet. As Lee Corso would say, "not so fast, my friend."
Here are a few more facts that you should consider:
The founder of Bust.com is recognized by many as a true visionary in computer network technology. He's an inventor. His technology apparently wowed the crowd at the Consumer Electronics Show in 1991. He had invented improved methods for transmitting data over computer networks long before large video and audio files were of concern to the masses. The company was once viewed as a real tech startup success story, and had even grown to include 110 employees in the late 1990's.
But when Microsoft upgraded its Media Player software, Burst's product, Burstware, stopped working. Strange. Payroll shrank immediately from 110 to 4.
Ok...now give us your answer (or keep it to yourself, we don't care...just try to answer the question). Is Burst.com a patent troll?
Or is it just an angry innovator seeking to protect its property?
Do you see the challenge?
Posted by J. Matthew Buchanan at 10:40 AM.
Permalink: Trying to Burst the bubble - Just another troll?
| Comments (10)
IP LAWSUITS
March 01, 2006
bundling of patented and unpatented products - supreme court narrows antitrust concerns
Just a quick post to get this news up and out – more to follow:
March 1 (Bloomberg) -- The U.S. Supreme Court put new limits on antitrust suits against patent holders in a decision that gives companies more power to bundle products for sale to customers.
The court today ruled in favor of an Illinois Tool Works Inc. unit in a suit that seeks to bar the company from forcing purchasers of its patented industrial printheads to buy its ink as well. The justices said a lower court shouldn't have presumed that Illinois Tool Works's patents gave the company ``market power,'' which under federal antitrust law would limit its ability to bundle products.
Posted by Douglas Sorocco at 10:59 AM.
Permalink: bundling of patented and unpatented products - supreme court narrows antitrust concerns
IP LAWSUITS
February 17, 2006
nike and adidas are posting up
March Madness has come a little early to Texas.
Nike has accused Adidas of infringing patents held on its “Shox” cushioning technology – a technology that Nike
claims has taken “16 years to develop and is covered by 19 separate patents.”
In the complaint (PDF version 16kb) for patent infringement, Nike alleges that the new Kevin Garnett shoe by Adidas (among others) violates one or more claims of Nike's U.S. patent No. 6,487,796 entitled “Footwear with lateral stabilizing sole”.
For those of us who do not spend a lot of time in athletic shoe departments, “Shox” are the stubby rubber columns, usually in groups of four, that make up part of the sole of some of Nike’s new shoe line. They are designed to absorb impact on the heel while running as well as add more power to a runner's stride.
Posted by Douglas Sorocco at 08:59 PM.
Permalink: nike and adidas are posting up
| Comments (1)
IP LAWSUITS
January 29, 2006
maybe RIM vs ntp isn't what you thought
Maybe, just maybe, RIM versus NTP isn’t about the evil patent trolls after all…
Posted by Douglas Sorocco at 02:50 PM.
Permalink: maybe RIM vs ntp isn't what you thought
IP LAWSUITS
January 28, 2006
rep. tom davis demands uspto quality improvements - what has RIM wrought?
Rep. Tom Davis (R-Va.) asked the director of the U.S. Patent and Trademark Office on Friday if the controversy over who controls the patents for Research in Motion (RIM) BlackBerry technology indicates that USPTO needs to reform how it examines patent applications, according to a press release (PDF Version).
“In today’s fast-moving world, America’s economy and our ability to compete in a global marketplace are dependent on an efficient and competent system to bring new technological developments to the consumer market,” Davis said in a press release. He is chairman of the House Government Reform Committee.
In a letter to USPTO Director Jon Dudas (PDF copy), Davis questioned whether the agency needs to refine the patent process. Davis added that he is ready to help improve the process.
“If adequate resources were utilized to determine the initial validity of the patents, this controversy could have been avoided,” he wrote in the letter. “Additionally, if RIM’s re-examination requests had been acted upon more expeditiously, the current uncertainty could have been resolved long before it threatened critical service to the government and consumers.”
“The current patent controversy involving BlackBerry service is but one signal that our economy and ability to compete in a global economy are dependent on an efficient and competent system,” Davis wrote. “A vital component of that system is a well-funded and efficient Patent and Trademark Office.”
The answer is pretty simple actually, Congressional appropriators have to stop raiding the excess fees (i.e. the “inventors tax”) raised by the USPTO and instead let them be used for improving service, quality and examination time. Simple solution – hard to carry out.
Posted by Douglas Sorocco at 01:35 PM.
Permalink: rep. tom davis demands uspto quality improvements - what has RIM wrought?
IP LAWSUITS
September 21, 2005
"Cheap" Logo Design Can Be Costly
Today, I came upon the boingboing post Logo rip-offs, which links to an internal page on Bad Design Kills. The page, titled LOGOWORKS.COM RIP-OFFS, shows several logos that are suspect from a trademark view. 
For example, the logo on the right looks strikingly similar to the one on the left. According to the sources I could find on the internet, the one on the left was created by the discount logo designers at logoworks.com.
This caused me to think about the liability of the designers for trademark infringement. I looked to their Terms and Conditions of Use and discovered that "no trademarks or service marks . . . are being conveyed." Unfortunately, the design firm is not responsible for any kind of trademark clearance. This would likely be true even without such a disclaimer.
While I believe that the "copycat" designers may have a copyright problem, I think they're probably okay when it comes to trademarks. They are not using the mark to sell similar goods. Rather, they're selling the mark itself.
The moral of the story: Call your favorite trademark lawyer before using a new logo, especially if the logo comes from a discount designer.
Posted by Melody Wirz at 02:43 PM.
Permalink: "Cheap" Logo Design Can Be Costly
IP LAWSUITS
September 19, 2005
Fate of Redskins Trademark Registration Still Uncertain
The good folks over at IP News Blog point out Court Revives case against Redskins. The Court of Appeals for D.C. reissued the opinion earlier this month.
The court reversed the lower court ruling on the issue of latches