Category Archives: law

Internet Reaches New Stage of Permanence

There’s a lot of buzz around this decision (full pdf opinion – see pages 12-14) to allow archived web pages from archive.org into federal court, overcoming hearsay and authentication objections. This doesn’t seem very surprising to me, but I’m often reminded of the fact that people don’t realize that the internet leaves an electronic paper trail.
I occasionally get emails asking me to delete posts or remove names from Law School Discussion. I think these usually result from people typing their own names in Google and discovering that, yes, Google really was good enough to find what one published for the world to read. With archive.org, the web has a perfect memory. It remembers my poor design of Law School Discussion, and that of popular sites like Yahoo!. If a memory can be shown to be perfect, why shouldn’t it be admissible in court?
The lesson to this is that everyone publishing to the internet – including on blogs or message boards, should be aware that they’re leaving a permanent mark. You have the right to remain silent, anything you freely publish to the world can and will be used against you in a court of law.

Computers Aren’t Teddy Bears

The Trademark Blog reports on the September 13 Gateway v. Companion products 8th Circuit decision [pdf] in which Gateway prevailed in protecting their cow-theme trade dress from infringement by Companion’s product: a cow stuffed animal that stretches around one’s computer monitor. These look even more ridiculous than they sound.
The case reminded me of my first year contracts class. The professor asked someone what the box of a gateway computer looked like. He liked to ask things that weren’t actually in the case. The student kept describing the location of the license inside the box, the legally relevant fact, but the professor finally blurted out the answer he was looking for: “It looked like a cow!” (example) Gateway’s brand image wasn’t the topic that day, but that professor didn’t tend to ask about things that weren’t important. He was three years ahead on that issue.
Trade dress aside, is there no end to tacky computer accessories? First there were mouse covers (shaped like mice). Then stuffed animal dust rags. Now these stretch animals. Computers just aren’t fuzzy soft objects.

Is Kozinki a Cutie?

The 9th Circuit’s Judge Kozinski has been known for writing the more colorful of legal opinions. My first exposure to Kozinski’s writing was Andrews v. United Airlines:

We are called upon to determine whether United Airlines took adequate measures to deal with that elementary notion of physics – what goes up, must come down. For, while the skies are friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from overhead compartments.

You just can beat an intro like that… or can you?. If you think Kozinski is funny when on the bench, imagine what he’s like when he’s not bogged down by, you know, applying the law. What if Kozinski were to write a letter to gossip magazine? It would probably look something like this. (via bgbg)

Ridiculous Warning Labels

flammable warningWe’ve been reviewing torts for three days in my BarBri bar review class with Professor Robert Schechter from George Washington. Professor Schechter is greatly entertaining, and in today’s lecture he covered product’s liability and the warning labels that can help to absolve a defendant of strict liability in defective design cases. I did a quick search to find some the websites that Professor Schechter mentioned were devoted to funny product labels.
I found a lot of sites where people have made up funny warning labels. What’s the fun in that? “Wouldn’t it be funny if…?” No. What makes obvious warning labels funny is that they are (1) real, and (2) obvious. Those are the elements of funny warning labels. (Okay – I’ve been writing down a lot of two-pong tests lately.) I did find some sites that have actual references to real labels. M-Law seems to have the best collection because they host a contest for finding these things. Professor Andrew McClurg wants you to buy his book to read his favorite labels, but he has written a hypothetical joke label for your liability-free enjoyment.
I’ll never forget a label I saw in England on a jar of peanuts. For some reason, in England, food products have a “use within X days” label which is often an unreasonably short period of time. On the back of this huge peanut jar I was informed that, once opened, I should consume all of the peanuts within ten days. The company was apparently very fearful of liability, upon reading a little further down I discovered another warning: “Caution: this product may contain traces of peanuts.” I should hope so.

Trademark of Generic Pizza

pizza boxNot every business can afford to promote their products with excessive branding of all their packaging. This is the reason that many Asian restaurants in my neighborhood use a generic “Delicious Chinese Food” box despite that it’s contents are not necessarily Chinese or delicious. The same is true for the generic pizza box, which often proclaims something like “Fresh Piping Hot Pizza” regardless of whether its fresh or hot.
I saw something new in this realm last week when, after consuming a large amount of truly delicious pizza at a rather anonymous restaurant in Boston’s north end, I asked for a to-go box to take home some remaining slices. The box was not labeled with the name of the restaurant or the box maker, but strangely purported to establish trademark protection in its logo!
I think most trademark lawyers would agree with the USPTO’s one-line definition of a trademark: “A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”
The maker of this mark is not only allowing, but promoting the mark to be associated with all kinds of different pizza makers. Surely the association of the mark with a particular source is one of the fundamental requirements of trademark protection. What’s the source of this box?

Third Party Pop-Up Ads Article

My first published article reaches the printed page this week. You can now read the pdf version online. The article is intended to be an update on third party pop-up advertising litigation that has now become a widespread legal issue. Originally, I was just looking at the WhenU v. Uhaul case, which is the first pop-up case to reach a decision (summary judgment in favor of the pop-up advertiser). Things take a long time to get published though, and I had to constantly update the article as new decisions came down. The new decisions (preliminary injunctions only, no other final decisions) made things interesting; they seemed to go either way on almost exactly the same facts.
Thus, it’s an interesting issue to watch. I think my article is a good primer for the decisive months ahead.
You might also be interested in some of the other articles in the issue.

Perrier v. Terrier

As the trademark dispute between Windows and Lindows rolls on, hundreds of law students are becoming JDs. What is a school like Boston University teaching their graduates about changing the first letter of a famous mark? Check out this bottle of water, distributed by the thousands at the BU Law graduation ceremony:
Perrier water v. BU Terrier water
I doubt this would ever become a lawsuit, but I thought it was funny. I suppose the pronunciation difference could help BU’s argument. Props to Perrier for offering publicly useable images.

lexBlog Spurs Ethics Debate

A few days ago I reported on the launch of lexBlog, a new service for helping lawyers to establish blogs.
To me lexBlog’s value is that it gives non-technical lawyers access to an online presence. David Giacalone read a little closer and focused his attention on something I didn’t even notice about lexBlog: it would not only be providing online publishing and hosting services to lawyers but also providing content.
The debate over the implications of ghost written law content has since arisen on Giacalone’s site and spread to Denise Howell’s. It’s actually an illustration of blogging as discourse gone wrong – thoughts are scattered in so many places that it’s difficult just to piece together the various viewpoints (perhaps David Galbraith was right that blogs shouldn’t have comments). Worse, it seems that no one really knows the facts. Exactly what is Mr. O’Keefe planning to do?
Some of the dust has settled. O’Keefe has clarified that there will no ghost-written content (everything will be attributed to the actual author). That puts an end to one area of debate (or at least reduces it to a hypothetical). Whether blogs are good for marketing legal services is still an open question.
I think that a web presence is an important part of any enterprise. O’Keefe knows that blogs can be built to take advantage search engine optimization, that they’re focused on the king component of the web (content), and that they can help to establish reputation. I think it’s the reputation element that worries people. If the content writing is outsourced, the reader is getting a skewed view of the expertise.
Part of the trouble rests in the definition of a “blog”. If it’s supposed to represent a person (like this site – which by the way is meant to represent me in a personal capacity – not a professional one) then I think the content should be written by that person. If we define “person” the legal way – to include a law firm or law office – then I don’t see the harm in publishing whatever content the firm can obtain. The firm can produce an article for the web and maybe they can produce a good brief for the client. The internal workings (including outsourcing) don’t need to be made public.
That said, there must be accountability. I might not want to see how Hillshire Farms makes their delicious Polish Sausage, but I want to see the ingredients listed on the package, and I definitely want food inspectors in there checking things out. The same is true for web site content. I expect a certain amount of labeling (who wrote what) and I expect checks against misrepresentation of expertise. It doesn’t sound to me like O’Keefe plans to dodge either of these.
Giacalone has the latest discussion and more sausage analogies.

lexBlog Launches

lexBlog is a new company from Kevin O’Keefe that hopes make blogging accessible to all lawyers. Judging by their site, it’s a service aimed at non-techy lawyers to help them develop blogs as marketing tools. The idea seems to be to centralize design and production (back-end, hosting, etc.) and build a network of legal sites. It’s an interesting concept.
The company is apparently looking for law students to help get things started.