Archive for October, 2008

Halloween!

Halloween is my favorite day of the year, so instead of talking about depressing litigation, school, or politics, I am going to pay homage to the wonderfully wicked day.

Halloween-ish holidays are celebrated in many countries around the world and each has its own customs.  In Germany, people put away their knives to avoid attacks from spirits. In Hong Kong, people pay respect to their ancestors by visiting their graves with rice and fruit. In Austria, people leave bread and water on their table to welcome back the spirits of their ancestors.  And in the US, people dress up and get drunk.

So get out there and celebrate Halloween like a true American!

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DIY Debt Diversion

My dream is to live abroad and now I have one more reason to make that a reality. As everyone knows, student loans are a cement block that drown recent graduates, and as a person earning my JD and MBA, I will be no exception.

The traditional options for dealing with student loans are defer, pay, default, or die. I could stay in school forever and continue to defer my loans, I could pay $150,000, I could face the wrath of a collection agency, or I could die. None of those seem too appealing, so I found a more enjoyable solution: moving abroad.

With an international address, not only would I be spending my days strolling the Champs-Elysees, I would also be more difficult and expensive to find. To collect my payments, a collection company would have to hire international counsel or a third party debt collector, either of which would reduce their profit and, therefore, their incentive to find me.

I could never return to the US, but considering the current state of things, especially if Gramps and the Tramp (as my mom calls them) win, who would want to?



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McCain Claims YouTube Too Diligent

McCain has accused YouTube of complying with copyright infringement notices about the news clips used in his advertising campaigns. McCain claims YouTube is blindly pulling down his videos for which it receives copyright violation notices without first performing a fair use analysis to review the legal merit of each notice.

As YouTube responded, this is logistically impossible because the evaluation of the fair use doctrine is complex and unpredictable, and each notice would need to be analyzed by a skilled attorney. Even then, because of the subjective nature of the doctrine, no attorney could guarantee with a high level of certainty that the outcome would fall in favor of fair use.

The fair use doctrine consists of four subjective factors to be weighed at the discretion of a judge:

  1. The purpose and character of the use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use on the potential market for or the value of the copyrighted work

McCain claims his campaign videos are fair use because they are noncommercial, factual, brief, and do not affect the market for the allegedly infringing material. While this could possibly be one outcome, YouTube’s potential $1 billion check to Viacom for copyright infringement motivates YouTube to play it safe.

For YouTube, its response to the infringement notices was a simple business decision. The Digital Millennium Copyright Act provides a safe harbor for companies like YouTube if they take down the potentially infringing material.

Why would they risk another lawsuit?



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Palin’s Path of Destruction

Poor Palin. Looks like she has caused a lot of trouble for her favorite little retail store in Anchorage, Out of the Closet. Her remark in a recent interview was noticed by the AIDS Healthcare Foundation who has used the mark ‘Out of the Closet’ since 1990 for its non-profit retail stores, and received a federal trademark in 1997. Gosh darn, looks like another infringement case!

If the store folds due to litigation fees and the bad economy, where will Palin buy her Escada and St. John when she’s back in Anchorage after November 4th?

$2,500 Valentino jacket worn at the Republican National Convention

Maverick McCain Rounds Up Amy Poehler

My journalistic debut: The John McCain campaign is benefiting from the use of AmyPoehler.com because the domain has been redirected to the Republican’s homepage. I call shenanigans!

I discovered this evil infringement while trying to find more information about Amy’s delivery last night. This type of use of another’s trademark is intentionally deceiving to internet users, and constitutes a hijacking of the SNL comedienne’s common law trademark and the goodwill associated with it.

Through a simple WhoIs search, I found that the domain name is owned by Glen Jardine of Lyndonville, VT. You can easily find the phone number and home address of the same Glen Jardine (allegedly) in a Google search, in case you are interested in voicing your protests.

Just two months ago, McCain said he did not know how to use the internet….guess other people are using it for him.




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Temptations and Procrastinations

So far, I have spent the entire day in my pjs sitting at my desk. While my husband went out to have a day with the boys and my dog slept on the sofa, I labored over my accounting book* and tried to avoid the evil electronic temptations in the household. Considering my constant craving for communication and the isolating study environment, I considered it a successful afternoon. I managed to minimize my email checking and facebook stalking to about once an hour, made one phone call, and watched no television. All I can say is this sacrifice for the Periodic Inventory System and the Present Value of an Ordinary Annuity better be worth it.

*I’m studying accounting because I am actually a JD/MBA student. I know….what was I thinking?


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Caution: Exams Approaching

First of all, I am so excited that I got 9 views yesterday. Now just multiply that by 50 and I will have a real blog on my hands. 🙂

Sorry for my sarcasm, but I am at the point of the semester where I get stressed and cranky. I am over half way through and can see my final exams looming on the horizon. At this point, I start remembering I am not as smart as I once thought, I have reading to catch up on, and I haven’t done as much “extra” work as I had originally planned.

That is the best part about law school: you are expected to go beyond the reading assignments and read the cases referred to in the cases, complete hypos from the Examples & Explanation books, talk to the professor, and work in study groups. If you hate the reading topic, too bad. Be prepared to read some more and talk about it up to and after class.

Anyone else stressed and need to vent? Anyone else even out there?


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No Kisses from Hershey

Apparently Hershey has no sense of humor when it comes to its intellectual property. Art Van is holding a contest where viewers can vote for a new design on its trucks. One of the designs, seen below, has received a less than sweet response from Hershey.

Hershey claims this “unauthorized use of the Hershey’s trade dress is likely to cause confusion and mistake and to deceive the public.” Art Van, which has since changed the wrapper from brown to red, is surprised by the lawsuit. Art Van claims it was a parody, which is permitted by the fair use doctrine.

A parody is a transformative work; one that recalls the original work and then comments on it. Using my yarn spinning legal skills, I would say this is conveying the message that the delivery of a new sofa is a sweet treat, much like a candy bar. Yummy.

Update: A judge ruled in favor of Hershey, holding Art Van’s use as diluting Hershey’s trade dress.


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Google: Making Millions One Typosquatter at a Time

Google, the jolly search engine giant we all love, has once again been accused of profiting millions off the joe sixpack trademark owners trying to make a living in the internet marketplace. According to Harvard Business School professor Benjamin G. Edelman, Google makes an estimated $32-$50 million from AdSense ads posted on typosquatting sites. Typosquatting sites buy up domains deceptively close to company names, such as wwachovia.com and harverd.com. Through its AdSense program, Google displays ads on those pages and rakes in millions when users click on them.

These poor little companies, like Microsoft and Bank of America, spend millions of dollars developing the strength of their trademarks and depend on the stability and consistency of trademark law to ensure that their trademarks are safe from infringement. But did Google do anything illegal? Are these companies entitled to compensation?

In order to find infringement, the first step is to prove that Google “used” the marks in interstate commerce. But this is more difficult that is seems. 1800Contacts v. WhenU.com found that these types of practices are merely product placement, which can be found in any supermarket (i.e. when cans of Safeway brand tomato soup look similar to and are placed near cans of Campbell’s tomato soup.) However, 800-JR Cigar v. GoTo.com found that these types of practices are use because selling them in the marketplace allows defendants like Google to profit off someone else’s trademark and implies that they had permission from the trademark owner to use the trademark.

So, will our dear friend Google be found to have infringed? As any lawyer would say: maybe.


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Why the Hell Did You Go to Law School?


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