Wednesday, August 3, 2011
Wednesday, June 16, 2010
Vampires Sue to Protect Clothing
Apparently Summit, the studio behind the Twilight movies, is mortally offended that BB Dakota is seeking to sell a copy of the hoodie worn by Bella in one of the flicks, and has brought a trademark infringement lawsuit to enjoin the sale of the protective garment marketed (as one would expect) as the "Jacket Seen In Twilight." For the full details, see the story at EW.com.
Tuesday, June 15, 2010
Marathons Are My Business
I just got my annual email tickler from the Bank of America Chicago Marathon™ reminding me that registration is now open and that I only have 4 or perhaps 5 months before the 45,000 spots for runners will be closed. While I appreciate advance notice for a marathon that is not going to be run until October 10, 2010, the whole get-it-while-its-hot attitude toward marathon registration is a bit irksome if you are not one of those people who is inclined to plan their life eight months into the future. I am not one of those people, and my past is littered with the detritus of unfulfilled commitments to marathons. While I harbored good intentions, life waylaid me several times on the cusp of my start time with an assortment of obstacles – root canals, strep throat, injuries, psychic trauma – so now I squelch any inclination I have to fill up my calendar with races and marathons and adventure runs, knowing that I will inevitably miss a number of them despite my best intentions. Instead, I now prefer to commit to one marathon at a time, and decide what I’m going to run next after dragging my aching feet across the finish line in front of me.The great thing about running marathons these days is that you really don’t need to book them eight months in advance – if you simply do the electronic equivalent of shaking a stick you will be assaulted with a shocking variety of running options. I was pleasantly surprised to discover that there are now so many marathons being run that I have never heard of many of them. While I’d always known about the stalwarts — the Boston Marathon™, The San Francisco Marathon™, the Philadelphia Marathon™ – and could guess the names of others by simply sticking the name of a given city in front of the word “marathon,” the world is now populated with newly created gems such as the Michelob Ultra El Paso Marathon™, the Dicks Sporting Goods Pittsburgh Marathon™, and the Under Armour Baltimore Marathon™.
Brand name corporate sponsorship of marathons comes as no surprise, of course, but I find myself preferring races that have no overt affiliation with corporations. If I’m not getting paid to run the race, why should I want to compete in something that has no rhyme, no whimsy, no sense of humor? If I have to go corporate, then I demand something like the Rock ‘n’ Roll San Diego Marathon™, where I can forget about the pain briefly as a Van Halen cover band pounds out Jump at mile 11 and the Gatorade lady slips me a smile with my 3-oz Dixie cup and a packet of Gu.
What I’m really a fan of, though, are the quirky marathons with even quirkier names — the Twisted Ankle Trail Marathon™, the Wild Wild West Marathon™, the Cincinnati Flying Pig Marathon™, the Lost Dutchman Marathon™, Humpy’s Classic™, and the ever-popular (but not very populated) Extraterrestrial Full Moon Midnight Marathon™. Running is such an individual pursuit, involving the slim and the stout, the adolescent and the senescent, the energetic and the just-plain-pooped, that slapping a humorous name on what is a rather undignified pursuit seems appropriate. While the marathon may have its distant origins in myth and legend, few of the folks hobbling along at mile 13 could tell you that the marathon originated to honor a Greek messenger who perished after running to Athens to bring news of a Greek victory in 490 B.C. And even fewer could tell you that the original marathon distance of 24 miles was lengthened to 26.2 miles at the 1908 London Olympics so that the race would end in front of the royal family’s box. They would instead tell you that they are running to raise money for cancer, or for self-empowerment, or because a friend conned them into it, or to get over the death of a pet, or because they’re trying to lose weight, or because it was on their list of 100 things to do before they died. There are as many reasons to run as the throng of 45,000 that will charge around Lake Shore Drive this October can voice, all individual, all important, all ultimately deserving of a name that dispenses with pretense.
We run to honor Pheidippides, we throw in a few extra miles for the Queen, and sometimes we even go an extra mile by accident — as did those fortunate enough to run the 2005 Lakeshore Marathon™, where race planners accidentally added an extra mile to the course between miles 25.2 and 26.2 (officially making it the longest last mile ever run). Such is the marathon. Arbitrary, strange, devilishly appealing, more related to Monty Python than to Monte Carlo. Such an event is clearly deserving of all the silly names™ a man can devise.
The Secret of Nooks and Crannies
Occasionally I find myself laughing with delight at the foibles of trade secret law, where quite often it is actually the case that a serious, dour, pale attorney stalks raging down the halls in Brooks Brothers’ finest screaming imprecations about someone who has had the gall — the actual gall! — to attempt to misappropriate his client’s most treasured secret, be it the formula for Coca Cola (guarded under lock and key since 1894), KFC’s 11- herbs-and-spices recipe (handwritten by Col. Sanders some 70 years ago), or the seemingly mundane client list for a real estate brokerage. The latest case to hit the headlines reads like a bad mystery —Thomas’ English Muffins Claims Rival Baker Stole Secret To “Nooks-and-Crannies” Formula!!!A trade secret, of course, is loosely defined as any formula, pattern, device or compilation of information used by a company that is unknown to others andgives the company a competitive advantage. Examples come in many shapes and sizes, and include such things as unpatented inventions; future product designs and research; non-public company documents such as blueprints, laboratory notebooks and training manuals; marketing, purchasing, planning and customer information; and financial, accounting, recruiting and legal information. Basically, any information that a company finds exceptionally useful and deems “Top Secret” may qualify for trade secret status — with certain caveats. If someone outside the coterie of top level employees with access already knows your secret, of course, it’s not really a secret at all, and (as you might expect) you cannot retroactively go back and make it one. Once the cat’s out of the bag, the horse is out of the barn, the bird has flown the coop, etcetera . . . it’s bye-bye trade secret. Similarly, if you fail to take adequate measures to protect the secret, or are so boastful and clumsy as to actually tell someone else the secret, then you lose all trade secret protection. Given that some secrets are worth billions, one can see the attraction of those espionage thrillers where the secret agent seduces a corporate employee and pumps her for information or spontaneously befriends the loner lab geek and then gets him so intoxicated he blurts out every secret he ever knew. While real life may not mimic fiction quite at the level suggested by Clive Owens’ secret agent romp inDuplicity, rest assured that there are plenty of industrial spies lurking in corporate hallways, going through the rubbish at 5:00 a.m. hoping to find a scrap worth millions.
Although I mention the Thomas’ English Muffin case partially in jest, as it seems somewhat ludicrous that the internal consistency of a muffin could, in fact, constitute a trade secret, it does raise the question of just what you can take with you as a departing employee. Say you’ve been there for ten years and know the operation inside and out, know how to mix a muffin in your sleep, know what temperature the muffins need to be baked at, and for how long, and how long they need to cool before being bagged. You know it so well you don’t even have to think about it anymore. But now you’ve been offered a great job down the street at an independent bakery that wants to bring muffins to the masses — what do you do? Do you pretend you don’t know how to make a muffin? Just what information is an ex-employee allowed to use? The answer, as eloquently expressed by Judge Shadur in Fleming Sales Co. v. Bailey, 611 F. Supp. 507, 514-15 (N.D. Ill. 1985) is this:
Such information [as] comprises general skills and knowledge acquired in the course of employment. Those are things an employee is free to take and to use in later pursuits, especially if they do not take the form of written records, compilations or analyses. Any other rule would force a departing employee to perform a prefrontal lobotomy on himself or herself. It would disserve the free market goal of maximizing available resources to foster competition…. [I]t would not strike a proper balance between the purposes of trade secret laws and the strong policy in favor of fair and vigorous business competition.
So, to sum up, no frontal lobotomy required. I hope that puts your minds at ease as much as it did mine. You can still bake a muffin, though if you land at a competitor you should know that — even if you refrain from using the magic mixing machine and never even think about the almost-mystical nook-and-cranny formula — you are still likely to be sued. No matter how innocent your muffins might be, in the end, it’s all about the dough.
The Recording Industry Hates You
The RIAA has now sued or threatened to sue more than 28,000 people in the United States, in most cases extracting settlements of several thousand dollars from college students, housewives, and families with precocious preteens who downloaded music from Grokster, Kazaa, LimeWire, or BearShare. In many cases the infractions alleged are minimal (e.g., 5 songs) but the damages sought are not. The litigation strategy is intended to create the public perception that even the smallest infraction will be prosecuted and even the most naive teenager will be punished. The lawsuits are clearly not brought to win damages – suing unemployed college students has never been a winner on the Mensa list of ways to make a buck. Obviously, the real intent behind the lawsuits is to strike fear into the hearts of everyone contemplating file-sharing, to instill the thought in the back of your mind that you could be next. What the RIAA wants is for you to pause before downloading, remember the litigation horror stories, and delete LimeWire from your desktop. If you remember that RIAA lawyers are so aggressive they will not hesitate to sue your deceased grandmother, perhaps that will deter you from your illicit quest to download “I Wanna Know What Love Is” for free.Though the RIAA’s litigation strategy apparently has a certain surface appeal to music industry egos, in real life the RIAA’s rigid litigation model has not yielded meaningful results. Apart from alienating the general public and creating an enormous amount of superfluous litigation for the courts’ already overcrowded dockets, the results have been abysmal. The RIAA has failed to discourage file-sharing, and created an underground file-sharing community that — like Ninja assassins — quietly creep up out of nowhere and download billions of songs on ever-changing platforms. Every time a file-sharing company gets big enough to be noticed and sued by the RIAA, it is replaced by yet another start-up providing exactly the same service at a new location, with better cloaking technology. While the industry can sue LimeWire, Pirate Bay, Napster, and all and sundry for all they’re worth, eventually a compromise is going to have to be made. The “we’ll sue you into the ground” business model is not working, is not good business, and is quite possibly not good law — just yesterday the 16 year old cheerleader who got sued for downloading 37 songs and was ordered to pay $27,750 filed a Petition for Certiorari with the Supreme Court asking the court to overturn the decision against her on the (frankly quite believable) grounds that she didn’t realize that file-sharing was against the law.
Did I Take the Words Out of Your Mouth?
Helene Hegemann is pushing the limits set by writers like James Joyce (the original Mr. Cut-and-Paste) by freely grabbing content from other writers — in some cases, entire scenes — and appropriating it for her own use. This pastiche or collage style of writing has pushed hot buttons in the ongoing debate about what constitutes copyright and plagiarism in literature. Some writers claim that the practice is so commonplace that it is simply part of the creative process — that the living inevitably borrow from the dead — and that it has been going on from time immemorial. Shakespeare, as any college literature student knows, borrowed heavily from other playwrights. Hamlet, for example, is very like Saxo Grammaticus’ Gesta Danorum; Romeo and Juliet is said to be based on Arthur Brooke’s narrative poem The Tragical History of Romeo and Juliet; and King Lear is based on the story of King Leir in Historia Regum Britanniae by Geoffrey of Monmouth. Borrowing plots in this way was common at the time, and after Shakespeare’s death playwrights promptly began borrowing from his works as well.Several years ago, Jonathan Lethem wrote a brilliant article defending the use of “borrowing” by writers in their pursuit of new creation, arguing that creation itself necessarily calls upon the inchoate melange of what one has read over one’s life as an unconscious source of style, language, allegory, sentence structure, plot, and pacing, and that — in a sense — imitation is the sincerest form of flattery. But now writers such as Hegemann and David Shields — whose new novel “Reality Hunger” is built almost entirely of quotations from other writers and thinkers — are pushing the boundaries as to what is appropriate as borrowing, and casting the question of copyright infringement in a different light. When is it plagiarism and not merely exercise of artistic license for transformative purposes? When does fair use become foul? We’ve seen what has happened to the music industry as it has been pulled kicking and screaming into the future by DJs and artists who use sampling techniques to create their own unique sound, and it was only a matter of time before the issue jumped media to stodgy old print. But where is the line going to be drawn? I suspect that the answer does not lie in the simplistic question “To borrow, or not to borrow,” but rather in litigation reminiscent of Bleak House, which will leave everyone unhappy.
Who's Your Lawyer?
Robert Scott Lawrence I am an intellectual property lawyer in Coto de Caza, California.My practice has evolved significantly since my graduation from Northwestern in 1995. While my initial focus was on bank fraud and tax fraud in federal court, over the years that has slowly evolved to focus on fraud in all its aspects, and led me to trade secret misappropriation and the inevitable disputes between companies and their former employees regarding copyright and patent ownership. By virtue of being in the right place at the right time — the Bay Area in 2000 — I became involved in a series of intellectual property cases involving theft of trade secrets, parody as a defense to copyright infringement, and a novel application of the the unfair competition laws to internet search engine optimization. As I have became more exposed to various aspects of intellectual property law over the last decade, my practice has come to have a high-tech slant; even where the issues bear something in common with my original practice, it is now fraud tied to the question of whether software has been developed independently or not, and theft of ideas rather than of money.
My practice is not limited to intellectual property, however, and involves a number of different areas of law. For example, ten years ago I offered to lend a hand in an environmental case, which I have now had the pleasure of trying twice, and which is still active (and currently up on appeal). Another example — I recently defended a hedge fund and its principal in a self-dealing case brought by the Commodity Futures Trading Commission. So while this particular blog is dedicated to intellectual property, and the subject is dear to me, other unrelated topics may appear on these pages from time to time, since in law — as in life — variety provides the spice that relieves us from monotony.