gregh  2007-09-27 22:06  frogs  Law_School  trademark   

In my earlier post, I apparently overlooked some TTAB gold. Sure, the note in the casebook suggests that, "[r]eported decisions on alleged scandalous marks provide a source of comic relief for trademark lawyers and students," and provides a list we may wish to consider during a "study break." But who was I to believe that I'd want to go look up a decision for a so-called study break? Well, after the professor started in on this thing during class, I had to go check it out. The casebook parenthetical says merely, "Registrability of logo of frog making obscene gesture for beer." It is better than that.

First, the Examining Attorney has failed to prove that in viewing either of applicant's two marks by themselves, consumers would perceive the frog as flipping the bird. Second, even assuming for the sake of argument that consumers viewing applicant's marks by themselves would perceive the frog as flipping the bird, the Examining Attorney has failed to establish that said gesture - when done by a realistic looking animal (and not a human) and when directed to no particular person or group - would be perceived as scandalous and immoral.

But then it gets good.

In viewing the right front leg of applicant's frog . . ., the digits of the leg are positioned such that they bear . . . only a very remote similarity to the gesture of flipping the bird or giving the finger. The Examining Attorney has made of record literally dozens of pictures of humans flipping the bird. In each of these pictures, there are no gaps whatsoever between the middle or “flicker finger” and the fingers on either side of the middle finger. In striking' contrast, the right front leg of applicant's frog is depicted with wide gaps between the highest digit (which the Examining Attorney contends is the flicker finger) and the digits on either side of it.
. . .
[T]he Examining Attorney's own evidence demonstrates that it is not unusual for humans to give the finger in a downward position. See, for example, the February 1997 issue of GQ made of record by the Examining Attorney.
. . .
[W]e note in passing that the Examining Attorney's own evidence shows that even when humans give the finger to a particular individual or group, that, depending upon the circumstances, said gesture may be acceptable. The Examining Attorney places a great deal of reliance on a lengthy article by Bruce Anderson entitled “The Illustrated History of Flipping the Bird” which appeared in the February 1997 issue of GQ (Gentlemen's Quarterly).
. . .
As for the Examining Attorney's argument that professional athletes and television commentators have been fined or suspended for giving the finger to fans and viewers, we simply note that when one offends fans and viewers (i.e. customers), team owners and station managers will take action. For example, if a television commentator called his viewing audience “nincompoops” or “chuckleheads,” he no doubt would be reprimanded in some manner. However, such reprimands do not prove that these terms or “the finger” are scandalous or immoral as contemplated by Section 2(a) of the Lanham Trademark Act.

I guess someone has to address these weighty issues.

gregh  2007-09-27 17:07  Law_School  trademark   

... reading about trademark law with the family.

See also In re Wilcher Corp., 40 U.S.P.Q.2d 1929, 1996 WL 725479 (T.T.A.B. 1996) (Facts not amenable to parenthetical summary in Casebook designed for family audience).

While Emily and I have had discussions about law -- boring our parents to death -- I do feel sorry for the families to whom this casebook is targeted. It's not that it's a bad casebook, necessarily. It's just that it's a, well, a casebook.

gregh  2007-09-23 13:36  Law_School  trademark   

Continuing the meme from Above, Trademark continues to be one of my more entertaining classes. This past week, puzzled as he stared at the board trying to spell "quiche," my professor exclaimed, "I am smart. I just can't spell."

Suitable puffery regarding "real men" came to mind, but others in the class would resort to it when referring to the spelling of his last name, if I recall correctly, as "regal."

That, of course, reminds me of "NewsRadio":
Catherine: Catherine with a C is regal. Katherine with a K is a two-bit biker chick from Jersey.
Dave: Like that cheap slut Katherine Hepburn.

I remain convinced that that is the reason Dave and Paula used a C and refuse the use of Cathy.

gregh  2007-08-09 20:52  google  ip  Law  stoller  trademark   

The TTABlog: Court Approves Sale of Leo Stoller Trademark Assets to the Society for the Prevention of Trademark Abuse, LLC:

In an Order dated August 8, 2007, the United States Bankruptcy Court for the Northern District of Illinois has approved the sale of Leo Stoller's trademark assets to the Society for the Prevention of Trademark Abuse, LLC ("SPTA"). In re Leo Stoller, Case No. 05-B-64075. The chapter 7 trustee is authorized to sell the assets for $7,500 to the SPTA, who "made the only offer for the Assets received within the time period ordered."

Among the assets involved are Stoller's alleged rights in the mark STEALTH. The USPTO recently cancelled 34 registrations for various STEALTH marks owned by Stoller's company, Central Mfg. Co., as reported here.

His financial woes made it difficult for him to defend himself against Google, who went after him in bankruptcy court, too.

If you've not read this guy's stuff, you've really been missing out.