September 20th, 2009

• I'm looking for a med mal plaintiff's atty in upstate NY to take on two hospitals & several doctors who screwed up badly. Any suggestions? #

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September 18th, 2009

Click here for the story …

“The 2008 National Medal of Technology and Innovation winners are:

•Dr. Forrest M. Bird for his pioneering work in the field of respiratory and cardiopulmonary care including the revolutionary BABYBird®. This device dramatically reduced the infant respiratory failure mortality rate from approximately 70 percent to 10 percent. His more recent medical invention of Intrapulmonary Percussive Ventilation (IPV) ® concepts have reduced pulmonary failure in the most critically injured military and civilian burn patients from about 75 percent to 5 percent. Dr. Bird’s innovations have saved millions of lives.

•Dr. Esther S. Takeuchi for the development of the silver vanadium oxide battery technology which powers the majority of today’s implantable cardiac defibrillators and innovations related to other enabling medical battery technologies that power implantable pacemakers, implantable neurostimulators and left ventricular assist devices. Dr. Takeuchi’s innovations have saved and dramatically improved the quality of hundreds of thousands of human lives.

•Dr. John E. Warnock and Dr. Charles M. Geschke for their pioneering contributions that spurred the desktop publishing revolution and for changing the way people create and engage with information and entertainment across multiple mediums including print, Web and video.

•International Business Machines Corporation for the IBM Blue Gene supercomputer, which re-established United States leadership in high performance computing. Blue Gene’s systems architecture, design and software have delivered fundamental new science, unsurpassed speed and unparalleled energy efficiency, which have had a profound impact on the worldwide high-performance computing industry.”

On a personal note, Dr. Bird’s invention, taken to a new level, saved my daughter’s life about five years ago, so I’m delighted he won this prestigious award. Congratulations are due all around, so congratulations to the 2008 National Medal of Technology and Innovation!

Tags: 2008 Medal of Technology and Innovation, Charles M. Geschke, Esther S. Takeuchi, Forrest M. Bird, IBM, John E. Warnock
Posted in Patent, US Patent & Trademark Office | No Comments »

September 10th, 2009

Supreme Court Justice Sonia Sotomayor gets feisty on big bench debut.

It’s always fun to watch what the Nine Wise Ones are doing, but if this is “feisty,” the reporter who wrote this piece hasn’t seen many oral arguments before any appellate court, let alone the US Supreme Court.

Justice Sotomayer, the newbie Justice and the first Obama appointee to the High Court, asked a couple of questions. Supreme Court justices do that. So do appeals court judges. Usually they ask more than a couple of questions. There are times when the lawyers arguing the case can’t catch their breaths from the barrage from the bench. Seems to me that Justice Sotomayer sounds pretty restrained, not “feisty.”

But that’s me.

BTW, I’m glad to see that she doesn’t feel obligated to wear the ruffles and fluff around the collar that her two lady predecessors on the Court insist on wearing. Her picture is in a plain black robe, which is what every Supreme Court Justice should wear, regardless of gender.

Welcome to the highest bench, Justice Sotomayer.

For public consumption, Justice Sotomayer’s colleagues on the US Supreme Court bench are:

Chief Justice John G. Roberts, Jr. (Bush II)
Associate  Justice John Paul Stevens (Ford)
Associate Justice Antonin Scalia (Reagan)
Associate Justice Anthony M. Kennedy (Reagan)
Associate Justice Clarence Thomas (Bush I)
Associate Justice Ruth Bader Ginsburg (Clinton)
Associate Justice Stephen G. Breyer (Clinton)
Associate Justice Samuel A. Alito, Jr. (Bush II)

Two Justices have retired in recent memory:

Associate Justice (Ret.) Sandra Day O’Connor (Reagan)
Associate Justice (Ret.) David H. Souter (Bush I)

It’s fun to see how these people stack up politically (yeah, I know, the US Supreme Court is supposed to be free of politics. Ri-i-i-ight.). The appointing president is a good indicator of whether a Justice will swing toward the liberal or the conservative.

Those appointed by conservative presidents:

Roberts
Stevens
Scalia
Kennedy
Thomas
Alito

Those appointed by liberal presidents:

Ginsburg
Breyer
Sotomayer

Justice Stevens has been known to decide liberally, as has Justice Kennedy. I don’t know Chief Justice Roberts well enough yet to know how he leans (I suspect he’s a dyed-in-the-wool conservative, though), and Justice Sotomayer is, of course, brand-new (though she seems to be fairly liberal in her views). Justices Scalia, Thomas and Alito are pretty straight-line conservative, and Justices Ginsburg and Breyer are pretty straight-line liberal.

Heaven help Roe v. Wade with this line-up.

Tags: Justice Sonia Sotomayer, US Supreme Court, US Supreme Court Justices
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August 31st, 2009

Disney to Buy Marvel for $4 Billion – ABC News.

Wow. Just wow.

Disney is already among the biggest entertainment businesses in the world, what with the movies and the theme parks and the hotel properties and the Broadway shows and all the rest of it. I believe they even have an inroad in the comics market (if they don’t now, I’m sure they did when I was a kid; I remember Mickey Mouse comics). Marvel has a thoroughly different look from Disney, so this will be an interesting evolution. I wonder if Superman will develop the Disney eyes?

Tags: Disney, Marvel Comics
Posted in Contracts, Copyright, Franchising, General Business Law, Licensing, Trade Dress, Trademark/Service Mark | No Comments »

August 30th, 2009

• RT @tweetmeme Community Can Be SO Powerful http://bit.ly/K0Gl5 I don't usually RT stuff from my marketing contacts, but this is REALLY GOOD. #
• RT @ChrisBellNZ Those accused of breaking copyright will have internet connections cut off under new laws proposed by UK gov't bit.ly/4i229K #
• RT @GeekforWii NWFanboy Nintendo, Hillcrest Labs settle patent infringement case: According to a Bloomberg report, … http://bit.ly/DIEXs #
• RT @rvazquez Apple, Nvidia, Microsoft, Google, others sued for patent infringement http://bit.ly/4tYIP #
• RT @arieldesign "A Good Trademark: A Historical Perspective" – Steven Heller http://bit.ly/4EBDHE #
• RT @haleymaple RT @ewusiak: Anheuser-Busch pulls 'Fan Cans' at some colleges; trademark issues involved http://usat.me/?36058832 #
• RT @DIYMKTchat RT @SannWood: Win a new HP Printer – ask a trademark or copyright question: http://ad.vu/jskq join #smbchat Wed 8/26 8pm ET #
• Love it!! RT @mikk_IPRDefinitions of invention on the Web: http://blpqu.tk #
• Words to live by: RT @billymcline Our greatest glory is not in never falling but in rising every time we fall. Confucius #
• so…how long does it take to delete a tweet???? so far, it's been many seconds; in fact, it's pushing a minute. Not good…. #

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August 30th, 2009

The link for the video, in case it doesn’t show up, is here.

UPDATE: Microsoft Appeals Word Patent-Injunction Case – WSJ.com.

As well they should.

Watch for the case to get argued before and decided by the US Court of Appeals for the Federal Circuit, which holds exclusive jurisdiction over patent cases.

The district judge’s ruling does seem to me to be a bit overbearing: Microsoft can’t sell Word because a part of it infringes a patent held by a Toronto-based company called i4i. 14i now has a permanent injunction against Microsoft granted earlier this month.

Your Honor, wouldn’t an enforced license and a hefty money judgment have done the job without threatening the software base of thousands if not millions of companies worldwide who rely on Microsoft Office products to get their own work done?

Don’t get me wrong here: I in no way approve of or endorse Microsoft’s aggressive patent infringing policies. However, Microsoft products are heavily used and therefore needed in the business world, and this ruling potentially disturbs many, many other businesses which are already struggling in the current economy. Requiring businesses to switch software midstream could spell collapse for many small and medium-sized businesses that simply cannot budget for the conversion from Microsoft Word to a new word processing system when the time comes to upgrade (for you know that Microsoft will sue in patent anyone who puts any code that in any way resembles its code for reading Word documents into word processing software…).

And the wheels on the bus go round and round…

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August 23rd, 2009

• http://twitpic.com/ektgb – My daughter, the adrenaline junkie, falls from the heavens. Of course, I know she's heavenly, but this?? #

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August 14th, 2009

Microsoft Faces Permanent Injunction against Selling Word | BNET Technology Blog | BNET.

The universe just heaved.

Any version of Microsoft Word that reads XML files will have to be pulled from the shelves within 60 days, based on a permanent injunction out of the patent litigation “rocket docket” court, the US District Court for the Eastern District of Texas.

Patents give their owners the right to prevent others from making, using, selling, distributing or importing the covered invention in the United States. Here, a patent held by a company called i4i apparently covers the technology that Microsoft uses to even open .xml documents. Microsoft didn’t license the technology; they, according to the E.D. Tex., infringed the patent throughout their Office products.

Oops.

Tags: i4i, Microsoft, Patent infringement, Rocket docket, US District Court for the Eastern District of Texas, xml
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August 9th, 2009

• http://bit.ly/wfQzO via @addthis my JDSupra profile, which probably constitutes attorney advertising. #
• One reason NOT to visit the peer-to-peer sharing sites; it's WAY cheaper just to buy the legal copies. http://tinyurl.com/lpgd8q #
• Gucci ladies are permanently enjoined from using their own name as the brand for their clothing/accessories line. http://tinyurl.com/mztbuv #

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August 5th, 2009

Relatives barred from using Gucci brand name in U.S. | Reuters.

It’s not like names provide the strongest marks in the world; in fact, generally speaking, a name mark is on the weaker side. Unless it’s famous.

The Gucci® name is a famous brand. You hear it, you think of the high-end  clothing and accessories designed by the Italian designer owned by the French couture house PPR. Now, along come the designer’s ex-wife, Jennifer Gucci, and their daughter, Gemma Gucci, trying to sell clothing and accessories under the name Gucci. Well, it’s their name, too, right?

Wrong. The US District Court for the Southern District of New York has enjoined these ladies from using the famous Gucci mark or anything confusingly similar to the mark for any products or services they might want to market. The bench trial showed the judge that the products and branding were confusingly similar to the Gucci merchandise; there’s a permanent injunction now in place.

How does the judge make the determination that a brand is “confusingly similar” to a senior brand?

In Polaroid Corp v. Polarad Elects. Corp, 287 F.2d 492 (2d Cir. 1961), Judge Friendly gave us the seminal test for likelihood of confusion. The so-called “Polaroid factors” are:

• the strength of the [original] mark
• the degree of similarity between the two marks
• the proximity of the products [i.e., how similar are the products identified by the senior and junior marks?]
  
• the likelihood that the prior owner will bridge the gap [i.e., if the products are different, will the owner of the senior mark be likely to enter the marketplace where products/services identified by the junior mark are sold?]
  
• actual confusion
  
• the reciprocal of defendant’s good faith in adopting its own mark
• the quality of defendant’s product, and
• the sophistication of the buyers.

Judge Friendly went on to state, “Even this extensive catalogue does not exhaust the possibilities–the court may have to take still other variables into account.” Thus, the lower courts must look at the listed factors and weigh them individually and together to determine the likelihood that a reasonable consumer in the marketplace would be confused as to the origin of the junior brand.

Let’s apply these factors to the Gucci case. The Gucci ladies marketed clothing and accessories under their name. Gucci the senior user markets clothing and accessories under the name. While a name mark is not terribly strong, any mark, including a name mark, acquires strength as its fame increases. The Gucci mark is famous (heck, even I’ve heard of it); therefore it is stronger than just an ordinary name mark would be. Consumers have come to associate that brand as identifying the senior user as the source of those goods in the marketplace. The senior user wins this point.

The degree of similarity? Identical. Gucci = Gucci. The senior user wins this point.

The proximity of the products is the next factor. The senior user markets clothing and fashion accessories. The two Gucci ladies marketed clothing and fashion accessories. These products are not only proximate, they are identical. Senior user wins again.

The likelihood that the senior user will bridge the gap. There is no gap to bridge. Senior user wins again.

Actual confusion. Without having read the transcript of the trial, I don’t know whether the senior user could produce evidence of actual consumer confusion in the marketplace; this would have been done through surveys. This one’s a draw until further notice.

Reciprocal of defendant’s good faith in adopting the mark. One of our junior users is the ex-wife of the designer. Ex-wives tend to have questionable good faith in matters such as this. The other junior user is the designer’s daughter. Her good faith may or may not be in question. Either way, these ladies decided to use their own name in the marketing of their product lines. However, they were in a position to know that the senior mark exists and could not help but know that they would be riding on the coattails of the success of that mark. If I were the judge, I’d lean this one toward the senior user even knowing what little I know.

Quality of the junior user’s product. I have no information on that.

Buyer sophistication. Senior-mark Gucci buyers are generally decently educated and fairly well off financially; they would therefore probably be at the higher end of the sophistication scale. This one could actually work in the junior users’ favor.

Taking all these factors together, the weight, under my quick-and-dirty glance through this case is  on the side of the senior user. Therefore, the verdict granting a permanent injunction against the Gucci ladies is not surprising to me.

Not all marks are as clear-cut as is this one, at least in hindsight, is. A trademark infringement suit can destroy a young company’s marketing plan and cost that company tens or hundreds of $thousands. We don’t like to see that happen. Therefore, when you name your company, you should have a trademark search done as well as a search for the corporate name. The money you spend on that initial investment in your business can provide you with peace of mind that you do not tread on someone else’s intellectual property, thereby giving that someone else the power to shut you down before you even start.

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