Excellent points, however the dissent brings up a good point -- that the source code is functional. From Justice Nelson's wording, I get the impression he'd allow Bernstein's encryption algorithms, but not the actual source code, to be published online in order to express his "scientific methods and ideas". That seems a little stupid to me, but whatever, I'm not a judge.
Nelson also cites the Junger case -- which comes down against a First Amendment use. (Junger v. Daley, 8 F.Supp.2d 708 (N.D.Ohio 1998)). Now that we have a split in the circuits, I think a Supreme Court review is inevitable. Whether they take Bernstein or wait for another case is a crap shoot. I can't predict the Supreme Court any better than meterologists can predict the weather in the Northeast.;-)
Re: your point #1: King-Seely Thermos Co v. Aladdin Industries , 321 F.2d 577 (2d Cir. 1963). In the opinion (as quoted in my text "Trademark and Unfair Competition Law" by J. Ginsburg, et al.) states that the King-Seely Co. sold "Thermos bottles" and popularized that term -- from a period of 1907 to 1923. From 1923 to 1950, the term "thermos" had become synonymous with the "vacuum-insulated bottle", of which the King-Seely Thermos bottle was archtypical. King-Seely made a too-little, too late attempt to re-emphasize "Thermos" as a source indicator (the real reason one has a trademark, after all) in the mid to late 1950's and did change its name to "The American Thermos Products Company". Alas, poor Thermos(tm) was dead from genericide. I know we all weep openly. Also:
Bayer Co. v United Drug Co., 272 F. 505 (S.D.N.Y. 1921) -- the "Aspirin" case and;
DuPont Cellophane Co. v Waxed Products Co., 85 F.2d 75 (2d Cir. 1936) -- the "Cellophane" case.
Remember, Brookfield is using "MOVIEBUFF" in connection with a commercial enterprise (namely, a computer database of movies). When someone says "movie buff" you don't automatically think "Hey, that's a database of movies!", you think "someone who likes movies". Re: your point #2: Brookfield is selling a movie database service. "MOVIEBUFF" as a trademark is only applicable to that. Could they publish a "MOVIEBUFF Magazine" as well? Probably, since my search of the USPTO Trademark database only turned up the following links:
Also remember that just because someone registers a mark, doesn't mean that they have a good hold on that mark. The PTO can't filter every application for a trademark that it gets. That's why they are published for opposition before they are granted. That lets anyone who can object, object to the registration. Betcha West Coast feels kinda lame for not challenging, eh?
I don't understand your last paragraph: is not Brookfield limited to using "MOVIEBUFF" in "computer software providing data and information in the field of the motion picture and television industries" like the registration statements linked above say? How is this decision expanding anything? I read it and it didn't expand anything absurdedly, IMO. It just clarified the enforceability of registered trademarks as against domain names and meta tags -- logical expansions of traditional trademark theory into a new medium.
It doesn't say anything about a non-commercial fan site. There are TM issues there too, but they are not the ones discussed in this opinion.
I don't imagine there would be any likelihood of confusion for a fan site. Even the most clueless of internet newbies can usually grasp the concept of a "fan site".:)
Please, before you call something asinine, understand what is being discussed. A trademark is a word, phrase and/or symbol used in commerce. You do not "own" the word. And you can lose a trademark, here's an example:
You know what a Thermos is, right? Did you know at one point "Thermos" was a trademark? People use "thermos" nowadays to refer to a class of beverage container, when it was once the name of a single product. However, it became too popular and suffered from "genericide" (ie, it became generic, and therefore not protectable by trademark law).
The line can get blurry at times: what word or phrase is too generic or descriptive to get protection? Compare "Thermos" to "Kodak" or "Xerox". You can use "movie buff" to describe someone freely, and in whatever medium that floats your particular boat. Alas, you cannot use it in connection with commerce as freely. But you're not really itching to go sell access to a database of movies on the internet now are ya?
Actually, the Ninth Circuit is just too big to operate effectively (if one can say that the other circuits are effective). Judge O'Scannlain, the author of the opinion, came to my school recently (4/26) and spoke on the very subject of the overloaded federal appeals docket. In a conversation with him before his presentation, he mentioned this very case. Whenever the 9th Circuit hears an appeal, it has a panel drawn from the 28(!) justices of the Circuit. It's really a crap shoot for the litigants (and us, by weight of their decision) whether you get a good panel or a bad panel.
It's probably more fair to say that the 9th Circuit gets overruled by the US Supreme Court more because it hears a majority of all appellate cases in the federal system. It's a huge circuit, California alone churns out a huge wad of litigation.
Trademarks isn't a real hairy part of IP law. If you're interested in getting the basics of it, and other aspects of IP (copyrights and patents), pick up West's Intellectual Property "In a Nutshell" book. It should be available at any law school's bookstore. Also, the operative federal law of Trademarks is the Lanham Act (15 USC 1051).
It's people with MBAs (CEOs, for example), and Pol Sci degrees (gov't ppl) and Law School degrees that end up with control over this world -- and those areas are generally ones were you will find a large lack of nerds/geeks, and a larger percentage of the in-crowd.
All too true, unfortunately. I was a geek in high school, a geek in college and now I'm finishing up my second year at law school, and sometimes it's so painfully reminiscent of high school that I want to puke. All the same cliques and the old mentality that made h.s. such a pain the the ass.
But now, as then, I just do my own thing, hang with people that don't suck, and to heck with all that other crap.
Part of the problem is that a lot of people don't want to pay a bunch of programmers to write a huge system, and then give away their hard work. Will the suits buy a (potentially) multiple-thousand dollar suite of programs for Linux? Would you pay a stable of programmers to crank out such a suite if you didn't know if people would buy the software from you?
The Linux community has produced some really great software, but would anyone write such a goldmine and give it away? Open source is nice, but if I can grab your code, recompile it with a few tweaks and sell it myself, where's your motivation?
I understand that the Free Software model isn't about "free beer", but I have to say, from reading a lot of posts here, if you close up your source, you're evilbadnasty. I'm sure the community could hack together a chunk of business apps, but how long would it take? I figure a couple of years, whereas a more "corporate" development team, presumably, take less time (it would be, after all, their full-time job). If you could prove that Linux software development can rake in the moolah, people will write for it commercially. Of course, the first hurdle is getting them to view the OS as a viable platform.
And of course, if you give him a computer with a phone line, the gov't is afraid in his spare time he'll crack the Pentagon or whatever. I think the problem with this case is the wide disconnect between the legal world and the online world. To give an example: any computer made back in, say, 1979 would be good as a curio in the computer world. Yet there are legal changes (considered "modern" heh) that took place in 1979 (relating to wills) that aren't in wide use because "they aren't tried and tested."
Until this September, my law school still only had Windows 3.1 on their computers. It's an institutional lag because things are done in a certain way because "that's how we've always done it." Add in a judge who's probably been on the bench for 10+ years with at least that many years of litigation before that, and you've got people that aren't, shall we say, "computer-savvy"?
And as for the mountain of evidence, that's a time-honored practice of burying your opponent. It's the opposite of the defense tactic of subpoenaing everything up to and including the kitchen sink. Only a mere fraction of that "evidence" would ever actually be entered as evidence in a trial, I'd wager, as most of it probably can't prove jack.
Don't free Kevin. But do please give him free access to evidence and books to mount a solid defense. And maybe if we were this hard on the more harmful criminals, jail might actually be more of a deterrant.
Evidence is one thing-- the prosecution has to turn over evidence to the defense by the federal rules (caveat: all on a strict timetable, you can't hold onto stuff forever).
However, access to books? What, did Mitnick represent himself pro se? There's an apt saying for that: "A man who represents himself has a fool for a client." Since he's charged criminally (fraud, et al.) he'd be Mirandized and have access to appointed counsel. If his appointed counsel needs free books, then it's time to get a new lawyer. Geez, my school lets alumni use their law library for free. If he's representing himself, then delay is probably of his own doing. But if the delay is because his counsel is a bleeding moron, that's a whole new can of worms.
This is essentially the same as if you got sued in civil court for doing something (say assault). Now imagine that your bank account is pretty much empty and all you really have is your car. The court can take your car to satisfy the judgment against you. Of course, this particular case is different, owing to the diversity of citizenship of the parties. I imagine that Umbro tried to assert that the court had jurisdiction over the defendant's assets in Canada, and the garnishing of the domain names was an attempt to find something of value.
Too bad I read this only after coming from my Trademarks class.;-)
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Definition of irony: Braille lettering on a drive-thru ATM machine.
Excellent points, however the dissent brings up a good point -- that the source code is functional. From Justice Nelson's wording, I get the impression he'd allow Bernstein's encryption algorithms, but not the actual source code, to be published online in order to express his "scientific methods and ideas". That seems a little stupid to me, but whatever, I'm not a judge.
;-)
Nelson also cites the Junger case -- which comes down against a First Amendment use. (Junger v. Daley, 8 F.Supp.2d 708 (N.D.Ohio 1998)). Now that we have a split in the circuits, I think a Supreme Court review is inevitable. Whether they take Bernstein or wait for another case is a crap shoot. I can't predict the Supreme Court any better than meterologists can predict the weather in the Northeast.
King-Seely Thermos Co v. Aladdin Industries , 321 F.2d 577 (2d Cir. 1963). In the opinion (as quoted in my text "Trademark and Unfair Competition Law" by J. Ginsburg, et al.) states that the King-Seely Co. sold "Thermos bottles" and popularized that term -- from a period of 1907 to 1923. From 1923 to 1950, the term "thermos" had become synonymous with the "vacuum-insulated bottle", of which the King-Seely Thermos bottle was archtypical. King-Seely made a too-little, too late attempt to re-emphasize "Thermos" as a source indicator (the real reason one has a trademark, after all) in the mid to late 1950's and did change its name to "The American Thermos Products Company". Alas, poor Thermos(tm) was dead from genericide. I know we all weep openly. Also:
Remember, Brookfield is using "MOVIEBUFF" in connection with a commercial enterprise (namely, a computer database of movies). When someone says "movie buff" you don't automatically think "Hey, that's a database of movies!", you think "someone who likes movies".
Re: your point #2:
Brookfield is selling a movie database service. "MOVIEBUFF" as a trademark is only applicable to that. Could they publish a "MOVIEBUFF Magazine" as well? Probably, since my search of the USPTO Trademark database only turned up the following links:
Also remember that just because someone registers a mark, doesn't mean that they have a good hold on that mark. The PTO can't filter every application for a trademark that it gets. That's why they are published for opposition before they are granted. That lets anyone who can object, object to the registration. Betcha West Coast feels kinda lame for not challenging, eh?
I don't understand your last paragraph: is not Brookfield limited to using "MOVIEBUFF" in "computer software providing data and information in the field of the motion picture and television industries" like the registration statements linked above say? How is this decision expanding anything? I read it and it didn't expand anything absurdedly, IMO. It just clarified the enforceability of registered trademarks as against domain names and meta tags -- logical expansions of traditional trademark theory into a new medium.
It doesn't say anything about a non-commercial fan site. There are TM issues there too, but they are not the ones discussed in this opinion.
:)
I don't imagine there would be any likelihood of confusion for a fan site. Even the most clueless of internet newbies can usually grasp the concept of a "fan site".
The line can get blurry at times: what word or phrase is too generic or descriptive to get protection? Compare "Thermos" to "Kodak" or "Xerox". You can use "movie buff" to describe someone freely, and in whatever medium that floats your particular boat. Alas, you cannot use it in connection with commerce as freely. But you're not really itching to go sell access to a database of movies on the internet now are ya?
It's probably more fair to say that the 9th Circuit gets overruled by the US Supreme Court more because it hears a majority of all appellate cases in the federal system. It's a huge circuit, California alone churns out a huge wad of litigation.
Trademarks isn't a real hairy part of IP law. If you're interested in getting the basics of it, and other aspects of IP (copyrights and patents), pick up West's Intellectual Property "In a Nutshell" book. It should be available at any law school's bookstore. Also, the operative federal law of Trademarks is the Lanham Act (15 USC 1051).
All too true, unfortunately. I was a geek in high school, a geek in college and now I'm finishing up my second year at law school, and sometimes it's so painfully reminiscent of high school that I want to puke. All the same cliques and the old mentality that made h.s. such a pain the the ass.
But now, as then, I just do my own thing, hang with people that don't suck, and to heck with all that other crap.
The Linux community has produced some really great software, but would anyone write such a goldmine and give it away? Open source is nice, but if I can grab your code, recompile it with a few tweaks and sell it myself, where's your motivation?
I understand that the Free Software model isn't about "free beer", but I have to say, from reading a lot of posts here, if you close up your source, you're evilbadnasty. I'm sure the community could hack together a chunk of business apps, but how long would it take? I figure a couple of years, whereas a more "corporate" development team, presumably, take less time (it would be, after all, their full-time job). If you could prove that Linux software development can rake in the moolah, people will write for it commercially. Of course, the first hurdle is getting them to view the OS as a viable platform.
Until this September, my law school still only had Windows 3.1 on their computers. It's an institutional lag because things are done in a certain way because "that's how we've always done it." Add in a judge who's probably been on the bench for 10+ years with at least that many years of litigation before that, and you've got people that aren't, shall we say, "computer-savvy"?
And as for the mountain of evidence, that's a time-honored practice of burying your opponent. It's the opposite of the defense tactic of subpoenaing everything up to and including the kitchen sink. Only a mere fraction of that "evidence" would ever actually be entered as evidence in a trial, I'd wager, as most of it probably can't prove jack.
Evidence is one thing-- the prosecution has to turn over evidence to the defense by the federal rules (caveat: all on a strict timetable, you can't hold onto stuff forever).
However, access to books? What, did Mitnick represent himself pro se? There's an apt saying for that: "A man who represents himself has a fool for a client." Since he's charged criminally (fraud, et al.) he'd be Mirandized and have access to appointed counsel. If his appointed counsel needs free books, then it's time to get a new lawyer. Geez, my school lets alumni use their law library for free. If he's representing himself, then delay is probably of his own doing. But if the delay is because his counsel is a bleeding moron, that's a whole new can of worms.
Too bad I read this only after coming from my Trademarks class.