Intellectual Property

Whenever clients ask about filing a trademark in China via the Madrid System, our answer is simple: filing a national application directly with the Chinese Trademark Office (CTMO) is better.

China’s trademark system is complicated and overseen by oftentimes capricious examiners, especially as compared to the one-size-fits-all Madrid application that makes registering a trademark in China seem so easy. All you have to do with a China trademark filing via the Madrid System is check the box marked “China.” This lulls Madrid applicants into a sense of complacency, but all too often the result is a rejection that could have been avoided with a national application in China.

Madrid applications are supposed to be cheap and quick, but fixing Madrid problems after the fact is neither. This “Madrid problem” is exacerbated by U.S. lawyers comfortable filing in Madrid but with no experience filing in China.

Trademark prosecution in China is highly mechanical. For the vast majority of applications, you file an application and then wait 18 months for your trademark to be registered or rejected. (A slight oversimplification, but not by much.) China has no CTMO equivalent to a USPTO office action, no back-and-forth with trademark examiners, and no chance to amend an already filed application.

For this reason, the meaningful work for Chinese trademark applications occurs before you file the application…

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Katherine Heigl

* A three-judge panel of the Tenth Circuit seemed a bit torn as to the constitutionality of Utah’s same-sex marriage ban during oral arguments yesterday. This one could be a contender to go all the way to the Supremes. [New York Times]

* Another concussion lawsuit has been filed against the National Hockey League by a group of former players, this time alleging a culture of “extreme violence.” The pleadings are a bit… odd. We’ll have more on this later today. [Bloomberg]

* “We’re not going back to 2006 anytime soon,” says NALP executive director Jim Leipold. The legal sector lost lots of jobs in the recession, and they’re not likely to come back. Happy Friday! [National Law Journal]

* It’s never too soon to start writing your law school application essay. Please try not to bore the admissions officers — make sure you have a “compelling” topic. [Law Admissions Lowdown / U.S. News]

* Katherine Heigl (remember her?) probably needed some cash, so she filed a $6M lawsuit against Duane Reade for posting a picture of her carrying one of the drugstore’s bags on Twitter. [Hollywood Reporter]

‘But it’s not even an iPhone or a Galaxy, Your Honor!’

Please turn your phones off. We don’t want an angry judge.

– Courtroom deputy Martha Parker-Brown, cautioning those in the gallery of Judge Lucy Koh’s courtroom during the latest Apple v. Samsung patent trial. Judge Koh has previously threatened to take attorneys’ and tech executives’ phones away from them, and shamed others by making them stand up if their phones were turned on and started ringing.

* Justice Scalia was asked, “Why should society be bound by laws that were passed only by white male property owners?” If you guessed he’d eschew a substantive response in favor of a condescending sarcastic quip, you’re right! [Wall Street Journal]

* 2L who based his student government bid around a self-made rap video failed to secure election. He was probably screwed the moment Dr. Dre entered the race. [Daily Business Review]

* Nursing home sued for hiring male strippers for patients. Lawsuit aside, wasn’t it a bit much to make them dress up like Matlock for their act? [NY Post]

* A firm is handing out pairs of Google Glass to clients to record how their injuries impact their daily lives. Next up: a firm specializing in the injuries caused by wearing Google Glass to record how injuries impact daily lives. [Slate]

* Big corporations are filing junk patents. Will anyone put a stop to them? Of course not. [Politix]

* It’s time to put a stop to shady tax preparers ripping off low-income families. That way low-income families can go back to being ripped off by every other avenue of American society. [New York Times]

* Managing your Facebook account can give rise to spoliation. So you’d better be happy with all those pictures you’re tagged in before you get in a legal scrape. [IT-Lex]

One of the things that was always interesting about Biglaw was just how much the skills of senior partners were celebrated, even in the absence of any verification. Or rigorous comparison to their peers, for that matter. Such exaltation of abilities was not limited to individual lawyers, of course, but extended also to practice groups and even other firms. In fact, a fair amount of Biglaw’s “prestige” is pollinated by secondhand anecdotal evidence, many times passed along by people who have either never seen their subjects in action or who are not qualified to distinguish between a great performance and a mediocre one.

Of course, I do not doubt that many, if not the vast majority of, Biglaw reputations are well-earned. For example, even though my knowledge of real estate law is severely limited, I would feel comfortable hiring some of my old colleagues at Greenberg Traurig in New York for real estate help, should I ever be in a position to acquire or dispose of some commercial real estate. I admit that I have no frame of reference, other than reputation and some personal relationships, supporting such a prospective choice. But it is not like I could “shadow” a closing and figure out which set of lawyers is doing a better job anyway. “Wow, those guys really put out a nice refreshment spread in the room with the closing binders” would be the level of my analysis. Probably not a good idea to choose counsel solely on that basis.

Are there other options out there?

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* Professor Rick Hasen drops knowledge bombs all over the “subtly awful” decision in McCutcheon. [Slate]

* Another firm joins the “CV Blind” approach of assessing future lawyers without looking at their grades. So go ahead and blow off that third-year course if this trend continues. [Legal Cheek]

* In case law schools needed another study to make them feel better about driving up costs, here’s a new study that says schools that hire hotshot professors improve faculty productivity. [TaxProf Blog]

* Med students are mistreated. Boo hoo. At least you bastards get jobs when you graduate. And they were mistreated by the hospitals they worked with? Try a Biglaw firm right before a deadline and then stow your whining. [Chronicle of Higher Education]

* Education Department moves to prohibit the practice of colleges barring lawyers from institutional sexual assault hearings. In other news, colleges have been getting away with keeping lawyers out of hearings about potentially criminal acts. [Inside Higher Ed]

* The BARBRI public interest fellow contest is now underway! Watch the videos and cast your vote by April 7. [BARBRI]

* Strip club company thought it could build a theme restaurant based on the movie Talladega Nights. More after the jump… [Bloomberg]

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(c) Image by Juri H. Chinchilla.

Years before Philadelphia’s National Constitution Center built the forty-foot high “Tower of Law” (or, as Stephen Colbert called it, “the building blocks of boring”) out of unused legal reporters, Lexis started the books’ march to obsolescence when it debuted on April 2, 1973. “Lexis,” a term the company’s president coined by combining the Latin word for law plus the letters “IS” for information systems, was the first widely available commercial electronic database for legal research. When it launched forty years ago, Lexis contained only decisions from Ohio and New York. Today, it provides access to nearly 5 billion documents, including cases from all state and federal courts, as well as notes written by law students that are still awaiting their first citation reader. This week, On Remand looks back at the history of Lexis, its rivalry with Westlaw, and its dispute with the maker of a car popular with attorneys . . .

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One of Biglaw’s calling cards is the ability to marshal resources quickly to handle nearly any kind of legal issue. Going to trial and need some immediate help with responding to a host of motions in limine filed by your adversary? Even in these days of reduced associate classes, at most firms it would be no problem roping in the necessary support. Need to put a team together on short notice to respond to a preliminary injunction motion? Not a problem. An email or two to the head of the group and a fellow partner or two, and you can have all the resources you need.

With some luck, you can even benefit from assistance in multiple time zones, always a plus when dealing with court deadlines in “foreign” jurisdictions, as is commonly the case in patent matters. Just ask any East Coast-based patent litigator whether they appreciate the extra hour for filing they get in their Eastern District of Texas matters. I know everyone is super-organized and never files at the last minute, but sometimes “unexpected delays” can result in a litigator making full use of the allotted response time for a filing or two.

While the Biglaw beast can be roused to quick action on occasion, it often prefers to move very deliberately towards a target. Patent cases are a good example. While there may be a flurry of activity surrounding an important hearing, or the close of discovery, or trial, there is also a lot of “preparing the case” time. Cases that take years just to get to trial are normal, and when you factor in appeals, it is not unusual for a Biglaw patent lawyer to go from associate, to counsel, to partner during the pendency of a single case. I speak from personal experience on that point….

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The patent world can at times seem very small. The same firms, representing the same group of technology companies, pursuing the same strategies, both to maximize profits for their firms and to deliver results for their clients. Sure people move around, but the players in the larger sense are pretty static. Most patent cases are of limited importance to everyone but the parties involved as well. Sometimes a case has a broader scope, and becomes of interest to industry competitors or even investors. Every once in a while a patent case captures the public fancy, as Apple v. Samsung undoubtedly has, usually because of the nature of the parties involved or the ubiquity of the technology at issue. When that happens, the patent world can seem very big — global in scope, even.

Sometimes a little case can actually turn into a huge deal. When the Supreme Court gets involved, for example. Especially when the issue in the case has far-reaching economic implications for society at large, and not just for the litigants involved. I have seen a number of “big” patent cases during my career, but none has the disruptive potential of a case that is set for oral argument next week in the Supreme Court. From humble beginnings as a declaratory judgment action filed in an unusual forum for patent cases (District of D.C.,) the dispute between Alice Corp. and CLS Bank has grown into one of the most closely-watched and debated patent cases — ever. And deservedly so, because the viability of software patents is on the line. With major ramifications possible: for technology companies of all sizes, IP firms and lawyers, the courts, and the good old global economy as well….

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Yesterday, one of America’s most famous lawyers died. The repulsive apotheosis of homophobia, Fred Phelps, slithered off his mortal coil surrounded by the physical sensation of hatred and utterly alone… if his own brand of brimstone karmic retribution carries with it even a shred of truth. At any rate, old Fred was a lawyer back in his day. Back in the 70s, he was disbarred for calling a witness a “slut.” Sex is difficult and bewildering for some people.

As a youngster growing up in Kansas, I was familiar with Freddy’s wacky brand of hatred. I think I first encountered him protesting a Pat Robertson speech when I was in high school. Très dada, the 16-year-old me whispered to no one in particular. And so it was that I began to notice Fred Phelps, long before his military funeral protests and his national fame. In college at the University of Kansas, I encountered dozens of his protests. To a homophobe like Fred, Lawrence, Kansas, was Sodom itself. A den of iniquity quite pleased with itself, thank you. And so it was jarring when we all noticed Fred’s choice of attire to keep himself warm during those gross, cretinous, mid-January protests. A KU jacket.

With March Madness upon us and basketball open on another tab of the browser I’m typing on, I say unto you… Rock chalk Jayhawk, let’s talk sports…

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