Trademark, while generally one of the better forms of intellectual property as used in practice and in purpose, can certainly still be abused. It can also fall victim to an ever-growing ownership culture that seems to have invaded the American mind like some kind of brain-eating amoeba. And that’s how we’ve arrived here today, a day in which I get to tell you about how there is currently a trademark dispute over the flavor of pizza. And no, I’m not joking.
A few months ago, I shared how Judge Richard Wesley of the U.S. Court of Appeals for the Second Circuit uses his iPad as part of his day-to-day routine, making him a more efficient and effective jurist. Well, he’s not the only technologically proficient judge. Janet T. Neff, U.S. District Judge for the Western District of Michigan, knows her way around technology, too.
Her interest in technology is nothing new. It began nearly 40 years ago and she hasn’t looked back since. “I first became interested in computers in the late 1970s when I was working as a Commissioner at the Michigan Supreme Court. Westlaw and Lexis were just beginning to come out with their services and I was assigned to talk to their representatives. I was intrigued with their services but we didn’t do much with it at that time,” she explains. “Many years later, when I was on the Michigan Court of Appeals, our clerk’s office was very invested in using technology and — almost as an afterthought — they asked if any of the judges were interested in it. I was the only judge who was. I was given a ‘dumb terminal’ and was later part of the committee that addressed the Y2K issue. So it was an evolutionary process and then when I came to the federal court, where the IT resources were even better, I began to utilize technology further.”
* He stuck all that cocaine, where? [Legal Juice]
* A musical about Thomas Jefferson’s moose skeleton and what it means for Internet regulation. It makes more sense than it sounds. [The Volokh Conspiracy / Washington Post]
* Virginia’s Supreme Court to hear the Case of the Annoying Yelpers. [WTOP]
* Interesting piece on the “multiple jeopardy” faced by patentees. [Patently-O]
I just read Shannon’s article from last week about solo practice (and the comments, which got pretty weird pretty fast). It was a familiar story. I have been a solo for a little over three years now. There certainly are lawyers who make more money than I make, but for most of the last three years, I have been so busy that I refer away most of the cases that come my way. I have watched a lot of my lawyer friends who have different personalities and different skills meet the legal market with varied success. Here’s what I have learned as a solo, as someone who has worked in a firm, and as an employer:
Understand That No One Owes You Anything
I went to a top-ranked university for undergrad. I got into the highest-ranked law school in my area so that I could keep my part-time job at a 200-lawyer law firm. I felt poised to make good money as a lawyer. After law school, I went to work for a small but successful business litigation firm. It was successful because my boss understood that the practice of law is still a business. When I passed the bar, I came into the office Monday morning and had a talk with my boss about how much more money he was going to have to pay me now. His response was that he was not going to pay me anything more at all because my value to him had not changed. I quit a few weeks later and opened up my own practice, using that talk as one of the foundations of my practice.
Let me explain….
We are living in a feedback culture. Traveled lately? Uber wants to know how your ride to the airport was. Your airline? An emailed survey is waiting for you on arrival at your destination. Checking out of your hotel? Have a goodbye survey on the house. Had a meal? Make sure you take the opportunity to complain (on Google, Yelp, etc.) about the server who accidentally brushed your shoulder while pouring your overpriced Malbec. Or rave about the innovative creme brulee and brioche hybrid that is the heir apparent to the cronut as a worthy “queue them up” for hours artery-clogger. It’s easy. Just a few clicks, and the world will be enlightened with your opinion. And your service provider can “improve the experience” for the legions of satisfied customers to follow.
In fact, service providers in multiple industries are quite busy turning your technological toys into “review generation machines” — because they can. Purchase an item online, and be prepared to answer questions about the item, the purchasing experience, and even the process of returning “crappier in real life than it looked on my Retina Display iMac/iPhone/iPad” item as well. While you are at it, maybe you have some thoughts on the packaging too. If so, the good folks who supply online retailers with corrugated cartons of all shapes and sizes would sure appreciate hearing about it.
There is no doubt that technology has fostered this “connectivity” between consumer and service provider in a quite mind-boggling way. And that those service providers are not shy about exploiting it. Many times, we do not even realize just how much our thinking has changed on this issue….
After John Oliver used dogs to create a recap of the Holt v. Hobbs argument, he asked other media outlets to use his raw footage in their own reporting. As much as we enjoyed the subsequent recreation of the entire Hobby Lobby argument with the aid of Oliver’s raw footage, this may be the ultimate realization of Oliver’s dream yet.
Rather than matching the audio of the whole argument uncut, these folks used the footage as part of an otherwise straight-up report on the Court’s shortcomings in addressing technological innovation. And included scenes like the Court’s back-and-forth about whether cutting-edge innovator Aereo operated “more like a car dealership or a valet service” but with the aid of Oliver’s dog footage. Check it out below….
As the saying goes, death and taxes are both certainties — as is the fact that politicians lie. But another near universal certainty is that Marvel will totally freak out whenever it gets the slightest inkling that its intellectual property is threatened. The latest head-scratching example of this was yesterday’s leak of a trailer for The Avengers 2, which Marvel promptly DMCA’d.
Significant Case Developments
P.F. Chang’s Seeks Dismissal of Data Breach Class Actions, Arguing the Existence of an Express Contract and Lack of Damages Preclude Claims
Lewert v. P.F. Chang’s China Bistro, Inc., No. 1:14-cv-04787 (N.D. Ill.).
As we described in July and September, P.F. Chang’s was hit with three putative class actions following its announcement of a point-of-sale data breach. On August 29, P.F. Chang’s moved for dismissal of the first two cases, now consolidated in the Northern District of Illinois. In their complaints, plaintiffs John Lewert and Lucas Kosner alleged that by failing to safeguard customer information, P.F. Chang’s breached an implied contract and violated consumer protection laws. The plaintiffs did not bring a breach of express contract claim. P.F. Chang’s argues that the plaintiffs acknowledge the existence of an express contract by alleging that “a portion of the services [they] purchased” at P.F. Chang’s was “compliance with industry-standard measures” for data security and that they were “deprived of the full monetary value of [their] transaction.”
Last Friday, in the wake of numerous data breaches, President Obama signed a new Executive Order that will change how federal agencies use payment cards and allow access to certain government portals. Those changes include the adoption of chip-and-PIN (also known as EMV) payment terminals and cards, and the implementation of multi-factor authentication on digital applications where consumers can access personal information.