The Prior Art

Trademark disputes and the hometown advantage

Of course, I dutifully prepared a post titled "Monday Morning Trademark Notes" over the weekend, only to have the biggest trademark news of all strike... right after the post publishes. I'm referring, of course, to a French court's decision yesterday that eBay must pay $61 million to LVMH Moet Hennessy Louis Vuitton SA.

We're still waiting for a decision on the Tiffany v. eBay case heard late last year in Manhattan. I have reason to believe a lot of folks are waiting on that verdict; I've noticed quite a few hits on my own blog by people searching for terms like "tiffany ebay verdict," despite the fact that I mentioned the Tiffany v. eBay case only once, quite briefly, in December.

Dan Slater at the WSJ raises an interesting question: could the French ruling could be considered a "hometown verdict?"

That's a question that could be asked in plenty of stateside IP disputes, as well. Viacom sued Google in Manhattan, not California; Tiffany's sued eBay in Manhattan.

We're not talking about venue shopping; in both of those examples, plaintiffs sued in their home base. But still, it's interesting to think about what kind of hometown advantage can be reaped. If I were a big mark-holder, I'd like Manhattan. A Manhattan jury is likelier to have folks who, if they don't work for a big fashion brand themselves, might have a brother or aunt or half-sister's dog walker's buddy who is connected to such a company. Similarly, a Northern California jury is likely to have jurors with connections to technology workers. People in Los Angeles are more likely to sympathize with a movie studio.

Maybe I'm stating the obvious here. But I live in San Francisco and spend a lot of time with family and friends in Los Angeles. Both of those regions have large and diversified economies. Despite that, it's surprising to me how much they can both feel, in a way, like "industry towns."

Highlights from the June issue

The June issue of IP Law & Business is online; the cover feature story is on the debate over the patent rights that will come out of around California's $3 billion initiative funding stem cell research. There's also a story on attorney Andy Dhuey's quest to pierce the State of California's "patent shield," the sovereign immunity defense that prevents states from being sued for infringement.

This issue also includes our annual ITC survey, including a full list of last year's cases at the International Trade Commission. The ITC is an increasingly popular alternative to district court for enforcing patents; patent-holders can't get damages at the ITC, but they can get a relatively fast (18 months) decision on patent infringement that can stop goods from entering the country.

Also up is a profile of Accenture lawyer Wayne Sobon, who explains his company's support for business method patents; it's an interesting piece but some of my own questions about In Re Bilski case still linger.

Finally I have a short story about one small chip company's attempt to argue that dozens of patent appeals judges were illegally appointed; I'll write more on that in a subsequent post.

All IPLB links in this post are free with registration.

 

Are you qualified to have an opinion about gay marriage?

Generally, I really like lawyers as sources—well-informed, straightforward, not a lot of bullshitting. More than most professions, they understand the importance of a vigorous debate and dissenting opinions.

But not always. A friend directed me to Salon.com legal columnist Glenn Greenwald, whose comments today on the California Supreme Court's ruling in favor of gay marriage could not have been written in a more condescending tone:

(1) No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.

Translation: have exactly the expertise I have, read exactly what I've read, or you're irrational. Judicial opinions are religious texts, the bar is a priesthood, commoners do not understand our rituals and must remain silent.

I know Greenwald is constructing a pre-emptive argument against his right-wing opponents, who will decry "judicial activism," but in doing so he breezily embraces some pretty anti-democratic language. In the name of equal rights, Greenwald has written a brisk defense of hierarchy.

To have an opinion, in Greenwald's opinion:

One must have read and understood the key cases on which the Court relied, such as Perez v. Sharp (1948), Brown v. Merlo (1973) and numerous others. For reasons I've written about before, anyone who criticizes the Court's decision without reference to California constitutional law is engaged in rank sophistry...

Blah blah blah. He goes on. You get the point. Glenn Greenwald is super-smart, and his pack of LSAT flash cards had the word "sophistry" in it.

But, of course, this is an inherently political issue; whether social change should come from the ballot box or the Legislature or seven guys who chill out on McAllister Street is a decision that everyone can, and should, have an opinion about. If the decision had been 4-3 against gay marriage, would Greenwald tell everyone at the Human Rights Campaign to shut up until they read Perez v. Sharp?

SF Weekly must pay Bay Guardian $15.6 million

The newsroom here is abuzz that the  San Francisco Bay Guardian just won a jaw-dropping $15.6 million in its unfair competition lawsuit against the local SF Weekly. That's far higher than the damages suggested by the Guardian's own expert, who set a range at $4-$11 million. Village Voice/New Times editor Mike Lacey says he will appeal.

I saw a small piece of the closing arguments last week and it was fascinating. The Weekly's closing argument was a crash course in the sad economics of Bay Area newspapering since 2001.

For now I'm far too busy on other projects to pay attention now, but I'll get some of my observations on this later tonight.

The two newspapers have both maintained blogs about the trial (SF Weekly here, SFBG here.)