SCORE AT THE END OF SEVEN INNINGS: FIRST AMENDMENT 25 OVERLY ZEALOUS BRAND OWNER 0

I don't know what the official tally really is. But when brand owners try to use trademark law to squelch public comment the results are predictable. The brand owner loses- loses face and loses the lawsuit. I haven't yet read the Wal-Mart WALHOCAUST decision but from the press reports it is another instance where one is left to ask" What were they thinking?"
From an insider baseball perspective my sympathies lie with the in house trademark counsel for Wal-Mart. I'm guessing that she or he normally toils away in relative obscurity. Engaged in the nuts and bolts of the practice- trying- with mixed success- to get the attention of senior management.
Then, without warning, all eyes are fixed upon she or he. One can imagine the comments. "This is an outrage" "It must be stopped"
So scrambling to preserve the integrity of... the brand? senior management?.... the law department?.... or???? and perhaps blinded by hubris- the inside lawyers huddle with outside lawyers- who, sensing the outrage, reflexively pick up the commercial law hammer as they go forth trying to convince every person with a gripe that they should see themselves as a nail.

Two years later a federal judge has imposed a reality check on Wal-Mart. Turns out it was not an outrage at all. In fact, the judge took the time to express his own indignation- if not outrage- at the dubious evidence that Wal-Mart offered to support its claim. Not only that but the opinion in this case may harm Wal-Mart in its climb up another trademark Mt.Everest. Their efforts to claim ownership of the yellow smiley face may have been torpedoed by the judge.

I must believe that Wal-Mart was told once, twice, two hundred times, that they had a less than 50% chance of winning. (Much less!!) So what is it that causes brand owners- and the law firms that advise them- to go down this path ? I don't know. But thank goodness for judges who understand that any erosion of our First Amendment is much more of a threat to Wal-Mart than the comments of a disgruntled shopper.

THE TRADEMARK TROLL SAYS: I LOVE MAJOR LEAGUE BASEBALL BUT IT SURE SMACKS OF TRADEMARK EXTORTION

Today is officially the first day of Spring. But the REAL first day of Spring is opening day - of the new major league baseball season. For many folks opening day means another year of heartache as they root for their Cubbies. The Trademark Troll is a die hard Tribe fan. Though he would rather that the Cleveland Indians abandon Chief Wahoo as a trademark. But that is a story for a different day.

The blog site www.thesmokinggun.com reports( March 18th) that lawyers for Major League Baseball have forced a Barak Obama supporter to shut down his website. At this site he was selling baseball styled jerseys emblazoned with the word OBAMA. The jerseys displayed the colors of several major league teams. And the word OBABA appeared on each jersey in typeface quite similar to the typeface used by the major league teams. Some of the jerseys also included a graphic element. In sum: the jerseys evoked the themes of certain major league teams.
Shameful you say? Perfectly legal I might counter. Would anyone seeing these jerseys assume that they were sponsored by MLB? Doubtful. Is this a form of speech protected by the First Amendment? Likely. Under current dilution doctrine are the MLB names, colors and graphic elements famous? Doubtful.

So what do we have here? Yet another example of a brand owner using muscle when the legal doctrine is unclear? Perhaps. But I see it as part of a phenomenon that is causing a backlash against patent law, copyright law AND trademark law. With good reason.

Historically, ideas have been free for all to use. The law would intervene to protect certain expressions of those ideas- technical expressions artistic expressions, or commercial expressions. But the ideas were part of the common good.

Then came the Internet. Wikis, mashups, file sharing, digital sampling, business method patents, Second Life. The line between idea and expression gets ever harder to draw. And rights holders too often succumb to the temptation to control ideas and all expressions of those ideas.
And society responds. With anger and frustration.
So an enterprising entrepreneur folds. A clever means of expressing one's political beliefs is curtailed. And MLB appears to be overreaching.

And when their rights are cut back the rights holders will need to examine their own conduct quite carefully.

THE TRADEMARK TROLL SAYS: THINK CAREFULLY BEFORE YOU CALL SOMEONE A TRADEMARK TROLL

First let's be clear about one thing. I am the Trademark Troll. The crown rests easily on my head.
But of course there are those pretenders to the throne- Leo Stoller comes most readily to mind. But his efforts to transport patent troll strategies into trademark law seem to have brought him nothing but infamy and bankruptcy.

And this makes sense.

Because America has a use based system of trademark laws. It very difficult to simply register a term as a trademark and use that registration as a lever to either demand large royalty payments or sue a legitimate business that happens to use the same or similar term. Also, unlike a patent, asserting trademark rights does not normally prevent someone from producing the underlyng product- in the worst case they simply change their name and keep right on making and selling stuff.

Recently a lawyer received an enormous amount of well deserved criticism for attempting to claim the term cyberlaw in connection with his legal practice. More recently a Finnish company has gotten some undeserved flack from the gaming/IM/Facebook/under20/web 2.0 community because it has applied to federally register the term PWNAGE for goods and services related to computers.

Now of course you know that PWNAGE is a variant of pwn.( You don't? Well neither did I) Pwn means to own. Etymology uncertain. Probably the result of a typo several years ago. Now part of the lingo. A columnist on the COMPUTERWORLD blog site casually labeled the Finnish company a trademark troll for filing this application. If you've read this far you can guess that I don't agree.

The Finnish company may or may not able to get the support of the legal system in its efforts to use the term PWNAGE for certain goods and services. If it does receive such support all the common uses of the term pwn will be unaffected by any such legal grant. There may be a sense in which the branded products or services suggest an aura of " ownership". But again, the gaming/IM/Facebook/under 20/web 2.0 use of the term pwn should be unaffected. And if the Finnish company is foolhardy enough to think that it pwns the term pwn against the world at large then they too will deserve their own disgrace and infamy.