Hubris and Trademark Law or Yet Another Case of What Were They Thinking?

Some day someone is going to explain how organizations can become so blinded by their particular view of the world that they undertake a foolish act. But worse, when everyone else can see how foolish the organization has been, when the act could be minimized by an apology, the organization, overflowing with pride and arrogance makes matters far worse by undertaking more foolish acts.

And so it is with the Jones Day/BlockShopper trademark case. Having tortured trademark law doctrine to force a Chicago web site developer to stop disclosing real estate information involving their associates, Jones Day found themselves drowning in bad publicity. Not only that but the defendant got some high profile legal help from the Electronic Frontier Foundation, a well known public interest organization.

So now have cooler heads prevailed? Of course not. Jones Day has filed a motion seeking to prevent the EFF from filing its amicus brief. Generating yet more bad publicity and making Jones Day seem ever more like a bully.

Once again I will go way out on a limb. Jones Day will lose. And it won't matter how elegant their papers. Or how much manpower they throw at this matter. Because Jones Day has lost the ability to see beyond their own view of the world.


Serena Williams Can Practice Trademark Law at Jones Day

" I think if you have the opportunity to bully your opponent then you had better take that chance"
Serena Williams- tennis player

Reminds me of the lawyers at Jones Day. As widely reported, Jones Day has filed a lawsuit against the owner of the website
Why you ask? Because he had the temerity to report on the home purchases of two Jones Day lawyers. Did Jones Day object to the disclosure of private information? No. Did they claim a violation of copyright law? No.
Jones Day claims that by using the term jones day to identify the employer of each lawyer is creating confusion and diluting the value of the term Jones Day.

I have commented before on how willing some law firms are to distort trademark doctrine to bully others on behalf of their clients. So I guess I should not be surprised that some lawyers would react the same way when their own activities were disclosed.
Perhaps the lawyers at Jones Day could visit their own website. And read about their foundational values. That begin with integrity and personal accountability.

It's Not About the Brand: The Trouble With Republicans Part 2

Leadership is not merely a matter of image management. It's not simply a matter of choosing personality instead of policy. It's not only a matter of asking- not so subtly- when in doubt WE are more like you than they are. All strands of the McSame campaign.
The mistake that Republicans make, over and over again, is to attack the wrong problem. Then the entire country gets bogged down in the right way or wrong way to solve a second order problem. While the most serious and intractable problems fester, grow ever more serious and are ignored.

Terrorism? Big problem. But Iraq is not the place to fight terrorism.

Health care? Big problem. But the real problem is Medicaid not Social Security.

Big problem. But we can drill everywhere in America and we will still be dependent on foreign oil.

Pork barrel spending? An 18 billion dollar problem. In a budget measured in trillions of dollars.

Why the systematic missing of the mark? Because deep in the hearts of many Americans- most of them die hard Republicans- is the notion the the American Way of Life=AWOL- is our birthright. A fact that the world must accept.
OK- we will drive a flexfuel Suburban. OK- we might send a few troops to Afghanistan. OK let's form a bipartisan commission to study all the real hard problems. But Russia, China, India, Vietnam, Japan, Venezuela and all you other second rate countries. We get first dibs on all the good stuff. And don't you forget it.

Perhaps we might want to rethink our misplaced feelgood mindset.

Our Brand is Tarnished: The Trouble With Republicans Part 1

Only in America would the buzzwords of marketing be unselfconsciously injected into political discourse. And so we hear, all too often, about how the Republican brand is tarnished. As if a bad batch of hair coloring had caused a scalp infection, forcing a product recall. And now management was faced with a PR campaign to rebuild the brand.
But the exercise of government is much more than the maintenance of brand quality. And the consequences that flow from the mismanagement of government are far more long lasting than the discomfort of a scalp infection.
By now the list is all too familiar: record surplus to record deficits, historically low unemployment to 6 per cent unemployment, millions of jobs created to 10's of millions now lost, no WMD, a tragically mismanaged war, Katrina, unprecedented world leadership to unprecedented world hatred. And underneath it all a mean spirited religious fundamentalism every bit as zealous as that of a Mullah.
And the Republican solution? Let's all rally around McSame. If we yell loud enough and long enough perhaps we can mesmerize independent Americans into thinking that a calculated political move represents reality. Or, to use marketing vernacular, let's reposition our brand. Since sales are declining because we have promoted experience, we must tout a different set of attributes- heah, how about change? OK we'll run it up the flagpole.
When people ask me " What kind of lawyer are you? " I have often replied" I preserve the world of designer jeans, handbags, perfume and shoes. " I guess now I should add Presidential candidates.



I've been practicing trademark law for a long time. And, at times, it can be frustrating to convince someone that they should consider employing my services. More than once I have had to tactfully resist saying " I told you so" when a client went forth without advice and got into trademark trouble.

But I would never dream of making the claims set forth in an article currently being distributed widely on the net. WHAT IS A TRADEMARK ATTORNEY, dated September 3, 2008 makes some claims that leave me shaking my head. After a typical, slightly self serving description of why businesses need a lawyer and sketching the process for choosing and registering a trademark the author then makes some startling statements.

A business which has no registered trademarks risks losing their clients and their respect. Anyone could use their trademark, making everybody confused. If the business would have a registered trademark the owners could sue anyone trying to copy it or using it on their products.

Put simply: there is no legal need to federally register a trademark in the United States. And federally registering a trademark most certainly will NOT give one the absolute right to sue anyone trying to copy it or use it on their products.

When having an attorney you can be safe in any situation and legal issues will not be a problem.

Oh how I wish it were so. The best attorney in the world cannot guarantee your trademark safety. The best attorney in the world cannot tell you that legal issues will not be a problem. Ask eBay. Ask Google. Ask Microsoft. Ask Dell.

The article contains a link to a site promoting a FREE five day course in trademarking.

I firmly believe that the new rules of rendering professional services mean that lawyers must give away the basics. But I now realize that a much older rule of the marketplace still applies: caveat emptor baby!!