Wednesday

IT'S NOT SMALLLAW, IT'S NOT BIGLAW... THE TRADEMWARK TROLL SAYS IT'S FOOLISH LAW

Ah the good old days before the Internet. A brand owner could engage in foolish behavior and only a few folks might know of it. But the Internet has changed everything. Now when you do something foolish it goes viral. And you get to look foolish before many thousands. Or millions.

Just ask the folks at the Technolawyer blog. They claim "ownership" of the term smalllaw as a trademark. Recently another blog directed to lawyers, THE LAWYERIST, wrote a benign article about yet a third blog (stay with me here) ABOVE THE LAW, that has decided to expand its coverage to include smaller law firms. In the article THE LAWYERIST used terms like solo-small law or small law not big law in attempting to describe the nature and extent of the ABOVE THE LAW coverage.

In the old days, a brand owner like Technolawyer, whem faced with a perceived editorial misuse of a trademark, would simply ask for attribution. That is, the brand owner might say something like " The term smalllaw is a registered trademark of____" If you use this term could you please use it properly and acknowledge our ownership".

But no. The owners of the registered trademark smalllaw decided to bring out the big guns. ( Hulk Hogan take note). They hired the well known NYC law firm of Fish&Richardson to send an over the top take down letter to THE LAWYERIST.
Did THE LAWYERIST go quietly into the night? Did they yield to the pressure from bigiplaw? Of course not. They immediately recognized the pr free pass they had been handed.

THE LAWYERIST blog is currently conducting an informal likelihood of confusion survey. It is asking readers to vote on whether it should yield to the demands of Technolawyer. As of yesterday the vote was 81% no. There were some 65 comments, almost all negative, directed at Technolawyer and its lawyers.

But let me shift gears. Often, those immersed in cutting edge technology criticize an overwhelmed, undermanned US Patent Office for mistakenly granting overly broad patents that are then used as a club by the lucky lottery winner- I mean patent holder. These overly broad patents are eventually overturned. But the time and money involved is a severe drag on innovation.

The analogy is not perfect.But the shoe does fit reasonably well. Terms like biglaw and small law (or smallllaw) have been part of the cultural legal vocabulary for many years. In the face of this common usage, Technolawyer's parent company has sought to federally register the terms biglaw and smallaw as trademarks . I would bet a ham sandwich that neither of these terms would survive a serious challenge. But that has not stopped Technolawyer from hoping to win their own lottery. In the bad old days they might have been able to conduct this campaign quietly. But those days are long gone.

Side note to INTA and AIPLA- re your testimony to Congress. Please see the above. And the many, many, many, many examples of abuse that are a simple Google search from the light of day. It reminds me of the comment heard after a horrific drug related crime. Those living in the neighborhood are often heard to say " The only people that can't find drugs around here are the police".

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