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What to look for in good Health Insurance by: Mike Spencer Copyright 2005 Mike Spencer Health insurance is a kind of protection that provides payment of benefits for covered sickness or injury. Included in health insurance are various types of insurance such as accident insurance, disability income insurance, medical expense insurance, and accidental death and dismemberment insurance. Before sign the health insurance policy make sure that you have read thoroughly the benefit’s section. Take note of any health care service that is not covered by your health insurance policy. Also, pay specific attention to how the health insurance policy is worded. Sometimes, health insurance companies hide the health insurance coverage exclusions within the definitions of words. For instance, a health insurance company may define the term ‘emergency’ as anything that is life threatening condition that cannot be reasonably treated by a primary care physician. Whereas, your definition of ‘emergency’ may be anything that requires quick medical attention. Clearly, there is conflict for the two definitions. If you find yourself in an emergency situation where you incur a broker arm, for instance, your insurance company may deny coverage for emergency room treatment of a broken arm for the reason that the broken arm does not fall under the life threatening category. Therefore, you should read over carefully the health insurance policy definitions, paying close attention to the seven key words: medical emergency medically necessary accidental injury experimental or investigational pre certification pre-existing condition, and reasonable and customary These words and any words that are open to interpretation should be regarded with wariness. Find out how your health insurance company defines each of these. Finally, find the section describing the procedures you must follow in order for your insurance company to reimburse you. These policy conditions or prerequisites are typically worded in a positive tone. Read through each condition carefully, make notes and call your health insurance company with any questions. You should also compare health insurance contracts before you sign one. In order to compare exclusions, take two policy contracts and find the exclusions sections. If you want to compare a number of health insurance contracts then you could use an online service. After you obtain your free quote for the health coverage you desire, apply for it online, and you'll obtain all the information that you'll need to compare exclusions of each health insurance policy (though sometimes this will require more research.) About the author: Mike Spencer recently became unemployed and moved into self employment. He was forced to find his own health insurance plan to protect his family. It wasn't as easy as he first thought. Here he shares the pitfalls of various plans and what you need to look out for when picking a good plan for you: http://www.1st-for-health-insurance.com/articles/what-is-health-insurance.html buy software cheap oem software

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Welcome to another edition of Blawg Review -- where bloggers come for their legal news every Monday. It's good to be hosting another edition of Blawg Review at the Health Care Law Blog. However, it's even better to be done. First off, thanks to all who submitted posts to this edition. There was wonderful material to work from. Much of the information that I regularly consume online is related to my practice as a health lawyer and I enjoy the opportunity to step outside of that specialty and be a part of a larger legal discussion going on in the blogosphere. As an active participant in the blogosphere and Live Web I am constantly amazed by the knowledge, skills and imagination of those who create electronic content (written, audio and video) for public consumption. Not just lawyers -- but every profession imaginable. The volume of information conveyed online today through electronic social networking is mind boggling. How much you say? Technorati is now tracking approximately 69.4 million blogs with 175,000 new blogs created per day. The world live web is being updated with 1.6 million new posts per day, for an average of 18 per second. Could Johannes Guttenberg have ever imagined this phenomenal transformation in communication. Lately I've been thinking and posting more about the impact that blogging and web 2.0 is having on the health care industry. It is a time of change for the health care industry. Likewise, I think many of you will agree that fundamental changes are occurring in the delivery of legal services as a result of the rise of the new social networking technology movement. For more of what this may mean for health care check out some of my materials from a presentation I did to introduce health lawyers to the basics of Health Care Blogging and Web Health 2.0. [Note: I'd also suggest watching (if you haven't already) "Web 2.0 . . . The Machine is Us/ing Us," created by Michael Wesch , Assistant Professor of Anthropology Kansas State University. The video visually explaining Web 2.0 and how today's digital technology influences human interaction.] To begin with let's highlight a few of the submissions that reflect some of these fundamental technology changes which we are all experiencing as a result of the social networking phenomenon, the availability of new technology tools and the shift toward living our lives out on the web. Bruce MacEwen gives us a tour of the The Law Library of the Future? at Adam Smith, Esq showing us all the differences that exist within today's firms. From the traditionalists/silent generation to the Boomers to theGenXers to the Millennials. Online political social networking hits full speed at My.BarackObama.com covered by Susan Cartier Liebel at Marketing Genius - the "Obama Principle" and suggests that lawyers have something to learn from observing the process as it unfolds. Mike Madison and Denise Howell will be hosting a public conference call today, February 26 at 1:00 p.m. PST to gain insight on ownership considerations and issues of governance and liability that are critical to the creation, maintenance and long term health of business communities (corporate use of Web 2.0 technologies). The call is being held to help them prepare for the upcoming Community 2.0 Conference. Overlawyered looks at the liability of curb cuts and wheelchairs vs. jaywalkers in Jury blames hit-run death on wheelchair curb cut (fascinating to me is the comment discussion and the use of Yahoo Maps to support user comments on whether the jury made the right decision). Brent Trout at Blawg IT touts the ideas of Seth Godin and the application of his concepts to the practice of law in his post Law Firms - Small is the New Big. Scott Felsenthal at The Legal Scoop, a new law student collaborative blog by three students from Tennessee law schools, provides a look at the what's happening across campuses as a result of students living their lives out online in Facebook and MySpace- Quickly Becoming Breeding Grounds For Disciplinary Actions and Arrests. If you or your kids are on the edge of becoming the next one hit wonder, don't miss reading So you want to be a Recording Artist . . . by another of The Legal Scoop team members, Tim Bishop. David Lat examines a recent survey at UVA Law School and my question is -- what about Tennessee law schools? Watch and read the post on Prosecutorial Indiscretion (or the lack thereof) at Sui Generis--a New York law blog. She looks at a Virginia "rage road" incident that resulted in an ice throwing felony conviction. The video clip also includes a discussion of a series of posts on the newly promulgated lawyer advertising rules in New York which forbid the use of a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter." The post series uses actual video clips of lawyer advertising clips from various jurisdictions to demonstrate application of the new rules. Dmitriy Kruglyak founder of Trusted.MD reports on two articles appearing in the East Bay Business Times. One about Kaiser's ongoing encounters with blogging and social media and the other examining how hospital administrators and executives should use blogs. On February 8, 2007, Wendy Seltzer in In My First YouTube: Super Bowl Highlights or Lowlights conducted an experiment to determine whether copyright overreach would trump her fair use rights when exercised to teach about copyright overreach. Five days later she received the DMCA Takedown Complaint courtesy of the NFL and YouTube. If you're an RSS fan don't miss Justia Federal Court Filings which allows you to see new filings by state, court or subject matter. Reported at Robert Ambrogi's Lawsites and The IllinoisTrial Practice Weblog. And now on with the rest of the submissions for this week's Blawg Review. The most highly talked about topic this past week was the Supreme Court's ruling on punitive damage awards in Philip Morris USA v. Williams. SCOTUSBLOG reports that the 5-4 decision found that it is "unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit -- that is 'strangers to the litigation'". The Court held that punishing a defendant for harming persons who are not before the court amounted to a taking of property from the defendant without due process of law. EricTurkewitz of New York Personal Injury Law Blog covers the decision in Court Tosses Philip Morris Verdict, And Further Confuses Punitive Damages Issue and Philip Morris Punitive Damage Decision - Why It Was Good For Plaintiffs indicating that the decision requires judges to now tell the jury in a punitive damage case that they can consider the reprehensibility of the defendant's conduct toward others, but not the harm to them. The South Carolina Appellate Law Blog says the decision creates an unworkable standard in After Philip Morris: What can a jury consider for punitive damages purposes? SCOTUS sets an unworkable standard and sets out some options that trial judges have when considering evidence of harms to non-parties. More on the decision from Law Prof on the Loose with Tobacco Verdict Goes Up In Smoke. Bill Watkins at South Carolina Appellate Law Blog looks at a the interplay of the Controlled Substance Act and a recent South Carolina senate bill proposing that Marijuana be considered a prescription drug in South Carolina lawmakers review bill to legalize marijuana for medical use. Ilya Somin at The Volokh Conspiracy disagrees with a recent Slate column that contended that split decisions make bad law and, in the specific context of the current Supreme Court, undermine the Chief Justice's admirable goal to promote unanimity amongst the justices. The HR Lawyer's Blog looks at the continuing trends on alternative billing arrangements in Alternative Billing - Clients Want It - Big Law Firms Hate It.The post highlights that a recent survey of corporate counsel indicate that 90% of outside counsel still resist the suggestion to consider alternative fee arrangements. Kevin Jon Heller at Opinio Juris covers a running battle between Glenn Reynolds and Paul Campos, law professor at University of Colorado, over one of Instapundit's posts arguing that selective assassination of Iranian nuclear scientists is both legal and advisable. Eugene Volokh also weighs-in with some worthwhile comments. Charles Green questions the "legal tip" included in Business Week's SmallBiz magazine which suggests that retail sales slips should include a written statement to protect the interests of your business in his post From Our Legal Experts... posted at Trust Matters. David Maister gives interesting insight into his experience as a juror in a 5 day trial involving a pastor, a parishioner and $80,000 in Jury Duty posted at Passion, People and Principles. He offers some simple lessons for litigators to remember. Charlie Weis, Notre Dame's football coach, appears headed back for seconds in his trial over an allegedly botched gastric bypass surgery. Quizlaw has an entertaining post about the events that lead to the mistrial. Only one can speculate what would have happened if the physicians chose not to respond. Are you an avid T.J. Maxx or Marshalls shopper? If so, check out Law Practice Management's post Identity Theft Begins with Access to Your Information discussing on of the latest electronic data breaches. The post offers practical advice on how to better protect your personal information in this growing age where everything is electronic. Overlawyered writes about Dr. Vatura who saved the life of a 400 pound man thrown from a motorcycle in a high speed accident in Treating the morbidly obese (redux). Due to his obesity it was impossible to stabilize the man with typical cervical spinal precautions and as a result he ended up a quadriplegic. One of my favorite medical bloggers, Kevin, M.D., covers this same topic and what he believes the impact these events have everyday on doctors. For another perspective on the impact of medical malpractice on physicians, consider hospital CEO and blogger Paul Levy's recent post The Shame of Malpractice Lawsuits at Running a Hospital. Also, Kevin, M.D. mentions an interesting issue coming before the Virginia Supreme Court of Appeals in his post Should academic physicians be protected against malpractice suits? Don't miss Quizlaw's Wacko gets Jacko'd providing evidence that you can be sued for almost anything -- the family of a 73 year old woman is suing Michael Jackson and Marian Medical Center claiming that the hospital's VIP treatment of Jackson resulted in the death of the woman. PointofLaw Forum links to David Rossmiller's Insurance Coverage Law Blog which covered Mississippi Attorney General Hood's press conference call where State Farm was called "a cult,""decadent" and "robber barons".Rossmiller questions much of what was said during the call and makes a good point -- if you think that that much of the company why would you want them to stay and provide insurance to citizens of Mississippi. If you regularly draft contract language you shouldn't miss That" and "Which" by Ken Adams at AdamsDrafting who looks at the confusion over the distinction between that and which and a New York case, AIU Insurance Co. V. Robert Plan Corp. that considered the differences. Ben D. Manevitz who writes IP Notions looks at Mike Carroll's "Fixing Fair Use" made at the Some Modest Proposals 03 Conference in Fair Use and Fee Shifting and adds a suggestion that the proposal needs to be given teeth by tying the payment of attorneys feed to the process. A reason to let your associates get sleep from Davit Lat at Above the Law. Mike Madison at madisonian.net reports in IP and Insurance on a breakthrough partnership among insurers, the Standford Fair Use Project and a network of practitioners willing to discount their rates to documentary filmmakers to lower the cost of insurance for documentary filmmakers who rely on fair use doctrine for portions of their content. Lessig Blog has additional details of the announcement. This week Eugene Volokh notes that Ohioans are presumptively protected from being fired for off employer property (and presumably off duty and lawful) possession of guns. The decision in Plona v. UPS involved the termination of a UPS employee who was found to have a handgun in his vehicle wile at work. The gun was disassembled, unloaded and locked in his care in a public access parking lot used by UPS employees and customers of UPS. The court held that the public policy permitting Ohio citizens the right to bear arms under the Ohio constitution was enough to form the basis of a wrongful termination claim. More on the Second Amendment from Jacob Sullum who notes that the FAA has revised its thinking on its justification for its ban on carrying firearms aboard spaceships. My Hosting Blawg Review #97 post mentioned Kevin O'Keefe's post about the term "blawg" and the fact that it is still facing an uphill road at being recognized and understood. The post relates that Wikipedia editors have again dropped the term "blawg" (but, Blawging is still listed but redirets to Blog). Another Wikipedia term that I have referenced in the past has also been dropped by the Wikipedia editors -- Live Web. Hmmmm . . . is a Wiki-conspira-edia going on? David A. Giacalone at f/k/a says, "move over Anonymous Lawyer," and suggests I introduce Blawg Review readers to BabyBarista, an anonymously written account of the "pupillage" of a pupile barrister in London. May I suggest TidySum and Scandal. At shlep Giacalone provides a link to Babysitting and the Law in his post about when can you leave your children at home? In SOX Slaps Lawyers Leon Gettler looks at the tough rules of Sarbanes-Oxley the the impact on attorneys. Suddenly lawyers are going down like nine pins because of the crackdown on backdating. Likewise, the Wired GC discusses how the perceptions of the general counsel's responsibility are changing in the wake of the backdating scandals. Ann Althouse considers the wisdom of Eric Alterman's passing suggestion that the blogosphere needs a council of bloggers to police what's being said on the most controversial subjects. Kaimipono Wenger at Concurring Opinions looks at Anna Nicole Smith's will as a real-life law school exam. That's all for this edition. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Tags: blawgreview, Blog, blawg cheap oem software buy software

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Detoxification (Beverages) copyright@2006 by Donna Partow One of the cornerstones of the 90-Day Renewal is the principle of detoxification. Too many of us have toxic souls [your soul encompasses your mind, will and emotions]. We have toxic thoughts, toxic feelings. We expose our minds to garbage thru the media. Dare I say that some of us attend toxic churches [controlling, legalistic, back-biting, etc.] and maintain toxic relationships?!?! We even make decisions that defile and pollute our lives. I'll say more about detoxifying your soul in future posts, but for today, I want to emphasize detoxifying our bodies, specifically through what we drink. The best detoxification beverages include: 1. Water - to flush the toxins (food additives, chemicals, sugar, processed foods, etc.) the best place to start is with good old-fashioned . Obtain two 32-oz Nalgene bottles. Fill with water and place in your frig each night before bed. Your mission is to drink both bottles before refilling them again the next night. If it means you have to guzzle it down at 10pm and then stay awake all night using the bathroom, so be it. I guarantee the next day, you'll start drinking a whole lot earlier!!! You may add fresh lemon. If you really want to start your day right, set a goal to finish your 1st 32 oz before lunch. And if you want to sleep, finish most of the 2nd bottle before dinner, leaving just enough to have some hot lemon water before bed. 2. Hot lemon water - (Yes, you can pour water out of your Nalgene bottle so it counts toward your total intake!) - One cup of hot water - squeeze fresh lemon. Start with 1/8 of a lemon, build to 1/4 then 1/2. Drink this first and last thing each day. 3. Bill Bright's Recipe - I've posted this previously. Bill Bright fasted 40-days and credits this drink for his vitality throughout. Hot or cold lemon water with maple syrup and cayenne pepper. Sounds awful, but tastes GREAT (He drank it cold; I like it hot!) and it is very, very energizing! If you need more energy, THIS is the detox drink for you! 4. Bragg's Apple Cider Vinegar & Local Honey . Not Locan Honey, that's a typographical error in the book! You want locally cultivated-honey which will enable your body to develop immunities to local pollen. If you have allergy problems, this will be like a miracle for you. Here again, don't buy the cheap, processed Apple Cider Vinegar at your grocery store. Buy Bragg's - it's the real thing. And you MUST buy local honey or you defeat the purpose. Mix 8 oz cold water with roughly 1 tablespoon ACV and 1 tsp. honey. 5. Ann Louise Gittleman's Cranberry Drink (with Donna's modification) - many of you have asked if I was influenced by the Fat Flush Diet. Absolutely. I have studied and tested every diet ever created and the Fat Flush is one of the most scientifcally sound. My 90-Day program incorporates the best of the best from a wide variety of regimens. Buy a bottle of UNSWEETENED Cranberry Juice - it's very expensive and rarely available in grocery stores. I buy Knudsen's or Trader Joe's; check your local health food store. Mix 1 part juice to 3/4 water. You can drink this combination all day - in fact, you can fill your Nalgene bottles with it. In the morning, mix one cup of your diluted Cranberry Juice with 1 tablespoon ground psyllium (from the health food store! Don't buy metimucil or anything like that!!!) and 1 tablespoon bentonite clay (that's my modification). This will really flush out your system. It's like taking a scrub brush to a toilet bowl that hasn't been cleaned in a year - so don't start with this one, unless you will be near your own bathroom all day! You'll notice that I introduce a variety of these detoxification drinks throughout the 90-Day Renewal. No, you don't have to drink ALL of them everyday. It would be impossible. However, find the one that works best for you and stick with it. Every day. For the rest of your life. Or you might mix it up. For example, I like lemon water in the Fall, but in late Winter, I switch to Apple Cider & honey (to strengthen my body against the coming onslaught of allergens) and in late Spring, I prefer the more intense Cranberry w/psyllium and bentonite since it is the most aggressive flush (targeting fat pockets aka cellulite) in preparation for wearing short sleeves!! Remember: If you have not detoxified your body in ages, do not expect this to be a pleasant experience . Yes, you will have an upset stomach! You may feel like your insides are being torn apart. Yes, you may feel sick: headaches, jitters, even a fever. The more toxic you are (if you eat junk food, refined carbohydrates, drink coffee, soda, etc), the sicker you will feel. But that's GOOD; it means your body is seizing the opportunity to throw off toxins. Do NOT treat the symptoms. Let your body work through it. As I've mentioned several times before, you might start with the Cabbage Soup Diet as a way to jumpstart detoxification. Happy Detoxifying! Blessings, Donna

Tags: day, water, drink, lemon, detoxification

I've never played a MMORPG but what it is, is an online adventure game that's inhabited by thousands (nee millions) of online users whom you meet in battle compete against or join forces with to complete all manner of medieval quests. World of Warcraft (or WOW for short) is the #1 MMORPG at the moment and it's everything you would expect: exotic lands, magical creatures, princes and princesses, sorcerors and magicians and so on. It's basically a natural progression to dungeons and dragons, I think. Here's what fascinates me about it: the unexpected side effects of creating a real world. A few months ago, I read this mind-blowing article about how experienced WOW players were going on quests, procuring magical items like swords or wands...and selling them to other players for REAL CURRENCY. That's right, you could improve your odds in this game by, say, buying a magic axe on ebay and paying real money for it. Other gameplayer entrepreneurs wanted to open a bank in the game to store other players' money and lend money for mortgages and so forth...IN THE GAME! It got so bad that the South Korean government (by far the most MMORPG gamers per capita, in the world) is in the process of introducing legislation that will regulate this 'exchange' of virtual goods and services, not to mention the currency and economics of online worlds, while preserving the copyrights of the companies that created them. This could include having an exchange rate for WOW currency to the US dollar or making sure no price gouging occurs. Crazy.. Anyways, a few weeks later, I read that Blizzard, the makers of WOW introduced a deadly plague into the game, which could infect players if they didn't get treatment. It was a plotline that was designed to make the game more intriguing and to throw another challenge in that would spur players to strategize around it. What they didn't anticipate is how quickly this plague spread and killed a lot of players (and also Non Player Characters, NPCs) and became a virtual epidemic. It was an unexpected twist but added to the realism of the game and created a distinct air of tension and paranoia among the inhabitants of WOW. That was pretty crazy too. Then this article appeared and blew my mind even further. Are we eventually going to migrate to online fantasy worlds and leave this world behind (a la Matrix)? Is it a sign of people's discontent with modern life? Shouldn't this level of escapism be classified as a sort of drug? So many questions...anyway, here's the article. Christian game enthusiasts around the US are turning the world of Azeroth inside the new video game, "World of Warcraft" into a mission field, where virtual battles are fought and real souls are won to the Lord Jesus Christ. Billy Houston, a Landover Baptist Senior High youth, has been sharing Jesus in the virtual gaming world for over three years. "I evangelized in Lineage 2, Everquest, Diablo, and a bunch of other games," he says, "but I haven't seen nearly as many people who are as open to hearing the Gospel message as I have inside the World of Warcraft." Billy has what gamers call, a Level 57 Undead Priest with Holy Focus. "I'm also in one of the largest Christian guilds on our server," he says. "I think the reason so many people are open to hearing about Jesus in the World of Warcraft is because the majority of people who play the game are lonely kids who don't have any friends. I doubt any of them play sports so you can pretty much guess that there are lots of gay boys and fat little pale-faced Wiccan girls on the servers who hate themselves and escape into virtual characters so they don't have to deal with their pathetic lives. When they hear that someone loves them, even if it is just the Lord Jesus Christ, they always want to hear more!" The World of Warcraft is ripe for eager young Christian evangelists to ply their trade. "I'm studying to be a missionary at Liberty University, in Lynchburg, Virginia," says one gamer (who prefers to remain anonymous) and sharing the Good News of Jesus in Azeroth is a great way to practice soulwinning in Arkansas, where I'm from originally. I think that when Jesus said in Mark 16:15, Go ye into all the world and preach the gospel to every creature, He knew that True Christians cheap oem software buy software

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Inquiry two pharmacists sentenced amid 'syrup' cabinet Thanks to filling phony prescriptions, they give attention prison terms of 10 more 12 years Concluded MELANIE MARKLEY Copyright 2006 Houston Diary The experiment two of six Houston pharmacists convicted separating October of conspiring to deliver fake prescriptions through painkillers including codeine-laced cough syrup were handed prison sentences Wednesday. John David Wiley III, 41, plus Anthony Dwayne Essett, 39, were at intervals the six pharmacists convicted of dispensing 2,500 gallons of promethazine with codeine, a highly addictive cough suppressant known realizable the street completed like names pending syrup, lean, purple to boot drank. The pest helped illustrate why Houston became known since the \"City of Syrup\" centrally located some chapters of America's rap refinement. The drug's popularity calm gave preferment to a different, Houston-bred vernacular of rap music. The six pharmacists together with were settle guilty of loan laundering still filling phony prescriptions since 1.7 hundred pills of hydrocodone, a synthetic narcotic generally known up the agname style Vicodin. They including were convicted of conspiracy to illegally nurse the drugs. Wiley besides Essett are co-owners of I-10 East Pharmaceutical Services. U.S. Estate Image David Hittner sentenced Wiley to 10 years interpolated prison. Essett received a sentence of 12 years to boot seven months, still was fined $312,000. The four distinctive pharmacists convicted medially the crack were sentenced earlier. Otukayode Adeleke Otufale, owner of Med Swan song Pharmacy Along Hillcroft, was sentenced to 10 years. Isaac Simeon Achobe, owner of American Choice Pharmacy possible West Bellfort, received a 63-date heading likewise was fined $5,000. Chicha Kazembe Combs besides Andre Dion Brown, co-owners of Mason Road Pharmacy bounded by Katy, were each sentenced to 10 years. Buying to scoop, the six pharmacists knowingly definitive fake prescriptions from Dr. Callie Hall Herpin, who pleaded guilty further testified being the prosecution. To boot named amid the conspiracy were Etta Mae Williams, 47, Karen B. Williams, 40, Darryl Armstrong, 41, Paul Henry, 40, Omar Fahie, 24, Eric Vocation, 38, besides Motive Bailey III, 36. The remaining eight defendants are scheduled to be sentenced again this moment. buy software cheap oem software

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A shift prior we disembarked dormant how along schools are functioning their texts on the web. Now, Wikibooks is get that feeling to the succeeding league, providing educational idea from elementary to college levels in wiki format. Tween actual wiki erect, anyone can edit the textbooks medially Wikibooks. Exact during blogs are disrupting news media, could wikis enclose the according to invest on the publishing contract? Not individual can wikis be right closed unusually regularly Also, halfway may cases, due to unchain, but they start an wholly new illustration completed allowing for humans editing of matter. Probable the side, wikis fly amidst the face of the fundamental ulterior motives of the written street talk: permanence, an historical index, a exclusive connecting of authority, as well not the unusually least, copyright. Wikis are plus at intervals their infancy, but if they are embraced the method blogs carry been, they could radically correspondence the sequence we destine around written motif of entirely sorts.

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Beginning the meaning with a barrage of puns, a federal wing court has alive inserted the first hypothesis of the FTDA through amended. Louis Vuitton Malletier S.A. v. Haute Diggity Stoppage, LLC, 2006 WL 3182468 (E.D. Va. 2006). Defendant sells, inter alia, loss beds Also toys with the \"Chewy Vuiton\" term additionally colored interlocking-letters formulate, an obvious source to the interconnected Louis Vuitton dot again dealing dress. Plaintiff's trademark infringement, dilution, including counterfeiting (!) claims aborted, over did its copyright infringement claims. Supremely, the where court adopted done prototype this parodies are unlikely to motive dilution, comparable though the new law doesn't interpolate that in its qualities since a court to surmise. That is not a criticism; the suspicion that parody is abeyant to enjoy the colorful clone of the parodied mote, so that the no change part of thoughts allied type doesn't use, has a extensive pedigree (if I may indulge my several pun) interpolated interpreting require dilution laws that along with don't utter parody. In accession, due to the parody was \"gentle,\" it was not tarnishing. Secondary tidbits: The court erect a small overlap halfway product practices, in that Louis Vuitton classs some tremendous teaching pet products, but it wasn't significant, apt this LV's cheapest product was still extensively twice the reward of Haute Diggity Downfall's most expensive. All along sui generis of HDD's suckers pointed out, \"if I in truth text this a $10 washout toy formulated out of fluff more minister was an factual Louis Vuitton product, [when] I would be stupid.\" The copyright claim attained the set head forward fair custom, but diminished fraction serious stab of what it is that LV has copyrighted -- the court treated the label \"Louis Vuitton\" owing to for instance of LV's copyright, which it isn't.

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Today’s GW IP colloquium featured Stop Schultz, who spoke Along Copynorms: Copyright still Social Norms. Two assumptions Schultz challenges: (1) copyright owners will inevitably exercise their rights, whatever they are, to the fullest extent possible; (2) copyright users, both ordinary consumers and subsequent creators, are incorrigible, and if they think they can get away with an unauthorized use, they will do it. Copynorms have a significant moderating, extending, and undermining effect on the effects of copyright law. We know enough now about social norms to predict how people will behave in certain situations. We can’t easily manipulate human behavior, but we can structure business practices that make users more inclined to comply with copyright law and owners more willing to allow some uses. The economic model: can means will on both sides; everyone will go as far as possible to get economic reward/something for nothing. But copyright owners often forgo enforcement. Sources of injunctive copynorms: writers and scholars (attribution and plagiarism), Creative Commons, open source, librarians, hackers & warez traders. Attribution substitutes for copyright by allowing some copying as long as there’s attribution, and plagiarism goes beyond copyright by covering public domain works (and ideas). Writer’s norms are important by comparison to other domains – musical sampling or putting a picture in the background of a movie are legally risky and usually involve licensing. Newer norms are emerging from norm entrepreneurs, whether outside of or undermining copyright law like warez traders. Other norms are more likely to be emergent and descriptive rather than arising from intentional behavior. Once everyone does it, it becomes self-sustaining because everyone does it: search engine indexing, e-mail reply & forwarding, home copying, file sharing. (Is search engine indexing emergent and descriptive, or did AltaVista, Google, etc. push it on us as very successful norm entrepreneurs?) Indexing wasn’t challenged despite our litigious society for a long time. (But that could have been because (1) most of the copyright “owners” didn’t perceive themselves as such and weren’t traditional content owners; (2) copyright owners who were unsophisticated technologically and/or recognized they benefited from indexing; (3) copyright owners who were sophisticated technologically found it simple to opt out if that was beneficial.) Given that these practices are so common, courts are often baffled when the issue is finally litigated and there’s no precedent despite years of experience. This is really a healthy sign that descriptive copynorms are allowing people to coordinate their activities simply. Good news: we (who? Lawyers? Businesses?) may be able to influence copynorms. It’s never a sure thing, but we do know how to build support for some norms. Influences on norms: (1) Persuasion, including advocacy, public education campaigns, etc. (2) Perceptions regarding others’ level of compliance, such as beliefs that other people are using iTunes. When people believe most other people comply, they’re more likely to comply. Many ad campaigns that try to change norms are actually counterproductive, because they highlight people breaking the supposed norm/law and send the message that the descriptive norm is that “everyone’s doing it.” The RIAA similarly shoots itself in the foot with apocalyptic rhetoric. Why should I be the last sucker who pays for music? (3) Relevant peer groups are important. (Buzz marketing ahoy!) (4) Reciprocity. Perceptions of fairness and cooperation are likely to shape social norms. Under favorable conditions, cooperation can be sustained even with a minority of cooperators; but under other conditions, reciprocity leads to lack of cooperation when they perceive others are getting away with opportunistic behavior. Thus reciprocity can sustain either pro-copyright or file-sharing norms. Case study of jam bands like the Grateful Dead, which have sustained copynorms that require payment for some music while allowing free sharing of other music. This is an alternative to ever-greater legal penalties and technological controls. Rules: the bands say no copying of commercial releases and no commercial exploitation of concert recordings, and they reserve the right to withdraw certain concerts from circulation. The surprising thing isn’t that the bands have these rules, but that they expect and receive compliance from fans. Fans help police one another and non-fans, and even cooperate with the bands’ lawyers. New business models: non-copy-protected recordings sold online, because the bands trust their fans and ask them not to share widely. Can we extend this beyond a quirky group of people? Reciprocity has been extensively studied – people will sustain cooperative equilibria given the right conditions, which mimic much of what’s going on in the jam band community. Lessons: (1) Don’t assume the worst about music fans. Some people will comply with law given the opportunity; people come in inclined to cooperate. (2) To help ensure cooperators predominate, build communities based on sustained relationships between creators and fans. The communities can be large and anonymous, but consumers need to feel a connection with the artist, and are more likely to encourage others to comply if they do. (3) Perceptions of fairness are also key: people are spiteful and will incur costs to punish those they see as unfair. Jam bands are perceived as much more fair than regular musicians. (4) Give people a chance to comply and more will. (5) Let the fans do some of the work; they will do so. This can also apply to CC and open source scholarly publishing. We need visible opportunities to comply and promote it, through things like viral advertising and conferences that publish papers in open-source fashion. Laura Bradford: A lot of these suggestions seemed difficult for a record company to implement – fans cooperate with the legal team of the band, not the legal team of the record company. How can intermediaries use this, when their very presence creates a distance between artist and fan? A: Well, this does imply a different world for intermediaries. (Google is an intermediary, and Schultz pointed out that every user loves Google.) There’s still a role for aggregators, if they follow a CC model but act as facilitators for commercial uses and provide helping tools like standard contracts for bands that aren’t entrepreneurs. Q: In college communities, norms of free flow seem rampant – how can we bring more moderate copynorms to groups of young people who are used to P2P and high-speed connections? A: College students do pose a problem for the record industry. Some steps have been reasonable – there is some role for credible enforcement, informing people what the right thing to do is. Beyond a certain threshold for the risk-averse and the law-abiding, it is hard to convince people they’re likely to be caught, and there’s a long way to go before we’re close to that. You’re more likely to be struck by lightning than sued by the RIAA. MySpace and Facebook are places where bands are going now, and some use them intelligently to communicate with fans and create perceived connections. Q from me: I still don’t see where Google is reciprocal; the distribution of benefits isn’t particularly fair. Yet everyone thinks it’s great. A: It may be more perception of fairness than reality (this is a paraphrase of his answer); it is a complicated question. Google does provide coordination benefits and helps you find new and useful webpages. (But then again, so do record companies, which are seen as evil. How did Google win the PR war and the RIAA lose it?) Q: Producing a record takes a lot of cooperation and hard work, but people don’t perceive all the support that goes into backing the artist/artists. Is there any way to get people to see that and like record companies better, or do people just want to identify with an individual genius? A: The MPAA has tried to do that with its PR campaign about people who paint the sets and could lose their jobs from file-sharing; maybe they have an impact. The problem of file-sharing tends to divide the music world into haves or have-nots. Jessica Simpson and Britney Spears can use their rights of publicity even in the absence of copyright, but the mid-level touring artist is the one who’s hit hard by filesharing. Maybe the cult of personality has gone too far, but we need to build a support network for the non-famous individual artist. Q: When there’s a disconnect between legal and social norms, when do we decide that the legal norm is the problem? Your presentation is focused on making the social norm conform, but why not go the other way? A: Flip response: as hard as it is to change social norms, it may be even harder to change the law, given public choice problems. There is a huge literature on this problem, as with Prohibition in the US, where the failed law harmed respect for all laws. We don’t have a big gangland problem with copyright, but rather a lot of friction in a time of technological and institutional change. We don’t know when a norm has become intractable and the only choice is to change the law. Dan Kahan has a seminal article on “hard shoves and gentle nudges.” Drunk driving: many laws initially penalized it very harshly. Cops weren’t willing to arrest and juries and judges weren’t willing to convict and sentence, because the penalties differed so much from the norms. Only slow increases in penalties plus a public education campaign proved successful. Q: Niva Elkin-Koren talked about CC upholding copyright law’s assumptions – do you agree? A: CC can definitely reinforce existing structures. Some businesses see CC as a way to legitimize their businesses, allowing private noncommercial use but in fact increasing control over the work by making it very clear what people are allowed to do with it. Q: Are copynorms easier to enforce in smaller communities than bigger? A: Absolutely. Smaller communities offer a higher probability of retaliation; the mechanisms that sustain reciprocity in larger groups are more amorphous and slower-moving. Still, we see such norms operating all the time (you tip when you’re in a restaurant in a strange city to which you never expect to return). Bob Brauneis: Doesn’t enforcement of law sometimes work as a way of changing norms? If the police start to give parking tickets, sometimes people stop parking in no-parking zones. Hard and irritating methods can work along with soft and friendly methods. A: Sure. People know that so far the RIAA has just targeted large-scale sharing. Only going after simple downloaders will increase the deterrent effect. There are some people who have a zero tolerance for risk; going beyond the zero risk will have a huge effect on compliance. But after that, to get the people with above-zero tolerance, you have to increase the probability of getting caught a lot because it’s hard to persuade those people that they’re personally likely to get caught. People irrationally discount their own chances of getting caught and systematically discount the cost of future penalties. So once over the zero boundary, the huge gains from enforcement drop off. Q: An empirical study showed that initial enforcement produced a drop in filesharing, but in a few months that dissipated because people realized that there was less likelihood of getting caught. Separately, some people who download wouldn’t pay for the music but will get it for free; others would have bought but let the free substitute; others are just interested in taking a stance against the “system.” How do you deal with different motivations to comply with or reject social norms? A: There may be biological differences in inclination to cooperate. Peer reference groups also influence norms. We have to do what all economic models do, which is say we can affect behavior at the margins. The rational choice model that looks only at pecuniary gain is wrong – culture, ideology and norms also matter, and we can use those, even though there will still be holdouts who can’t or won’t pay.

Tags: people, norm, copyright, law, band

My instance: Dissent, including its translation into copyright’s exhibit employment reason, has been a preoccupation of my quarto between copyright, likewise Shiffrin’s exploration of dissent seeing a central First Correction principle is incredibly valuable considering it emphasizes this dissent is not faithful everything due to crackpots. Dissent is communal conjointly expansive, recurrently striving to handle, participating rather than always walking away. Because I’m not a philosopher, and come to these issues from a background in trademark and false advertising, I decided to focus my comments on questions surrounding falsity and misleadingness. In particular, I’m interested in the meaning of individual words and how we as a community make meaning. Much of the discussion at the conference assumed that, at the granular level, falsity judgments were relatively easy to make. But common fact patterns in trademark and false advertising cases cast doubt on this. Two relevant quotes: First, Bill Clinton’s notorious claim that “It depends on what the meaning of ‘is’ is.” Second, a quotation from Through the Looking Glass , featuring Alice and Humpty Dumpty. “… There's glory for you!” “I don't know what you mean by ‘glory,’” Alice said. Humpty Dumpty smiled contemptuously. “Of course you don't -- till I tell you. I meant ‘there's a nice knock-down argument for you!’” “But ‘glory’ doesn't mean ‘a nice knock-down argument,’” Alice objected. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean -- neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master -- that's all.” The key parts of this dialogue are quoted literally hundreds of times in law review articles, usually as a disparaging reference to some strained or counterintuitive interpretation of a term. But Humpty is not engaged in an inherently illegitimate enterprise: It’s the combination of his undisclosed private meaning and Alice’s preexisting expectation that makes his use of “glory” infelicitous – not even misleading, because it obviously doesn’t mislead Alice, but a poor method of communication. In other circumstances, it’s perfectly reasonable to define a word for your purposes. Alice’s interaction with Humpty, indeed, continues beyond this oft-quoted exchange: Because he knows so much about words, she asks him to explain Jabberwocky , which is full of new words, and Humpty provides the now-standard definitions of Lewis Carroll’s various coinages. Humpty can be a reliable source of meaning, under the right circumstances. So, while “that’s glory for you!” is a misstatement, “that’s a TiVo for you!” or “that’s a GPS receiver for you!” can be intelligible and even helpful. At what point do we allow individual commercial speakers to define or debate terms, the way we allow people to define and debate terms like “Democrat” or “family values”? Many of the examples that follow already came up at the conference, often with the assumption that they were easy cases. I want to suggest that they’re not easy, even though we may want the government to step in and regulate them. From trademark: “Glass Wax,” for a car polish that contains no wax. This raises the question: what does it mean to wax your car? Can you wax your car without wax? Ultimately, trademark’s answer is “yes,” but that’s not obvious. Dolphin-free tuna: One possible definition of dolphin-free tuna is tuna caught in a net that didn’t happen to kill any dolphins. If the net brings up a dolphin, you throw out the whole catch. This doesn’t address the fundamental objection, which is that the method of catching the tuna routinely and predictably kills a lot of dolphins – but it remains the case that the cans of tuna don’t have any dolphins in them and didn’t even need to have dead dolphins picked out of them. The problem is in likely consumer understanding, as with Clinton’s parsing of “is.” Not tested on animals: The Body Shop got in some hot water years back because of its definition of this term, which was that its particular products hadn’t been tested on animals. Some of the ingredients, however, were regarded as safe for cosmetic use because they had been tested on animals by others, and the Body Shop relied on that data. So is “not tested on animals” true or false? Organic/made with organic: There has been substantial debate over the proper definition of “organic,” an official definition of which has now been adopted by the USDA. Products not meeting USDA standards, but meeting some other definition of “organic,” cannot be labeled organic. “Made with organic” is a separate standard, requiring at least 70% organic content. One effect of this rule is to decrease producers’ incentives to make processed food with organic content below the threshold, because they can’t truthfully advertise the organic content, and organic food is more expensive. It may also encourage producers to make more products with 70% or greater organic content and discourage them from adding a tiny bit of organic material to a conventional product in order to get the “made with organic” label. The overall effects are hard to predict. Cajun: Can Cajun catfish come from China? This was the subject of a recent 11 th Circuit case, in which a panel decided that it was not inherently misleading to label Chinese catfish “Cajun.” Cashmere: What is cashmere? If cashmere is “recycled” – the fibers torn apart and reprocessed, creating a cheaper product missing some of the characteristics of traditional cashmere – can it still be labeled cashmere? It depends on what the meaning of cashmere is. Safe and effective: To the FDA, a drug is safe and effective if that is shown by two sufficiently large, well-controlled studies. One study won’t do, nor will anecdotal evidence. Though individual doctors can prescribe and even proselytize based on their own experience with off-label uses of drugs, the drugs’ manufacturers can’t make claims unless they meet the FDA’s standards, lest they be deemed to have misbranded the drugs. Is the FDA suppressing truthful information, or defining what “safe and effective” means, or both? Miles per gallon and milligrams of tar: These are both measurement systems chosen by the government from various alternatives. An advertiser can’t use other measurements, even though the government standards have known flaws and even if the advertiser tells the consumer that it isn’t using the conventional measurement. A fetus is a human being: The New Jersey Supreme Court recently heard arguments in a case about what a doctor must tell a patient before an abortion. The plaintiff argued that, if she’d known that a fetus was a human being, she wouldn’t have agreed to an abortion. The doctor argued that requiring such a statement would force him to take a controversial moral and ethical position, and that in any event the patient must have known that a pregnancy at term would produce a baby. These examples illustrate the vast range of situations in which truth and falsity, even for a single term, are hotly contested. Falsity aside, sometimes government regulates out of a direct worry over deception, as with the dolphin-safe tuna example. It’s possible that the tuna makers could eventually change the meaning of the term for consumers, but that might take a lot of time and cause substantial confusion in the interim. Moreover, reliance on changing consumer perceptions would also make it harder for producers who used safer fishing techniques to explain the advantages of their version of dolphin-safe tuna, which would also have the disadvantage of being more expensive because of the different production method. Thus, government regulation of the use of the term is justified as the fairest and most efficient way of avoiding deception. Other times, government regulates out of concern over communication itself, reasoning that a fixed standard – as long as it’s reasonable – is in consumers’ interests to decrease “noise” regardless of deception. Consumers benefit when they can make comparisons knowing, or assuming, that all producers use the same standard, whether for organic food or car mileage or milligrams of tar. This has costs in fixing meaning and possibly deterring improvements that won’t show up on the standard measures, but it also has all the benefits that standardization usually allows. The tradeoffs of government regulation can also be seen in the fact that consumers aren’t monolithic. Information, or lack of information, that helps some hurts others. Many consumers benefit from the government’s system of grades for meat, but more discerning consumers may suffer because they can’t get information about the differences at the highest end. We choose who to help by regulating or by refraining from regulation. A common solution to this problem is to focus on who gets to decide what is false – the FTC, the FDA, or a jury. (And it’s important to recognize that even the people like Judge Kozinski who advocate full constitutional protection for commercial speech usually claim to want to preserve the common-law cause of action for fraud, which means that a jury would decide what “dolphin-free tuna” means.) We solve the problem of definition, in other words, by changing the question. That isn’t a real solution, since the decisionmakers on whom we rely will have to decide whose meaning to endorse. My own suspicion is that juries may not be better at this, and may systematically be worse, than agencies with experience evaluating a variety of advertising claims over time.

Tags: organic, dolphin, make, consumer, meaning

Deborah Gerhart, University of North Carolina School of Law Consumer Investment surrounded by Trademarks: Why it Deserves Plus amid Manifestation Advantage Returns Abstract | Paper She’s beginning a project on the following idea: The corporate owner of the mark is not the sole master of its meaning; it’s important that consumers get some control reflecting their investment in TM meaning. The discourse surrounding consumers in TM cases is patronizing; based on a model of consumers as superabsorbent couch potatoes. One issue: use of terms in dictionaries; dictionaries respond to TM lawyers’ threats even though there’s no cause of action – consumer interests might affect this hypervigilance by TM owners. There is a duty to police, but we should carve out exceptions honoring this consumer investment. (There’s a similar proposal by Deven Desai & Sandra Rierson, relating specifically to genericity.) We could, for example, recognize a type of cultural dilution as nonactionable, for example the appropriation of “spam” for email. It’s not blurring because it doesn’t interfere with source identification, just creates a second parallel narrative. Another possibility: Consumers deserve to be able to use marks to search for information about those marks – informational fair use. Eric Goldman: Likes the idea of investment, and suggests exploring more how consumers use marks to manage their lives – reducing search costs in ways that we don’t usually think about. Also asks about what happens when TM owners change their products – are they harming consumers who have invested in the brand, e.g., New Coke? And wonders about the problem of heterogeneity of meaning. Brands mean different things to different people; whose meanings should we honor? A: This last is why the problem of consumer investment is so important. We can’t just look at the TM owner. Goldman: So how would that play out in an infringement case? How do we account for the brand stories of people who aren’t present in the courtroom? A: We should look at evidence of use, e.g. on the internet. We look for viral meaning, not meaning created by competitors. Lisa Ramsey: “Spam” is a sort of dilution by blurring. Also, consider descriptive terms – consumers have a right to know about the descriptive qualities of products or services regardless of secondary meaning. The descriptive fair use defense may be too limited for consumer needs. A: Spam may have been blurred, but it’s not something that should be actionable nor does she think it was intended to. 9/11 means something different to us now, but the Porsche 911 still has a meaningful narrative. It doesn’t harm in the same way as use by a competitor. My comment: Gerhart made several references to the special harm done by “competitors.” This seems to be calling back to an older idea of TM infringement. Once it was abandoned and noncompetitor use became actionable, TM just kept expanding, causing us to look around for limiting principles. Those principles having failed, we return to competition; likewise, people like Mark McKenna are starting to suggest a materiality requirement for infringement. The interesting thing to me is that competition and materiality are parts of the false advertising test under the Lanham Act; and furthermore, they’ve been implied by courts. So there is a model for doing something like this already in the caselaw. Q: Consumers can contribute to the value of a product – network effects with a computer program, for example – but may not be contributing to the value of the mark – Lotus 123. There are all sorts of investments. A: Agrees. But surprisingly, many uses of marks are expressive – people mostly buy hybrid cars to express something about themselves, despite the price of gas. Tom Bell: Your examples involve consumers having settled on a meaning. But when people are contending to develop meaning, we could get chaos. Peter Jaszi: (Responding to Gerhart’s earlier invocation of “Napsterphobia,” where TM owners irrationally fear loss of control/rights.) What evidence can we use to define and address the problem? A: She’s seen it in her own licensing work – people want to lock up their content so tight it’s useless. William McGeveran, University of Minnesota Law School Rethinking Trademark Fair Use Abstract | Paper Contours of the project: Anytime someone uses a mark to facilitate saying something, we need to at least inquire about whether that’s legitimate and not within the scope of infringement/dilution, though some will perhaps ultimately be correctly suppressed. That puts descriptive and nominative fair use together. There are few really bad decisions when they get all the way to final judgment, but there’s a persistent chill on these types of uses despite the paucity of bad law. McGeveran argues that part of the problem is a failure to conceptualize the relevant defenses – the circuits disagree, the treatises disagree, and even copyright fair use looks better. Moreover, almost all the versions end up collapsing into likelihood of confusion inquiries – for example, this is true with “trademark use” requirements, as well as with nominative fair use. It ends up being more difficult to show nominative fair use than to show lack of confusion. And, as the previous sentence suggests, the burdens of proof get misplaced – if nominative fair use is a substitute for the confusion test, the defendant has to show it’s done nothing else to cause confusion. Relatedly, because these tests are fact-intensive and conflated with confusion, they’re not prone to resolution early on in a case, even summary judgment. So we need to restructure the law to allow early deployment and resolution, detached from fact-intensive considerations. Hard cases will still need further factual development, but that could decrease the chill. Sharon Sandeen: What about a Markman hearing type procedure? In her experience, it did help settle cases. A: That’s the kind of thing he’s thinking. There’s no need to change the FRCP, just doctrine and possibly judicial management practices. The substantive problem with our current defenses is that they depend so much on the facts. My Q: How do you cash this out? A: Use news reporting, use in political campaigns, etc. as explicit carveouts, as with dilution law. It may leave us with keywords as an issue that has to be thought out, but at least we can get rid of suits against artists and Ralph Nader. Farley: You have to answer a question that puzzled the Court in KP Permanent : What does “fair” mean? How can it be fair if there’s confusion? (I think the answer can be Scalia’s in Wal-mart : given the costs of sorting out the few confusing uses from the many nonconfusing ones in a defined subset of cases, the game isn’t worth the candle. This of course makes you rely on generalizations like “most uses in headlines aren’t confusing,” but if it’s good enough for Scalia, why isn’t it good enough for us?) A: This is a problem that shows up in the 9 th Circuit’s rule on remand in KP Permanent , where the court denies summary judgment – the remand makes the problem even worse by complicating the test for descriptive fair use. We must consider how our beautiful tests work structurally and procedurally, or they’ll suppress good uses. Ramsey: consider anti-SLAPP procedures as a model. And consider saying “we just don’t care about certain types of sponsorship confusion,” maybe on constitutional grounds. A: That could be good! Mike Carroll: rather than needing a coherent theory of fair use, we need a more robust theory of TM’s limiting principles outside of confusion. Then we can figure out how to clean up our standards and implement our normative limiting values. Lists of specific safe harbors have pernicious unintended consequences, as we’ve learned in copyright – floors become ceilings; courts draw negative inferences. At a minimum, safe harbors should be defined functionally. And we should also loosen the standards for declaratory judgment so people can get answers quickly. Mark McKenna , Saint Louis University School of Law Trademark Use and the Problem of Source in Trademark Law Abstract | Paper The search cost theory of TM law is not sufficiently rich to give us those limiting principles Carroll talked about. Our failure to find limiting principles once the competition requirement was abandoned has led to the development of the new contender, trademark use – defined roughly to mean a use that indicates source. (You could require affixation as in the statute, but that wreaks havoc on a lot of doctrine.) He’s emotionally on the side of Lemley & Dogan, but ultimately trademark use reduces to confusion – do consumers understand something as an indication of source? – so it doesn’t get us out of the problem. So far the only things that make irrelevant the basic question of source identification are from outside TM: Dastar and Traffix considerations of interference with copyright and patent regimes. This is a much bigger problem than TM use: everything in modern TM law is tied to a concept of consumer understanding of “source,” and the judicial interpretations and practical meanings of source have kept expanding. Even the start time of a baseball game – 7:11 – can indicate sponsorship, so consumers can rationally conclude that anything can. The only logical endpoint is complete control over a mark. But that’s so obviously bad that we need principles to deal with it. And this is search cost theory’s biggest weakness: once we decide consumer confusion is the harm we care about, as opposed to an indicator of some other harm, it’s hard to identify what the stopping point is and it’s very easy to characterize plaintiff’s claims in consumer protection terms. So let’s detach some defenses from confusion, increase the quantum of confusion necessary to support a claim, add a materiality requirement, and maybe other things. Farley: We really need to bring “source” back within some reasonable bounds. McKenna says TMs are functioning in the world more broadly than they used to, so of course the law needs to follow, but she’s not convinced. A: He thinks we can’t go all the way back to trade diversion, but he wouldn’t say we have to follow “source” as far as the market does in practice. We could define source differently for infringement purposes. It might actually matter to some consumer decisions if there is an affiliation between the plaintiff and defendant, and we should be willing to recognize it but perhaps presume irrelevance in certain circumstances. If people start to believe start times signify source, though, then maybe a team shouldn’t be allowed to pick a 7:11 start time to advertise itself. My Q: Nominative fair use, trademark use, and inherent distinctiveness can be seen as a bunch of presumptions, some rebuttable and some not. If we raise the evidentiary standards and don’t allow owner-favorable presumptions (such as occurred in Boston Hockey ), and we regulate surveys carefully, we might find there’s very little evidence of interference with trademark rights in many of these cases. Consumer perceptions, in other words, might not be as trademark-driven as we think. A: He agrees, but it doesn’t solve the problem of kicking cases out early. Calboli: Maybe you’re going back to technical TMs v. unfair competition. A: If he had confidence in our ability to limit the concept of unfair competition (requiring, say, competition ) he might endorse that. But he’s not sure that TM can be distinguished from unfair competition in that way. We need to define the harm agains which we’re protecting people.

Tags: consumer, tm, fair, confusion, style

Jasmine Abdel-Khalik , University of Missouri-Kansas City School of Law Is a Rose by Fraction Succeeding Fancy Furthermore a Rose? Disconnecting Dilution’s Xerox Checkup from Traditional Trademark Concepts Abstract | Paper Dilution is about the mark itself, unconnected to any goods; it’s about interfering with the story of the mark, rather than interfering with source identification. So how do you tell how similar a mark has to be before it dilutes? Schecter wanted protected marks to be coined, arbitrary, or fanciful, and they’d be protected against identical uses. The change in modern law, allowing acquired distinctiveness to suffice for dilution protection, is important because the mark owner is now adding its own story to an existing term, which means it fights against preconceived ideas – it’s prediluted. So we need to focus on the number of 3 rd -party marks out there, not just whether the claimant has acquired distinctiveness. That is purportedly captured by the fame requirement – it means your story has to have won out. Substantial similarity is the killer question. In the 9 th Circuit TREK and ORBITREK are apparently similar enough for dilution; query whether that would have been similar enough for Schecter. Another case: DOGIVA and CATIVA ; the court skipped past similarity, especially for the latter. Many other –IVA marks exist; there must be something more that triggers substantial similarity. Moseley said mental association wasn’t enough to demonstrate similarity, but didn’t say what would be enough. What about sight, sound, and meaning, the standard infringement trilogy? But with likelihood of confusion, you always look at the mark in context, which influences judgments of similarity. She would like to talk about uniqueness, which to her resembles copyright more than trademark – it’s about originality. Goldman: Invoking substantial similarity from copyright creates a bunch of problems; it’s so unpredictable. Perhaps there’s some more precise test (as copyright has in special subfields). Q: Arbitrariness alone is super-distinctive, but doesn’t deserve dilution protection without fame. If you push for uniqueness, don’t you lose MCDONALD’S and protect all those unknowns? A: She’d offer thinner protection to MCDONALD’S than to a unique mark. Q: The more famous the mark, the less you can dilute it. A: That ties in to the concept that it’s the death by a thousand cuts, not the first cut, that matters. McKenna: There’s a bunch of cognitive psych literature that says some marks are just unassailable. That leaves open what happens to the others. But it’s hard for TM owners to make a straight-faced claim about this – they have to say “we’re really famous, but not that famous.” I think very badly of TM law, but I think worse of copyright. Substantial similarity is just a crapshoot. But you could at least evaluate similarity on basic principles; copyright similarity is about market substitution, but that doesn’t make sense here, and that’s a function of the fact that we don’t know what the harm of dilution is. Irene Calboli: Why do you think the test should be different from the infringement test? Similarity should be required in both cases. What about the old technical/nontechnical trademarks division? (My thought: with confusion, less similarity can trade off with mark strength and relatedness of goods – CATIVA for candy is a different thing than CATIVA for cellphones. I don’t think we want that for dilution.) Lunney: Schecter was writing about technical trademarks, since they were the only ones that could be “TMs.” Why do you want a similarity screen before going to the blurring test? A: Because we’re going to make mistakes on blurring. Q: So why not just fix the blurring doctrine? A: Similarity as a screen allows better evaluation of risks by potential market entrants than a multifactor test. Sean Pager: What about the filtration procedure from copyright; could it be applied to the trademark in evaluating its position relative to other marks (applying semiotic theory)? My comment: The funny thing to me is that when marketers talk about unique brand stories, they often speak in one-word terms – this brand is about YOUTH, or POWER, or whatever. And those are the farthest thing from unique, even though the brands themselves are distinctive and powerful. So seeing dilution as about preserving brand stories makes dilution even more puzzling to me. Katja Weckstr

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Getting a good grip from the start is the key to both pitching a baseball and appropriately-managing Major League Baseball's intellectual property. Consider the following from a recent National Law Journal article: According to [plaintiff CDM Fantasy Sports'] lawyer, Rudy Telscher, MLB Advanced Media is expected to decrease "significantly" the number of companies offering its officially licensed fantasy games, therefore denying fantasy leagues the right to use information like player statistics without a license. But CDM is challenging MLB's authority to license anybody, Telscher said, and is specifically seeking to use player statistics without MLB's permission. He said CDM doesn't dispute that it needs an MLB license for trademarked products such as team logos. But statistics are in the public domain, like telephone numbers, he argued. "All we need is the player statistics and we believe we have the right to use them because they're public information," said Telscher of Clayton, Mo.'s Harness, Dickey & Pierce. "The Supreme Court has held that mere raw data where creativity is not involved is not something that would be protected by copyrights. ... I don't see how anyone could argue that player names and stats are something that are protected by copyright." . . . . Attorney Mike Mellis, in-house counsel for MLB Advanced Media, declined to comment on the suit. Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, said that baseball officials are not claiming exclusive rights to player statistics. But if a company is trying to use those statistics as a means of financial gain, he said, then MLB has a legal right to demand a license for their use. "Player statistics are in the public domain. We've never disputed that," Gallagher said. "But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." Gallagher demonstrates that when your attorney declines to comment, you probably should as well. Sorry, Jim, but public domain status means that information can be used by anyone for any purpose; the public domain isn't divided into commercial and non-commercial sections. Black's Law Dictionary (7th Edition) describes "public domain" as: "2. The realm of publications, inventions, and processes that are not protected by copyright or patent. Things in the public domain can be appropriated by anyone without liability for infringement." In essence, MLB is seeking to sell what it does not own, hoping to steal first base. Any tee-baller can tell you they can't do that. Back in school, the older kids often tried to trick the younger ones into believing that they needed tickets to climb the stairs or use the bathrooms. Of course, those things are open to all and no tickets are required; the big kids knew that but sought to trade on the naivete of the littler ones for fun and profit. If the big kids at MLB sincerely believe that they can sell tickets to what's open to all, in this case it's not the little kids who are the naive ones. [Update] Labels: Law, Sports

Tags: mlb, public, statistics, kids, domain

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Popular Egyptian televangelist tries to bridge Islam and West Tuesday, March 21, 2006 Posted: 0016 GMT (0816 HKT) CAIRO, Egypt (AP) -- Islamic televangelist Amr Khaled is young, smiling, teaches love and mercy and is so popular he's credited with inspiring thousands of women -- turned off by dour, traditional clerics -- to take on the veil. Now he's putting his popularity on the line by trying a new role, as a bridge between Islam and the West at a time when many are talking about a clash of civilizations. In the process, Khaled is sometimes telling the faithful what they're not used to hearing from clerics -- that Muslims aren't blameless in tensions, that the West is not always bad and that dialogue is better than confrontation. "A young Muslim goes to Europe with a forged visa, takes unemployment insurance there, then goes on TV and says, 'We're going to expel you from Britain, take your land, money and women,'" Khaled said recently on his weekly program on the Saudi satellite TV channel Iqraa, trying to explain mistrust of Muslims in Europe. "It's a rare example but it exists." The 38-year-old Egyptian raised a storm of controversy when he attended a March 9 dialogue conference of European and Muslim leaders in Copenhagen -- the capital of Denmark, which has been the focus of anger across the Islamic world over cartoons of the Prophet Mohammed first published in a Danish paper. Some in the Arab world saw his attendance as a surrender and branded him a traitor and an opportunist. This week, Khaled is headed to a gathering of Islamic clerics in Bahrain that begins Wednesday, aimed at considering the next step in the response to the prophet cartoons. The conference is organized by one of Khaled's most vocal critics, hard-line Sheik Youssef el-Qaradawi. Many Muslims saw the caricatures -- which depicted their beloved prophet as violent and backward -- as an intentional insult and reacted with a wave of protests. In the West, the outrage was seen as an attack on freedom of speech and only deepened anti-Muslim sentiment. For Khaled, the controversy underlined what he has seen as a need for a new approach by Muslims, one of reform and dialogue with the rest of the world. "For the past three years, with youth across the Islamic world, we've been working for a faith-based renaissance in this region, which will not take place by clashes but by coexistence," he said in an interview with The Associated Press in Cairo. He said he had expected the criticism over his new campaign. "An initiative by definition is something new, and I represent a school that has opposing schools of thought," he said. Khaled is not the only Muslim religious leader promoting dialogue. But he has become one of the most outspoken. And he brings the huge fan base of a pop star: young people, women and the middle and upper-middle class. He built his popularity over more than 10 years of preaching, with a style far from that of traditional clerics, who are distinct with their beards and robes and whose sermons often emphasize the demands of Islam and the threat of damnation and hellfire. In contrast, Khaled is known for his stylish suits and his broad smile. In his sermons, he has avoided politics and stressed God's mercy, seeking to show how one can be a good Muslim while still enjoying the activities of modern life. That message instantly appealed to the young -- particularly the well-off, looking for a version of Islam that suited their lifestyles. Educated as an accountant, not a cleric, Khaled began preaching as a hobby in social clubs, but then vaulted to television. Thousands packed mosques where he preached. "He is a very simple, moderate, humble man, easygoing. He makes you feel like you are his sister," said Zeinab el-Sherif, 32, a wealthy, veiled Egyptian businesswoman who has been a fan since hearing Khaled at her club a decade ago. "He is so tolerant and friendly, he makes you feel good about your religion and yourself," she said. The Egyptian government, apparently nervous over his popularity, pushed Khaled out in late 2002, banning him from giving his sermons at Egyptian mosques. He moved to London with his wife and son Ali to pursue a doctorate in Islamic studies. His thesis: "Islam and coexisting with the other." The time in London "has resulted in a mixture of maturity and seeing the other better and readiness to coexist," he told AP. "It also made clear the common values as well as the differences that can't be overcome." Khaled's program on the Iqraa channel continued, and now Egypt -- perhaps seeking to encourage a moderate Islamic voice -- has been more welcoming, allowing him to hold a large conference in Cairo last month. He is back for good in Egypt. Many clerics criticized Khaled in the past, particularly for his lack of religious training. But the controversy has heated up with his campaign for dialogue, which represents a new foray into the realm of politics. Egyptian newspapers have been sharply divided over his visit to Copenhagen. But Khaled's supporters appear to be sticking by him. "I loved the idea of the Denmark conference, and I don't know any of Amr Khaled's admirers who don't," said Riham el-Demerdash, 35, a veiled mother of three in Cairo. "Those who are against the conference are those who don't like Amr in the first place -- or are clerics who are jealous." Copyright 2006 The Associated Press . 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This morning's email included a missive from the Council of Chief State Schools Officers telling me that my use of their logo on a recent post (Early Christmas for the States) was improper because it violated their copyright (er, trademark?) and implied an endorsement of the contents of the post. Apparently, the folks at the Council of Chief State School Officers don't read The Onion -- or the New York Times. Maybe they should, because then they'd remember how much fun everyone made of the White House for saying they couldn't use the presidential seal. "You might have thought that the White House had enough on its plate late last month...but it found time to add another item to its agenda - stopping The Onion, the satirical newspaper, from using the presidential seal." -- New York Times Protecting the presidential seal. No joke. Now, I'm not The Onion, and the Chiefs aren't the White House, but still...it seems like their chief of staff might have better things to do than bothering someone who's drinking Diet Coke for breakfast and is still in his PJs. I mean, I'm barely awake here. In the meantime -- thanks, Onion -- I'm going to ask the Chiefs to give me permission to use their logo, add a clarification to the original post stating that the Chiefs may or may not support the changes to the HQT provisions, and hope that they go back to more important things like helping states run and fix our schools. Cheap Special Offer 6 Cheap Software Buy OEM Software Cheap Borland

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I've been asked before why I just can't leave the Telus-bashing alone. This is why. Telus has filed to remove all material they consider to be under their copyright from Youtube. That's fine... I'm all for protecting the sanctity of cute monkeys and lizards. But included among the material they've requested to have removed is material that isn't actually theirs. Like this news report from the lockout where TWU members said Telus LIED about outsourcing -- which it did -- and in which Telus exec Jim Johannsonn says Telus intended to "bring all those calls back here and do them in-house in Alberta and BC" -- his words, not mine -- which it didn't. Please, please, please people... please be outraged enough by this to pass on a link to this story, or fire off an angry e-mail. Or cancel your subscription to Telus internet or Mobile or phone service. My land line and internet is with Shaw, and my cell is with Fido. The service with both is better than it ever was with Telus. And I have a clear conscience as well. This is why I was on the picket line, loud and proud. And this is why I'm not done with you yet, Telus. *** Ever notice that little symbol at the bottom of each blog entry here that lets you mail this entry to a friend? Here's a few places to start: ceo@telus.com - Darren Entwistle, Telus CEO jim.johannsson@telus.com - Telus Media Relations (Alberta) shawn.hall@telus.com - Telus Media Relations (BC) Cheap cakewalk Buy OEM Software cheap adobe cheap corel Cheap Borland

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So, do you remember when I said that Telus was manipulating copyright law to cover up their lies about sending jobs out of the country, and remember when I said I figured it was because they were going to do it again? Well, call me Nostradamus. That "temporary measure" of moving excess calls out to the Philippines keeps getting Well, gets less and less "temporary" all the time. If you just clicked on that last link and the first video didn't work, my apologies. It was a news report from a TV station that Telus lied to Youtube about to suppress it. My question in all this: where the HELL is the Telecommunications Workers Union in all this? You guys said this would happen, and took action to try and prevent it. I know: I was one of the guys out there picketing with you. Why are you just lying back and taking it? UPDATE , August 29/07: The jobs are going away, and the TWU remains silent. I've yet to see anything resembling action I could take pride in, were I still a TWU member.

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