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Ok, to clarify, nom equals name en franรงais.
I was struck by a couple of short (and arguably stupid) news stories in recent weeks. The first is one we've already reported on, the Octomom applied for a trademark and somehow the story was refreshed again recently. No idea why, because I'd prefer she sink into the black hole of media oblivion ASAP.
The real story that interested me was that "Snooki", an "actress" on the [not]Music Television show1 "Jersey Shore" has decided to file a trademark application for her nickname in relation to a book she is planning on writing. This, much "Octomom", is probably also going to make it through the registration process,2 but in that case I would seriously start to doubt the intelligence of the examiner. Nickname trademarks I have always been suspicious of, mostly because of the relative ease with which a person can acquire a nickname, whether or not it's actually worthy of "source-designation." If I had my way, I think that any kind of nickname trademark needs to meet a higher standard than your regular trademarks, something akin to the "famous" marks doctrine under the FTDA or the "well-known marks" doctrine under the various international treaties.
But really, my kvetch biols down to two points. First of all, she can write? Second, stupid. Again, much of my analysis on the "Snooki" nom de stupide3 is similar to my discussion on the Octomom.
1: This is a jab at the once great television network that thinks shows about idiotic partying and Kurt Loder are more important that actual music...deceptive much? But I digress.
2: 15 U .S.C. § 1502(c) (2006). The statute prevents the registration of any trademark that "[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow." Id.
3: Instead of nom de plume.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners. All Credit for Sources is Given As Best As Possible.
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Monday, February 22, 2010
Saturday, February 6, 2010
Books Make People All Googly-Eyed
I hope you are all aware of the Google Books project and the subsequent litigation, governmental interference, outcry, lobbying and three four settlement agreement drafts.1 There has been much written and argued about the project and its future.2
What interests me is the U.S. Department of Justice's current complaints about the revised settlement agreement between Google and the authors. The main concerns appear to be orphan works,3 foreign authors, and the creation of a "horizontal agreement" and de facto exclusivity.4 Pardon me, but I believe orphan works are really the Copyright Office's problem,5 and if we can't find these authors, in all fairness they probably should lose out on the right to profit from Google Books. You snooze you lose. Secondly, foreign authors are also not the DOJ's problem either. The settlement agreement as it is written now does provide some protection for foreign authors.6
That leaves me with the antitrust concerns (which I will certainly concede fall within the DOJ's jurisdiction). The thing that bothers me the most is the de facto exclusivity is cited as a problem by the DOJ, but some court7 in Washington, D.C. has said before (and repeatedly I believe) that just because you have a great idea that no one has yet emulated well enough to compete, you're automatically liable for antitrust violations.8 That is actually counter-productive if you're attempting to create an environment that fosters competition.
I can understand what the DOJ is going after, especially with the Obama administration's stance on antitrust issues, but I feel that the DOJ's energies would be better spent breaking up the cable television cartel, the wireless communications cartel, or some of the professional monopolies that currently exist. This looks looks like another example of the establishment unnecessarily fighting progress.
1: See Class Action Complaint, Author's Guild, Inc. v. Google, Inc., Civ. No. 05-CV-8136, 2005 WL 2463899 (S.D.N.Y. Sep. 20, 2005); Settlement Agreement, Author’s Guild, Case No. 05 CV 8136 (S.D.N.Y. Oct. 28,
2008) (proposed), available at http://www.googlebooksettlement.com/intl/en/Settlement-
Agreement.pdf [hereinafter Settlement Agreement]; Memorandum of Law in Opposition to the Settlement Proposal on Behalf of the Federal Republic of Germany, Author's Guild, Inc. v. Google, Inc., Civ. No. 05-CV-8136, 2009 WL 2823706 (S.D.N.Y. Aug. 31, 2009); Statement of Interest of the United States of America Regarding Proposed Class Settlement, Authors Guild. v. Google, No. 05 Civ 8136 (DC), 2009 WL 3045979 (S.D.N.Y. Sept. 18, 2009).
2: For a detailed history of the Google Books Project, see Jonathan Band, The Long & Winding Road to the Google Books Settlement, 9 J. Marsh. Rev. Intell. Prop. L. 227 (2009), available at http://www.jmripl.com.
3: See Report on Orphan Works, Copyright Office, (Jan. 31, 2006), available at http://www.copyright.gov/orphan.
4: Statement of Interest of the United States of America Regarding Proposed Amended Settlement Agreement at 21, Authors Guild. v. Google, No. 05 Civ 8136 (DC) (S.D.N.Y. Feb. 4, 2010).
5: See Report on Orphan Works, supra note 3.
6: See e.g., Settlement Agreement, supra note 1, § 2.1(a)–(b).
7: I would believe it's known typically as the Supreme Court of the United States of America (SCOTUS).
8: Verizon Commc'ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) ("It is settled law that this offense requires, in addition to the possession of monopoly power in the relevant market, 'the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.'”). Additionally, the fact that Google (or the Authors Guild for that matter) are entering into an exclusive deal and not dealing with other potential competitors (e.g., Microsoft, Amazon) does not create liability either. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-01 (1985).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
What interests me is the U.S. Department of Justice's current complaints about the revised settlement agreement between Google and the authors. The main concerns appear to be orphan works,3 foreign authors, and the creation of a "horizontal agreement" and de facto exclusivity.4 Pardon me, but I believe orphan works are really the Copyright Office's problem,5 and if we can't find these authors, in all fairness they probably should lose out on the right to profit from Google Books. You snooze you lose. Secondly, foreign authors are also not the DOJ's problem either. The settlement agreement as it is written now does provide some protection for foreign authors.6
That leaves me with the antitrust concerns (which I will certainly concede fall within the DOJ's jurisdiction). The thing that bothers me the most is the de facto exclusivity is cited as a problem by the DOJ, but some court7 in Washington, D.C. has said before (and repeatedly I believe) that just because you have a great idea that no one has yet emulated well enough to compete, you're automatically liable for antitrust violations.8 That is actually counter-productive if you're attempting to create an environment that fosters competition.
I can understand what the DOJ is going after, especially with the Obama administration's stance on antitrust issues, but I feel that the DOJ's energies would be better spent breaking up the cable television cartel, the wireless communications cartel, or some of the professional monopolies that currently exist. This looks looks like another example of the establishment unnecessarily fighting progress.
1: See Class Action Complaint, Author's Guild, Inc. v. Google, Inc., Civ. No. 05-CV-8136, 2005 WL 2463899 (S.D.N.Y. Sep. 20, 2005); Settlement Agreement, Author’s Guild, Case No. 05 CV 8136 (S.D.N.Y. Oct. 28,
2008) (proposed), available at http://www.googlebooksettlement.com/intl/en/Settlement-
Agreement.pdf [hereinafter Settlement Agreement]; Memorandum of Law in Opposition to the Settlement Proposal on Behalf of the Federal Republic of Germany, Author's Guild, Inc. v. Google, Inc., Civ. No. 05-CV-8136, 2009 WL 2823706 (S.D.N.Y. Aug. 31, 2009); Statement of Interest of the United States of America Regarding Proposed Class Settlement, Authors Guild. v. Google, No. 05 Civ 8136 (DC), 2009 WL 3045979 (S.D.N.Y. Sept. 18, 2009).
2: For a detailed history of the Google Books Project, see Jonathan Band, The Long & Winding Road to the Google Books Settlement, 9 J. Marsh. Rev. Intell. Prop. L. 227 (2009), available at http://www.jmripl.com.
3: See Report on Orphan Works, Copyright Office, (Jan. 31, 2006), available at http://www.copyright.gov/orphan.
4: Statement of Interest of the United States of America Regarding Proposed Amended Settlement Agreement at 21, Authors Guild. v. Google, No. 05 Civ 8136 (DC) (S.D.N.Y. Feb. 4, 2010).
5: See Report on Orphan Works, supra note 3.
6: See e.g., Settlement Agreement, supra note 1, § 2.1(a)–(b).
7: I would believe it's known typically as the Supreme Court of the United States of America (SCOTUS).
8: Verizon Commc'ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) ("It is settled law that this offense requires, in addition to the possession of monopoly power in the relevant market, 'the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.'”). Additionally, the fact that Google (or the Authors Guild for that matter) are entering into an exclusive deal and not dealing with other potential competitors (e.g., Microsoft, Amazon) does not create liability either. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-01 (1985).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
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