Tiger Direct filed suit against Apple, alleging trademark infringement of TIGER in the name of Apple's new operating system. So what's going on here? Are you confused?

I doesn't seem so ridiculous to me. These facts seem like they might be fairly important:

1. They both sell computer products

2. Tiger Direct sells Apple/Apple-compatible products

3. Although Apple has used other wild cats to name their OS's, they were not so widely-known, but more of an in-house code name

Apple probably won't try for a "family of marks" claim involving the other cats, because its just not very strong. Maybe another type of apple name, but not the cats. (This claim is why you don't see McDentists (an actual case), etc.; McDonald's has been held to have a "family of marks" for seemingly everything starting with the prefix MC.) The key, I think, is that they both are in the computer business. Are reasonable computer consumers so sophisticated as to not confuse the two? Tough call. Probably not. Most consumers, I suspect, are not all that in touch with Apple's latest developments.

"Girl Scouts Sue Deadbeat Cookie Buyers" in small-claims court in Waukesha, Wisconsin. The amounts owed were between just over $300 and almost $1500. That's a lot of cookie, even at the Girl Scouts' prices!

"We call many times before taking this step," Slowinski said. "We send them letters. When all else fails, this is our last resort."

Form letters that preceded the legal action read, "Please note that nonpayment for Girl Scout cookies represents fraud," and advised the non-payers to arrange a repayment plan.

Fraud?! I don't think so. An enforceable contract, sure. But fraud? This can't be right - it's just plain-old breach, no? Well, in looking for assurance in my handy-dandy Corbin on Contracts, I only had to go to the index to find:

"FRAUD
Breach of promise is not"

I'm all for the Girl Scouts getting their money, but let's not play cards we don't really hold. They have a clear and obvious breach and should be able to get their money, unless there are some untold and very unusual factual twists. And, as a contractual remedy, fraud wouldn't really help the Girl Scouts that much anyway, since fraud merely makes a contract voidable. This makes sense because fraud - even at common law - was a remedy generally developed to afford consumers remedy against sellers, not the other way around. Whoever wrote that letter ought to have earned their "Legal Hyperbole" badge, but not much else.

Don't we all feel this way:

Amsterdam...

Reinder Eekhof, a freshly minted lawyer, recently wrote in an e-mail that he had "finally finished this stupid education," and was "now looking for someone crazy enough to dump a suitcase full of money in my lap every month."

The e-mail was meant for a friend at the Houthoff Buruma law firm. But Eekhof mistyped the address and his missive landed in the inbox of someone in the communications department instead.

That person forwarded it, and soon the e-mail was being read at law firms across the Netherlands.

Several firms are now interviewing him.

The WSJ reports that (the fictional Plaza Hotel resident) Eloise is being evicted for two-year renovations. Poor Eloise! But don't worry, there's an intellectual property (para-trademark?) dispute brewing for entertainment in the interim!

Patrick Meehan, who owns the film, TV and merchandising rights to Eloise, wants the Plaza to pay him for using her name and likeness. That's something the hotel has never done. Meanwhile, Simon & Schuster, which holds publishing rights to the character, is miffed at being left out of the talks and is threatening to strike a promotional alliance with another hotel.

... But Eloise's return is not guaranteed. The Plaza has never had a legal claim to the character. Mr. Naftali is now negotiating with Mr. Meehan over compensation issues. Mr. Meehan says he expects the talks to be "protracted."

... Meanwhile, Simon & Schuster, which receives a percentage of movie, TV and product sales, was left out of the negotiations between Mr. Meehan and the Plaza.

The book publisher, which is an adviser to the estate, is threatening to recommend moving Eloise to another hotel if Mr. Meehan doesn't fulfill certain contractual obligations....

Simon & Schuster is not currently considering moving Eloise to another hotel in future books, Mr. Richter says, but he doesn't rule that out, either. Ultimately, Ms. Thompson's estate has final say over story lines for future books, but Simon & Schuster has always worked closely with her heirs. Mike Rudell, a lawyer for the estate, declined to comment.

Likely, the parties will work something out on their own. If it does go to court, it'll likely turn more on contractual provisions between Meehan and Simon & Schuster. But, this does raise the question of what - if any - rights an appropriated owner has to the assets of people/entities that appropriate. That is, Eloise's author didn't just pick the Plaza because it sounded fun, but rather very specifically for what the name conveys. Does the Plaza then have any right to the author's profits? (Obviously, the best case is always to bargain in advance, but this rarely happens, and virtually never with the first work.)

In lots of other contexts, appropriation of value in a name gets a pretty tough look (e.g. metatags, advertising keywords). I often don't agree with those decisions, but it seems to me like allowing broad protection from appropriation in those contexts could only lead to recognizing interests for parties like the Plaza.

Conveniently (?!) the last week of classes in my penultimate semester of law school:

Next Tuesday (May 3rd) is my end-of-semester concert at Juilliard. Email me for info and ticket prices/availability (no worries - it's free and turnout is usually ~10).

The WSJ has a nice article today on the web-saviness of teenagers. Here's an excerpt:

"Teenagers are not, in fact, superior Web geniuses who can use anything a site throws at them," the study concludes. Rather, there are "cognitive, developmental and behavioral differences" between adults and teenagers, which the report defines as people between the ages of 13 and 17. And those differences make teens less than expert when it comes to effective Web surfing.

... Some people are questioning the study's findings. For example, when it comes to technology, teens are on the cutting edge, says Jack Myers, editor and publisher of the Jack Myers Report, a New York-based publication for the media and advertisement industries. He says, for instance, that teens were way ahead of the general public when it came to using instant messaging. And he says teens ignited the mobile-phone text-messaging craze in Europe.

On the whole, I'm not so sure that the article (and study) says all that much about what kids don't know, but rather how stupid they aren't. Kids don't fall for flashy gimmicks after all - I don't think that speaks ill of them in any way.

But kids (even pre-teens) are sophisticated consumers, at least in certain markets. Semiotics talks of "reading" signs and symbols, such as trademarks. Kids today are growing up in an age where the "vocabulary" is far greater than in any other generation. They are very sophisticated in reading trademarks, often much better at it than their parents.

Take video games, for example. A child wanting a certain game would likely not be confused at all if they encountered several other, similar games. On the other hand, they might be sorely disappointed by their parent or grandparent that did not get the right one. And consumer sophistication is often very important in trademark cases. The article show that this demographic is getting more sophisticated. But it also shows us that kids are still kids and do have some limits on their sophistication. Woe to the flashy websites that thought otherwise.

Conglomerate's Christine Hurt was duped by a fake USDA website, MyPyramid.org, a spoof of the USDA's new MyPyramid.gov. I wonder how long it'll stay up - if it makes it all the way to an ICANN arbitration over the domain name, I'd be surprised.

Christine points out that "[t]he plan [the USDA site] spit out for me seemed reasonable, although I noticed it gave few substitutes for milk, although there are plenty." For those that don't know, milk is an extremely regulated industry. This site tracks milk regulation among the states. Interesting to note is the (by far) least restrictive state:

New Hampshire
Raw milk sales are legal:

1. On the farm
2. Through home delivery
3. Through the final consumer purchasing directly from a milk pasteurization plant.
4. At a boarding house provided that the milk is produced on the premises and the boarding house dining room displays a sign stating that raw milk is served therein.

Even though a state statute permits the sale of raw milk in retail stores, the Department of Health and Human Services prohibits this because of a New Hampshire administrative regulation that requires food service establishments and retail food stores to sell only pasteurized fluid milk and fluid milk products.

Raw milk producers who sell less than an average of twenty quarts of milk per day do not have to obtain a license from the state. They are not subject to state inspection either unless they sell to a milk plant.

Unsurprisingly, this is also cited by the Free State Project as one of the many benefits of moving to New Hampshire .

MMORPG's (Massively Multiplayer Online Roleplaying Games) are becoming more and more important to more and more people. People actually earn their livings - and often quite good ones at that - playing these games and selling (with or without permission) virtual goods for real money at eBay and elsewhere, like IGE. These virtual worlds exhibit essentially all of the characteristics of a sovereign, including (in aggregate) an economy of somewhere between $7-12 billion annually.

MMORPG's have attracted some serious scholarly attention as well. The third State of Play conference - sponsored by Harvard, Yale, and New York law schools - is this October. And a blog dedicated to the complicated issues of online gaming is TerraNova (which has also served as the official blog of the State of Play conference).

Murky issues, for sure, but cases are trickling through the courts nonetheless. But the cases tend to focus on very technical copyright, trademark, and contract claims. Certainly, these issues alone are plenty to think about. But when a virtual world taxes you, is the location of your employment, and is where you spend most of your time, where do you live and to what sovereign are you loyal to?

This op-ed from Cynthia Tucker, the editorial page editor of The Atlanta Journal-Constitution, is more than a little misleading. Although she makes some valid points, the title, "RIGHT-WING JIHADISTS CHIP AWAY AT AMERICANS' LIBERTY" sets the thoroughly puerile tone. But it ends with this:

Perhaps most Americans associate the phrase "right to privacy" with the Supreme Court's 1973 ruling legalizing abortion. But the high court supported a constitutional right to privacy in its 1965 ruling in Griswold v. Connecticut, when it struck down a state law that made birth control illegal. Writing for the majority, Justice William O. Douglas said, "We deal with a right of privacy older than the Bill of Rights ..."

According to recent polls, 94 percent of Americans find contraception morally acceptable, and 78 percent of Americans believe pharmacists have no right to refuse to fill the prescriptions. Yet there is an increasingly vocal group of extremists who want to deny adults the right to contraception.

Across the country, women are complaining of ultraconservative pharmacists who refuse to fill prescriptions, sometimes quizzing women on their marital status before making a decision. The next thing you know, they'll be barging into your bedroom to make sure you're wearing your flannel nightgown.

These extremists have much in common with the jihadist wing of Islam. While Christian extremists usually don't practice violence, but merely threaten it (see Greer, above), they share with extremist Muslims the belief that all people should be forced to live according to their views. That's about as un-American as it gets.

First of all, Griswold was a completely different story than that of the pharmacists; Griswold was about banning use. To make pharmacists check their morality at the office door is a dangerous thing, even when their morality compels them to take action that the vast majority of people wouldn't. This is dangerous in any line of work, but especially so with medical care. Ms. Tucker would have us require medical care/goods providers to do whatever they were capable of or had sufficient training to do.

Recently, I heard the general counsel of a small teaching hospital recall the story of a brain-dead 21 year-old patient whose mother was insisting that his sperm be harvested so that either she or his 16 year-old girlfriend might be artificially inseminated and carry his child. Ms. Tucker's kind of morality would force physicians to undertake just such a procedure. Fortunately, morality of Ms' Tucker's ilk has not won the day, and the 21 year-old's organs, but not sperm (a tissue), was successfully harvested, consistent with his known wishes.

Birth control is an attractive issue to use because it is so widely-supported, and here I cast no judgment on that. However, Griswold wasn't merely a guarantee of the right to birth control, and to imply so is an insult to the Court. The issue in the case of unwilling pharmacists is one of medical ethics, not privacy. Preventing pharmacists from asking about marital status would likely be permissible (and I would encourage it); but forcing them to issue contraceptives is another matter altogether.

One of U.S. copyright law's most important cases is one that held Sony free from liability (and injunction) for the infringing uses that consumers made with home video recorders. But the most interesting non-legal aspect is that the case involved Betamax video cassettes, not the VHS format that we all came to know and love. Of course, the fact that Sony's technology lost out in the market has no bearing on the law, but it's amusing nonetheless.

Well, Sony seems to be caught up in the same argument again, supporting (along with several other big players) Blu-Ray technology for the next generation of DVDs, while Toshiba and NEC support HD DVD. But compromise may be in the air. As the article points out:

If the two companies decide to come together, the real winners will be the consumers, movie studios, and the manufacturers because there would be no confusion over which format to use as there was when Sony marketed Beta video recorders a generation ago.

A couple of (very superficial) observations in favor of HD DVD:
(1)Acronyms work (i.e. VHS over Betamax, thus HD DVD over Blu-Ray DVD)
(2)Betamax, Blu-Ray — don't alliterate a loser

Yesterday, I noticed a new law journal at Harvard, Unbound: The Harvard Journal of the Legal Left. Like Three Years of Hell (Anthony Rickey), I also first discovered it from the Yin Blog post announcing it. I looked at the journal's website briefly, but did not read carefully enough to take in this sentence on their "About" page until it was quoted by Anthony:

In today's legal world, conservatives have convinced many that legal decisions must be made on the basis of "original understanding" or "economic efficiency," terms which are not facially invalid but which often mask more nefarious goals. (emphasis added)

Now, I'm all for lively disagreement and discussion, even very direct attacks, so long as they remain respectful and reasoned. But to call the other side nefarious? Let's recall exactly what the word means: "Infamous by way of being extremely wicked." Wow. Pretty strong statement, eh? Maybe alright in a political debate, but in what is supposed to be a reasoned, academic "discussion [that] must include both systemic critique and productive self-interrogation" (also from the About page)? These students, along with their faculty advisors, have thus quite literally accused their conservative colleagues - student and faculty alike, at Harvard and elsewhere - of being "extremely wicked." How self-interrogative is that?

UPDATE: Professor Bainbridge describes the new journal as "a very plausible new contender for the title" of "the least necessary organization in the law school world." This would displace, in his view, the American Constitutional Society's claim to this title.

Earlier today, the news was that Bob Kerrey was no longer considering a bid for the New York City's mayoralty, after causing a flurry of excitement among many New Yorkers over the weekend. The New York Times report (for tomorrow's edition) is here. Here's the (mass) email I received this morning (not really better than the news stories, but anyway):

April 18, 2005

A NOTE TO THE NEW SCHOOL UNIVERSITY COMMUNITY

I write to let you know both the genesis and the current status of the recent stories about my candidacy in the democratic Mayoral race.

This past Saturday I answered a question from a reporter who asked if I was seriously considering becoming a candidate for Mayor of New York City. I said I was. After more reflection and many conversations over the past two days, I am, today, emphasizing my commitment and enthusiasm for my work at New School University. Therefore, it is unlikely I will enter this race as a candidate.

I intend to make a final decision about this later this week and, at that time, will make an announcement to the community, as well as to the public.

As always, I thank you for your advice, interest, and support.

Bob Kerrey

The Times article continues:

Mr. Kerrey said that members of the New School board of governors - who recently extended his contract through 2011 - were more displeased that he had agreed to head a Bloomberg group than they were about his musings about running for mayor himself.

I never thought Kerrey made such a bad university president, though many in the school have, often angrily, voiced great concern. But I do wish he'd have the nerve to honor what he said and chair "Democrats for Bloomberg."

Randy Barnett also found the New York Times Magazine's picture of Epstein virtually unrecognizable (the post includes the photos). I wondered if I was the only one.

On the substantive side, Barnett's description of the NYT's commitment to fact-checking lends evidence to what I've always suspected: the vast majority of journalists are truly committed to unbiased reporting; that's why the fervently - and sincerely - deny that there is a bias. The problem: they question the facts, but not the interpretation. In other words, while all sources are subject to great scrutiny, the journalists' interpretation - arguably the most important aspect - is not subject to any.

The Supreme Court has granted cert in the hoasca tea case (via Althouse). Prof. Althouse also points to this article from Prof. Marci Hamilton (my Law & Religion prof. at Cardozo).

As I understand it, there are also concerns that children use the tea and that it is far more "recreational" in nature than peyote. In any event, Hamilton seems quite right that a religious exemption to allow the use of the tea is a legislative question, not a judicial one.

Five times the surrogacy ends in novation?! According to this Washington Post article, the would-be $15,000-richer surrogate has decided not to accept the money after finding out the parents will now have FIVE surrogate babies. Talk about frustration of purpose!

IrishLaw expresses concern over surrogacy contracts. So has the New Jersey Supreme Court - its 1988 opinion in In re Baby M (109 N.J. 396) is still widely talked about. There, NJ's highest court worried about the unconscionability of surrogacy contracts, generally, saying that the surrogate could never be able to properly appreciate the attachment she would have to the child she was forced to give up (as the biological mother?). (A nice summary of the case and subsequent history, including some other states' laws can be found here.)

Lots of tough questions about technologically-enabled births. Just this week, I was at a talk on posthumously conceived children. Whoa! Lots and lots of questions, but very few, if any, answers.

It's really the Dems who won't let Terri die! Professor Bainbridge points out that the Democratic gander is now politicizing Schiavo the same way the Republican geese were said to. So much for the old saw.

Ann Althouse need no longer worry... N.Z. (and Mrs.) Bear are back from the honeymoon and the blogging ecosystem is fast returning to homeostasis.

From TaxProf:

Q 720: All things considered, who do you think pays more in federal income taxes each year as a percentage of income - you or millionaire Donald Trump?

Me: 59%
Donald Trump: 26%
Not sure: 15%

JNOV TRANSLATES FOR ITS READERS:
at least 74% of the country (the 59% delusional plus the 15% uncertain) has never actually looked at the tax rates
59% buy the propaganda they hear
15% are at least somewhat skeptical of the propaganda they hear
only 26% have a clue

Brian Leiter, in his always-interesting faculty hiring gossip, has let us know that both Scott Shapiro (Cardozo) and, most recently, Douglas Husak (Rutgers - New Brunswick, Philosophy Dept.) have both received offers from Michigan Law.

Overall, Leiter, et al. rank Michigan fourth for philosophy Ph.D. programs. Although both Michigan offers are from the law school, not the philosophy department, it's hard to imagine that these two JD-PhD'd philosophers wouldn't be around the philosophy department, at least for the occasional dissertation committee. If Michigan pulls off the recruitment of both, such a coup could easily Michigan make one of the best places around for legal philosophy.

UPDATE: (06/15/2005) And so goes Shapiro! Off to Michigan law and philosophy. Very nice for Michican; a huge loss for Cardozo.

Just in case the Recording Industry Association of America and Motion Picture Association of America think that this kind press release and this type of ad campaigning increases good will, they don't. And neither do stories like these or these or...

Are gray goods good? There seems to be a lot of confusion. Gray goods are not counterfeit and they aren't illegal. See the New York Better Business Bureau, here. Sometimes I hear people say that over productions, like second or midnight runs by the factories licensed to produce products are gray goods, but I'm not so sure. Those might actually be considered counterfeit. (I think that to do so would require us to transubstantiate the trademark into something more than an indicator of source and all that connotes - quality, etc. - but that's a different discussion.)

Gray goods are legitimate, licensed goods, intended for sale in another region. Developing countries, for instance, get different, i.e. cheaper, electronics with the same brand names as we get here in the U.S., but they also have less warranty protection, etc. Lots of people are against gray goods, but the fact of the matter is that they aren't illegal. That's exactly why the gray goods electronic store mentioned in this 1985 TIME Magazine article are still all over my midtown Manhattan neighborhood.

If people are willing to forego their warranties to get stuff a lot cheaper, what's the problem? Wait -- we wouldn't want people to have any power to bargain in the market, that's why, right?!?

No graduation speaker at Syracuse Law School leads to questioning of the administration's competence...story here.

Google's new satellite maps feature is nothing less than revolutionary, allowing people to see the schools and even home towns of their favorite legal scholars. What more could you want?

Well, someone finally not only asked that rhetorical question, but answered it with a new blog: Google Sightseeing - Why bother seeing the world for real?

For the 2004-05 school year, Duke University issued all incoming undergraduates a brand new iPod - for educational use, of course. They've just announced that they're modifying the program so that any student in an (approved) undergraduate course that implements the use of an iPod gets one, while freshman will no longer get them as standard issue.

From what I read (above and here), it seems that about 600 (of 1600) freshman were in such classes, 11 of which were in the fall, 17 in the spring. I think we know what classes will close first during registration in 2005-06, no?

Philadelphia is going ahead with its (slightly modified) plans for city-wide wireless internet access, which I've already discussed here. Good for them. And very good for Philly's residents. At 1mbps, the speed is significantly below cable's speed, which is increasing all the time. But it does make good access cheap - (low speed) broadband at dial-up prices, or less.

Obituary: Johnnie Cochran, Terri Schiavo, and Fred Korematsu

Last week the legal community lost practitioner Johnnie Cochran and case parties Schiavo and Korematsu. Cochran was unique and one our profession's biggest celebrities. Schiavo's case illustrates current constitutional debate. And Korematsu reminds us of one of the United States' darkest moments of the 20th century.

More relevant to the (ecclesiastical) law in centuries past than today, but more than just notable is the death of Pope John Paul II. Though the papacy has much less direct influence on the law than the position once had, a radically different successor will potentially change the opinions --to varying degrees-- of many Catholics on policy issues with moral moorings such as gay marriage, abortion, and the right to life/death. However, a new Pope whose views were consistent with traditional church stands would likely improve the frequent perception that such views are outdated.