Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout

BlawgIT Has Moved

2008-05-23T17:39:00.001-05:00

[For the most recent BlawgIT postings, visit www.blawgit.com]

Law.Alltop.Com - The Legal Blogs

2008-04-30T14:49:00.000-05:00

Thanks to a little gentle nudging by one of my Twitterer Tweeps, Susan Cartier Liebel of Build a Solo Practice, Internet Guru Extraordinaire Guy Kawasaki has just added law blogs to his popular Alltop.com franchise.

Alltop provides a constant stream of blog posts from all of the best blogs in a particular category. Want to know what the brightest legal minds are saying right now about breaking legal news or the hottest legal topics? Check out law.alltop.com and find out.

Brett Trout

BlawgIT Has Moved

2008-04-01T10:05:00.000-05:00

[For the most recent BlawgIT postings, visit www.blawgit.com]

Easter Patents

2008-03-21T11:36:00.000-05:00

In an apparent attempt to corner the market on the upcoming Easter festivities, several inventors have successfully patented their own little corner of the holiday. I never realized Easter veneration was such big business that people apparently feel the need to enlist the government's help in defending their Jesus kitsch against devilish infringers.

Dolls formed in the likeness of the Lord Jesus with a movable head and extremities.
Patent Number 5456625
The doll is provided with electrically conductive nails which when inserted through apertures in the hands of the doll, mount the doll to a provided cross and close an electrical circuit which illuminates the cross. I am just curious to know at what point this sounded like a good idea.

Musical religious doll and singing bible nightlight
US Patent Number 5957747
A doll in the likeness of The Lord Jesus clothed in a white silky robe, with a red silky sash and brown leather-like sandals. A heart shaped locket is attached to the chest of the doll at a point which approximates the location of the doll's heart. The user may add and remove things from the heart shaped locket. Just what does one fill Jesus' heart with?

Doll having internal religious image
US Patent Number 6371825
A doll includes an internal religious image such as an image of Jesus Christ to convey to children the idea that God or Jesus Christ exists inside all children. The religious image is preferably a hologram. The image is located in the chest portion of the doll. I am the first to recommend teaching toys for children. I suggest, however, weighing the anticipated educational benefits against the likelihood the toy just might emotionally scar the child for life.

Tomb basket
US Patent Number 6021900
A repository device, useful as a collection container, a religious instructional tool and a religious decorative item is disclosed. The repository device consists of a completely enclosed, ovoid-shaped basket having a conventional handle and having a moveable side entry closure in the top portion of the basket. The entry closure is designed to assimilate an ancient tombstone used in ancient times to seal burial tombs. A burial tomb Easter basket? Now what kid would not be beside himself with excitement opening up something like that on Easter?

Let me know if you find anymore!

Brett Trout

Ethical Risks of Online Communications

2008-03-11T13:47:00.000-05:00

I am honored to be one of the presenters tomorrow for Strafford's continuing legal education program - Ethical Risks of Online Communications by Law Firms, Websites, Blogs and Online Networking:Staying on the Right Side of the Ethics Line. Two other panelists will be joining me for the live 90 minute presentation tomorrow at noon:

John Steele, Ethics and Conflicts Director and Special Counsel, Fish & Richardson, Silicon Valley, Calif. He is responsible for conflicts of interest and ethics particular to IP law practice. He is a lecturer in legal ethics at Boalt Hall School of Law at the University of California–Berkeley.

Diane Karpman, Partner, Karpman & Associates, Los Angeles. She defends lawyers in attorney discipline and regulatory proceedings before the state bar and in court. She is frequently retained as an expert witness in legal malpractice actions.

Even more important than the panel presentation will be the live question and answer session connecting over fifty different law firms from around the country. For more information or to sign up to listen to me over lunch, visit Strafford's website.

Brett Trout

Pwnage as Game Developer Attempts Jedi Mind Trick

2008-03-07T10:13:00.000-06:00

[Remember, for the most recent BlawgIT postings, visit www.blawgit.com]

Attorney Eric Menhart, the guy who tried to register the trademark CyberLaw, does not appear to the only trademark altruist out there. According to bit-tech.net, Finnish game developer Futuremark Oy is attempting to register the trademark pwnage.

To be fair, they are only trying to monopolize the trademark as used in association with:

Computer game software for communication devices; computer game software and computer game programs enabling users to play games with mobile phones and personal digital assistants; computer software and programs enabling users to communication devices to simultaneously access databases and global computer networks; software enabling transfer of data between mobile communication apparatus; computer game software; computer game programs; computer game discs; interactive multimedia computer game program; downloadable ring tones, graphics and music via global computer network and wireless devices; cases for mobile phones; computer application software for mobile phones; multimedia software recorded on CD-ROM featuring fictional characters and computer games; pre-recorded DVD's, video tapes, laser discs featuring movies about fictional characters, and pre-recorded compact discs featuring music; motion picture films on fictional characters

Entertainment services, namely, providing online computer games provided via network between communications networks and computers; providing on-line computer games; providing on-line games; providing temporary non-downloadable use of interactive games and video games from databases on web sites, a global computer information network, and from mobile and cellular phones and personal digital assistants

and, don't forget, Computer software development

Jukka Mäkinen, executive producer at Futurmark assured everyone however, that Futurmark's intention in filing for the monopoly was not to "charge money or stop people from using the expression." Futurmark merely wants to stop some other company, which may not be nearly as altruistic and kind as Futurmark, from registering the trademark and stopping Futurmark from using the word. Futurmark also stated they will "charge anyone that seeks to make money from the word." [insert whiplash inflicting head swivel here]

Somehow I picture this guy wearing a dusty robe in a landspeeder waving his hand slowly while saying "These are not the droids you are looking." At least then he would get some points for panache. As it stands, he merely gets points for chutzpah, and still only manages silver. Maybe by Beijing he will be ready to challenge Mr. Menhart for the gold.

Brett Trout

And You Thought That Ferrari Was Yours?

2008-03-06T10:28:00.001-06:00

[Remember, for the most recent BlawgIT postings, visit www.blawgit.com]

You buy a Ferrari and its yours right? Not according to Ferrari. Limousine builder Dan Cawley not only purchased a Ferrari 360 Modena, but he claims when he asked Ferrari if they cared if he modified the street legal race car into the fastest limo on the planet. Cawley says Ferrari told him he could do what he wanted, the car was his.

£200,000 in modifications later, Ferrari is now arguing that to keep the Ferrari badging on the car is an infringement of Ferrari's trademarks. This should come as quite a shock to all you tuners and modifiers out there. Ferraris are apparently more like a porcupines than anyone previously thought.

For the full story, check over at the Daily Mail.

Brett Trout

Patent Lawyer Porn

2008-03-06T10:26:00.002-06:00

[Remember, for the most recent BlawgIT postings, visit www.blawgit.com]

Due to a minor glitch in switching this blog over from Blogger to WordPress, I inadvertently cross-referenced the "Does your Lawyer Trust You?" post with the "Who Surfs This Much Porn?" post. As a result, a Google search for the term patent lawyer porn now lists me as the number one search result. I would, therefore, like to apologize to any of you arriving here actually looking for patent lawyer porn. As a consolation, however, I have already submitted you for inclusion in the next edition of the Diagnostic and Statistical Manual of Mental Disorders.

As conditions of my parole release prevent me from posting anything that even remotely approximates patent lawyer porn, the best I can do is to direct you to this list of rather strange patents. I would also like to recommend several of this week's Blog Carnivals, all of which include patent attorneys. I can just imagine their excitement over their carnival's affiliation with a post on patent lawyer porn. Notwithstanding, here they are:

Our favorite fiduciary and global intellectual property strategist, Duncan Bucknell of the IP ThinkTank Blog hosts a The Carnival of Trust where he has handpicked this month's most trustworthy blog posts from around the world.

Following BlawgIt's hosting of Blawg Review #148, David Fischer of the Antitrust Review monopolizes the blawgosphere with a great Blawg Review #149.

Mohamed Bhimji collects sage business blogger advice in this week's Internet Business Opportunities Blog Carnival.

I just wanted to offer a hat tip to those bloggers taking the time to selflessly serve up a collection of competing opinions for the benefit of their loyal readers.

Brett Trout

Does Your Lawyer Trust You?

2008-03-05T11:45:00.001-06:00

Seems like a strange question
Everyone talks about whether they can trust their lawyers, but who ever hears lawyers talking about trusting their clients? One reason you do not hear much about it is that you do not spend enough of your free time hanging around lawyers (you may want to consider taking up polo and/or Alpine skiing). Another reason is that even if a lawyer does not trust a client, the attorney/client relationship prevents disclosure of the sordid details. Still another reason is that some lawyers see not being able to control a client as a sign of weakness. Probably the biggest reason why you do not hear much about it, however, is that either way, it is the client, and not the attorney that bears the brunt of the distrustful relationship.

You do not want to be distrusted
We are not talking about lying. If you blatantly lie to your attorney, your attorney finds out and decides to keep you as a client, I would have serious reservations about continuing to engage a lawyer who condones lying. What are the odds the lawyer will not lie to you? Instead, what we are talking about is clients acting in an unanticipated fashion: flying off the handle, writing angry letters to the opposing party, failing to pay, drafting their own contracts, filing their own patents, etc. On one hand these types of client do provide job security. On the other hand, they end up paying a lot more in legal fees for far worse results.

Keep your lawyer happy
Early on in my career I was far more concerned with the quantity of clients, rather than the quality. I mean, how can someone paying you $200/hr be bad? The problem is that the same type of clients that ignore lawyerly advice and take matters into their own hands are precisely the type of clients most apt to harangue their lawyer when bad things inevitably begin to happen. Thankfully, I am at a point in my career where I can pick and choose my clients. Selecting only clients I trust and letting the other ones go has been the one thing that has had the greatest impact upon my continued enjoyment of the practice of law. I still enjoy every day, and the fact that I actually like all of my clients motivates me to constantly improve the service I provide them.

Stereotyping
Thankfully, problem clients are fairly easy to spot. Lawyers recognizing any of these signs during an initial meeting, should think long and hard whether these are the problems they want for the next several years. Clients recognizing aspects of themselves need to do some long hard navel-gazing.

Signs you may be a problem client
While I am no expert on the matter, there are several types of potential new clients that give me the heebie geebies:

1) The Complainer. Will not stop complaining about his or her last two lawyers. Fearful of becoming number three on the list, I ask them more about the last two lawyers. If the problems seem to be client-driven, I typically assist them with finding an attorney more suited to their temperament.

2) The DIY guy. They want to do all of the work and just have me look over their shoulder. While there is some legal work a client can do as well as an attorney, most things they cannot. The problem is that the DIY guy does not realize his folly until several months, or even years, later. Clients that demand to draft things like their own patent and just have me "look it over" I typically shuffle toward the door.

3) Ms. Sun and the Moon. She wants five patents, three lawsuits and two new businesses incorporated. One thing though, she is going to have a little trouble raising the $1,000 retainer. Strangely the slow pay/no pay client is often the one requesting the most legal work. Ms. Sun and the Moon continues to fall in arrears until the point when she tries to argue a bad outcome merits a hefty discount on her outstanding balance.

4) The Amnesiac. You tell them one thing and they do another. Luckily you can usually spot these clients in the initial interview. They ask advice, you give it to them. Then, five minute later, they say something that indicates that they intend to completely ignore your your advice.

5) The Bully. Every attorney/client relationship is different, or at least it should be. The problem arises when the bully client demands you start pushing the envelope as to what is ethical or legal. This relationship cannot help but end badly. This is one relationship that can actually end quite badly for the attorney as well as the Bully.

While many attorneys proffer advice on how to fire these types of untrustworthy clients, it is far preferable not to be hired in the first place. For you clients out there recognizing yourselves in any of these stereotypes, if your legal woes never seem to end, it may be time to change your untrustworthy ways. Having an attorney whom you trust AND who trust you, is the most important aspect of any attorney client relationship.

Brett Trout

Who Owns Your Website (Now available in Chinese)

2008-02-29T10:43:00.000-06:00

My last Who Owns Your Website post was very well received. The jist of that post was that unless your website was created by your employee in the course of employment OR you obtained a written assignment of all rights in the website, you probably do not own your website. That post covered those parts of your website that you honestly thought you owned, but as it turns out, you do not. This post covers things you probably knew you did not own, but thought you could use without getting caught.

Here are the excuses I hear when people get sued for infringing someone else's website design. I thought it was okay because:

They Gave Me an Inch
You paid a designer for work on a website. Now you want to replicate that design across several websites, and possibly even license it to others. Although you paid the designer for the work, you do not own the work. You merely have an implied license to use the work for its intended purpose. Whether that "purpose" includes use in other projects and/or sublicensing is a question for a judge or jury to decide. To avoid getting to that point, obtain an assignment of copyright up front, or at least detail in writing exactly what you can and cannot do with the design.

BadgerMan69 Said it Was Okay
Often an employee or a message board commenter will attest to the availability of design material for public consumption. "Fair use", "public domain" and/or "I am the author", are all common justifications. The problem is that the person authorizing the use typically has little or no knowledge about intellectual property laws. While you might possibly use this "authorization" to convince some judge you were an innocent infringer, this defense merely reduces the punitive damages and other side's attorney fees you might have to pay. Even an innocent infringer still has to pay compensatory damages and their own attorney fees.

All My Friends Jumped Off the Bridge . . .
A lot of website infringements stem from the perception that since everyone else is doing it, it must be okay. This can easily get out of hand. Say a website owner licenses a particular design. An unscrupulous competitor then sees the design and steals it for his or her own website. A third ethical, but non-intellectual property savvy, competitor sees the other two designs and assumes the design is fair game. The process continues until everyone but the original licensee is in federal court defending themselves against claims of copyright infringement. BTW/if you find yourself in this position, resist the strong temptation to explain to the judge that you only broke the law because everyone else was doing it too.

I changed 25% of the Design
I have no idea from where these urban legends originate. There is no law which allows you to copy something if you change "x" percent of the design. If it is substantially similar, you better rethink using it. This can be a big concern in the situation where the designer based the design on a pre-existing copyrighted work, merely creating a "derivative" from the original. The designer truly believes he or she owns all rights in the new work when they subsequently license the work to you. To avoid this problem, stick with seasoned designers, more likely to know what they can and cannot do with other people's work.

It Did Not Have a Copyright Notice
In the past, if you published a work without proper copyright notice, the work went into the public domain. No longer. With the advent of the Internet, people are constantly stealing other people's works and posting them online without proper copyright notice. The absence of a copyright notice merely provides you the opportunity to throw yourself on the mercy of the court and claim innocent infringement. You still have to stop using the work and you still have to pay stiff damages and your attorneys, you just might be able to avoid paying punitive for punitive damages and their attorneys.

I am Not Making Any Money From It/Giving the Author Free Publicity
I believe this line of thinking originates with a misunderstanding of Fair Use. While monetary gain on your part and loss of income on their part are indeed factors to be considered in rendering a determination of whether a use is indeed "fair use", the rules are much more complex and their application mercurial. Remove "fair use" from your mindset; act like it does not exist. If you absolutely need to use something in a manner you believe is fair use, obtain a written opinion from a copyright attorney first. Even if the attorney determines the use is not allowed, he or she might be able to suggest legal alternatives.

Now, go off and infringe no more.

Oh, I almost forgot about the Chinese. Wu Ying of Woogle's Blawg has translated my Who Owns Your Website post into Chinese. You can check out the translation here. Personally, I do not think I come across nearly as

Brett Trout

Blawg Review #148

2008-02-27T15:54:00.001-06:00

Last week’s superb Blawg Review #147 by the world’s foremost authority on North American badger law left me rather intimidated. Realizing the challenge of following my good friend Rushwith a post of similar caliber, I nearly threw in the towel and moved to French Polynesia. Fortunately, Rush talked me down from the precipice and convince me to give it a try.

While considering a theme for this week’s Blawg Review, it struck me that lawyers do not spend as much time aimlessly meandering the web as would, for instance, a typical air traffic controller. As a result, most lawyers are woefully detached from the Zeitgeist embodied in the lowly Internet meme. An Internet meme is any amusing video, email, picture, audio clip or other material that spreads virally across the internet. Unlike computer viruses, which spread based upon how many paint chips the people opening them consumed in their youth, Internet memes spread based upon how entertaining viewers find them.

Although blawgers are more aware of Internet memes than your average lawyer, blawgers still find there are not enough hours to stay up to date with each new version of someone reenacting the Thriller video at a wedding. To save you from this critical legal research, I assiduously complied several of the most popular memes for you. While the list might not necessarily "make" your day, at least it might maintain your work/life balance in sufficient equilibrium to stave off the rubber room for another week. The list is not comprehensive, but it is the best I can muster without being served pre-marital divorce papers. For those of you true professional Internet slackers, swing by memelabs and test your meme IQ.

Without further ado, the Blawg Review List of Internet Memes:

As Cool as Intellectual Property – You’ve Been Rick Rolled

One of the most interesting recent online intellectual property events was Eric "Wile E. Coyote Cybergenius" Menhart capitulating his quixotic attempt to trademark the term "cyberlaw" out of the public domain. Admittedly, as that is also the title of my latest book, I had a little skin in the game. Thankfully, many seasoned cyberlawyers joined Eric Goldman and Ron Coleman in gang-tackling Mr. Menhart before he scored his trademark registration. Tricia Bishop of The Baltimore Sun even quoted your humble narrator in her documentation of Mr. Menhart's online implosion. Now what was that about no publicity being bad publicity?

The last decade and a half of my days have been filled with providing clients patent advice. Strangely, one suggestion I never considered giving a client was to donate a large sum of money to their Senator to avoid liability for patent infringement. Michael Gorman of the Tech Law Forum reports that Alabama Senator Jeff Sessions is sponsoring a bill to make his donors immune from the repercussions of a pending patent infringement lawsuit. A hundred grand or so (plus any last vestige of your integrity) seems like a small price to pay for several billion dollars worth of immunity.

For those of you juris doctorates looking to get in on a little of this political largess, check out Robert Ambrogi's post on how the practice of law prepares you for public office.

Looking for another lawyer to do the heavy lifting for you? Check out the manonfyre's diary over at the Daily Kos, highlighting copyright guru Lawrence Lessig's potential run for Congress. Don’t worry; this is not all some sort of master plan by intellectual property attorneys to take over the world. But then again, would I tell you if it was?

Growing Lack of Civility - Don’t Tase Me Bro

According to The Word on Employment Law with John Phillips, bullying in the workplace is not against the law. Well, that is unless the bullying is tied to race, sex, national origin, religion, age or disability. I think they call this the you-can-only-bully-Brett-Trout rule. Apparently, several states are considering making all workplace bullying illegal. That despite the fact that such laws would extinguish the sole morsel of joy my legal assistant currently extracts from her current employment.

Al Brophy of The Faculty Lounge has an interesting post on what appears to be a shift in sympathy of first year law students. For the first time ever, male students appear inclined to award higher damages to female victims than do female first years. I guess the question remains whether this portends warmer, fuzzier male attorneys down the road, or merely more female juris doctorates entering the political arena.

There could be hundreds of reasons why someone would be riding a bike at 3am carrying an axe or bringing a gun to a deposition. Kevin Underhill of Lowering the Bar argues otherwise, but then again, I am a glass half full kind of guy.

Just in time for the latest crop of graduating law students, Ted Frank of Overlawyered has complied a list of things not to do after you pass the bar. Oh Ted. If only you had been blogging back in 1992. You could have saved me a whole lot of grief.

Geek Celebrity - Star Wars Kid

Dan Solove, Deven Desai and David Hoffman of Concurring Opinions landed an interview with Battlestar Galactica creators Ron Moore and David Eick. The interview covers how legal systems morph as extreme military pressures begin to stress our civilization. Now you can get your USRDA of bloggers, lawyers, politics and science fiction all in one convenient location.

Jack Balkin offers kudos to those niche academic legal bloggers who actually add to the collegiality, professionalism and collective knowledge base of the legal community. Balkin notes that the most popular law prof blogs drive readership through political punditry, gossip, entertainment, blog scraping and cultural commentary, basically everything short of actual legal scholarship. Balkin salutes niche bloggers for conveying interesting and important legal concepts to an audience which extends beyond the traditional "legal academy."

The Beat of a Different Drummer - I Like Turtles

Andrew Scott-Howman of Life at Work lets us in on a little secret about flatulence in the UK. According to an English Employment Tribunal, excessive flatulence does not qualify as a disability. Apparently, they are not talking to the same people I am talking to.

Susan Cartier Liebel of Build a Solo Practice explains that the best way to stay competitive is not to try to beat your competition at their own game, but to attract clients by differentiating your practice. For example, if there are several large firms in your area offering badger law services, try promoting your one-on-one service, rather than simply trying to undercut them on price.

Carolyn Elefant at Legal Blog Watch takes a look at what lawyers envision as the law practice of the future? Strangely, it looks a lot like my practice right now. Only with more robots.

Marc Randazza of the The Legal Satyricon analyzes the ethics of 800lb intellectual property gorillas slapping around the little guy. Instead of a rock, Professor Randazza points out, the David in this case appears to have his sling brim full of intellectual property insurance.

The Other Side of the Argument – Britney Rant

Cathy Gellis of Statements of Interest examines the newly claimed Kosovo independence. Not since the Beckhams' move to Los Angeles has a single issue polarized more countries on opposing sides of a single issue.

The Situationist takes up the issue of Lawyers using brain scans to argue defects in their clients' brains means the clients are not liable for their crimes. I wonder if that argument works with forgetting anniversaries.

Women's Bioethics Project examines the ethics of prenatal testing for known genetic defects. I will withhold my own thoughts on this issue, at least until I know whether the tests can determine whether the embryo will develop into a tax attorney.

Unexpected Results - Candy Mountain

Eric Turkewitz of the New York Personal Injury Law Blog discusses Lawyers litigating their way out of a job. Sure beats malpracticing your way out of a job.

Lyle Denniston of SCOTUSBLOG walks us through the Supreme Court's recent ruling allowing individual states to determine the retroactive applicability of Supreme Court rulings on criminal procedure. For more on this, check out Kent Scheidegger on Crime and Consequences and Doug Berman on Sentencing Law and Policy. Just something you might want to discuss with some of your less savory clients prior to their next criminal enterprise.

I Hear You But . . .- Numa Numa

Stephanie Allen West of idealawg talks about the universality, or rather lack thereof, in cross cultural mediation. The anonymous author of The Greatest American Lawyer explains how to leverage an extranet like Basecamp to avoid the ethical ramifications of failing to communicate with our clients.

From the "It's only unconstitutional when YOU do it" category, Marc Edelman form Above the Law discusses Florida Marlin Owner Jeffery Loria's threat to take his team to Vegas if Miami-Dade County does not cough up around $300M for a new stadium. While such an outlay appears to be unconstitutional under Florida law, that does not seem to be the problem. The problem is convincing Florida taxpayers to line the pockets of much maligned Mr. Loria with their hard-earned moolah. On the bright side, it appears Miami-Dade County residents are getting the shaft either way. From that vantage, it is clearly a win-win. Another bright note is that the Marlins have provided a loophole which the selfless captain of our new Iowa Volunteer Lawyer's for the Arts Project and I may just be able to exploit to finally take the field for a Major League Baseball team next year.

Binary Law discusses delving into your own navel to answer the age old question of "What Makes a Great Blawg." While I did not necessarily find that answer, I did locate a lintbunny the size of a Weeble.

Tasty – Icanhazcheezeburger

Enrico Schaefer of Traverse Legal hails the Demise of Domain Name Tasting.
Plans are to have all of those pre-chewed domains will be back on the buffet line in no time at all.

Don't Let Things Get Out of Hand - Australian Kid

Leon Gettler covers the case of a federal judge ordering the shutdown of a whistle blower website. Who would have guessed that telling the entire Internet community not to look at these documents would cause them to displace the Asian kid singing Hey Jude as the hottest ticket on the net. Dan Slater and Bruce Boyden also covered this story admirably.

PrawfsBlawg is holding a contest no one wants to win. They are looking for the "Most Screwed Victims in Caselaw History." For those of you practicing outside your area of expertise, I believe the rules allow submitting your own clients for this admittedly dubious distinction.

For the avoidance of doubt when drafting contracts, check out this post on the strange language of lawyers over at Naked Law. Sorry Rush, no pics on this one.

Give Them a Hand – Daft Hands

Scott Greenfield of Simple Justice takes issue with trolls and complainers griping about blawgs just to hear themselves gripe. Scott also has a nice take on one of my particular pet peeves, anonymous bloggers. I appreciate those anonymous bloggers who merely collect and collate the latest news for my lazy perusal, but I give anonymous blogs and comments very short shrift. I guess I just demand a little more principle behind my blogs. Plus, how do you expect me to argue your point online if I can't track you down and physically assault you when I lose?

This week, the anonymous intellectual property Patent Troll Tracker unmasked his alter ego, Rick Frenkel. Crime fighter by night, mild mannered in-house counsel at Cisco by day. Apparently, the $15,000 bounty on Rick's head was simply too much for someone to resist. Although I don't particularly care for anonymous bloggers, I really do not care for anyone who would serve up a blogger on a plate like this for money. Perhaps someone should put a bounty on that guy's head. In keeping with the tone of this post, and as a special prize for all you Blawg Reviewers, I have decided to reveal the true identity of Blawg Review's Ed. Out of respect for those of you who do not wish to know his real identity, I have posted the details at this link.

Small Business Trends' Anita Campbell had a former embezzler on her show to explain to her listeners how to avoid being the victim of embezzlement. Now that authorities have charged the guest with conducting a new embezzlement scheme, Ms. Campbell wants your input on whether she should take that particular show off of her website. Perhaps the brain surgeon that hired this guy to watch the corporate finances years AFTER he had already served time for embezzlement, may want to consider subscribing to Ms. Campbell's blog feed to prevent these kinds of things happening in the future.

Finally, if you ever wondered why you seem to be working more, but enjoying it less, these sock puppets over at Balkinization spell it out in no uncertain terms. Oh yeah, there will be a quiz over this material on Friday.

And while we are on the subject, I would like to ask you all to give a hand to Colin Samuels, Eric Turkewitz, Diane Levin and the Ed of Blawg Review for sending me such great links.

Blawg Review has information about next week’s host, Antitrust Review, and instructions how to get your blawg posts reviewed in upcoming issues.

Brett Trout

Blawg Review at BlawgIT

2008-02-25T12:24:00.002-06:00

My Blawg Review #148 is now up over at the new BlawgIT.com website. If you don't check it out, you will have no one but yourself to blame the next time you get into a legal dispute with your badger.

Brett Trout

BlawgIT Making a Move

2008-02-21T10:36:00.002-06:00

After five years and over five hundred posts I have finally decided to move BlawgIT to its own domain. It is even getting its own WordPress blog. I would like to give a big thanks to Christian Connett of eSolutions Interactive for moving all of my archival posts over to the new site.

While I will continue to update both blogs for a while, I will begin posting blog posts to this site later and later. So, if you want the freshest dose of BlawgIT, hop over to www.BlawgIT.com

Don't forget to update your RSS feeds, and don't forget to check back in on Monday, when I pillory Rush in next week's Blawg Review.

Brett Trout

Copyright Guru Seeks to Change Congress

2008-02-20T20:28:00.001-06:00

I do not write about politics, because this is not a political blog. It is a blog about intellectual property. As someone deeply concerned about intellectual property, however, I thought you would be interested to know that the most famous copyright attorney on earth is considering a bid for Congress. While reasonable minds may differ on so many political issues, one issue upon which we can all agree is the corruption in Congress has gotten out of hand. The petty differences, even between the major political parties, pale in comparison to the problem of Congressional corruption. Congress takes lots and lots of money from the very entities it is charged with regulating. Not good.

You may have already heard of copyright guru Lawrence Lessig. Lessig is the founder and CEO of Creative Commons and board member of the Electronic Frontier Foundation. Now the Stanford Law School professor, no longer quixotically tilting Microsoft’s antitrust windmill, is taking aim at corrupt politicians. At present, he is pondering whether he can best assist his Change Congress movement by running for Congress himself. Lessig’s main drive is to promote the public finance of campaigns and eliminate congressional earmarks which cannot help but sway their votes.

People who know me would never assume I would support someone with Lessig's political views. I actually agree more with his anticipated opponent on most issues. It is the issue of changing corruption, however, which overrides more minor political differences.
A politician running on a campaign of reducing corruption, eliminating politicians taking money from the companies they are charged with regulating. If this sounds interesting, something you would support, visit Lessig's exploratory website. If he does not hear from you, he will not run.

And even if you hate copyright attorneys, wouldn't you rather have him in Congress, annoying your least favorite politician? No one knows more than you how annoying they can be when they actually put their minds to it.

Brett Trout

Rush Hosts Blawg Review

2008-02-20T20:27:00.001-06:00

My buddy, and fellow I-Blawg Lawyer Rush Nigut is this week's Blawg Review host. Rush makes the most of his Blawg Review #147 pedestal by pedaling his way across memories of Iowa's own RAGBRAI.

Although I am a RAGBRAI virgin myself, I have friends who have gone. Based upon their assessment, it appears Rush may have gone to bed a little early, missing a few things on his RAGBRAI trip. Despite being a veteran, he completely overlooked several notable aspects of the RAGBRAI experience:

The lush, tropical beer gardens
group car wash showers
naked beer slides
drafting the Iowa Bikini Team
Sharing sleeping bags to stay warm in the nearly 110 degree weather
roadside burritto rentals and
KYBO return slots.

Perhaps everyone was just on their best behavior for Lance Armstrong.

I-Blawg: Iowa Law Blogs

2008-02-18T08:46:00.001-06:00

For some reason, Iowa is quite a fecund environment for blogging. Just a peek some of the blogs on the I-List gives you an indication of how offline collaboration between Iowa bloggers leads to a significant increase in online readership and quality. That same offline collaboration has now expanded to Iowa law bloggers as well.

Back in 2003, I was the only law blogger in the state. Since that time, several high quality legal blogs have come upon the scene. Now there are at least ten legal blogs in just the Des Moines area alone. Although most are self explanatory, here is a link an short description of some of the most insightful I-Blawgs:

BlawgIT (Hey, I am no dummy. I learned my alphabetization lesson standing at the back of lines all my life)

Des Moines Injury Board Steve Lombardi shares in-depth insight on all things Personal Injury and Workers' Compensation.

George Davison Iowa Law My former mentor and radio personality George Davison waxes philosophic on legalese and recent Iowa case law. It is just too bad that there is not a "warm baritone" font.

Iowa Banking Law Blog A blog on Zimbabwean probate law. Actually, it is much more along the lines of what it purports to be. If you find out who writes it, be sure to drop me a line and let me in on the secret.

Iowa Divorce and Family Law Alex Rhoads covers family law issues from Ames, Iowa to Canterbury, New Zealand.

Iowa Family Law Blog Jennifer Jaskolka-Brown blogs Family Law under the fine blogging tutelage of next week's Blawg Review host Rush Nigut.

Iowa Law Blog A fine collection of Iowa legal bloggers from the Sullivan & Ward law firm banding together to provide one of the best written, most comprehensive legal blogs in the country.

Rush on Business The preeminent authority on North American badger law. Actually, if you are one of the few still not familiar with Rush's world famous business blog you are in for a treat. Be sure to check out his blog next Monday for his unique take on legal blogging across the country.

Victoria Herring Your guide to the Apple/Mac practice of law.

Wealth & Estate Planning Another Sullivan & Ward conspirator tells you everything you need to know about where to bury the bodies.

The great thing about these law bloggers is that in addition to being great attorneys, they are great people. The same motivation that prompts them to blog on a regular basis is the same motivation that prompts them to build relationships and collegiality within the legal community.

Drop by some of these blogs and check out who is doing their part to knock down barriers in the legal profession for colleagues and clients alike.

Brett Trout

Buy That Domain Name First

2008-02-15T16:18:00.000-06:00

Part of my job is registering trademarks for companies. I always find it surprising that even internet savvy companies proceed with trademark registration before investigating domain name availability.

While registering a domain name is not a prerequisite to filing a trademark registration, once you file the publicly available trademark registration, domain namenappers will likely foreclose that option, absent a rather large "donation" to their International Me, Me, Me Charity. If you get to the domain name even seconds after someone perusing recent trademark applications, the cost of your $9 domain name registration can jump to $10,000 or more.

Even if you are unsure about which name you eventually want to protect, with trademark registrations running about $1,300 and domain name registration running about $9 a pop, it is worth grabbing ALL of the domain names under serious consideration.

One last caveat. With some domain name registrars betraying long-term trust for short term profit, it is advisable to purchase the domain name the first time you search it for availability. Otherwise, you may find, upon your return, that your trusted domain name registrar is not as far removed from the domain name extortion biz as you might otherwise have so naively considered.

Brett Trout

A Particularly Inventive Blawg Review

2008-02-12T08:58:00.000-06:00

Stephen Nipper of The Invent Blog chose February 11, 2008, National Inventor's Day and birthday of Thomas Alva Edison, to host this week's Blawg Review #146. Like all of Stephen's posts, his Blawg Review is concise and well-written. Best of all, and not surprisingly, his Blawg Review leans a little toward the inventive, highlighting blog posts on patent attorneys, the much maligned proposed patent reform and the Patent Office's proposal to have patent attorneys do their own preliminary examinations (don't worry, it will only add another $26,000 onto your bill).

From Bobby Knight to BrideZilla, this week's Blawg Review has something for everyone. And don't forget new week, when Iowa's very own Rush On Business will be hosting. Be sure to visit, but be gentle. It is his first time.

Brett Trout

It's Hard Out Here for a Patentee

2008-02-07T14:20:00.000-06:00

The Storm No One Forecast
When it comes to undermining innovation in the United States, it appears we are currently in the midst of the perfect storm. It all started in the late nineties and early naughts when patent trolls began to run rampant. Much to the chagrin of American innovators, the government overreacted, stifling innovation on nearly every front.

Winds of Change
The storm has been brewing since June 23, 1998, when the Court of Appeals for the Federal Circuit ruled in that you could patent a method of doing business. This ruling led to inventors falling all over themselves trying to file patents on "novel" online business methods.

A Storm a Brewin
The problem was that, prior to 1998, no business method patents had ever been allowed. Up until that time, checking patent applications against previously issued patents was the United States Patent and Trademark Office's (USPTO) principal way to determine if a particular invention was truly novel. When these new business method patent applications hit USPTO, the office had nothing against which to assess their novelty. Accordingly, the USPTO granted many patents on methods that had been in the public domain for years.

Windsheer
As you might expect, new business method patentees were using their ill-gotten patents to sue established business for patent infringement. Online businesses reacted immediately, petitioning the USPTO to stop allowing the monopolization of business methods that had been in in the public domain for years. The USPTO listened, completely reversing its trend of never meeting a business method patent application it did not like, and adopting strict new protocols to more thoroughly examine such applications. Not surprisingly, these new protocols take considerably more time. Business method applications that had taken just over a year to convert into a patent, now take four years or more. That is, assuming the application has what it takes to navigate the new gauntlet of protocols. Most business method applications do not.

A Gathering Storm
Not satisfied with merely killing the goose that laid the golden egg, opportunistic patent trolls immediately began buying up early business method patents. Now, with few, if any, new business method patents issuing the overly broad patents which had issued during the short "free-for-all" window were even more valuable. Despite the new "No Business Method" patent protocols at the USPTO, the influx of patent trolls into the courts actually began to increase.

Lightening Strikes, Again and Again
As most courts knew little about patents, and even less about business method patents, Patent Trolls created a cottage industry of leveraging the court system to hold software companies hostage. You either pay, or get an injunction from the courts and six years of a lawsuit. The bad news is that it will likely cost you $1.5 million in attorney fees IF YOU WIN. If you lose, it does not matter how much it will cost, as the cost will likely far exceed the value of your company.

The Perfect Storm
Rather than simply reexamine erroneously issued patents, and wait for the new USPTO protocols to take effect, the government lept into action on all fronts. The USPTO stopped issuing patents. According to USPTO Director Jon Dumas, the United States Patent and Trademark Office has recently started rejecting more patents than it allows. Matt Buchanan has a nice graph showing how the allowance rate has dropped from over 70% in 2000, to less than 55% in 2006. Today, the allowance rate stands at about 44%.

Courts have also taken their run at the patent system. On April 30, 2007, the United States Supreme Court gutted the United States' Patent System in a case called KSR Interneational Co. v. Teleflex Inc. et al. Basically, the KSR ruling not only makes it much more difficult to patent inventions, it makes it much easier to invalidate existing patents.

And do not leave the legislature out. For several years, lobbying giants like Microsoft, Google, Blackberry and Autodesk have been pooling millions toward convincing Congress to pass a comprehensive Patent "Reform" Act. While the proposed patent reform law admittedly stops short of authorizing the waterboarding of patentees, this seems either to be merely oversight on the part of the drafters, as it is a distinction of form, rather than substance. While the large software companies support this ban on innovation, smaller tech companies, labor unions, professional engineers, the Patent Office Professional Association and the Communications Workers of America all oppose the new law. According to a letter sent to Senators last Wednesday by the Computing Technology Industry Association (CompTIA) "Key parts of the proposed legislation may have the effect of increasing the likelihood of American inventions being stolen by our international competitors and, consequently, inhibiting sorely needed new investment in domestic manufacturing."

Digging Out
Little can be done to reverse the damage big business and the government has done to our patent system. It is not too late, however, to prevent the greatest damage from being done. Thankfully, patent attorneys are probably going to be all right regardless of whether the legislation passes or not. It is a poor attorney that cannot find work in times of legal uncertainty. Everyone else, however, stands to lose. Patent Reform means much less innovation, the most highly skilled jobs shipped overseas and the United States placed at the mercy of other countries' innovation. As goes innovation, so goes prosperity.

But you can do something to stop this hemorrhaging before it begins. Contact your Senator. Tell them not to support the new Patent Reform legislation. Tell them you want them to support inventors, support growth, support jobs and support the United States remaining a world leader in innovation. Tell them in no uncertain terms. Tell them before it is too late.

Brett Trout

Patent Blog Feeds - OPML Code

2008-02-06T14:07:00.001-06:00

The patent blog p-meme was a big hit yesterday. So much so, that people wanted MORE. Well baby, there ain't no more. What I can do however, is to give you my OPML file for all of the p-meme RSS feeds. Just import this file into your RSS reader to see all the same feeds I do (well, at least all the same patent blog feeds I do).

To view the file, simply click on the ginormous blue button below:

Alternatively, if clicking on huge blue buttons is not your thing, here is the OPML file itself. You can either copy and save it to a file you import into your RSS feedreader OR painstakingly cut and paste your way through it:

<?xml version="1.0" encoding="utf-8"?>
<opml version="1.1">
<head>
<title>Patent Blogs</title>
</head>
<body>
<outline title="Blawg IT Patent Blogs" text="Blawg IT Patent Blogs" htmlUrl="http://blog.bretttrout.com/" type="rss" xmlUrl="http://feeds.feedburner.com/BlawgIt-internetPatentTrademarkAndCopyrightIssuesWithAttorneyBrettTrout" />
<outline text="New Tab 1" >
<outline title=":: The Patent Librarian's Notebook ::" text=":: The Patent Librarian's Notebook ::" htmlUrl="http://patentlibrarian.blogspot.com/" type="rss" xmlUrl="http://patentlibrarian.blogspot.com/feeds/posts/default" />
<outline title="Benefit of Hindsight" text="Benefit of Hindsight" htmlUrl="http://benefitofhindsight.typepad.com/blog/" type="rss" xmlUrl="http://benefitofhindsight.typepad.com/blog/index.rdf" />
<outline title="BLOG@IP::JUR" text="BLOG@IP::JUR" htmlUrl="http://www.ipjur.com/03.php3" type="rss" xmlUrl="http://feeds.feedburner.com/ipjur" />
<outline title="Cairns Blog" text="Cairns Blog" htmlUrl="http://cairns.typepad.com/blog/" type="rss" xmlUrl="http://feeds.feedburner.com/CairnsBlog" />
<outline title="Chicago IP Litigation Blog" text="Chicago IP Litigation Blog" htmlUrl="http://www.chicagoiplitigation.com/" type="rss" xmlUrl="http://www.chicagoiplitigation.com/index.xml" />
<outline title="Delaware IP Law Blog" text="Delaware IP Law Blog" htmlUrl="http://delawareiplaw.com/" type="rss" xmlUrl="http://www.delawareiplaw.com/xml-rss2.php" />
<outline title="Eastern District of Texas Federal Court Practice" text="Eastern District of Texas Federal Court Practice" htmlUrl="http://mcsmith.blogs.com/eastern_district_of_texas/" type="rss" xmlUrl="http://mcsmith.blogs.com/eastern_district_of_texas/index.rdf" />
<outline title="The Fire of Genius" text="The Fire of Genius" htmlUrl="http://www.thefireofgenius.com" type="rss" xmlUrl="http://www.thefireofgenius.com/feed/" />
<outline title="http://feeds.feedburner.com/blogspot/GAiT" text="http://feeds.feedburner.com/blogspot/GAiT" htmlUrl="" type="rss" xmlUrl="http://feeds.feedburner.com/blogspot/GAiT" />
<outline title="http://feeds.feedburner.com/DuncanBucknellsIpThinkTank" text="http://feeds.feedburner.com/DuncanBucknellsIpThinkTank" htmlUrl="" type="rss" xmlUrl="http://feeds.feedburner.com/DuncanBucknellsIpThinkTank" />
<outline title="http://feeds.feedburner.com/Patentcircle" text="http://feeds.feedburner.com/Patentcircle" htmlUrl="" type="rss" xmlUrl="http://feeds.feedburner.com/Patentcircle" />
<outline title="http://www.wapatents.com/atom.xml" text="http://www.wapatents.com/atom.xml" htmlUrl="" type="rss" xmlUrl="http://www.wapatents.com/atom.xml" />
<outline title="The Invent BlogÂ®" text="The Invent BlogÂ®" htmlUrl="http://inventblog.com" type="rss" xmlUrl="http://feeds.feedburner.com/TheInventBlog" />
<outline title="IP Newsflash - IP news within the last 24 hours" text="IP Newsflash - IP news within the last 24 hours" htmlUrl="http://www.ipnewsflash.com" type="rss" xmlUrl="http://www.ipnewsflash.com/rss_news.php" />
<outline title="IPKat - IP news and fun for everyone" text="IPKat - IP news and fun for everyone" htmlUrl="http://ipkitten.blogspot.com/" type="rss" xmlUrl="http://feeds.feedburner.com/theipkat" />
<outline title="Law.com - Newswire" text="Law.com - Newswire" htmlUrl="http://www.law.com/newswire/" type="rss" xmlUrl="http://www.law.com/newswire_rss.xml" />
<outline title="Maryland Intellectual Property Law Blog" text="Maryland Intellectual Property Law Blog" htmlUrl="http://www.marylandiplaw.com/" type="rss" xmlUrl="http://www.marylandiplaw.com/index.xml" />
<outline title="Orange Book Blog" text="Orange Book Blog" htmlUrl="http://www.orangebookblog.com/" type="rss" xmlUrl="http://feeds.feedburner.com/OrangeBookBlog" />
<outline title="Patent Arcade" text="Patent Arcade" htmlUrl="http://www.patentarcade.com/" type="rss" xmlUrl="http://www.patentarcade.com/atom.xml" />
<outline title="Patent Baristas" text="Patent Baristas" htmlUrl="http://www.patentbaristas.com" type="rss" xmlUrl="http://feeds.feedburner.com/PatentBaristas" />
<outline title="Patent Docs" text="Patent Docs" htmlUrl="http://www.patentdocs.net/patent_docs/" type="rss" xmlUrl="http://www.patentdocs.net/patent_docs/index.rdf" />
<outline title="Patent Prospector" text="Patent Prospector" htmlUrl="http://www.patenthawk.com/blog/" type="rss" xmlUrl="http://www.patenthawk.com/blog/atom.xml" />
<outline title="Patent Troll Tracker" text="Patent Troll Tracker" htmlUrl="http://trolltracker.blogspot.com/" type="rss" xmlUrl="http://feeds.feedburner.com/PatentTrollTracker" />
<outline title="patentablydefined.com" text="patentablydefined.com" htmlUrl="http://patentablydefined.com" type="rss" xmlUrl="http://www.patentablydefined.com/wp-rss2.php" />
<outline title="Patently Academic" text="Patently Academic" htmlUrl="http://www.patentlyacademic.com" type="rss" xmlUrl="http://www.patentlyacademic.com/?feed=rss2" />
<outline title="Peter Zura's 271 Patent Blog" text="Peter Zura's 271 Patent Blog" htmlUrl="http://271patent.blogspot.com/" type="rss" xmlUrl="http://271patent.blogspot.com/feeds/posts/default?alt=rss" />
<outline title="Philip Brooks' Patent Infringement Updates" text="Philip Brooks' Patent Infringement Updates" htmlUrl="http://infringement.blogs.com/philip_brooks_patent_infr/" type="rss" xmlUrl="http://infringement.blogs.com/philip_brooks_patent_infr/index.rdf" />
<outline title="PHOSITA :: an IP Blog!" text="PHOSITA :: an IP Blog!" htmlUrl="http://www.okpatents.com/phosita/" type="rss" xmlUrl="http://feeds.feedburner.com/phositarss" />
<outline title="PLI Patent Practice Center RSS feed" text="PLI Patent Practice Center RSS feed" htmlUrl="http://www.pli.edu/patentcenter/" type="rss" xmlUrl="http://www.pli.edu/patentcenter/rss.asp" />
<outline title="Post Grant" text="Post Grant" htmlUrl="http://www.postgrant.com/" type="rss" xmlUrl="http://www.postgrant.com/index.xml" />
<outline title="Promote the Progress sitewide RSS" text="Promote the Progress sitewide RSS" htmlUrl="http://promotetheprogress.com" type="rss" xmlUrl="http://feeds.feedburner.com/PromoteTheProgress" />
<outline title="Russ Krajec's Anything Under The Sun Made By Man" text="Russ Krajec's Anything Under The Sun Made By Man" htmlUrl="http://www.krajec.com/index.php?/weblog/" type="rss" xmlUrl="http://feeds.feedburner.com/krajec" />
<outline title="Securing Innovation" text="Securing Innovation" htmlUrl="http://www.securinginnovation.com/" type="rss" xmlUrl="http://www.securinginnovation.com/index.xml" />
</outline>
</body>
</opml>

Brett Trout

The Patent Meme

2008-02-05T10:23:00.000-06:00

When I first started writing my patent law blog in 2003, there were maybe only one or two other blogs writing about patents. I know, it sounds crazy. Patent attorneys are the epitome of sex appeal. There had to thousands of bloggers fawning over patents and the like. I still have not figured it out.

Thankfully, five years and five hundred posts later, hundreds of blogs are covering patents and various patent related issues. Many have come, many have gone. There are lots of blogrolls out there, but almost all include non-patent related blogs or patent blogs which have not been updated for months.

So thinking the same thing you are obviously thinking, "If only I could have a link to all the important patent law blogs in one place" I started compiling a list of patent law blogs. Admittedly, I do not get out much. Well, fellow fans of all things Josh Weaton, the list is complete. What follows is my definitive patent meme. Definitive, of course until you kindly instruct me in colorful explicatives that no such list can possibly be complete sans your flatulence odor control patents blog. If I missed your favorite patent blog, or you would like to complain about one I included, feel free to leave a pithy comment.

And now, without further ado, the p-meme:

Anything Under the Sun
Benefit of Hindsight
BlawgIT
Chicago IP Litigation Blog
Daily Dose of IP
Delaware IP Law Blog
EDTexweblog.com
The Fire of Genius
I/P Updates
The Invent Blog
IP::JUR
IP Down Under
IP Newsflash
IP Thinktank Blog
IPBIZ
ipeg
IPKat
Just a Patent Examiner
LawKT.com
Maryland Intellectual Property Law Blog
Orange Book Blog
Patent Arcade
Patent Baristas
Patent Circle
Patent Docs
Patent Infringement Updates
Patent Librarian's Notebook
Patent Prospector
Patent Troll Tracker
Patentably Academic
Patentably Defined
Patently-O
Peer to Patent
Phosita
Post-Grant
Practicing Law Institute
Promote the Progress
Securing Innovation
TinyTechIP
Washington State Patent Law Blog
271 Patent Blog

Let me know what you think!

Brett Trout

What Could Be More Generic Than CyberLaw?

2008-01-31T17:10:00.000-06:00

At least I thought it was when I used it as the title of my book. I do not feel too bad though, as a quick Google search shows that at least 356,000 others apparently have my back on this. The problem lies with one Eric J. Menhart, a Washington D.C. attorney, who apparently believes he is the only one allowed to use the generic term cyberlaw in association with "providing information relating to legal affairs."

On the upside, Mr. Menhart appears to stand alone in this belief. Such uniqueness is actually quite amazing in this day and age, especially when you consider people have little difficulty mustering multitudes to support theories of a flat earth, galactic overpopulation, the profitability of multilevel marketing and even that George Lopez is funny.

In furtherance of his quest for CyberLaw domination, Mr. Menhart has filed a federal trademark application to obtain exclusive rights in the term "CyberLaw" as used in association with all things legal. Well, not ALL things legal, just:

Legal document preparation and research services for attorneys;
Legal research;
Legal services; Legal services, namely, preparation of applications for trademark registration;
Consulting and legal services in the field of privacy and security laws, regulations, and requirements;
Expert witness services in legal matters in the field of intellectual property and information technology;
Providing a website that features information on the development of international law, regulations, legal policies, and legal practices in a manner that promotes global governance by all types of organizations;
Reviewing standards and practices to assure compliance with intellectual property and information technology laws and regulations;
Attorney services;
Litigation services;
Legal services, namely, trademark maintenance services;
Copyright management;
Copyright management consultation;
Registration of domain names for identification of users on a global computer network;
Arbitration;
Arbitration services;
Consultation in the field of data theft and identity theft;
Intellectual property consultation;
Intellectual property watch services;
Licensing of advertising slogans and cartoon characters;
Licensing of computer software;
Licensing of intellectual property;
Litigation consultancy;
Mediation;
Patent licensing;
Preparing and filing incorporation papers;
Providing information relating to legal affairs.

In his defense, Mr. Menhart claims to have been using the CyberLaw trademark going all the way back to 2007. As my fiancée is more than willing to attest, I have things in my fridge which date prior to his first use.

For some strange reason, an intellectual property attorney at the Electronic Frontier Foundation took issue with Mr. Menhart's "overreaching invocations of IP rights," even going so far as to cast aspersions upon Mr. Menhart's common sense. Menhart responded that his trademark would only extend to "services rendered by lawyers to individuals, groups of individuals, organizations and enterprises." I mean it is not like he is just going to say this and then change his mind after he gets the a trademark registration on a generic term. Right?

GrokLaw, among others, is not so sure when it comes to Menhart's pledge. Given that Menhart has already asserted his CyberLawg "trademark" against another attorney, Groklaw seems to have some doubt that Menhart will not try to do the same with CyberLaw. Groklaw also points out that Menhart's own website asserts his trademark "rights" over areas NOT related to "individualized legal advice."

Now I could understand if a divorce lawyer was trying to monopolize DivorceLaw or a real estate lawyer going after RealEstateLaw; they are not intellectual property geeks by trade. A cyberlawyer, however, should know better than to attempt to monopolize a generic term. CyberLaw is in the dictionary, the encyclopedia, and is used ubiquitously by thousands of websites, including this one. Here are just a few examples utilizing the generic word CyberLaw in conjunction with one of the services outlined by Mr. Menhart:

Cyberlaw Central
Berkman Blog
BlawgIT
Learning Cyberlaw in Cyberspace
Stanford Law School
The New York Times
Cyberlaw.info
Harvard Law School
The Cyber Law Enforcement Organization
University of California, Berkeley
HG.org
Mishpat
Chicago-Kent College of Law
ICANN Watch

With regard to printed legal information, in addition to my own CyberLaw book, there are several other books providing legal information under the title CyberLaw. One has even been available since 1996 (although I question who is still buying a 1996 book on CyberLaw). Here is just a sampling of the books:

CyberLaw Text and Cases
Cyberlaw: Problems of Policy and Jurisprudence in the Information Age
Cyberlaw: Legal Principles of Emerging Technologies
Outlines & Highlights for CyberLaw
Cyberlaw & Its Implications
Cyberlaw and E-Commerce Regulation: An Entrepreneurial Approach
Cyberlaw: the Law of the Internet

Under 37 C.F.R. §2.33 an applicant for trademark registration must provide a sworn statement or declaration alleging:

That the applicant has adopted and is using the mark shown in the accompanying drawing; that the applicant believes it is the owner of the mark; that the mark is in use in commerce; that to the best of the declarant's knowledge and belief, no other person has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when applied to the goods or services of the other person, to cause confusion or mistake, or to deceive; that the specimen shows the mark as used on or in connection with the goods or services; and that the facts set forth in the application are true.

Given that I assume Mr. Menhart is aware United States trademark law is premised upon priority of use, I would be very interested in hearing his explanation as to why he believes none of the foregoing entities have the right to use the generic term CyberLaw in association with providing information relating to legal affairs, especially in light of fact that many of those uses actually predate his own alleged use by several years.

As always, any comments you may have on this issue would be most welcome.

Brett Trout

Cyberlaw