Are you kidding me? The law, government, and politics.

That's right: A dead guy is suing a dead guy. The estate of Andy Warhol is being sued by the daughter and two sons of Richard Toelk because Andy Warhol and director Paul Morrissey allegedly tortured Toelk when he was only 14 years old. The torture amounted to filming him while he was smoking marijuana, which the complaint referred to as "child pornography." The suit is grounded on the use of that footage in a movie, "All Aboard to Dreamland Choo Choo," on which the estate of Andy Warhol is still making money.

They also sue on the basis of my favorite tort: negligent infliction of emotional distress. In Count 3, the plaintiff alleges that the continued distribution of the movies places the family in a false light. Whatever the merits of this suit generally, the judge should probably deal with Count 3 by simply prescribing them some Prozac.

Posted by rbodine at 07:37 PM | Permalink | Comments (0) | TrackBacks (0)

Law.com's Legal Blog Watch reported on yet another ridiculous law suit that's out there right now. Erik Estavillo, an agoraphobic, has sued the makers of "World of Warcraft" for causing players to become alienated and suffer mental health problems. As a former agorophobic myself, I can assure you that this guy already has "mental problems," so even if this suit weren't frivolous, he'd be the wrong plaintiff for it. For more information, click here to jump to the original report by Legal Blog Watch.

Posted by rbodine at 06:19 PM | Permalink | Comments (0) | TrackBacks (0)

Hail to the Redskins!

The U.S. Court of Appeals for the District of Columbia Circuit has given the Washington Redskins something they couldn’t seem to get on their own lately: a meaningful victory. In Pro Football, Inc. v. Harjo, et al., No. 03-7162 (decided May 15, 2009), the appellate court affirmed a decision of the U.S. District Court for the District of Columbia that, on remand, reassessed its analysis under the doctrine of laches. The district court found that, because the plaintiffs brought the suit 8 years later than they could have, the loss of evidence due to the death of the former Redskins president, Edward Bennett, and the economic prejudice that would be suffered due to the delay was too much to overcome. The appellate court, reviewing under the standard of abuse of discretion, refused to overrule the judgment of the district court.

EDIT September 27, 2009: In response to some comments I received, here is some additional information. You can find the last district court decision here. (The district court is where the trial occurs, and almost all the fact finding is done.) Most criticisms of the opinion were made by people refusing to read the 10-page appellate court case, so I doubt those same critics will be willing to read the 84-page district court opinion. The best I can do, though, is point out that the district court found "substantial evidence" that the term "Redskin(s)" had lost its insulting meaning no less than 60 years ago, even among American Indians. It is clear that this archaic meaning (which, by the way, was most likely created by an American Indian), was resurrected in order for the plaintiffs to get their 15 minutes of fame. Moreover, though not discussed in the case at length, the owner at the time of the mark's registration went out of his way to visit with American Indian leaders before registering the mark, and those leaders were appreciative of how the team had improved the image of American Indians through the use of the term "Redskin(s)" and their various logos.

Not only do the plaintiffs in this case have terribly unclean hands, but they have done a tremendous disservice to the cause they claim to represent. I guess that's not bad for them considering they get to be on television and radio.

BTW, the Supreme Court has granted the Plaintiff's appeal.

Full disclosure: I'm a lifelong Washington Redskins fan, but I have zealously defended the use of Orangemen (hate Syracuse), Redmen (hate St. John's), and Fighting Irish (I'm 1/4 Irish, and find it interesting that they usually receive no attention in this discussion).

Posted by rbodine at 02:05 PM | Permalink | Comments (0) | TrackBacks (0)

The United States Court of Appeals for the Fourth Circuit affirmed the grant of summary judgment by the US District Court for the Eastern District of Virginia, holding that there was no likelihood of confusion as a matter of law between the Defendant's trademark, LEFT CENTER RIGHT, and the Plaintiff's trademark, LCR, both with respect to dice games sharing identical rules.

In George & Co., LLC v. Imagination Entm't Ltd., No. 08-1921 (July 27, 2009), Plaintiff George sued Defendant Imagination for infringement of George's trademarks, LEFT CENTER RIGHT and LCR. The district court granted summary judgment to the Defendant, finding that -- even if the Plaintiff's complaint was assumed to be completely accurate in its account of the facts -- the Plaintiff would still lose, so no trial was necessary.

The Court of Appeals affirmed (that is, upheld or validated the district court decision), going through each of the nine factors used to determine whether there is a likelihood of confusion between the Plaintiff's and Defendant's marks. Those factors are: 1.) The strength or distinctiveness of the plaintiff's mark as actually used in the marketplace; 2.) the similarity of the two marks to consumers; 3.) the similarity of the goods and services that the marks identify; 4.) the similarity of the facilities used by the market holders; 5.) the similarity of advertising used by the market holders; 6.) the Defendant's intent; 7.) actual confusion; 8.) the quality of the Defendant's product; and 9.) the sophistication of the consuming public.

Although the Court of Appeals recognized that there were some factors in Plaintiff's favor, it held that the most significant factor, actual confusion (#7), weighed heavily against the Plaintiff, because the Plaintiff sells about 500,000 gamers per year yet provided only two instances of actual customer confusion. Combined with a mark the Court of Appeals considered weak (#1) and disimilar to the Defendant's mark (#2), and without any evidence of bad intent by the Defendant (#6), the Court of Appeals held there was no likelihood of confusion, and so there was no trademark infringement.

Finally, the Court of Appeals held that George had abandoned his trademark for LEFT CENTER RIGHT in 1992, having used only LCR in connection with his dice game, so any claim for infringement of LEFT CENTER RIGHT must fail.

What was most interesting about this case is that the US Patent and Trademark Office granted the trademark, apparently on the grounds that the mark was "suggestive," which is stronger than a mark that is merely "descriptive."*** The district court also found that the mark was suggestive, and the Defendant conceded that the mark was suggestive. The Court of Appeals considered these positions questionable. The game required a player to move chips to the left, center, or right, depending on the roll of the dice, so the Court of Appeals "harbor[ed] doubt" that the mark was more than merely descriptive. Although the Court of Appeals was required to accept the finding of the district court that the mark was suggestive, it still found a way to hold the mark to be weak, and it chose to focus on other factors as being more significant.

The lesson: If the Court doesn't like what happened before, and it can't use direct means to reach its desired conclusion, it will always find a way. Sounds like an argument for legal realism to me.

*** Whereas a "descriptive" mark directly provides information to the purchaser of a product or service of what the mark represents, a suggestive mark requires that that the purchaser have to use some imagination to connect the mark with the goods, so a suggestive mark is considered "stronger" (factor #1). For example, 5 minute glue is descriptive of a glue that sets in 5 minutes, but Orange Crush is suggestive, not directly indicating that it applies to a carbonated beverage, but indirectly relevant because it claims to have a strong, orange flavor.

Posted by rbodine at 06:25 PM | Permalink | Comments (0) | TrackBacks (0)

Why do you all care so much?

Excerpts from my cousin's email that sum it up well, give or take a point.

"While I could stand only snippets, I could not avoid the freak show that was the memorial. It was everywhere! While watching the Michael Jackson history rewrite, I noticed that some of the things being said were beyond inappropriate. Of course, I've gotten used to that, but no less repulsed by any of it. They are turning this pervert into Jesus. He's a holy man. And if you speak out against him, you will be destroyed for your sacrilege.

I don't think it's good to speak ill of the dead. It's like kicking a man while he's down. But I didn't start this. You've been inundating me with this, but your hero worship is misplaced. That's not good either.

The facts that govern my perspective:

1. He was a talented singer, dancer, and performer.

2. He molested boys. Sheila Jackson Lee gave a shouting speech in which you quickly learned that you better not speak against Jackson; you will be targeted. She wielded the Constitution like a weapon even though she obviously hasn't read it. People are innocent until proven guilty. That's true, in a court of law; however, that does not exempt them from the court of common sense. We all know O.J. did it, don't we? That's thanks to the civil system, where it's easier to get the truth heard. Also, you can't convict someone if it doesn't go to trial because the witnesses are paid off.

3. He had dozens of cosmetic surgeries. I wouldn't care about this other than it's now denied. They admit to two nose jobs. Yeah, right. That's not such a solid statement to hang your hat on.

4. His "kids" aren't his. I believe TMZ. Why? Because it's been obvious for years. I knew this from the start -- as did anyone with any sense -- when they first showed the veiled, purely Caucasian kids. But the media won't touch it. At least, not with him.

5. The pity party is designed to elicit sympathy for someone who set up his own world. Poor Michael; couldn't go anywhere without being hounded. What a tortured life. Gimme a break.

6. He was a drug addict. Why did the Lord take him? Ummmmm, . . . he didn't. Michael took himself, nimrods. It wasn't a natural death. He had thousands of dollars of prescriptions. I heard 50K per month. He was 5'11 and 108 pounds. God didn't take him prematurely, so stop saying it.

Wait! It fits the myth! Say it now and say it often, and 10 years from now, it will become fact. The rewrite begins."

Thanks for the thoughts. Not sure I believe anything TMZ reports. The fact that TMZ reported it is the best argument against it. But the point is well taken . . . and it could be true.

Posted by rbodine at 12:36 PM | Permalink | Comments (0) | TrackBacks (0)

Click here for my review of Stephen Bochco's latest dramatic series, Raising the Bar, appearing on TNT on Tuesday nights at 10pm ET.  Originally posted June 8, 2009, on the blog, What About Clients?, on which I'm a regular contributor.

Posted by rbodine at 04:37 PM | Permalink | Comments (0) | TrackBacks (0)