BlawgIT Has Moved

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

Law.Alltop.Com - The Legal Blogs

     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

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

Easter Patents

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

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

[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?

[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

[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?

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)

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