Welcome back to Legal Geek. This week, we take a look at one of the more interesting Supreme Court cases of this term about to come up for oral argument, the partisan gerrymandering case entitled Gill v. Whitford.
https://archive.org/details/LegalGeekEp116
https://archive.org/details/LegalGeekEp116
Gerrymandering is a fun word, but most people do not know what it means. Gerrymandering is the practice of drawing electoral district lines to determine what regions vote for what politicians, in such a manner that attempts to provide an advantage for a political party, or a race, or some other group. As most states reconsider and redraw their districts every 10 years following the Census, this practice is a concern that comes up periodically in some parts of the country.
This Supreme Court case stems from Wisconsin, where republicans narrowly took control of the state legislature and the governor's mansion in 2010 during the post-Obama rising tide of that party. This was the first time in over 100 years that party had such control of all branches of state government. When the Census came out and the electoral districts were to be re-drawn, the Wisconsin GOP leadership secretly planned and then pushed through a new set of electoral districts that was highly tailored to maximize all advantages Republicans could have in the state.
For example, one city in Wisconsin that had previously been a Democratic stronghold was split between two districts and combined with republican suburbs in such a way that Republicans held a strong lead in both new districts. Between 2008 and 2012, this district swung from being +20% for Obama to +8% for Romney. Gerrymandering can work because by drawing the lines in such a way that one party's votes are wasted more, such as by being in overwhelmingly one-sided districts in their favor or in close districts not in their favor, does end up having a big effect on outcome.
For example, the state of Wisconsin has swing back to leaning democrat, but despite having only 48% of the popular vote statewide, the republicans won 61% of seats in the state legislature last year. That's a 13% efficiency gap, and it all stems from this alleged gerrymandering. Other states beyond Wisconsin have had similar issues crop up, including in favor of Democrats, but none have reached this level of efficiency gap between popular vote and actual results. So this appears to be the perfect fact pattern to see if the Supreme Court will step in.
The last time this issue came up at the Supreme Court was 2004, and the decision was 5-4 declining to consider a gerrymandering claim. Four conservative justices deemed this outside the scope of courts, as a purely legislative matter, while Justice Kennedy was a fifth justice who wrote a concurring opinion noting that actual standards or a test would need to be developed for him to be comfortable with weighing in on such an issue. With Kennedy still being the swing vote on today's court, the plaintiffs are trying to create a fact pattern and a test based on the efficiency gap numbers and the actual intent of the legislature making the gerrymandering to address his concerns from 2004 regarding no clear test for what is constitutional and what is not.
The bottom line is, this will be a fascinating case, as it pits the conservative tendencies of Kennedy and other similar justices to say out of realms courts do not normally belong in, with the realities of legislatures going out of control and effectively stacking the deck against a majority of voters in a state like Wisconsin. If the Supreme Court does not act on this case, gerrymandering based on political partisanship is something that may never go away in some states. We will keep you apprised as the case develops further.
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Friday, September 29, 2017
Friday, September 22, 2017
Legal Geek No. 115: A Marriage between Tribal Sovereign Immunity and Pharma Patents
Welcome back to Legal Geek. This week, we briefly discuss the Stranger Things Cease & Desist letter story also covered on the main show, and then dive into an ever stranger thing: a marriage between pharmaceutical patents and tribal sovereign immunity.
https://archive.org/details/LegalGeekEp115
As discussed earlier, lawyers for Netflix earned a lot of positive press in sending a nice version of a Cease and Desist letter to a temporary pop-up bar that used the IP of the show Stranger Things without authorization or license. While it's not always appropriate to take a softer approach and have fun with in-jokes in this setting, dealing with fans of a brand is a tricky situation as we've covered before on this segment, and this approach shows great legal and PR savvy on the part of Netflix. Legal Geek approves and welcomes any other nerd IP company who needs a C&D written with in jokes to come contact me.
Now, on to our main course this week, which is also a bit of legal ingenuity. Pharmaceutical company Allergan, who makes the Restasis eyedrops that generate $1.5 billion dollars
per year, hit the legal newswaves in a big way this week as they defend from claims that their patents covering these eyedrops are invalid. Patents can be challenged in federal court lawsuits as well as in post grant review proceedings at the Patent Trial and Appeal Board of the Patent Office. However, both of these are federal bodies, and that brings us to the interesting legal theory Allergan is now employing.
Just like how states have sovereign immunity from federal lawsuits under the constitution, many Native American tribes have sovereign immunity from similar federal actions. Thus, Allergan has recently paid a New York tribe to transfer patents covering the eyedrops to the tribe and then implicitly license the rights back to make the eyedrop medication. The tribe, as the rightful owner of these patents being challenged, is now claiming that these challenges in the Patent Office and federal court should be dismissed because they have tribal sovereign immunity from such federal actions.
The legal theory of applying tribal immunity appears to be sound, as the same theory has worked to protect State University owned patents from similar reviews and challenges. But is this a sham transaction that opens a massive end around for companies to avoid challenges to their patents, or a legitimate legal and business arrangement? That question has opened some great public debate this week.
On one hand, the tribes who take advantage of this situation should be commended for finding ways beyond things like casinos to generate revenue and support their members. However, it could risk the legitimacy of applying tribal sovereign immunity in this and other contexts, should the courts or Congress deem it an improper abuse of the power. The patent world will be watching closely as this progresses to briefing and argument in the coming weeks, as if Allergan is successful, a whole new world of business opportunities will open up to the recognized tribes of the U.S.
The Bottom Line is, never doubt the ability of lawyers to come up with some interesting loophole or novel legal strategy, especially when billions of dollars are at stake. While it's certainly not great for the patent system if this is a valid workaround, it makes a great story and some money for Native American tribes who have had it rough, in some parts of the country. Now excuse me while I dial up my local tribe to set up a mutually beneficial business arrangement...
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp115
As discussed earlier, lawyers for Netflix earned a lot of positive press in sending a nice version of a Cease and Desist letter to a temporary pop-up bar that used the IP of the show Stranger Things without authorization or license. While it's not always appropriate to take a softer approach and have fun with in-jokes in this setting, dealing with fans of a brand is a tricky situation as we've covered before on this segment, and this approach shows great legal and PR savvy on the part of Netflix. Legal Geek approves and welcomes any other nerd IP company who needs a C&D written with in jokes to come contact me.
Now, on to our main course this week, which is also a bit of legal ingenuity. Pharmaceutical company Allergan, who makes the Restasis eyedrops that generate $1.5 billion dollars
per year, hit the legal newswaves in a big way this week as they defend from claims that their patents covering these eyedrops are invalid. Patents can be challenged in federal court lawsuits as well as in post grant review proceedings at the Patent Trial and Appeal Board of the Patent Office. However, both of these are federal bodies, and that brings us to the interesting legal theory Allergan is now employing.
Just like how states have sovereign immunity from federal lawsuits under the constitution, many Native American tribes have sovereign immunity from similar federal actions. Thus, Allergan has recently paid a New York tribe to transfer patents covering the eyedrops to the tribe and then implicitly license the rights back to make the eyedrop medication. The tribe, as the rightful owner of these patents being challenged, is now claiming that these challenges in the Patent Office and federal court should be dismissed because they have tribal sovereign immunity from such federal actions.
The legal theory of applying tribal immunity appears to be sound, as the same theory has worked to protect State University owned patents from similar reviews and challenges. But is this a sham transaction that opens a massive end around for companies to avoid challenges to their patents, or a legitimate legal and business arrangement? That question has opened some great public debate this week.
On one hand, the tribes who take advantage of this situation should be commended for finding ways beyond things like casinos to generate revenue and support their members. However, it could risk the legitimacy of applying tribal sovereign immunity in this and other contexts, should the courts or Congress deem it an improper abuse of the power. The patent world will be watching closely as this progresses to briefing and argument in the coming weeks, as if Allergan is successful, a whole new world of business opportunities will open up to the recognized tribes of the U.S.
The Bottom Line is, never doubt the ability of lawyers to come up with some interesting loophole or novel legal strategy, especially when billions of dollars are at stake. While it's certainly not great for the patent system if this is a valid workaround, it makes a great story and some money for Native American tribes who have had it rough, in some parts of the country. Now excuse me while I dial up my local tribe to set up a mutually beneficial business arrangement...
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, September 15, 2017
Legal Geek No. 114: Rubik's Cube continues IP Enforcement
Welcome back to Legal Geek. This week, we review a recent lawsuit filed by the makers of the iconic Rubik's Cube against competitors, as it reveals how IP protection can extend for many decades in some contexts.
https://archive.org/details/LegalGeekEp114
A couple weeks ago, Rubik's Brand Limited, the company behind current sales and marketing of the Rubik's Cube puzzle, sued big companies Duncan Toys and Toys R Us in federal court in New York for a series of claims related to alleged knockoff cube puzzles made and sold by the latter. These claims include trademark infringement, false designation of origin, trademark dilution, and unfair business practice under state laws.
There are some differences between the products. While the traditional Rubik's Cube has black background behind the facets and generally square facet corners, the competitor design has white background and rounded edge facets. The competitor design sells for a cheaper price as well according to Toys R Us's website. But in all other ways, the 3 by 3 block puzzles are functionally the same. And those changes, according to Rubik's Brand, are not sufficient to avoid infringement of the intellectual property still pending on the original Rubik's Cube.
You may be asking yourself, how could a functional puzzle like the Rubik's Cube still be covered with it being widely available since the 1980s? This illustrates the difference between patent protection and trademark or design mark protection. The patents in the U.S. and elsewhere on the Rubik's Cube expired in 2000, so from a patent perspective on the general mechanics of a rotating face, cube-like puzzle, this puzzle is in the public domain.
However, companies can also bolster or make fallback protection on products like this by filing trademark applications. Trademarks can be filed on product names, as you know, but design marks are also possible if the product appearance itself is sufficiently distinctive to identify to a consumer the source of the goods. Logos are trademarked as a design mark, for example.
Rubik's secured two U.S. design marks that cover a black cube having nine color patches on each of its faces with the patches having the colors red, white, blue, green, yellow and orange. Note that the design includes color identifying features in this context rather than the general mechanics of the cube puzzle, as that would be what patent covers. As long as Rubik's continues to use that design by selling in commerce or licensing, these trademark rights can be maintained indefinitely. So while this is narrower coverage than patent claims, it continues on and creates the basis for lawsuits like this one.
So, how does this one come out? While I'm no expert with respect to New York business practice laws, the design mark infringement case has some merit. Even though the knockoff is a white cube instead of a black cube, the colors chosen for the facets are the same six colors, and one could argue that this is the core essence of the design mark. It probably comes down to survey evidence on whether consumers are likely to be confused about the Duncan version being authorized or from Rubik's, and that's at least plausible. I personally would feel more confident in Duncan's chances had it changed one or two of the facet colors on the competitor puzzle as well, but that's not what happened.
The Bottom Line is, just because a patent expires and puts a product in the public domain, that does not mean the creator has lost all potential rights. It is wise to check for and design around later patent filings on further developments as well as any trademark and copyright registrations, before bringing a product to market. Otherwise, you could be stuck in a Rubik's Cube of legalese and court orders!
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp114
A couple weeks ago, Rubik's Brand Limited, the company behind current sales and marketing of the Rubik's Cube puzzle, sued big companies Duncan Toys and Toys R Us in federal court in New York for a series of claims related to alleged knockoff cube puzzles made and sold by the latter. These claims include trademark infringement, false designation of origin, trademark dilution, and unfair business practice under state laws.
There are some differences between the products. While the traditional Rubik's Cube has black background behind the facets and generally square facet corners, the competitor design has white background and rounded edge facets. The competitor design sells for a cheaper price as well according to Toys R Us's website. But in all other ways, the 3 by 3 block puzzles are functionally the same. And those changes, according to Rubik's Brand, are not sufficient to avoid infringement of the intellectual property still pending on the original Rubik's Cube.
You may be asking yourself, how could a functional puzzle like the Rubik's Cube still be covered with it being widely available since the 1980s? This illustrates the difference between patent protection and trademark or design mark protection. The patents in the U.S. and elsewhere on the Rubik's Cube expired in 2000, so from a patent perspective on the general mechanics of a rotating face, cube-like puzzle, this puzzle is in the public domain.
However, companies can also bolster or make fallback protection on products like this by filing trademark applications. Trademarks can be filed on product names, as you know, but design marks are also possible if the product appearance itself is sufficiently distinctive to identify to a consumer the source of the goods. Logos are trademarked as a design mark, for example.
Rubik's secured two U.S. design marks that cover a black cube having nine color patches on each of its faces with the patches having the colors red, white, blue, green, yellow and orange. Note that the design includes color identifying features in this context rather than the general mechanics of the cube puzzle, as that would be what patent covers. As long as Rubik's continues to use that design by selling in commerce or licensing, these trademark rights can be maintained indefinitely. So while this is narrower coverage than patent claims, it continues on and creates the basis for lawsuits like this one.
So, how does this one come out? While I'm no expert with respect to New York business practice laws, the design mark infringement case has some merit. Even though the knockoff is a white cube instead of a black cube, the colors chosen for the facets are the same six colors, and one could argue that this is the core essence of the design mark. It probably comes down to survey evidence on whether consumers are likely to be confused about the Duncan version being authorized or from Rubik's, and that's at least plausible. I personally would feel more confident in Duncan's chances had it changed one or two of the facet colors on the competitor puzzle as well, but that's not what happened.
The Bottom Line is, just because a patent expires and puts a product in the public domain, that does not mean the creator has lost all potential rights. It is wise to check for and design around later patent filings on further developments as well as any trademark and copyright registrations, before bringing a product to market. Otherwise, you could be stuck in a Rubik's Cube of legalese and court orders!
----------------------------------
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, September 7, 2017
Legal Geek No. 113: Breaking Down Nintendo's 10M Patent Infringement Loss
Welcome back to Legal Geek. This week, we take a deep dive into the patent that Nintendo is accused of infringing in a Texas case, in only the way a patent attorney can do.
https://archive.org/details/LegalGeekEp113
https://archive.org/details/LegalGeekEp113
A Texas jury found last week that the Wii Remote used with Nintendo's Wii and Wii U consoles infringed a patent owned by iLife Technologies. While the $10 Million dollar verdict will certainly be fought further in summary judgement and appeals courts, and thus is not a final decision, it is a significant potential blow for one of our favorite game companies.
In patent world, inventions can be claimed broadly sometimes so as to cover future uses and expansions of those technologies. That is precisely what happened here.
iLife Technologies developed motion-sensing accelerometer technologies to advance their commercial products, which both monitor infants to help prevent sudden infant death syndrome, and monitor elderly adults for falls that require medical attention. iLife obtained 6 U.S. patents on innovations in this field which were then used as the basis of this lawsuit. Nintendo challenged the validity of all these patents in post grant review proceedings, and that knocked out all but one of the patents, which is what Nintendo has now been deemed to infringe.
U.S. Patent No. 6,864,796 is that patent, and it covers a system within a communications device and method of evaluating movement of a body relative to the surrounding environment. The broadest system claim requires only a sensor associable with the body, a processor that processes dynamic and static accelerative phenomena detected by the sensor to determine whether a body movement is within an environmental tolerance, and communicating tolerance indicia to an outside device in response to the determination.
Claim language is a special kind of legalese, so what does that claim mean, in English? In short, it covers any system that senses movements using accelerometers and then determines and communicates whether those movements are large enough to indicate a specific type of movement beyond just environmental noise. In other words, what a Wii Remote does when it detects intentional movements and communicates them to a console to interact with video game software.
When the claims were interpreted and construed during the lawsuit, the broad ordinary meanings of these terms were adopted by the court, rather than Nintendo's attempts to read the claims more narrowly onto fall detection devices only. Certainly the narrower patent claims on the detected movements being body falls and the like are not what Nintendo Wii systems do, but those broader claims are written to cover things like Wii Remotes, even though that's outside iLife's normal commercial products and markets. And if you can prove novelty and non-obviousness over prior art inventions for the broad invention, the patent will cover future devices like how the Wii Remote is likely covered here.
With Nintendo losing on claim interpretation, the most likely path to reversing the verdict would be to show clear error in that interpretation, or show that the patent is invalid and should not have been granted. As the '796 Patent has already survived post grant review, the chances look grim for Nintendo to avoid this verdict.
The Bottom Line is, in technology fields it is difficult to beat everyone to the patent office to file on innovative ideas, especially in view of the ability to broadly claim. By filing early and often with good patent counsel, iLife Technologies can protect their own life saving devices from knockoffs, but also create revenue streams from other companies who use the same technology in their own fields. Needless to say, a $10 Million dollar verdict would pay off that investment and then some. It's also why clearance searching for new products is so vital to avoid mistakes like this, which Nintendo can probably afford but others may not be able to afford.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp113
https://archive.org/details/LegalGeekEp113
A Texas jury found last week that the Wii Remote used with Nintendo's Wii and Wii U consoles infringed a patent owned by iLife Technologies. While the $10 Million dollar verdict will certainly be fought further in summary judgement and appeals courts, and thus is not a final decision, it is a significant potential blow for one of our favorite game companies.
In patent world, inventions can be claimed broadly sometimes so as to cover future uses and expansions of those technologies. That is precisely what happened here.
iLife Technologies developed motion-sensing accelerometer technologies to advance their commercial products, which both monitor infants to help prevent sudden infant death syndrome, and monitor elderly adults for falls that require medical attention. iLife obtained 6 U.S. patents on innovations in this field which were then used as the basis of this lawsuit. Nintendo challenged the validity of all these patents in post grant review proceedings, and that knocked out all but one of the patents, which is what Nintendo has now been deemed to infringe.
U.S. Patent No. 6,864,796 is that patent, and it covers a system within a communications device and method of evaluating movement of a body relative to the surrounding environment. The broadest system claim requires only a sensor associable with the body, a processor that processes dynamic and static accelerative phenomena detected by the sensor to determine whether a body movement is within an environmental tolerance, and communicating tolerance indicia to an outside device in response to the determination.
Claim language is a special kind of legalese, so what does that claim mean, in English? In short, it covers any system that senses movements using accelerometers and then determines and communicates whether those movements are large enough to indicate a specific type of movement beyond just environmental noise. In other words, what a Wii Remote does when it detects intentional movements and communicates them to a console to interact with video game software.
When the claims were interpreted and construed during the lawsuit, the broad ordinary meanings of these terms were adopted by the court, rather than Nintendo's attempts to read the claims more narrowly onto fall detection devices only. Certainly the narrower patent claims on the detected movements being body falls and the like are not what Nintendo Wii systems do, but those broader claims are written to cover things like Wii Remotes, even though that's outside iLife's normal commercial products and markets. And if you can prove novelty and non-obviousness over prior art inventions for the broad invention, the patent will cover future devices like how the Wii Remote is likely covered here.
With Nintendo losing on claim interpretation, the most likely path to reversing the verdict would be to show clear error in that interpretation, or show that the patent is invalid and should not have been granted. As the '796 Patent has already survived post grant review, the chances look grim for Nintendo to avoid this verdict.
The Bottom Line is, in technology fields it is difficult to beat everyone to the patent office to file on innovative ideas, especially in view of the ability to broadly claim. By filing early and often with good patent counsel, iLife Technologies can protect their own life saving devices from knockoffs, but also create revenue streams from other companies who use the same technology in their own fields. Needless to say, a $10 Million dollar verdict would pay off that investment and then some. It's also why clearance searching for new products is so vital to avoid mistakes like this, which Nintendo can probably afford but others may not be able to afford.
----------------------------------
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Monday, August 14, 2017
Legal Geek No. 112: John Oliver and Coal Baron duke it out in Court
Welcome back to Legal Geek. This week, we review the latest updates in a lawsuit where HBO Comedian John Oliver is being sued by coal baron Robert Murray for a critical show segment on Murray and the coal industry aired a few weeks ago.
https://archive.org/details/LegalGeekEp112
John Oliver has done well since spinning off from his role as lead British correspondent on Jon Stewart's The Daily Show. Last Week Tonight is his news and commentary show that plays weekly on HBO. In addition to covering current events, Oliver uses this platform to put together interesting satirical pieces on industries and organizations that may have things not quite right with them. His targets this summer season have included the Border Patrol, the dialysis industry, anti-vaxxers, and the coal industry.
And it's that coal topic that brings us to this lawsuit. Oliver focused on what he deemed an industry in decline for decades as a counterpoint to President Trump's repeated promises to bring back thousands of coal mining jobs, a critical promise in some of the blue-collar states that made the difference in the election. Apparently during research for preparing the segment, Robert Murray, the CEO of leading coal companies like Murray Energy, came to loggerheads with the comedian and his show runners. Murray threatened before the coal segment aired to sue Oliver and HBO for any defamation, harassment or other injury caused by the segment.
Of course, that threat did not deter Oliver. If anything, it made him go after Murray even more directly than originally intended. He called the coal executive a geriatric Dr. Evil when covering some of the lowlights of Murray's career, including a 2007 mine collapse in Utah and a questionable explanation of the reasons why. Oliver also recounted a silly story about Murray telling his workers that the idea for starting a mine company came to him from a squirrel. The segment ends in Oliver's typical over-the-top silly fashion, with a man in a squirrel costume holding a check made out to "Eat [BLANK] Bob!"
So while Oliver wanted to make a point about having an honest conversation about the realities of the coal industry, he ended up poking the bear. Murray did sue in West Virginia court, claiming that the segment was a planned ruthless character assassination intended to incite viewers to do harm to Mr. Murray and his company, as well as claiming that the statements made served as false light invasion of privacy and intentional infliction of emotional distress. That's a lot to cover, but it all can be essentially boiled down to what is basically a slander or defamation claim against Oliver.
A first volley in the case did not go Oliver's way this week, as a motion to remove this case to federal court instead of local state court in West Virginia failed when a federal judge decided that the alleged defamatory statements made by Oliver about Murray would also likely negatively impact Murray's business based on Murray's high visibility and deep ties to the coal industry and this company. Thus, Oliver and HBO will now need to fight this out in a jurisdiction that very well may not be favorable to them.
However, Oliver does have the national spotlight on this case and it invokes interesting questions of how far free speech protection goes. The ACLU, always ready to defend free speech, has filed a hilarious amicus brief that you can find online if you want a good laugh at a legal document with section headings like "Anyone can legally say Eat [BLANK] Bob." The ACLU makes strong arguments in defense of political satire and critical reporting, while also noting that Murray has unsuccessfully sued many other outlets for defamation type suits in the last decade when he didn't like what was expressed about him. So this high profile case could help define just how far free speech protection goes when it comes to these types of shows.
The Bottom Line is, it really should come as no surprise that the strong comedic commentary of Oliver and other similar comedians sometimes leads to lawsuits like this one. Oliver probably pushed the envelope a bit by pointing his ire so directly at Murray, but it's hard to see how a context like this is not protected by the broad free speech protections in the U.S. If this case happens to go against Oliver, it could mean significant changes for many similar shows, and likely cause a chill in the commentary that most find valuable, even if we don't always agree with the views of the commentary.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp112
John Oliver has done well since spinning off from his role as lead British correspondent on Jon Stewart's The Daily Show. Last Week Tonight is his news and commentary show that plays weekly on HBO. In addition to covering current events, Oliver uses this platform to put together interesting satirical pieces on industries and organizations that may have things not quite right with them. His targets this summer season have included the Border Patrol, the dialysis industry, anti-vaxxers, and the coal industry.
And it's that coal topic that brings us to this lawsuit. Oliver focused on what he deemed an industry in decline for decades as a counterpoint to President Trump's repeated promises to bring back thousands of coal mining jobs, a critical promise in some of the blue-collar states that made the difference in the election. Apparently during research for preparing the segment, Robert Murray, the CEO of leading coal companies like Murray Energy, came to loggerheads with the comedian and his show runners. Murray threatened before the coal segment aired to sue Oliver and HBO for any defamation, harassment or other injury caused by the segment.
Of course, that threat did not deter Oliver. If anything, it made him go after Murray even more directly than originally intended. He called the coal executive a geriatric Dr. Evil when covering some of the lowlights of Murray's career, including a 2007 mine collapse in Utah and a questionable explanation of the reasons why. Oliver also recounted a silly story about Murray telling his workers that the idea for starting a mine company came to him from a squirrel. The segment ends in Oliver's typical over-the-top silly fashion, with a man in a squirrel costume holding a check made out to "Eat [BLANK] Bob!"
So while Oliver wanted to make a point about having an honest conversation about the realities of the coal industry, he ended up poking the bear. Murray did sue in West Virginia court, claiming that the segment was a planned ruthless character assassination intended to incite viewers to do harm to Mr. Murray and his company, as well as claiming that the statements made served as false light invasion of privacy and intentional infliction of emotional distress. That's a lot to cover, but it all can be essentially boiled down to what is basically a slander or defamation claim against Oliver.
A first volley in the case did not go Oliver's way this week, as a motion to remove this case to federal court instead of local state court in West Virginia failed when a federal judge decided that the alleged defamatory statements made by Oliver about Murray would also likely negatively impact Murray's business based on Murray's high visibility and deep ties to the coal industry and this company. Thus, Oliver and HBO will now need to fight this out in a jurisdiction that very well may not be favorable to them.
However, Oliver does have the national spotlight on this case and it invokes interesting questions of how far free speech protection goes. The ACLU, always ready to defend free speech, has filed a hilarious amicus brief that you can find online if you want a good laugh at a legal document with section headings like "Anyone can legally say Eat [BLANK] Bob." The ACLU makes strong arguments in defense of political satire and critical reporting, while also noting that Murray has unsuccessfully sued many other outlets for defamation type suits in the last decade when he didn't like what was expressed about him. So this high profile case could help define just how far free speech protection goes when it comes to these types of shows.
The Bottom Line is, it really should come as no surprise that the strong comedic commentary of Oliver and other similar comedians sometimes leads to lawsuits like this one. Oliver probably pushed the envelope a bit by pointing his ire so directly at Murray, but it's hard to see how a context like this is not protected by the broad free speech protections in the U.S. If this case happens to go against Oliver, it could mean significant changes for many similar shows, and likely cause a chill in the commentary that most find valuable, even if we don't always agree with the views of the commentary.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, August 11, 2017
Legal Geek No. 111: The Switch Hitch and Liability Laws
Welcome back to Legal Geek. This week, we review an interesting trademark battle brewing for Nintendo and answer a listener's question from last week's main show.
https://archive.org/details/LegalGeekEp111
Nintendo is having its best year at retail since the release of the Wii, and while it may be hard to get your hands on their classic and new systems, there's no debating that the Nintendo Switch has been a positive development for this company. Of course, as with any new huge product line, Nintendo has sought trademark registration for the Switch in the U.S. and other jurisdictions.
However, that trademark registration hit a snag recently in the U.S. when an opposition was filed against the allowed application for Switch. Every allowed trademark application goes through a short publication period where third parties can oppose the mark before a final registration occurs, and that's what happened here. The opposing party is Life Covenant Church Inc., an Oklahoma based chain of megachurches, which probably not exactly who you would expect. Life Covenant has a registration from 2005 for the word Switch, a name used by the church network for youth programs aimed at teenagers.
Nintendo's application covers a wide sprawling list of goods and services in different classes, including video games, toys, office supplies, internet services, software, and the like. Thus, Life Covenant has argued that the overlap between this sprawling list from Nintendo and their own trademark registration could lead to consumer confusion regarding these two parties being in some way connected, associated, or working together. That may seem far fetched to a common man, but this is the risk when big companies try to lock down important marks in tons of fields, not just their primary field, in this case video games.
So how does this play out? The parties could agree to co-exist, which might happen if Nintendo offers some compensation for use of the senior user's registered trademark. Alternatively, some of the goods and services covered by Nintendo's application could be deleted out to try and avoid the overlap between the parties. It's probably a minor hitch for the Switch branding, but perhaps this conflict could go to the courts as well if the parties don't become amicable. A church against video games...it's made for TV court drama already!
The Bottom Line is, even big companies need to be careful when tailoring their description of goods and services in trademark applications. If you shoot too broadly for the sake of branding, you risk some big expense and annoyances in the opposition process in the U.S. and other countries.
And now, this: (insert "Dave's not here, man" bumper)
MKB asked last week how we legally solve the local liability laws for self-driving cars. Tom gave a great answer regarding the cars just sending money into the current insurance system, but there's other options as well. Many states already allow for alternatives like posting an amount of bond money similar to minimum coverage limits, or self-insurance for fleets of vehicles. If self-driving cars don't fit neatly into a current exception or alternative, we could write new ones in state or federal law. Also, a different system could be made where cars pay taxes into a government fund that helps cover damages when accidents occur...it would dovetail with a government-assisted health care system, for example. The short answer is, if the current laws don't work right, that's what legislators are elected for, to change them! Thanks for your question.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp111
Nintendo is having its best year at retail since the release of the Wii, and while it may be hard to get your hands on their classic and new systems, there's no debating that the Nintendo Switch has been a positive development for this company. Of course, as with any new huge product line, Nintendo has sought trademark registration for the Switch in the U.S. and other jurisdictions.
However, that trademark registration hit a snag recently in the U.S. when an opposition was filed against the allowed application for Switch. Every allowed trademark application goes through a short publication period where third parties can oppose the mark before a final registration occurs, and that's what happened here. The opposing party is Life Covenant Church Inc., an Oklahoma based chain of megachurches, which probably not exactly who you would expect. Life Covenant has a registration from 2005 for the word Switch, a name used by the church network for youth programs aimed at teenagers.
Nintendo's application covers a wide sprawling list of goods and services in different classes, including video games, toys, office supplies, internet services, software, and the like. Thus, Life Covenant has argued that the overlap between this sprawling list from Nintendo and their own trademark registration could lead to consumer confusion regarding these two parties being in some way connected, associated, or working together. That may seem far fetched to a common man, but this is the risk when big companies try to lock down important marks in tons of fields, not just their primary field, in this case video games.
So how does this play out? The parties could agree to co-exist, which might happen if Nintendo offers some compensation for use of the senior user's registered trademark. Alternatively, some of the goods and services covered by Nintendo's application could be deleted out to try and avoid the overlap between the parties. It's probably a minor hitch for the Switch branding, but perhaps this conflict could go to the courts as well if the parties don't become amicable. A church against video games...it's made for TV court drama already!
The Bottom Line is, even big companies need to be careful when tailoring their description of goods and services in trademark applications. If you shoot too broadly for the sake of branding, you risk some big expense and annoyances in the opposition process in the U.S. and other countries.
And now, this: (insert "Dave's not here, man" bumper)
MKB asked last week how we legally solve the local liability laws for self-driving cars. Tom gave a great answer regarding the cars just sending money into the current insurance system, but there's other options as well. Many states already allow for alternatives like posting an amount of bond money similar to minimum coverage limits, or self-insurance for fleets of vehicles. If self-driving cars don't fit neatly into a current exception or alternative, we could write new ones in state or federal law. Also, a different system could be made where cars pay taxes into a government fund that helps cover damages when accidents occur...it would dovetail with a government-assisted health care system, for example. The short answer is, if the current laws don't work right, that's what legislators are elected for, to change them! Thanks for your question.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, August 4, 2017
Legal Geek No. 110: Pokemon Go hits Anniversary and Legal Battles
Welcome back to Legal Geek. This week, we update you on a couple interesting legal battles for the software app Pokémon Go, which just celebrated it's one year anniversary.
https://archive.org/details/LegalGeekEp110
https://archive.org/details/LegalGeekEp110
As Pokémon Go reaches one year old, there is still a strong player base enjoying the augmented reality hunt, as evidenced by the popularity of the new raid system and recently-released legendaries. While this may be good for Niantic and The Pokémon Company's profits, it also means the legal battles will continue.
We covered the novel virtual trespassing claims brought against Pokémon Go a couple months back, but there are another two lawsuits having recent progress. First, the actual one-year anniversary of the app was celebrated with a Pokémon Go Fest celebration in Chicago. Needless to say, it did not go well as the lines to enter stretched for hours, and the game's servers and local cell networks failed to meet the demand at this event, which was all about playing the game. It went so poorly that Niantic gave all attendees their registration fee back as well as $100 in game currency.
Predictably, that was not enough to avoid a class action lawsuit that was filed this week on behalf of those who spent much more money traveling from far away places to attend the event in Chicago. The theory is simple: Niantic advertised an event where playing the game was the main attraction, and then did not deliver, causing many to spend significant money and time they would not have spent if they knew the problems that were to occur.
Class action lawsuits are a messy tangle of procedure, so we will save those details for another segment. However, this mechanism allows small parties to group together to take on a big company like Niantic when an grievance like this occurs to many people. Given that Niantic tried to quell their consumers with in game currency and refunds, I would strongly suspect this one never goes to a full trial, but instead will be settled so that the plaintiffs all get a small sum of money, and Niantic can move on. It likely won't cover their actual expenses, or anything close to it, but it will likely change Niantic's work in the future to make sure event faux pas like this do not happen again.
In addition to that lawsuit regarding the Chicago Go Fest, another legal conflict ongoing in Wisconsin had a major development this week. As you'll recall, Milwaukee County enacted a regulation in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks. Although this targeted Niantic and Pokémon Go, another game developer Candy Labs challenged this in court and won an injunction this week from the court against enforcement of the regulation until a full trial, scheduled in early 2018. For now, Niantic and others can operate for players in this area again.
The legal challenge to the regulation based on First Amendment free speech protections is a close call in my initial view. But it's a good sign that the judge entered an injunction, as that typically means there's a good chance to prevail at trial also.
The Bottom Line is, many people may have moved on from Pokémon Go, but the app is still popular enough to have legal conflicts come up, especially in view of the money Niantic is making on the app. These lawsuits have some significant cutting edge issues for VR and augmented reality that will set the table for those types of technology moving forward, so the court battles of Snorlax and Dragonite cannot be ignored!
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp110
https://archive.org/details/LegalGeekEp110
As Pokémon Go reaches one year old, there is still a strong player base enjoying the augmented reality hunt, as evidenced by the popularity of the new raid system and recently-released legendaries. While this may be good for Niantic and The Pokémon Company's profits, it also means the legal battles will continue.
We covered the novel virtual trespassing claims brought against Pokémon Go a couple months back, but there are another two lawsuits having recent progress. First, the actual one-year anniversary of the app was celebrated with a Pokémon Go Fest celebration in Chicago. Needless to say, it did not go well as the lines to enter stretched for hours, and the game's servers and local cell networks failed to meet the demand at this event, which was all about playing the game. It went so poorly that Niantic gave all attendees their registration fee back as well as $100 in game currency.
Predictably, that was not enough to avoid a class action lawsuit that was filed this week on behalf of those who spent much more money traveling from far away places to attend the event in Chicago. The theory is simple: Niantic advertised an event where playing the game was the main attraction, and then did not deliver, causing many to spend significant money and time they would not have spent if they knew the problems that were to occur.
Class action lawsuits are a messy tangle of procedure, so we will save those details for another segment. However, this mechanism allows small parties to group together to take on a big company like Niantic when an grievance like this occurs to many people. Given that Niantic tried to quell their consumers with in game currency and refunds, I would strongly suspect this one never goes to a full trial, but instead will be settled so that the plaintiffs all get a small sum of money, and Niantic can move on. It likely won't cover their actual expenses, or anything close to it, but it will likely change Niantic's work in the future to make sure event faux pas like this do not happen again.
In addition to that lawsuit regarding the Chicago Go Fest, another legal conflict ongoing in Wisconsin had a major development this week. As you'll recall, Milwaukee County enacted a regulation in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks. Although this targeted Niantic and Pokémon Go, another game developer Candy Labs challenged this in court and won an injunction this week from the court against enforcement of the regulation until a full trial, scheduled in early 2018. For now, Niantic and others can operate for players in this area again.
The legal challenge to the regulation based on First Amendment free speech protections is a close call in my initial view. But it's a good sign that the judge entered an injunction, as that typically means there's a good chance to prevail at trial also.
The Bottom Line is, many people may have moved on from Pokémon Go, but the app is still popular enough to have legal conflicts come up, especially in view of the money Niantic is making on the app. These lawsuits have some significant cutting edge issues for VR and augmented reality that will set the table for those types of technology moving forward, so the court battles of Snorlax and Dragonite cannot be ignored!
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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