Categories
Legal Research

Sandwich Showdown

New York Times: Can a Sandwich Be Slandered? Some companies have made a sport of using advertising to bash a competing brand: Pepsi and Coke, Colgate and Crest, Miller Lite and Bud Light. It was a rivalry of this sort that compelled Quiznos, the toasted-sandwich chain, to invite the public to submit homemade commercials in a contest intended to attack a top rival, Subway. . . . Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way.

Where is tort reform when you need it? I think Chef Gordon Ramsay would be the ideal expert witness in this battle royale between sandwich chains. He is always insightful and entertaining. I’m no chef, but I’ve had enough sandwiches over the years to be able to tell the difference between a good sandwich and a bad one. My preference is Quiznos, Togo’s and Subway, from most favorite to least favorite.

Quiznos offers the best-tasting sandwiches. Their meat looks and tastes like real meat with excellent flavor and texture. Even their greens are better. Sauteed onions or the same-old shredded lettuce and tomatoes combination? No comparison. Subway must be feeling the heat because they now offer toasted sandwiches. However, while the bread is warm and crunchy, the fillings are just the same.

I like Togo’s. However, I have stood in line on more than one occasion saying (to no one in particular) that I wished Togo’s had toasted sandwiches. Usually, it comes down to how far I want to travel and how much change do I have in my wallet. Sure, Quiznos offers the tastiest sandwiches, but their sandwiches cost a pretty penny.

Categories
Legal Research

FCC Believes That Couples Can Reproduce Through Butt Sex

Federal Communications Commission: In the Matter of Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue”. Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense.

ABC should have cited Wikipedia, the preeminent authority on the Internet. 😉 Wikipedia lists the 10 anatomical parts in female mammals that are involved in sexual reproduction and constitute the reproductive system. As expected, the buttocks aren’t one of them.

However, we all know that occasionally Wikipedia is wrong. I’m not sure that this is one of those times though.

Although Congress is extremely busy working on the “growth package” to stimulate the moribund economy, maybe it can impanel a blue-ribbon committee to investigate whether the human buttocks are sexual organs. Because, if the buttocks have a reproductive function, America deserves to know. Seriously, there are potential Constitutional implications if couples can reproduce through butt sex, as the FCC contends.

Categories
Technology

Facebook Linkbait

The Lawyers Weekly will be warning law firms about the dangers of Facebook. Will be? Yes, the article is dated January 25, 2008, or two days from today. Nifty time travel trick aside, the article is great linkbait because Kevin O’Keefe commented on it, and I feel the need to chime in as well.

Written by an electronic discovery expert, the article warns about the supposed perils of Facebook. True, Facebook users face some risk that their private data may be exposed to “fraudsters and corporate spies.” However, Facebook users can control what information appears on Facebook as well as who has access to it. In contrast, all the major credit reporting bureaus possess far more sensitive information in their databases, and you cannot easily correct or remove data that you want to keep out of the hands of third parties. I’m 100x more worried about a credit reporting bureau losing a data tape or a laptop with confidential information than someone hacking Facebook and downloading profile data. This is self-reported profile data and, as we should all know by now, you can’t believe everything you read online.

Also, the author presents a false dichotomy where social networking applications only have a non-work-related purpose. Sure, corporations and law firms should rightfully be concerned that their employees are wasting company time visiting blogs and other social networking sites for their own personal purposes. However, I am increasingly discovering that for long-tail searches, most of my results come from blogs instead of mainstream media sites. Nowadays, whenever someone encounters a problem, they blog about it instead of seething silently. And, when you are lucky, they also tell you about the solution they discovered. Ban Web 2.0 applications and you lose a lot of collective knowledge. Reminds me of this incident from the not too distant past.

Categories
criminal law

Liar Liar Pants on Fire

Reuters: Marion Jones Tells Oprah She was Tired of the Lies. “Disgraced Olympian Marion Jones [was] stripped of her medals and fac[es] six months in prison.

Her crime? Lying to prosecutors about her steroid use. Should have just asserted her Fifth Amendment right against self-incrimination.

Perjury is a B.S. offense. Sure, we don’t want people lying under oath to prosecutors or in court, but these prosecutions seem more like political stunts than true crackdowns on criminals. Doesn’t make me feel any safer knowing that Martha Stewart or Marion Jones is behind bars. I’m pretty sure that if politicians were prosecuted for lying to the American public, Congress would work pretty hard to make the crime of perjury disappear.

Categories
intellectual property Technology

Top 10 Ways Not to Sue Google

Mishak v. Google, Inc. et al. is quite a head-scratcher. I found the complaint on the Justia Federal District Court Filings and Dockets website. Unfortunately, the complaint was a scanned and split into three parts. Breaks the flow when you have to hop around. I pieced the complaint together and OCR’d it. Here it is.. (PDF – 15.3MB) The high (or low) lights:

  1. Search Engines. Plaintiff sued a long list of defendants, which allegedly operate various Internet “search engines.” Of course, the Plaintiff sued the big three: Google, Microsoft and Yahoo. What do they say on informercials? But, that’s not all? Plaintiff also sued Excite (which I last used in the 1990s), as well as AltaVista (ditto). Then it got weird. Craigslist? Earthlink?
  2. Banner Ads. “All Defendants … sell advertising space on the [s]earch result pages known as Banner Ads.” Google does banner ads? I haven’t punched the monkey on Google yet. Advertising (of any kind) on Craigslist? Gasp!
  3. Copyright or Trademark. “Plaintiff has a copyright. (Exhibit 1). trademark. [sic]” Exhibit 1 is a certificate of registration with the United States Copyright Office for HTML web pages entitled “I Need a TV.” I thought this was supposed to be a trademark claim.
  4. Weak Trademark. “Plaintiff contends that in utter disregard to [Plaintiff]’s intellectual rights, Defendants have sold ‘keywords’ identical to certain of [Plaintiff]’s trademarsk to various third parties and have deliberately manipulated Defendant’s search engine “results” so that, when consumers use these search engines to find [Plaintiff]’s products and services, the consumers are unwittingly diverted to competitors’ products and services.” So, what exactly is Plaintiff’s trademark? “I Need A TV.” See the problem? Weak trademark with generic terms.
  5. Best Buy Beware. “MISHAK d.b.a. INEEDATV.COM is one of the largest direct-to-consumer retailer of custom order televisions, appliances, and personal property in the United States and on the Internet.” Now I want to see the sales figures to back up that statement!
  6. Money Quote. “The dollar amount of sales in the United States of MISHAK’s televisions, commercial and home appliances products and related services under the MISHAK Marks offered for sale and sold under the MISHAK Marks since the original adoption and use are well in excess of many tens of thousands with reasonable growth projecti ons into the tens of millions of dollars.” Many tens of thousands? Considering that consumers are looking to spend about $1,000 on a television nowadays, that means that Plaintiff sold tens of televisions. One of the largest retailers? Not likely.
  7. Keyword Advertising. “Google et al. refuses … to cease selling other keywords comprised, in whole or in part, of the MISHAK Marks….” Somehow, I don’t think Google is going to ban companies from buying advertisements for the keyword TV even if it is in the Plaintiff’s service mark.
  8. Fill in the Blanks. “For example, Google and the other listed defendants continues to sell to MISHAK’s competitors the keywords ….. Accordingly, if a consumer using Google’s et al.’s search engine types ‘…..’ in the search window, competitors who have purchase ‘…..’ or even just ‘…..’ can still appear at the top or in the margins of the results page.” No, I didn’t redact the search terms above. The blanks exist in the original complaint. Really. Fails to state a claim?
  9. Metatags. In metatag / trademark cases, plaintiffs usually sue the parties who have used plaintiff’s trademarks in their metatags. Plaintiffs usually don’t sue the search engines for returning results based on potentially infringing keywords found within a third parties’ metatags.
  10. More Fill In the Blanks. “The Defendants’ search engines are designed and intended to divert and lure consumers from the websites that they intend to visit – e.g., the MISHAK websites – to other websites owned by competing advertisers such as ‘…..'” Damn fill in the blanks. I really want to know who are the competing advertisers. I’ll have to wait for the amended complaint.
  11. More Fill In the Blanks. “The Defendants’ search engines are designed and intended to divert and lure consumers from the websites that they intend to visit – e.g., the MISHAK websites – to other websites owned by competing advertisers such as ‘…..'” Damn fill in the blanks. I really want to know who are the competing advertisers. I’ll have to wait for the amended complaint.
  12. Alta la Vista, Baby! Exhibit 2 shows search results for the search term “I Need a TV” from January 8-14, 2006. And, Plaintiff finally filed suit on December 20, 2007? What’s up with the two-year delay? Also, the complaint primarily appears to target Google, but the search results are from AltaVista. Actually, Exhibit 2 is split into two parts. The first section shows the sponsored matches (i.e., ads) that appear when someone searches AltaVista for the term “I Need A TV.” Because AltaVista bolds the text in the ads that match the search query, you can see that the only matching word is TV. The next section is the same query “I Need A TV” with the modifier “domain:avsforum.com.” This search will return matches for “I Need A TV” at the website avsforum.com. AVS Forum is a discussion and review forum for home theater products. So, AltaVista returned results showing the following matching discussion threads: “Need a TV with 2 DVI inputs,” “Does MCE need a TV tuner card to run?” and “Need a tv for family room going over a fireplace.” I think this is the smoking gun. 😉
  13. Missing Home Page. “Plaintiff has been careful, skillful and meticulous in the conduct of their television, home and commercial appliances and related services under the MISHAK Marks. Included herein as Exhibit 3 is a copy of Plaintiff’s Home Page.” I couldn’t find Exhibit 3 in the electronic filing. I really wanted to what the Plaintiff had attached because when I visited the Plaintiff’s website, I saw this:

www-ineedatv-com.jpg

P.S. I learned this from Guy. Call it a Top 10 list even if I have 13 items.

Categories
legal marketing

Permission-Based Marketing

Seth Godin has some great stories about Permission Marketing. Now, I have my own. I received a lovely piece of spam today. At the bottom of the email, the footer read:

Express Email Marketing supports permission-based email marketing. You can change your preferences or unsubscribe from this mailing list at any time.

Please. How can a company purport to support “permission-based email marketing” when I NEVER gave it permission to spam me? Spamming me and then giving me the option to opt-out does not comport with my understanding of permission marketing.

Categories
Technology

Top 10 Funniest Lines from the Latest Apple Lawsuit

  1. “Unlike most Internet sites, Music Store is accessed with proprietary Apple software, rather than a Web browser.”

    Talk about a meaningless distinction. Safari is proprietary Apple software. Internet Explorer is proprietary Microsoft software. Go Firefox?

  2. “The ‘Online Music market’ is defined as the market for digital music delivered to the consumer by way of Internet download.” “Apple has an approximately 83% market share of the Online Music market.”

    If Apple truly had an 83% market share of the Online Music market, the RIAA wouldn’t have to run around the country suing people who upload and download music via peer-to-peer networks. In reality, if Apple had an 83% market share of the paid music download services market, that would only translate to about 10% of the Online Music market if you accept the plaintiff’s definitions. Apple’s market share would fall even further if you count online purchases of music that gets shipped via CD.

  3. “Online Music also promises superior audio fidelity over time, because unlike CDs, Online Music lasts indefinitely and cannot wear out or break.”

    If that was true, then the “Back Up to Disc…” command on iTunes is superfluous. Unlike subscription-based music services where the digital music files sit on someone else’s servers, iTunes requires you to download your music purchases to your hard drive, which can wear out or break. Gasp! I don’t know what Online Music promises, but it absolutely cannot deliver superior audio fidelity over time compared to a CD unless the retailers start selling digital music in a lossless format. If you purchase online music downloads, you are basically stuck with the original encoding. However, if I have a CD, I can always re-rip the files 5 or 10 years down the line (provided optical drives still exist then), if a better compression algorithm is available. You get superior audio fidelity over time with the CD, not the online music download.

  4. “Just as with Online Music, the variety, reliability, convenience, and environmental friendliness of Online Video make it superior to DVDs purchased from traditional retail outlets.”

    Does buying videos online slow down global warming? I’ve never heard of people buying videos through ITunes for environmental reasons. This is a first. Also, while the iTunes Music Store is great, there’s simply no way that downloaded videos are superior to DVDs. Try lending a downloaded video to a friend. Nice try.

  5. “While a traditional CD can hold no more than 15 to 25 songs, Digital Music Players, by playing music that has been compressed into small digital files, can store from 150 to more than 20,000 songs.”

    Another apples-to-oranges comparison. The plaintiff isn’t really comparing CDs to Digital Music Players, but AIFF to MP3s. The traditional CD can hold a lot more than 25 songs if you compress them (just like on the Digital Music Player).

  6. “[I]n order to play music from Apple’s Music Store, the dominant Online Music retailer, the consumer’s only option in the Digital Music Player market is Apple’s iPod.”

    That’s not true since the consumer can burn the music from Apple’s Music Store onto a CD, and re-rip it into another format compatible with a different Digital Music Player.

  7. “Conversely, Apple also makes the iPod unable to play music sold at its rival’s Online Music stores.”

    Also not true. You cannot play back music in WMA format, but if you burn it onto a CD, you can re-rip it into an iPod-compatible format.

  8. “By preventing the iPod from playing WMA or any other protected music format besides FairPlay-modified AAC format, iPod owners’ only option to purchase Online Music is to purchase from Apple’s Music Store.”

    If the plaintiff was truly concerned about interoperability, she would just buy the CD instead of wanting access to more DRM-protected music files. Alternatively, Amazon now sells DRM-free music. Download away.

  9. “After purchasing their digital music library from Apple, these consumers are locked into making all future Digital Music Player purchases from Apple.”

    In economics, your past music purchases are called a sunk cost. If the iPod really provides an unattractive product, you don’t have to continue purchasing from Apple. Burn your purchases to a CD. Rip them into a different format and go buy a Zune!

  10. “For example, the only difference between Apple 1 GB and 4 GB models of its iPod Nano is the capacity of their NAND flash memory parts. At current spot prices in the NAND flash memory market the 1 GB part costs $4.15, while the 4 GB part costs approximately $9.67. Nonetheless, Apple charges an additional one hundred dollars for the 4 GB model.”

    If it ain’t worth a $100 more, then don’t buy it. But everyone does because by paying 67% more, you end up with an iPod nano with four times the storage capacity.

Categories
criminal law

CIA Pulls an Arthur Andersen

New York Times: Democrats Call for Inquiry in Destruction of Tapes by C.I.A. Democratic lawmakers reacted with surprise and anger today to the disclosure that the Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody.

What is the CIA’s document retention policy?

Categories
personal injury

On the First Day of Christmas…

WARNING: This product contains lead, a chemical known to the State of California to cause cancer and birth defects or other reproductive harm. Wash your hands after handling.

I spotted the above warning when shopping around for Christmas trees. Of all items that should be lead-free, I would imagine that Christmas trees should appear at the top of the list. I think Christmas trees are an attractive nuisance, especially those premium fake trees that practically appear real. No one wants a lump of coal for Christmas, or lead poisoning.

Categories
personal injury

Product Liability and Online Games

MSN Games: Photosensitive Seizure Warning. A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games. Even people who have no history of seizures or epilepsy may have an undiagnosed condition that can cause these “photosensitive epileptic seizures” while watching video games.

I was doing some legal research on the MSN website looking for an online poker game. Seriously. Lottotron, Inc. had recently filed a patent infringement suit against Microsoft over its online poker and casino games. However, I got distracted by the above disclaimer about online games causing seizures. You’ve been warned.