Daily Archives: January 12, 2009

Hello world!

Welcome to Arbitrary and Fanciful, a blog about Trademarks, Branding, Speech, Law, and Society (and a little bit about me on the side).  The name of the blog comes from the trademark “spectrum of distinctiveness” where trademarks are categorized to determine whether they’re immediately protectable, whether the owner has to prove that the word has acquired a special meaning, or “secondary meaning” associated with the word, or whether the mark is protectable at all.  Arbitrary marks, like APPLE for computers, are created when someone uses a word already in existence with goods and services that have no relation whatsoever to the word.  Fanciful marks, like VERIZON for telephone services, are words that are made up out of thin air and have no common dictionary definition.  Arbitrary and fanciful trademarks enjoy the greatest trademark protection–they’re immediately protectable without proof of secondary meaning, and they enjoy a wide scope of protection.  But that’s enough trademark law for today.

I hope that this blog only somewhat follows its namesake.  Expect thoughtful posts about the law that interests me the most– litigation, evidence, procedure; trademarks, copyrights, advertising; free speech, free press, and religion; constitutional law, jurisprudence, and law in society.  There may also be some posts about movies, music, culture, brands and branding, politics, writing and grammar, or the important issues of the day.  While this post doesn’t show it, I hope to provide a fresh insight or two, and perhaps a bit of humor.

WordPress automatically created this post, called “Hello World.”  Those programmers in the house know that a “hello world”  program is generally the first program that a user learns in a new programming language, and therefore I think it’s an appropriate first post title.

You can discover more about me in the about me (in the third person) page, and if this is your first visit to the site, please read the disclaimers on the legalese page. Enjoy links to some of the pages I frequent in my blogroll. Feel free to contact me at kyle at kylekaiser dot com.

Although I have been instrumental in the design and updating of blogs in the past, I am excited to begin this new venture. Of course, with any new venture comes bugs, and please be patient with any redesigns or sketchy features.  Hello world!

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Filed under Housekeeping

If this guy can’t find a job…

The Austin American-Statesman reports here that Alberto Gonzales doesn’t have a job, and hasn’t had a lot of luck in finding one.

Since leaving office in August 2007 amid an investigation into the firing of U.S. attorneys, Gonzales said he has concentrated on cooperating with ongoing investigations. He also has given speeches, done some consulting and mediating and talked with law firms about jobs.

So far, nothing has panned out on the job front.

One of the guys in the unemployment line

One of the guys in the unemployment line

“It’s a rough economy right now, and it’s a tough time for a lot of law firms right now. Obviously they are very careful about bringing on new people, and they are going to be careful about bringing on people where there are questions about things that may have happened in their past,” he said. “Over time, I’m confident those things will be resolved, and things will work themselves out.”

The article suggests that Gonzales’s job problems are as a result of “misinformation” about his tenure as AG.  Misinformation or not, General Gonzales was the top attorney for the United States of America and a former Texas Supreme Court justice.  My guess is that he could work at nearly any law firm in the country and make seven figures doing so.

I am in the job market, and all I can say is, if this guy can’t get a job, what chance do I have?

(Then again, I wasn’t involved in the firing of nine U.S. attorneys for political reasons, I didn’t defend extraordinary rendition as constitutional, and I didn’t write the torture memo.)

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Filed under Law, Society

Wiki-When?

Wikipedia Logo

Wikipedia Logo

Ernie the Attorney provides us all an intersting commentary on the veracity of information gathered from web-based research in general, and Wikipedia in particular, saying that he “cringe[s]” when other people “talk about the perils of using the Internet to do research”.  He further comments:

As a lawyer, I’m perfectly comfortable with conflicting information. The remedy for conflicting information is not to try to eliminate “flawed sources,” but to think critically about all sources of information that you encounter. In some areas, Wikipedia is superior to traditional sources.

He then describes how Wikipedia can be superior to print sources, providing more information, in a more detailed manner, than any print source could.

Ernie’s right–not only should lawyers be confortable with conflicting information, but all Americans should be.  The Framers created the First Amendment right to free speech because they believed that, rather than having the government (or private individuals, through lawsuits) regulate speech to publish only “true” words, we have more speech, a “marketplace of ideas,” where the public reviews all the speech and discerns the best ideas and the truest facts.

Perhaps some fears lie with the perceived lack of responsibility that a wikipedia author (wikiier?) has for the post. If the Encyclopedia Brittanica publishes enough uncorroborated articles, no one will buy its encyclopedias.  If news networks report false information, people will no longer trust them and stop watching (well, there are a few exceptions to every rule), leading to a decline in advertising revenue.  A wikiier has no direct, financial incentive to be trustworthy, and therefore her material must not be trustworthy.

But here comes that tricky marketplace of ideas.  More speech trumps incomplete speech.  A wikiier’s posting that trashes  or hijacks an entry will often be quickly replaced by zealous editors.  New information gets updated quickly, from a variety of sources.  And Wikipedia has put in place some common sense rules to protect controversial entries and allow users to contest the reliability of articles.

In the trademark world, Internet evience, properly authenticated, has been acceptable evidence for a variety of claims at the United States Patent and Trademark Office.  The USPTO’s Trademark Trial and Appeal Board recognized the validty of Wikipedia evidence in determining that an applied for trademark was descriptive and thus not immediately registrable.  And Wikipedia has been relied upon well over 100 times in judicial opinions.

The Hitchhikers Guide to the Galaxy
The Hitchhiker’s Guide to the Galaxy

Is Wikipedia an acceptable substitute for a high schooler’s digging in books, online databases, or other sources for a research paper? Can it be a present-day “Hitchhiker’s Guide to the Galaxy,” the “the standard repository for all knowledge and wisdom”? Of course not.  Is Internet research here to stay, and can it be a valid, and even important part of any research reportorie? You betcha.

But for now, Don’t Panic. The Framers didn’t when they enacted the First Amendment, even if that meant that some people would say or print some mean or potentially untrue things  We don’t have to now.

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Filed under Law, Society