Rats! New Jersey Supreme Court rules that inflatable rodent is First Amendment Speech

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the <a href=

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the AP.

According to these news reports, yesterday the New Jersey Supreme Court ruled that a New Jersey city could not fine a local labor union or its use of a large, inflatable rat to protest non-union work pursuant to city ordinance banning inflatable displays except for store grand openings. As reported by the AP:

The super-sized rat, sitting on its hind legs and bearing fangs, is a national symbol used by organized labor to signal a labor dispute. It had been blown up and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.

A labor official was fined $100 plus $33 court costs.

The event was staged by the union to protest low wages being paid to electricians by an out-of-area contractor.

An appeals court panel ruled in 2007 that the town could ban the big black rat and affirmed the labor official’s fines. The panel found the ordinance was content-neutral and was aimed at enhancing aesthetics and protecting public health and safety.

The union appealed. Its lawyers argued the law violates their right to free expression and suppresses protest.

The township claimed the union’s use of the rat was a form of commercial speech, less deserving of First Amendment protections.

The state Supreme Court found that the law wasn’t neutral, and therefore was unconstitutional. It said an ordinance “that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based.”

Township attorney John Dember said, “(The court) did find that we need to do some tweaking because of the freedom of expression limitation, which we’ll undertake immediately to correct.”

The Court, in its opinion, found that the ordinance to be a content-based restriction (because the balloons permitted by the ordinance were for store openings vs. ballons for other purposes).  The rule didn’t meet strict scrutiny, and so the fines were reversed, and the city has to “tweak” the ordinance.

It appears from the opinion that the inflatable rat fails not only because it’s inflatable (a specific prohibition in the ordinance) but also because it is a “sign” for which the union did not get a permit and that was not “excepted” from permit requirements because it wasn’t a yard sign, grand opening sign, political sign, window sign, etc. But because Gold’s gym (the venue that was being protested for using non-union work) could have put up a “grand opening balloon” at the same site and not be subject to fine or licensing, it does seem to be a content-based restriction that probably shouldn’t survive strict scrutiny.

I’m curious, though–if the ordinance was focused solely on the inflatable nature of the display, is there really a constitutional right to inflatable ballons? Is that a medium that is somehow different from, say, a 10-foot sign, or a statue made out of crepe paper?  I suppose balloons are preferrable because they’re light, easy to set up, temporary, and easier to move than any of the aforementioned options. But if the union could put up a sign or statue instead of a balloon (under the idea that balloons may be more dangerous to motor vehicles, or just plain uglier on their streets perhaps), would the result be the same? Even if Gold’s Gym was permitted to put up the balloon for a grand opening for less than a month? Would the result have been different if the petitioners weren’t a union, and/or the case was not in New Jersey?

This case was probably rightly decided, but it will be interesting to see how the city will “tweak” the ordinance to avoid content-based restrictions.  If it simply bans all balloons (or requires unreasonable permits for them), then it may run afoul of the overbreadth concerns the Court had.   One to gnaw on.

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A bunch of “IP meanines” are appointed by Obama to the DOJ–what does it mean?

Copyright Avengers? Or just a bunch of guys in suits?

Copyright Avengers? Or just a bunch of guys in suits? Courtesy of Gismodo.

The blogosphere is all aflutter over the appointment of a number of attorneys by the Obama administration to upper-level DOJ positions, simply because a number of these attorneys represented the RIAA or MPAA in a number of copyright cases, or even was successful in redefining contributory copyright infringement in the Grokster case.

Ben at Copyrights & Campaigns tries to put some perspective on the appointments, complete with an “insider” source that notes that these guys are not going to have a lot of day-to-day involvement in copyright cases.

First, there is no indication whatsoever that Tom Perrelli, Don Verrilli, Neil MacBride or the others were selected because of their views or experience on copyright issues. […] They all have extensive experience in areas other than copyright, and those non-copyright experiences, I suspect, had a lot more to do with their appointments than their anti-piracy work.

Second, the Department of Justice has virtually nothing to do with civil copyright litigation, which is almost almost always fought between private parties, with the DOJ paying no attention at all. […]

It is true that DOJ prosecutes criminal copyright infringement cases. But ask yourself when the last truly controversial criminal infringement case occurred. The fact is, criminal copyright cases are virtually all about blatant cases of commercial infringement (e.g., a factory stamping out pirated DVDs and selling them), not about interesting and controversial issues involving secondary liability or fair use. […]

Don’t get me wrong; I’m thrilled to have first-rate copyright lawyers in the top ranks of Justice. But I am under no illusion that they will be spending much of their time on copyright issues, or that the Obama Admistration’s IP policies will differ from the Bush Administration’s IP policies in any major way. The fact is that administrations of both parties have been admirably supportive of copyright owners and their legitimate efforts to enforce their rights.

Ben’s commentary is so thoughtful (and well cited, and even includes an “inside source”!), I thought it worth repeating here.  I agree that the day-to-day operation of the DOJ vis-a-vis copyright and other types of IP enforcement will not be significantly different under an Obama administration, nor that it would be significantly different if the Copyright Avengers had not been appointed.  But the differences may arise if, for example, there is a significant constitutional challenge to a copyright statute (a la Tenenbaum) and a Court of Appeals or the Supreme Court asks for the DOJ’s input. And rather than a victory for the “copyright,” perhaps because Obama did not appoint any Lessig-type attorney to the DOJ, it’s just a small defeat for the “copyleft.


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Not very colorful, not very inspired: PPG sues Sherwin-Williams over THE COLOR OF INSPIRATION

The groundhog may have seen is shadow in Pennsylvania earlier this week, but chemical and paint company PPG did not crawl back into its litigation burrow, instead filing suit against competitor Sherwin-Williams for SW’s use of COLOR OF INSPIRATION on a new SW website that allows custom color matching.
The Complaint (here, pdf) and attachments (a, b-1, b-2, c, d, and e, pdf) allege that PPG has been using the mark COLORS OF INSPIRATION in conjunction with a “color selection system” (i.e. paint chip displays and books), and Sherwin-Williams has subsequently begun to use THE COLOR OF INSPIRATION in connection with a [pretty darn cool–ed.] website where consumers can match a Sherwin-Williams paint color with an “inspiration” from nature or another source, from a photograph.

A screenshot from the Sherwin-Williams webpage. Colorful? Inspired? Or a trademark infringement?

A screenshot from the Sherwin-Williams webpage. Colorful? Inspired? Or a trademark infringement?

PPG has sued for unfair competition under the Lanham Act, cybersquatting protection under the ACPA, and unfair business practices and trademark infringement under Pennsylvania law.

These are two very large chemical companies, and this could be an interesting, although probably not pioneering, lawsuit.  If PPG has trademark rights to COLORS OF INSPIRATION, it will be hard for SW to be victorious.  (However, proving SW’s “bad faith intent to profit”  from the registration of the colorofinspiration.com domain name as required by the ACPA.)

What really surprises me is that this looks like a dispute that could be settled before the initiation of a lawsuit, unless SW really believes that PPG doesn’t have legitimate rights to their mark.  It’s also interesting to see, in these times of economic peril for so many American companies, whether they’re willing to spend $1 million or more to fully litigate  trademark lawsuit on a secondary trademark that may or may not be a large part of their portfolio or brand strategy going forward.

(Hat tip to the Pittsburgh Business Times, reporting on the lawsuit.)

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Stripper Idol update: Answer (and simultaneous motion to dismiss) filed

stripperidol1 On January 26, 2009, an attorney for the strip club and owner filed an answer (pdf) in the “Stripper Idol” case (blogged here, here, and here), FremantleMedia v. Palazio Men’s Club.  Of interest in the answer:

  • Defendants inserted a Motion to Dismiss against the individual defendant, arguing that he did nothing in his individual capacity, or pleading for a more complete statement if Plaintiffs believed he did;
  • Defendants inserted a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), arguing that “no reasonable patron of Palazio Men’s Club would believe that American Idol sponsored stripping contests at Defendant’s venue or had anything to do with Palazio Men’s Club;” and
  • Defendants admitted to “having stripper idol [small letters] contests,” state that the STRIPPER IDOL logo has been removed and is no longer being used, and asserted a general denial to all of the substantive causes of actions under federal and Texas law.

A quick check of their website (sort of safe for work) shows that the advertisement featured above has been replaced with one in the same format, but that reads “Stripper Idols,” in a different, scripty font in a redish-yellow color.  Their  “events” calendar page also refers to SUPER BOWL XLIII (we already know what the NFL thinks of people using the SUPER BOWL trademark) and to a STUDIO 54 80s party (STUDIO 54, both in plain text and in a design mark, is a registered trademark of the MGM Grand, for, among other things “restaurant and cabaret services).  You’d have thought that perhaps, the attorney defending Palazio would have checked the rest of their site for other trademark violations.

The 12(b)(6) motion to dismiss (to the extent that the Court honors a motion to dismiss the entirety of the lawsuit filed without a brief and filed simultaneously with an answer to the entire lawsuit) borders on frivolous.  Regardless of whether Fremantle is actually successful on their claims, there’s no doubt that they state a claim for trademark infringement, and dilution under Texas state law as well.  Of course, the merits become much more difficult to analyze once the extremely similar logos are taken out of the equation.  Fremantle’s claim to “idol” is weak, unless, of course, they can “piggyback” on the old, similar logo and argue an intent to confuse and/or to trade off AMERICAN IDOL’s goodwill.

My guess is that, so long as Fremantle doesn’t demand an inordinate sum of money, the case will settle soon. The cases from the NFL and/or MGM, well, that may be anothe rstory.

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Groundhog sees his shadow…. four more months of analog TV

American analog TVs get a reprieve...

American analog TVs get a reprieve...

As reported by the New York Times, yesterday, the House of Representatives passed a bill extending the date that terrestrial TV stations must stop broadcasting an analog signal, from February 17, 2009 to June 12, 2009.  The Senate passed a similar measure last week, and President Obama is expected to sign the bill.

Congressional action was needed, say supporters, because of the large number of people who have not either (a) signed up for cable or satellite, (b) purchased a digital ready tv, or (c) purchased a set-top converter box for over-the-air digital signals.

Michael J. Copps, the acting chairman of the Federal Communications Commission, said in a statement that the additional four months of transition time would afford “urgently needed time for a more phased transition.”

[…]

“Yes, it would be great if everyone had received their coupons, and if everybody understood the transition to digital, but they don’t,” Representative Maxine Waters, a Democrat from California, said Wednesday during the House’s debate. She said that some people, senior citizens in particular, were going to be “terribly inconvenienced.”

Some House Republicans had opposed a delay, saying that it would only increase confusion about the impending transition. “No matter what date you establish, there’s always going to be somebody who doesn’t get the message,” Representative Cliff Stearns, a Republican from Florida, said during the House debate.

[…]

Some consumers will be left in the dark, no matter when the transition happens, said Janice Finkel-Greene, the executive vice president for futures and technology at the media-buying agency Initiative. Those viewers are the “same people who are at the post office at midnight” the night before the tax deadline, she said.

I hate to say it, but I think I agree with the “no” votes on this one.  When I was in college (1996-2000), I was told that analog signals would be shut off by 2002.  Then broadcasters (who have rights to use the airwaves for free) complained that they couldn’t afford or didn’t have time to upgrade their internal equipment and towers.  So the deadlines were extended. Then consumer groups said that new TVs and boxes were too expensive.  So deadlines were extended. Then, the government went on a $1 billion media campaign (and public interest groups like the National Association of Broadcasters joined in, too) to educate the American public about the deadline, how to upgrade, and how to get a coupon to pay almost the entire cost of a converter box.  In Austin, each of the major broadcast channels has information on its website discussing the DTV switchover; some of the channels did a “digital only” test during the news to demonstrate to viewers whether their setup would continue to work after the switchover; others held DTV seminars across the viewing area to explain the switch and describe how to hook up TVs to ensure continued signal.  In short, if you were paying attention, you knew what to do.

Nonetheless, a Nielsen survey conducted last month showed that as many as 6.5 million households were not ready for the transition. The survey also showed that as many as 9.9% of all African-American households were not ready.  Put that on top of the fact that the coupon program ran out of money (and has yet to be re-funded by Congress), and I suppose the extension was inevitable.

I’m wondering, though, whether the Nielsen survey is right–that is, are all of the TVs in the household ill-equipped, or are one or two of the TVs hooked up to cable or digital broadcast and the others will just “go black” because the owners don’t care about them.  And, as the article notes, there will always be some people who will never be ready.  Besides fully funding the coupon program and spending a billion dollars in a P.R. campaign, what else can the government do?

A number of people (including my dad) can’t quite figure out why the government is mandating this change in the first place.  After all, when the networks switched from black and white to color, black and white TVs still worked.

  • My Digital TV Explanation / Analogy

I’ve spend a while trying to figure out how to explain the switchover.  This is the best analogy I can think of.

Imagine watering plants in a flower garden with a hose.  The hose has reasonable volume, but not a lot of pressure. So you put your thumb in the front of the hose, causing it to spray.  You water your plants this way reasonably well, but your hand gets wet, and lots of water sprays all over the place, including to plants and weeds you don’t want to water.  And because you’re wasting water, the guy on the next parcel over can’t water his plants– you’ve used up most of the river.

A genius develops a nozzle for a hose that will direct the water to the exact plants you want to water, with good pressure, without getting your thumb wet, and saving 50% of the water used under the “traditional” method. Problem is, it won’t work on older hoses (they only had threads on one end). In an effort to make sure everyone has the right to water their plants, the government requires that all people who want to water their plants must either add the adapter and nozzle to their hose, or buy a new hose with the nozzle built in.  The government regulation benefits everyone; watering is much easier and everyone gets to share the water.

The same thing is going on with the DTV transition.  A digital signal is superior to the analog–it results in a clearer signal, allows more data to be transmitted (whether that means a high definition signal, additional data in push technology, or multiple SDTV channels), and can potentially have a wider range.  But, most importantly, the DTV signal can be more precise, and there is not nearly as much “spillover” causing interference from one signal to another.  In other words, you can fit more digital TV signals in a smaller portion of the electromagnetic spectrum.  That means more terrestrial TV stations (and more choices) or, as is the case under the current rules, the remainder of the spectrum can be divided off and used for other applications (right now, cell phone and emergency uses). So it’s not just about “forcing” better picture quality on American consumers; it’s about efficient use of the spectrum where pictures, audio, video, calls, whatever, are obliterated into a million pieces and fly over our heads.

DTV allows for more things to fly over our head in a million pieces.

DTV allows for more things to fly over our head in a million pieces.

If Congress fully funds the coupon program, there is no reason for another extension.  Yet, it is understandable why the government is unwilling to shut off our collective TV supply (especially if the elderly or minorities are disproporationately impacted, and especially in the current economic crisis).

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A (second) tale of CITIS

As if the uproar over Citigroup’s lawsuit against All Citi Pawn (blogged here) weren’t enough today, this article from Slate describes Citi’s decision to go forward with a $400 million naming rights plan of the New York Mets new baseball stadium.  The author of the article summarizes the benefits of the plan, despite Citi’s current lack of capital, this way:

In order for Citi to weather the storm, recover, and pay back taxpayers (and insulate them from further losses), the company must invest for both the short- and long-term. For companies in highly competitive consumer markets, marketing and advertising are essential, entirely justifiable expenses. Companies—even companies getting bailed out by the feds—need to attract customers and to build their brand image. It’s difficult to measure the value of any specific campaign or ad. But there’s reason to think that for this company, at this stadium, in this location, a naming-rights deal might not be such a bad long-term move.

[…]

Of course, people who read about games at Citi Field on ESPN.com won’t be learning much about Citi’s mortgage rates. But naming rights, especially if they endure, can perform another vital function for brands. It can help make them part of the vernacular. The greatest desire of any marketer is for her product’s name to work its way into conversations. When I was growing up, it was common to say, “I want a Coke” when you were referring to any kind of soda. People ask for a Kleenex when they mean a tissue, say they’re going to Xerox a document even if they’re using a Ricoh copier, and speak of Googling when they refer to an Internet search. Stadium naming rights can help products and brands gain that sort of status. Since 1926, baseball fans on the north side of Chicago have spoken about going to games at Wrigley Field. Does that make fans more likely to buy Wrigley’s gum products? It can’t hurt. “Meet me at Citi,” doesn’t quite have the same ring as “Meet me at Shea.” But after 20 or 30 years, it might.

Professor Rebecca Tushnet notes the serious problem with the final paragraph, which essentially encourages “genericism” of trademarks (the development of language such that a term that once was a trademark suddenly becomes a synonym for the good or services that the mark once described).  Her post is titled “This is why I don’t believe in most forms of genericism,” and she writes:

These days, consumer understanding of branding allows Google, Kleenex and Xerox to preserve their marks while also being conversational terms for their categories. [The quote] is crazy talk from black-letter trademark law’s perspective, but that’s because the black-letter law doesn’t reflect current reality.

I certainly agree with the theoretical underpinnings of Professor Tushnet’s statement–that consumers can understand the difference between GOOGLE for “searching the internet via a computer interface” and engaging in Googling to find information, between asking someone for a kleenex to wipe a runny nose and getting KLEENEX brand tissues at a store; between purchasing a XEROX brand business machine and xeroxing a copy of something.

The KAISER Vertical People Fun Moving Machine? (Image from <a href=But the principle of genericism of trademark has to remain valid, at some level.  There comes a time where the public recognizes the trademark only as the thing, not as a particular manufacturer of the thing.  And it becomes unfair to prohibit the competitor making the thing from referring to the thing just like the rest of consumers.  If I wanted to start a business today, shouldn’t I be able to call my product KAISER escalators? Not KAISER brand people moving electric stairs that move people up a floor or more?  At one time, ESCALATOR was a brand name for moving stairs, but eventually consumers came to understand all brands of moving stairs to be escalators. While claims of trademark genericism are probably overasserted, it’s not a concept that should be abandoned. (To be honest, I’m surprised that Coca-Cola has survived a genericism claim, at least in the South. My idea for Pepsi’s new marketing campaign in the South? “Wanna coke? Wanna Pepsi!”  In sum, the issue shouldn’t be whether “rogue” consumers have begun to use your trademark as a noun, or worse, as a verb, but whether the use has become so pervasive as a synonym for the goods and services that it would be unfair to prevent competitors from using the same term to describe their goods and services.

If anyone else has comments, I’d be happy to consider them.

(Image from Yewenyi, via Flickr, used pursuant to the Creative Commons limited rights license)

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Rove lecturing about the First Amendment (?)

Karl Rove, speaking in California

According to this article, former George W. Bush adviser Karl Rove spoke to a crowd at Loyola Marymount University in California last night.  The topic of his speech:  The First Amendment.

The article reports the controversies, both in Rove’s speech and in reaction from the crowd.  What did the report include about the supposed topic of the night?

Among Rove’s more sympathetic questioners, the overriding concern was over liberal bias in the media.

“This election was unbelievably tilted to Obama, and that’s not healthy for the system,” Rove concurred. “That coverage is putting a finger on the scale.”

Rove argued that most members of the national media live in Washington and New York and went to eastern schools, and absorb the liberal views of their surroundings.

Now, it may be unfair “liberal” bias, such that the reporter neglected to discuss any of Rove’s additional comments about the First Amendment, but I would not be surprised if there were little, if any.  As the mastermind of misinformation, secrecy, and privilege, and whose party’s candidate for vice-president during this election cycle refused to talk to reporters except in the most controlled of situations, I can’t imagine that Mr. Rove has a lot of sympathy for an expansive version of the First Amendment.  His solution:  Blame the “liberal” media for negative coverage of his guy, even though the “liberal” media was extremely gracious (and trusting) for at least 6 years of the Bush 43 presidency.  Regardless of your view of the Bush 43 policies or Mr. Rove’s political tactics, I think you’d agree–he’s not the best guy in the world to lecture about the First Amendment.

EDIT: Apparently, Mr. Rove did speak about the First Amendment.  Although according to this (very) opposing viewpoint, that didn’t go over very well, either.

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