Koffsky Schwalb LLC
  • Home
  • Attorneys
    • Mark I. Koffsky
    • Efrem Schwalb
    • Gary Serbin
    • Daniel E. Baron
  • Practice Areas
    • Business Law
    • Civil Litigation
    • Intellectual Property
    • Employment Law
    • Real Estate
  • Blog
  • Contact
Phone: (646) 553-1590 | Fax: (646) 553-1591

Blog

Playing to a Full House: All Active Judges of Federal Appeals Court to Hear Music Group’s Appeal

4/30/2015

0 Comments

 
Picture
In an interesting turn of events, the future of the ongoing Washington Redskins trademark case could hinge on the outcome of an appeal made by an Asian-American dance rock band, after their request to register the mark “The Slants” was denied by the Patent and Trademark Office (PTO).  The Trademark Trial and Appeal Board cancelled the registrations of a number of the football team’s trademarks last June.  Although the music group’s founder, Simon Tam, has expressed his own opinion on how the two cases differ, the common denominator is a legal precedent set back in 1981, which applied § 2(a) of the Lanham Act as the basis for supporting the PTO’s power to deny a trademark that they deemed to be “immoral…or scandalous.”  In the present two cases, the Lanham Act was interpreted to cover the reversal and refusal, respectively, of trademark registration for the sports team and band names that might be considered disparaging to an individual or group stereotypically associated with the terms in question.

Last week, the U.S. Court of Appeals for the Federal Circuit affirmed the PTO’s trademark denial of “The Slants,” agreeing that the band name could be perceived as offensive to Asian groups and individuals.  In the very same ruling, however, Judge Moore included a section entitled “additional views” in which she explored the question of whether such a far-reaching legal power—banning registration of marks with potentially disparaging content—should be part of the PTO’s role, or if it perhaps violates the First Amendment.  In the words of Judge Moore, “It is time for this Court to revisit McGinley’s holding on the constitutionality of § 2(a) of the Lanham Act.  Under § 2(a), the PTO may refuse to register immoral, scandalous, or disparaging marks."  In light of the fact that the usual three-person panel of the Federal Circuit would not have sufficient power to overturn the legal precedent, the Court has made the rare decision to sit as one and hear the case “en banc,” with all active Circuit judges participating.

Over the years, the Lanham Act has been used inconsistently and it is not objectively clear why some potentially offensive marks were disallowed, while other seemingly similar marks were registered successfully.  The Slants’ frontman Tam hopes that this time the outcome will fall in their favor, thereby advancing his goal of re-appropriating stereotypical terms and empowering minority groups.  Many people are following the case, as they see this as relevant to the ongoing Washington Redskins trademark case, and an important discussion about freedom of speech.  The status quo in the Redskins case is based on the argument that the team name, logo, mascot, and identity are disparaging to Native American groups and individuals.  If The Slants’ en banc case overturns the McGinley precedent, the Redskins’ pending appeal would likely be influenced as well, and they might have a better chance of reclaiming ownership of their federal trademark registrations.

0 Comments

Free Speech Victory for Seeking Alpha Anonymous Analyst

8/22/2014

1 Comment

 
Picture
Seeking Alpha (SA), an online news and opinion forum primarily focused on financial markets, made the news itself about six months ago when an anonymous post incurred the legal wrath of biopharmaceutical company NanoViricides (NNVC).  On February 11, 2014, a contributor using the pen name “Pump Terminator” published a rather scathing review of the drug company, including discussion of suspected questionable trading and management activity and shareholder violations, ultimately recommending the stock as a “strong sell.”  According to a March press release announcing their decision to take action against SA, NNVC alleges that the post was “defamatory, malicious and libelous,” contained “factual inconsistencies,” and directly contributed to a 23% drop in their stock price on the day that the piece was published.  NNVC, which focuses primarily on research and development of antiviral drugs, filed a pre-action disclosure petition against SA, demanding that they disclose the identity of the anonymous poster so that they could pursue a libel case against him or her.  The author of the post self-identified as a short-seller of the stock, further arousing NNVC’s suspicions that the negative coverage was a premeditated attempt to manipulate the market and ultimately profit from the sharp decline in share price.  When SA chose not to remove the offending post from their virtual bulletin board, NNVC denounced the investment analysis website as being a “complicit agent in the criminal act(s) perpetrated by the article author and collaborators-in-action.”

At the end of June, New York Judge Cynthia S. Kern dismissed NNVC’s suit against SA, releasing them from any obligation to divulge the identity of “Pump Terminator,” as the court had determined that the post was not defamatory and was considered “protected opinion and not actionable as a matter of law."  The court found that NNVC did not sufficiently demonstrate that that article in question could be constituted as defamation.  The post contained clear disclosure that its content reflected the author’s own opinions, and any facts that were presented were accompanied by links to sources which readers were encouraged to review in order to reach their own conclusions.  Furthermore, as the courtnoted, the fact that the author’s opinions were published in the “unique context of the Internet,” and considering such fora are often rife with hyperbole and “the repository of a wide range of casual, emotive, and imprecise speech,” the greater context of the statements signals to the reader that the article must consist of the author’s personal opinion.  The author’s repeated use of phrases such as “we believe” and “it seems to us” clearly reinforces this point, even without the court’s having to figure out a way to apply foundational constitutional principles to this contemporary situation.

Presumably, investors take anonymous opinion pieces like this with a grain of salt, and do not rely on  recommendation to make any drastic trading decisions.  The nature of Seeking Alpha’s crowdsourcing platform is summed up by the website’s tagline: "Read. Decide. Invest."  It is a forum based on what the site’s editor-in-chief describes as a Socratic approach that encourages independent (and sometimes anonymous) investors to freely express their opinions, debate ideas, and make informed choices based on their own due diligence.  Clearly expressing the court’s support for the rights of a free press, Justice Kern concluded her decision by emphasizing that “[I]t is paramount in an open and free society that we protect the anonymity of those whose ‘publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences.’”  In addition to being an important and precedent-strengthening ruling for Seeking Alpha, this decision allowing pseudonymous posts is an important free speech victory.

1 Comment

Privacy Screening: White House Reviews “Big Data”

2/18/2014

0 Comments

 
Picture
It’s been nearly two years since the Obama Administration announced its Big Data Research and Development Initiative in March 2012, committing to improve the ways and means that the Federal government accesses, organizes and analyzes huge quantities of data.  The initiative promised to develop and harness state-of-the-art technologies to accelerate and “transform our ability to use Big Data for scientific discovery, environmental and biomedical research, education, and national security.”  Now, after the maelstrom of the Snowden revelations, and the ensuing (and ever-brewing) debate about NSA surveillance policies, the White House has launched a new program to review how the public and private sectors are gathering and utilizing “big data,” and the implications of such analysis when it comes up against privacy issues.President Obama announced in a January 17th speech that he had appointed his counselor, John Podesta, to spearhead this review.   Less than a week later, Podesta posted an overview of his 90-day plan to tackle his daunting task: Audit current procedures, anticipate technological trends, and determine whether additional protections need to be implemented in order to balance the benefits of potential innovation and knowledge gleaned from massive consumer data–collection with the potential concerns that inevitably result from it, whether they are a matter of privacy, public policy, economy, or national security.  As this may involve further government research, funding, and/or policy changes, Podesta’s team will be collaborating with numerous industry experts, government officials, academic institutions, think tanks, civil liberties groups, and other organizations here and around the world to develop the most comprehensive and robust plan of action.

This initiative was introduced at the tail end of the President’s outlining of numerous sweeping reforms to US intelligence programs, including the NSA.  Considering the timing, some people question whether this program is a long-awaited Executive acknowledgment of the privacy risks of big data, or simply a ploy to distract the nation from the NSA controversy.  Others welcome the attention and believe that, in addition to the anticipated improvement of consumer privacy, these expanded efforts to deal with big data will contribute to the creation of millions of IT jobs globally.  Meanwhile, various groups have been petitioning to encourage the “meaningful public participation in the development of this important policy,” insisting that the public “should be given the opportunity to contribute to the…review of ‘Big Data and the Future of Privacy’ since it is their information that is being collected and their privacy and their future that is at stake.”  With about 60 days remaining to Podesta’s timeline, it will be interesting to see if and how this review will take into account the input of all stakeholders.

0 Comments

Settled: No More Free Ride for ArrivalStar

12/17/2013

0 Comments

 
Picture
Many patent assertion entity cases never even go to trial, since appeasing a PAE with licensing fees is often preferable to funding an extended court battle, particularly when the defendant is a small- or medium-sized private sector company.  A similar scenario had been playing out of late with ArrivalStar, one of today's most notoriously litigious "patent trolls" in practice (or non-practice, as the case may be).  An interesting difference, however, is that this time, the PAE set the public sector in its sites, going after public transportation agencies for alleged patent infringement.  According to the claim, these municipal companies have been ripping off a vehicle-tracking idea that ArrivalStar founder Martin Kelly Jones thought of back in the early '90s.As is the case with its "typical" victims, ArrivalStar was hoping for some "fast cash," which they assumed would be more forthcoming than usual, since they were essentially threatening a wallet funded by taxpayer money; if they knew what was good for them, no municipality in its right mind would agree to compromise their constituents' hard-earned cash on a case that could more easily be resolved by paying off the plaintiff.  This shady logic did, indeed, pay off for ArrivalStar, which settled numerous cases out of court in several US states since last year, including a "big win" in Kings County, Seattle.  (The Port Authority of New York and New Jersey is still putting up a fight in defense of their use of vehicle-tracking technology.)  This pattern was getting other cash-strapped cities nervous that they might be targeted next.

The latest development in this story, however, may give some hope to public transit systems everywhere:  The American Public Transportation Association (APTA), along with the Public Patent Foundation (PubPat) decided they weren't going to take it anymore, and fought back.  They filed a lawsuit that challenged ArrivalStar's repeated frivolous charges, and sought to nullify some of their patents altogether, considering that the company apparently hasn't researched, developed, or produced anything related to those patents anyway.  A pivotal argument in their case invoked the 11th Amendment Immunity, which "prohibits APTA's state and regional public transportation agency members from even being subject to such suits."

Clearly not used to meeting such resistance, this time ArrivalStar felt compelled to settle, agreeing "not to make any future patent infringement claims against any of APTA’s public transportation agency members or any vendors providing goods and services to APTA public transportation agency members."  While this is certainly a win for APTA and its members around the country, the settlement might also constitute another small victory for ArrivalStar, who narrowly avoided actually having to go to court to defend and demonstrate the validity of their patents.

0 Comments

My Article in Slate on Patent Trolls and the Eleventh Amendment

6/12/2013

0 Comments

 
Picture
Mark Koffsky's article published in Slate on patent trolls and the Eleventh Amendment is posted here.

0 Comments
<<Previous


    Categories

    All
    Civil Procedure
    Constitutional Law
    Copyright
    Corporate
    Employment Law
    International
    Internet
    Litigation
    Media
    Patent
    Privacy
    Real Estate
    Software
    Tax Law
    Trademark


    Archives

    June 2017
    May 2017
    April 2017
    March 2017
    January 2017
    December 2016
    November 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    November 2015
    October 2015
    July 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    September 2013
    July 2013
    June 2013
    April 2013
    March 2013
    February 2013
    January 2013

    RSS Feed

     349 Fifth Avenue | Suite 733 | New York, NY 10016 | T: 646.553.1590
  Attorney Advertising | Legal Notices | Privacy Policy
Proudly powered by Weebly