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      Thanks for following our blog.

      In an effort to consolidate our Internet presence, we moved blogging platforms from Blogger to Wix, which was hosting our website.  Unfortunately, Wix doesn't allow us to link our subdomain blog.henryparklaw.com to a page on our website.  Thus, if you are looking for our blog, it is now at www.henryparklaw.com/blog.

- Henry Park

Trademark - Dosenbach and Deichmann

     If you live in Switzerland, you would see this logo associated with the store chain Dosenbach.



     I was recently in Germany, and I saw what appeared to be the identical logo.

 

However, it was associated with a shoe chain called Deichmann. I assumed that the store chains were related, and research confirmed it. Deichmann acquired Dosenbach in 1973 (see Dosenbach link, Wikipedia link). How fortunate was that acquisition? Deichmann acquired a competitor with a name that started with a "D". Now, it could use the same logo for both businesses create a connection between the businesses / brands (see my posts on Aquafresh / Odol-med3 and Crest / Blend-a-Med for examples of how businesses created connections between their brands).

- Henry Park

Warning notices

     I was at Burger King restaurant in Switzerland and I bought a kid's meal. It came with a toy that was packaged in a plastic bag, and there were, of course, the required warning notices -- in 21 languages.




- Henry Park

USPTO and Java v8 update 144 build 01

    Just a few days ago, I wrote about a new Java update (see link).

    I wasn't expecting another update for a while, when I received this message.  It turns out that on July 26th, they released another update to Java v8 update 144 build 01.





- Henry Park

Trademark - Coca-Cola Zero Sugar

     I like Coca-Cola.  When I heard that Coke was launching a "new" product, my interest was piqued.  What would they do?

     I feel let down. 

     It isn't a new product.  They reformulated an existing product, and repackaged it (link).

Old packaging

New packaging

     Apart from small tweaks to the formula, its appears that they added more red to the black packaging, and changed the name from "Coca-Cola Zero" to "Coca-Cola Zero Sugar". From a trade dress perspective, retaining the black and adding more red makes sense.  However, from a name perspective, adding a generic descriptor or, at best, a merely descriptive descriptor to the name doesn't make sense.

- Henry Park

The Pirate Bay - Walking the plank of copyright infringement

     Last month, on June 14, 2017, the European Court of Justice (ECJ) found that The Pirate Bay website directly infringed the copyrights of various copyrightholders (InfoCuria link). 

     The Pirate Bay argued that it did not link or host any infringing content.  Rather, it hosted BitTorrent "tracker" files.  These .torrent files tell a user which other BitTorrent users to link to in order to download a file, and do not participate in the downloading of a file.  Additionally, The Pirate Bay argued that the trackers were uploaded by its users, and that it should be protected by safe harbor provisions.

    The ECJ rejected both of these arguments (link, at paragraphs 30-35, 36-37).  The ECJ went on to find that

in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata referring to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network

(link at paragraphs 47-48) constitutes a "communication to the public" in violation of a copyright holder's rights under Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

     As there are no further appeals possible, The Pirate Bay may be nearing the end. It shouldn't take long for copyright holders to request that ISPs within the EU block user access to the The Pirate Bay.

- Henry Park

College throwdown - OSU

  vs. vs. 

    Ohio State University recently filed another federal trademark application for the "OSU" mark.  The OSU mark currently is used by Ohio State, Oklahoma State and Oregon State.

     Apparently there is a concurrent use agreement between Ohio State and Oklahoma State for their respective federal registrations (see Reg No. 1121595 and 1121596).  Oregon State does not have a federal registration for the OSU mark.

     Will Oklahoma State demure to Ohio State for this application?  Probably not (see link).  But, given the existing agreement between these two parties, it would be safe to assume that another agreement will be reached.

- Henry Park

Chimpanzees are not monkeys

     In an earlier set of posts, I wrote about a case where an attorney in New York was arguing that two chimpanzees should be treated as a legal persons (link 1) and how the New York court ruled against that attorney (link 2).

     I opened up my copy of the Bostonia magazine, the Boston University alumni magazine, and there is an article about that case (see Bostonia Magazine link).  As it happens to turn out, the attorney who argued that case, Steven Wise, is a BU Law graduate from 1976.

- Henry Park

USPTO and Java v8 update 141 build 15

    On my Macintosh, I received a notice that there is an updated version of Java v8 update 141 build 15 (released on July 18).

 


     Because I am now accessing the USPTO website using Java Web Start (see my post on connecting to the USPTO with Web Start), I'm not concerned about installing updates.

- Henry Park

A Business Perspective on Horse Racing Partnerships

Photo by Noah Silliman on Unsplash.

     Horse racing partnerships have increasingly become a part of the “sport of kings”. It is well recognized that horse racing partnerships allow for greater inclusion of participation for the general public; no longer is the “sport of kings” limited to the great racing families of Kentucky or the very wealthy. In 2017, each leg of the Triple Crown (Kentucky Derby, The Preakness Stakes, and The Belmont Stakes) was won by horses owned by horse racing partnerships.  Horse racing partnerships appeal to a wide audience of people who have different desires and familiarity regarding horse racing and therefore, it is important to appreciate the business aspects of horse racing partnerships. The greater inclusion of the general public propels the need for education on the important aspects of the business issues of a partnership.

     In selecting a partnership, a potential member needs to consider many aspects, but two considerations stand out: communication and victory.  A member should maintain an open dialogue with the partnership manager so that the member can continually expand its knowledge and experience regarding key decisions, such as 1) selecting a horse to purchase; there are different issues involved in purchasing a yearling versus a two-year-old, 2) whether to purchase through a private sale or claim, 3) selecting a trainer, and 4) selecting races to give the horses and members the best opportunities for victory.  Victory for the members is not limited to financial gain but must recognize the social and entertainment aspects of the sport.  Most partnerships include members who enjoy racing and the ability to attend the track meetings, participate in the paddock and be involved in the discussion and development of the horses (recognizing this may be a limited amount as the manager must have “final decision” ability).

     As a general overview, the business issues regarding partnerships can be divided into three groups.  First, decisions regarding the amount to be paid for a horse, the percentage of ownership a partner may want of the horse and recognizing the “mark up” to the partnership members to cover the expenses and evaluating a horse prior to purchase. Second, the members of the partnership must understand the level of communication and participation they desire regarding the development of the horse and racing. While the partnership manager will have the final decision, being in a partnership wherein the manager appreciates and considers the comments of each member makes the experience more enjoyable and fulfills a great sense of satisfaction. Third, understanding a member’s status and goals, such as whether the member is in the midst of a busy career, a retiree or investor. By understanding these, you can maximize the business benefit of the partnership venture through tax deductions, business expenses, investment accounts, etc. Recognizing these key business issues provide the “bridge” which serves as a conduit to provide beneficial business advantages simultaneously with enjoyment of horse racing.

     Being a lifelong horse racing enthusiast and having a legal practice that includes gaming law, and more particularly equine law (directed to thoroughbred and standard bred issues), it was imperative for me to become involved with a partnership that recognized my limited time to participate but also allowed me to use my legal experience to contribute to my investment in the partnership. In my particular situation, I invested in Zilla Racing Stables (www.zillaracingstables.com).  The approach taken by Zilla, and its manager Michael Piazza, allows me to continually learn the aspects of selecting and training horses while giving me a thorough understanding of the business and legal issues involved in horse racing. Michael Piazza provides a continuous flow of information to the members of the partnership regarding the partnership’s horses and horse racing generally, answers specific questions, and is the conduit to the trainers, grooms and bloodstock agents to provide an understanding of the issues of the sport.

     The evolution of horse racing partnerships has provided an opportunity for racing enthusiasts, such as myself, to participate at various levels that can be coordinated with their personal and business goals.  Potential members should obtain an appreciation of each particular partnership and match its characteristics to  their specific needs.

- Joseph J. DiDonato

The soaring cost of a college education

     I've seen the stories about how expensive a college education had become.  But, the cost didn't sink in until I saw this chart showing the rise in tuition at the University of Minnesota, my alma mater.

 

Thus, over 25 years, the annual tuition for a undergraduate resident increased almost five times.

For comparison sake, here is the annual change in inflation over the same period of time (from here).  As you can see, tuition increases were almost always much greater than inflation.

- Henry Park

Happy Fourth of July

In memory of all those who have gone before us. Let us not forget their sacrifice.

- Henry Park

This photo was taken by a colleague Brian R. Fitzgerald.  More of his photos are available, here.

Trademark - Chuck Norris

     When I was a kid, there were lots of Chuck Norris jokes.  You know the ones where Chuck Norris dominates someone or something (see link for Chuck Norris jokes).

      When I was in Iceland, I saw this establishment.



     I guess Chuck Norris has set his sights on the restaurant industry.

- Henry Park

Data security - Myths busted

     Last year, I wrote about a security myth that frequently changing passwords is good for security (see blog post).

     The Trusted Identity Group at the National Institute of Standards and Technology released on March 31, 2017 a revised version of its Special Publication 800-63B, Authentication & Lifecycle Management. Although the NIST Guidance is only intended for Federal agencies, its influence is felt throughout the IT sector. Among its recommendations, this document addresses two security myths concerning passwords and updates current best practices.

     First, the Publication states that passwords "SHOULD NOT ... be changed arbitrarily (e.g., periodically) and SHOULD only require a change if the subscriber requests a change or there is evidence of compromise of the authenticator" (section 5.1.1.2).

     Second, the Publication states that other a minimum length requirement "no other complexity requirements for memorized secrets SHOULD be imposed" (section 5.1.1.1) and "composition rules (e.g., mixtures of different character types)" SHOULD NOT be imposed on passwords (section 5.1.1.2).

     The Publication defines:

The terms “SHOULD” and “SHOULD NOT” indicate that among several possibilities one is recommended as particularly suitable, without mentioning or excluding others, or that a certain course of action is preferred but not necessarily required, or that (in the negative form) a certain possibility or course of action is discouraged but not prohibited.

- Henry Park

Privacy - Google to stop scanning Gmail messages for ads

     Earlier today, Google announced that it will stop scanning messages received by users of its free Gmail services for purposes of ad personalization (see blog post).

     According to Google, this change was brought about because there was some confusion by users of its G Suite services, which are paid services, as to whether their messages were being scanned.  The answer was and still remains -- no, users of its G Suite services never had their messages scanned for ad personalization.

- Henry Park

Copyright - US Copyright Office Review Board Decisions

     At the beginning of June, the U.S. Copyright Office launched a database of copyrightability decisions by the Copyright Office Review Board. The database contains decisions from April 2016 through the present, and new decisions will be added.

 
     If a copyright application is refused registration, the applicant has two administrative appeals (see 37 CFR 202.5). The first appeal or reconsideration request is within the Copyright Office's Registration Program. The second appeal or reconsideration request is to the Review Board, which consists of three members: the Register of Copyrights and the Copyright Office’s general counsel, or their respective designees, and a third appointee named by the Register.

     If the Review Board affirms the earlier deciisons, then an applicant still has one last appeal. The applicant can file a court action alleging a violation of the Administrative Procedure Act (APA).  Under this claim, the applicant is alleging that the Copyright Office's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law". This is a tough hurdle to clear.

- Henry Park

Pokemon Go - sponsorship opportunities

     I was in New York City last week, and I saw this PokeStop in Pokemon Go.

     I knew that McDonald's had struck a deal with Niantic to sponsor PokeStops in Japan, but I hadn't realized that Starbucks had done a similar deal.
 
- Henry Park

Trademark - This seems familiar...

     I saw this wandering around in Iceland.



     It seems to be a riff on someone else's trademark (see link for the other trademark).

- Henry Park

Trademark - Free Speech triumphs

     Last year, I blogged about how in Switzerland there were seven trademark registrations that included the word FU*K. And, that in the U.S., there was an appeal to the U.S. Supreme Court to the law that prohibited the registration of a trademark that may disparage any person.

     The Supreme Court just ruled (see decision). 

We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

     This decision should have an immediate impact on the Washington Redskins American football team's trademark dispute (see link 1, link 2).  Additionally, this decision may affect adversely the other prohibitions in the Lanham Act (see 15 U.S.C. 1052(a)).

- Henry Park

Not monkey business - Chimpanzees are not persons

     In March 2018, I wrote a blog post about a New York attorney who was arguing that chimpanzees should be treated as a legal persons for purposes of habeas corpus.

     A few days ago, on June 8th, the New York state appellate court, the Supreme Court, Appellate Division, First Judicial Department ruled against the petitioner attorney (see Matter of Nonhuman Rights Project, Inc. v. Lavery, 2017 NY Slip Op 04574).

    In its ruling, the appellate court stated:

The gravamen of petitioner's argument that chimpanzees are entitled to habeas relief is that the human-like characteristics of chimpanzees render them "persons" for purposes of CPLR article 70. This position is without legal support or legal precedent.

     The court found that:

petitioner does not cite any sources indicating that the United States or New York Constitutions were intended to protect nonhuman animals' rights to liberty, or that the Legislature intended the term "person" in CPLR article 70 to expand the availability of habeas protection beyond humans. No precedent exists, under New York law, or English common law, for a finding that a chimpanzee could be considered a "person" and entitled to habeas relief. In fact, habeas relief has never been found applicable to any animal.

      The court dispatched the argument that other jurisdictions have recognized non-human entities to be 'persons' stating:

Petitioner's additional argument that "person" need not mean "human," as evidenced by a river in New Zealand designated as a legal person owning its own riverbed pursuant to a public agreement with indigenous peoples of New Zealand and pre-independence Indian court decisions recognizing various sacred entities as legal persons is not relevant to the definition of "person" here in the United States and certainly is of no guidance to the entitlement of habeas relief by nonhumans in New York.

     The court found an additional problem with the requested relief:

Even assuming, however, that habeas relief is potentially available to chimpanzees, the common-law writ of habeas corpus does not lie on behalf of the two chimpanzees at issue in these proceedings.... Since petitioner does not challenge the legality of the chimpanzees' detention, but merely seeks their transfer to a different facility, habeas relief was properly denied by the motion court.

     The court then went on to acknowledge the petitioner's goals, but referred them to the legislative  process stating:

While petitioner's avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process.

- Henry Park