Friday, April 29, 2011

Green Confusion

There are two national political parties in the US that lay claim to the title Green. As you may have noticed, neither of them can claim to have helped elect any Green candidates recently. But that doesn't stop them fighting each other, rather like the feud in the Life of Brian between the Judaean Popular Front and the Popular Front of Judaea (splitters). Now the Green-on-Green rivalry has spilled over into intellectual property law.

After stymying the trademark application of the Green Party of the United States last year, the Greens/Green Party USA has filed its own application. It would like federal recogniton for the exclusive right to use its name as a trademark. Last year's TTAB decision held that the competing parties' marks are confusingly similar.

This is not the first time the Greens/Green Party USA has filed a trademark application. In filed once in February 1992 but failed to respon to an Office Action, so the USPTO deemed the application abandoned.  It tried again in August 1994, only to abandon the application again.

Third time lucky?  In March 2005, the Greens/Green Party USA filed another application.  Much correspondence ensued.

But then, on April 5, 2011, the United States Patent & Trademark Office issued the Notice of Publication, which started the clock running on the 30-day opposition period.  Will the Green Party of the United States file timely opposition? The clock is still ticking.

Thursday, April 21, 2011

Pirate Party Making Waves

Ryan Moffitt is running for the office of state representative in Florida's 86th district.

Why does this merit a mention in my law-office blog, as opposed to my political blog, Mass Greens? The reason is that Mr. Moffitt's candidacy bridges third-party politics and intellectual property law, two subjects that rarely overlap, at least in my experience.

In addition to being a candidate, Mr. Moffitt is chair of the Florida affiliate of the Pirate Party, which campaigns for a thorough overhaul of copyright, patent, trademark, and privacy laws here in the US and at the international level. The party started in Sweden and now boasts outposts across Europe and the United States, including Massachusetts

One of the main planks in the Pirate Party's platform is the revision of the Copyright Act. At present, for works created after January 1, 1978, copyright lasts for the life of the author plus 70 years. In other words, copyright is descendible.  This means that the copyright in any given work outlives its creator, so that authors can leave their copyright to their legatees.

We can bequeath and inherit copyright just as we can bequeath and inherit other forms of personal property and real estate. A major difference is that the legatee's exclusive right to the copyrighted work evaporates at a certain point, i.e. 70 years after the testator's death.

Of course, 70 years is a pretty long time. When I started practicing law back in 1998, copyright lasted for life plus 50 years. Even 50 years is quite a long time for the public to have to wait for the exclusivity to expire and for a work to enter the public domain.

As the Pirate Party points out, these lengthy terms are a relatively recent phenomenom. Originally, Congress set a much shorter life-span for copyright, just 14 years. And that is the length of time that the Pirate Party would like the Copyright Act to revert to. It would also like to repeal the Digital Millennium Copyright Act and create a presumption in favor of derivative works constituting fair use, shifting the onus from the defendant (who currently has to prove that a derivative work is fair use) onto the plaintiff to prove that it is not.

The party also has opinions about trademark law, and I would like to know what the Pirates make of a new proposal before the Massachusetts Legislature. Senator Steve Tolman's bill (Senate 1635) would require courts interpreting Massachusetts trademark law to construe it in a way that is consistent with federal trademark law. 

Somewhat unusually for a Massachusetts statute the new law would contain an explicit intent provision, stating that it is the intent of the Legislature "to provide a system of trademark registration and protection substantially consistent with the federal system."

Well, Pirates and non-Pirates alike: What do you think? A sensible housekeeping measure or a slippery slope?