Fool’s News

The girl’s mother doesn’t think her daughter is responsible in any way because, ya know, no one has any responsibility for watching where one walks.  Ugh.

It seems that Google intends to compete with Microsoft again.  Apparently, Google intends to launch its own operating system, designed to compete with Windows.  Cool!  I am some hope again.

Trademark practitioners, rise up!  Grab your copies of McCarthy and join me!

The USPTO and, more specifically, its trademark Examining Attorneys must be reigned in.  There are too many bullshit loophole of which they can avail themselves.  The most notorious is that “Examining Attorneys are not bound by the decisions of other Examining Attorneys.”  Fine.  That’s all well and good.  However, that cannot simply be used as a crutch.  If they are going to rely on this catch-all argument, they must be required to support it in some way.  They must distinguish the case before them in some way.  There are ways to do this.  They can distinguish the earlier approval based on the facts.  They can even say the earlier Examining Attorney made a mistake.  [Yes, this is probably not politically wise; however, if they are going to rely on the B.S. catch-all I'm-not-bound argument, then there needs to be some trade-off.]  They can even argue that the commonly-understood meaning of a term has changed, thus, rendering a term descriptive, which was not 15 years ago.

However, the blanket I’m-not-bound argument, alone, cannot be tolerated.  More applicants need to take a stand against this kind of senseless, baseless and self-serving style of argumentation.

Here’s another example.  I recently received a second Office Action in which the Examining Attorney rejected my argument (concerning two marks which were not identical) that there were several third party uses of similar marks.  In rejecting the argument, the Examining Attorney wrote, “The existence of third-party uses of XXX showing potentially infringing use cannot justify the registration of another [non-identical] mark that is so similar to a previously registered mark as to create a likleihood of confusion, or to cause mistake, or to deceive.”  Note:  No citation by the EA.  There are two issues with this refusal.

First, the Examining Attorney assumes, but does not prove, that the registered mark was previously registered.  The EA does not know which party was using the mark first.  And, undoubtedly, if I were arguing that point, the EA would certainly use the you-didn’t-prove-it argument against me.

Second, what the fuck happened to the sixth DuPont factor. You know the one:  The number and nature of similar marks in use on similar goods.  Isn’t the point of this factor to weigh in favor of applicant?  Of course, if I simply pointed out third party registrations, I would have been told that third party registrations are not evidence of use in commerce, or at least not evidence of use in commerce for all of the services covered by those registrations.

The PTO cannot have it both ways.  It cannot require evidence of use of similar marks by third parties and, then, when presented with it, argue, well, just because they’re infringing doesn’t mean I have to let your mark infringe to.  The Examining Attorney’s refusal of this evidence completely eviscerates the sixth DuPont factor.

The Board and the Federal Circuit have concluded that consistency is desirable.  In re Merrill, Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d 1567, 1571, 4 U.S.P.Q. 2d 1141, 1144 (Fed. Cir. 1987) (review of trademarks should be conducted “in accordance with practice and precedent”); In re Consol. Cigar, 35 U.S.P.Q. 2d 1290, 1295 (TTAB 1995) (“uniform treatment under the Trademark Act is desirable”); In re Sun Microsystems, Inc., Serial No. 75430475 (TTAB March 9, 2001) (“the Office strives for consistency”).  Really?  You would be hard-pressed to fool me (pun intended).

It is time to hold to the USPTO to this mandate.  End the bullshit.

Now, I just need a client who’s prepared to take it all the way.

For a company which claims to be a leader in information services, West, a Thomson Reuters business, is kind of pathetic.  I recently renewed my Westlaw subscription with West.  I received an email with the following subject line:

Order Confirmation 0005XXXXXX (PLEASE DO NOT REPLY

Yes, the omitted closing parenthesis is their mistake.

And here is the header of the email they sent:

Please note the “From:” address.  Then, in the body of the attachment, the following paragraph appears:

If I hit reply, my email will go unanswered because this mailbox is UNATTENDED!  What’s the email?  west.customer.service@thomson.com.  Say it with me.

In the same .pdf file/letter that informs me I should not reply to this email is the following:

Whoa!  What’s that email address?  Wait.  Isn’t that the same email address that I was told to not reply to?  Why, yes it is.  It is also the same email address I was given over the phone when I was renewing my subscription.  I would scan in my hand-written notes and upload them, but I’m too lazy at the moment.

So, West, is west.customer.service@thomson.com an attended or an unattended email address?  Given American corporate culture presently, it would not surprise me if a company would in fact name an email account “customer.service” and leave it unattended.  Am I too cynical?

And these are the guys we trust to provide us with up-to-date, current and accurate legal information?  Anyone else having second thoughts?