The Trademark Crackup

Marty Schwimmer comes through again with this pickup: A great article by Uli Widmaier about how courts have forgotten the "use" part of the Lanham Act in their rush to find trademark infringement all over the place, even where the trademark is commercially invisible.

This is the thinking that could save Google, and should. Too bad the Europeans utterly don't, and won't, get it. But at least American trademark lawyers, and judges, should.

Apple not the Apple of TigerDirect's Eye

Colin Samuels of the Infamy or Praise blog writes about the odd trademark lawsuit by Internet computer discounter TigerDirect.com, which is where the Coleman Law Firm PC gets almost all of its computing and electronics equipment. Colin's treatment is terrific, but check out this excerpt from the AppleInsider.com article linked to above:

At the root of the issue appears to internet search results. Tiger Direct contends that Apple's use of the name has adversely affected its ranking amongst the Internet's largest search engines, Google and Yahoo, bumping the company from its usual spot in the first three results.

Now, what in tarnation have we unleashed here?! Is a search result for a trademark -- even for essentially unrelated services or products (TigerDirect makes neither software nor computers under its own name) now actionable harm under the Lanham Act?

Grrrrrr!

UPDATE: TigerDirect loses at the preliminary injunction stage.

Good Deed for the Day: Helping Old Producers Cross Agents

In far-off Hong Kong, the Motion Picture Association has created a Boy Scout merit badge on copyright: "Boy Scouts in Hong Kong now can earn merit badges for learning about the wonders of copyright law--at least the version described by the Motion Picture Association," reports Declan McCullagh. (Hat tip to A Mensch -- no, not A. Mensch.) So much for the LLM.

Keep it Underneath Their Robes, Please

I recommended the Underneath Their Robes blog a little while ago. It is clever and well written, and the concept is brilliant. But I have to say I am having second thought about the whole, albeit inevitable thing -- it's bad (clever, yes, but bad) enough treating the Demigods of Article III like rock stars, but extending that treatment to judicial clerks is really a bit unseemly, isn't it?

It's not as if they're not all going to be federal judges themselves down the line, anyway!

And Let Google the Dogs of Law

It had to happen -- another piece of territory now being rented out in the Lanham-Act-as-competition-buster industry: A new service has announced that it will scoop up the Google infringements for ya for a few kopeks. Their proud slogan: "Online trademark infringement is the act of using search keywords that specifically target another company's brand to generate online traffic. " The name of their company, "Gooroo," is obviously meant to "free ride" on the trademark equity of "Google," but if they're goring that ox anyway, may as well take an extra chunk, eh?

Myth becomes law becomes commercial reality -- all based on the spurious judical-activism-made concept of "diversion" and its handmaid, "initial interest confusion." But I repeat myself.

Still, watch this space: Some folks at INTA just may have something helpful to say about this....

Exactly Wrong on Free Speech for New Media

Via the permalink-less Kausfiles, a link to excerpts from (and suckup commentary about) remarks by CNN suit Jonathan Klein espousing the self-parodic, anti-democratic, anti-free-speech, and, yes, darn it, bad-for-the-children "MSM" concept that, well, alright, maybe we will let new kids play in our sandbox, as long as we can still decide who gets the secret decoder rings:

When the Jeff Gannon bomb exploded in the White House press room, where was the White House Correspondents' Association? ... I have a modest proposal for the White House Correspondents Association, whose annual black-tie gala I eagerly await next week: cancel the gala, and instead spend that time and energy creating standards--and enforcing them--for those who would call themselves White House correspondents.

Sheesh. The "Jeff Gannon bomb exploded"? How about the Helen Thomas bomb? Or is that okay 'cuz she's a freedom fighter?

Lotsa Matzah

Passover has kept blogging very "light" (as they say) this week, and I am sure I will be digging out and catching up all next week. But it would not be kosher if I didn't leaven things with a little seasonal trademark blogging. So here's a link to the Orthodox Union, the organization that advertises its "O-U" trademark, and rightfully, as the "world's best known kosher trademark," which it quite certainly is. See here for information on the application of the "O-U" to kosher for Passover foods. Not that the O.U. owns the right to the "O-U" combination -- hardly. Rather, it's the "circle-U" or "U in the O" device which is where the action is and which, like any other good and valuable trademark, requires aggressive enforcement.

The O.U. isn't the only kosher certification, of course, though it is the biggest and is very well respected. Some products bear the hechsherim or certification marks (trademarks that serve as an identification of source, not of a good itself, but of a certification about that good as to quality, such as being kosher or being safe) of various other agencies -- all of which, with all due respect to the federal judiciary, answer to a higher authority. Because the True Judge adjudicates beyond lifetime tenure!

Enjoy the rest of the holiday, or what should be a beautiful weekend if it's not your festival.

Next, Legalization of Blindfolds

Hmm, how will the politically correct spin this one? The President has signed into law the Family Entertainment and Copyright Act, a bill that legalizes a device that can be set to filter not-nice content from DVD's. It works on the hardware side. (See this earlier post.)

Naturally, Hollywood is horrified at its inability -- rare -- to get a piece of the action:

The legislation came about because Hollywood studios and directors had sued to stop the manufacture and distribution of such electronic devices for DVDp layers. The movies' creators had argued that changing the content — even when it is considered offensive — would violate their copyrights.

Yell "protect creators" and Hollywood usually gets its way. Here, however, it was up against the cultural (or "religious") right and "the family" (I'm one of them, by the way. I like the idea that I might be able to make these works kid-friendly, though I'm skeptical it will meet my family's own standards). Evidently this legislation managed to get painted the colors of apple pie, Mother and baseball and was beyond Tinseltown's clutches.

Kind of a conundrum for the reactionary left here. On the one hand, this is a blow against the Machine, a content-wants-to-be-free, I-bought-the-damned-DVD-I-didn't-license-it sort of thing. It's also ridiculously logical and, really, the height of chutzpah to oppose. Do I need Michael Eisner's permission to adjust the bass when I watch "Finding Nemo"?

On the other hand, ewww, who's behind it? The censors, the believers, the witch-hunters! (The hypocrites!) It will be interesting to see how this falls out.

UPDATE: My bad! Erstwhile (for now) lawyer and Tigernet buddy Matthew David Brozik sent me his scholarly article (evidently not available for free on line) in volume 31 of the Rutgers Computer and Technology Journal on this topic, written while the legislation was pending, which he sent to me a few weeks ago. He seems to more or less agree with my headline, writing, "[T]he proposed legislation is unnecessary, as it would only make affirmatively lawful what is now not unlawful."

iDiots

The AP reports that Apple has responded to a new book about Steve Jobs entitled iCon Steve Jobs: The Greatest Second Act in the History of Business by yanking all the books by the publisher, John Wiley & Sons, off the shelves of its Apple stores. MacWorld confirms the story and adds good detail:

"I was told late last week that Wiley had been talking to Apple for a while," [author Jeffrey] Young told MacCentral. John Wiley & Sons Inc. provided Apple with a copy of the manuscript to verify facts.

"Apple didn’t have any factual issues, but they just didn’t want the book to be published, apparently," said Young. Not publishing the book isn’t an option, however.

Especially now that it's become a cause célèbre, and a guaranteed bestseller, thanks to their heavy-handed tactics. When will they learn that corporate censorship, while perfectly legal, almost always backfires -- especially when the target is a publisher, and the topic is one of great interest on the Net? As long as companies are in the thrall of the cult of the corporate personality, apparently never.

(If, on the other hand, you are a member or friend of the cult and don't want to offend the Great Man, why, try this title by my old college friend Alan Deutschman. Blurb- and review-wise, it sounds like the same book, which of course is a totally unfair assumption to make. But why shouldn't Alan get a plug just because no one tossed his opus into the bonfires?)

Pitch for Blawg Review #3

Read all about it: Appellate Law & Practice: Blawg Review #3. You just might learn something!

Don't Say I Didn't Warn You

Google shares are up only seven-plus percent this morning. Am I sitting pretty? Let's put it this way: My haircut this morning? Paid for.

Google Takes Offense, Takes Offensive (for a change)

According to Search Engine Journal, perennial trademark infringement defendant Google has filed suit against Froogles.com, an online shopping site. The New York federal complaint is here. Google ahs already lost against Froogles at the ICANN level, the site reports. Don't confuse with Froogles.com with Froogle.com, which is a Google site. Does that figure into the claim now? Take a look and let me know!

Blawg Review #2

Welcome to the sophomore edition of the Blawg Review. We assume you have brought your sharpened, #2 lead pencils, your registration card, and a valise full of small, unmarked bills. So let's begin with a some light stretching, shall we?

First, let's talk about what we're not going to do -- that is, crash the system by showing how, like, iconoclastic we can be with our "carnival." No, counselor. No antipopes here; we have enough trouble with the Ninth Circuit! We're blawgers, dammit. And to paraphrase St. Kingsfield, if you come in here with a head full of mush, I promise, you will leave linking like a blawger!

Now, down to cases, as they say. And do I have to keep saying "blawg"? I don't think they can make me.

LAW BLOG BY THE BAY
The mysterious "SF Attorney" of the Legal Commentary blog (don't worry, his blah-blog name balances out his exotic real last name -- good move!) sends in this link in which the California Supreme Court diddles with the ancient and venerable doctrines of contract and -- suprise -- decides they aren't exactly really contracts so much, after all. SFA describes his blog as a "Discussion of all things legal and not-so-legal." Yes, he's leaving his options open -- but his mastery of the niceties of the California Practice is not for nothing. And hell, give him credit: His blog description didn't use the words "rant" or "random." If your wandering briefcase ever points you towards the Pacific, you must take a look at how this gent dices and slices West Coast exotica such as the California SLAPP law. As far as I know, SF Lawyer wants to remain anonymous, but you can email him from the blog.

JUST ANOTHER JUSTICE
Moving from the city where the ground shakes to Notes from the Legal Underground, Evan Schaeffer sends in this item, a pre-publication review, based on a press kit, of the new magazine Justice that will debut on June 21. Evan's kind of shy about expressing his opinion about this magazine, so you may have to read his review really closely to figure out his subtle take. The post is called "Justice is for Morons." Frankly, Evan may be onto something. The home page at Justice does make Steve Brill sound like Learned Hand. Incidentally, if you like this "carnival" atmosphere -- and Evan does -- check out his roundup of law school hijinx on the web. They're not just dunking those judicial wigs into inkwells any more, believe you me! No wonder they're so tired. And so uptight -- maybe not -- about rankings!

DON'T CONFUSE ME WITH DELAY
Did we say hijinx? Well, reading the editorial pages, you'd think nothing could be higher or jinxier than Tom Delay and his friends, so lucky for us JMoore of JurisPundit gets political this week. He's challenging the conventional wisdom that Texas has been horribly gerrymandered by the GOP. JMoore finds that not only is the alleged gerrymandering no worse than California is gerrymandered for the Democrats, but that actually the Texas congressional caucus isn't hardly any different from the state's Republican / Democratic split at large. Take a look -- this is good, thoughtful law blogging for a guy with two consecutive capital letters in one name.

RAP TALK JUMPS SHARK; JAG BLOG AWAG
On the other hand, blogs with three consecutive capital letters can be quite fine, if somewhat suggestive, too. The JAG Central blog -- "The world's first weblog devoted to military justice and military law issues" -- this week demonstrates that it is, indeed, all that, and links to a story
in which U.S. Senator Bill "Major" Nelson publicly uses the word "dissing" as a way of describing how he believes the Bush Administration is treating the United Nations. "Dissing" is evidently a word found in a charming urban subcultural patois of some kind -- found in Florida, perhaps? -- which term, we have learned, is meant as a (much needed!) shorthand for "failing to show a requisite amount of respect." It's the sort of nuanced, articulate style of argumentation you'd expect from a member of the world's most exclusive club.

STAMP OF STUPIDITY
Back Cali-way, SoCalLawBlog tells us about how the D.C. Circuit has affirmed that the failure to put a postage stamp on a routine mailing to the U.S. Copyright Office should indeed cost the "once mighty" MGM studio $10 million. The good news is, they've got a plan to make it back.

THE LAW BLOG ANSCHLUSS
Moving from fiction to documentaries, Professor Larry Ribstein's Idioblog asks the obvious question: What with all these law blogs and stuff, wither the law reviews? Even a better qeustion when you consider that some law schools are actually giving the competition enough rope to hang them with! This is definitely the topic of the moment.

Okay, then, fine, Ribstein's not the first one to ask it, but frankly he's the first one who looks quite this natty in a suit and has an endowed chair in a law school to ask it: "What, then, is the future of student edited law reviews? In a prior post I defended them along Hayekian lines -- they 'let a million flowers bloom.' [Uh oh -- that makes one Lenin and one Mao allusion in a post about a libertarian! -- Sorry! ed.] But now blogs can do that, much faster, and without the perversities of the law review selection and editing process we all love to hate."

CHICKS IN THE STACKS
Okay, he's also the first one to defend law reviews as against blogs along Hayekian lines. Not, as Jeremy Richey reminds us, that there's anything wrong with that. But it does make you -- or at least it, or something vaguely like it, makes Gordon Smith and Christine Hurt think ... as they do so well on their Conglomerate blog ... about what an all-female law school might look like, and why.

NO FEE LUNCH
But how free-marketish, really, should the legal profession be? It is, after all -- as demonstrated by brainy, bloggy practioners like David Swanner -- a learned profession, not a furshlugginer business. That's why David Giacalone of the f/k/a/ blog reminds us not to jump so fast to the world of "alternative billing" arrangements, "value pricing" and the like, whose evangelists glibly "offer the easily-tempted lawyer a paradise of premium clients and fees, with increased profits, while never probing the ethical and fiduciary duties of the lawyer to insure that the client is fully informed, treated fairly (and without manipulation) and, in the end, charged a fee that is reasonable for competent and diligent services." As Giacalone, whose blog has a haiku motif, might put it:

Fiduciary

Lawyer, client, counselor

D & B.

Okay, I'm not sure that's exactly what he meant. But I do think he would take some heart from this posting on an anonymous blog called Opinionistas about the humanity of corporate practice, vel non.

USE ME

Along similar, if somewhat less prosaic lines -- okay, a lot less prosaic lines -- David Jacobson's External Insights blog just wants to "help[] businesses make good decisions." Including lawyers. In this post he talks about the "usability" of firm systems. In law firms, David would like us to be really clear on where to plug these darned things in. He might want to start with George's Employment Blog, which talks about the whole making-it-work thing as applied to blogs, blogging, business and bald-faced alliteration. It's a pretty handy employer's guide to understanding how this New Thing is going to affect your business and your relationship with your busy, thoughtful and bloggy employees.

BLOGGING FOR THE RECORD

Evan Brown blogs regularly about cases involving the Internet. And that's why his blog is called Internet Cases. If you've read this far, you should be putting Evan's feed into your RSS reader. Last week he wrote about a case from North Carolina that gives a good example of what not to say on one's weblog. Stuff like, you know, "I'm going to drop a boulder onto the highway." That is, if you're going to go ahead and do it.

Well, it's been a long night, and I have more Passover cleaning to do plus a motion in Queens tomorrow. Hope you enjoyed the "carnival," but please finish the hot dogs outside until after the holiday. (The buns, the buns!) Blawg Review has information about next week's host, and instructions for how to get your law blog posts reviewed in upcoming issues. And readers: Your stubs are good at next week's show, being held at the Appellate Law and Practice blog, followed the week after by the Law & Entrepreneurship blog by the same Gordon Smith referred to above and a cast of law students. They blog, you decide!

Have a happy and kosher Passover!

Call for Papers

This is our last call (tonight) for submissions for consideration for inclusion in next Monday's Blawg Review, to be hosted here. (Any submission containing a longer string of conjunctions than the previous sentence is guaranteed inclusion.) The boys at Blawg Review do all the work -- just click here and you're halfway home, homey.

"But Mr. Coleman, how does it work, this Blawg Review? Please explain -- we're not the kind of people who were exactly threatened with journal editorships while in law school, you know." Yes, yes. I know. I know very well. But that is the past. Blogs -- blogs, my dear ones, are the future. Come, take a look at the virtual blawg journal with me!...

We'll collate the submissions 'round midnight on Saturday, distribute the articles to our nationwide network of albino-toned 2L's spread out throughout the law libraries of the 20 top 10 law schools to do all the cite checking, get the galleys to our faculty advisor, Professor Reynolds, by 9 AM Sunday and then deliver them -- reviewed, revised and remarkable -- to everyone's advisor, Professor Leiter, to correct all the punctuation and spelling and return it by courier pigeon to my New Jersey redoubt by 3 PM that day.

Through Sunday evening the pace only quickens, along with the excitement and my heart rate, unless I remember my pills. We then remove all the footnotes, arbitrarily transpose paragraphs from one entry to the next, give the text to an expert analyst to tighten up the HTML, stop for supper, spend an hour and a half looking for the floppy, put the kids to bed and just copy last week's Blawg Review. I mean, seriously, whom are we kidding here?

Remember: When it comes to journal work, it's an honor just to be nominated! Now send in those links!

Online "Freedom of Speech Carveout" Bill and the Blog Privilege

Instapundit points to RedState.org, which reports on the "Online Freedom of Speech Act" that was introduced in the House:

Today in the House of Representatives, Congressman Jeb Hensarling (R-TX) introduced a companion piece of legislation to Senate Minority Leader Harry Reid's bill (S.678) to exclude the Internet from the definition of 'public communication' in the Bipartisan Campaign Finance Reform Act of 2002.

Glenn Reynolds thinks we should all "get behind" it. It's hard to disagree, at least in the narrow sense that it would exempt the Internet from Federal Election Commission Rulemaking under under McCain-Feingold.

But. In a way, I can't think of anything worse.

I am in an alumni discussion group where a friend was just arguing, somewhat pedantically, that "it's not unconstitutional until a court says it is." Well, McCain-Feingold is unconstitutional, and I say it is. (I'm hardly the only one.) Right now blogs and other Internet media are the most dynamic and, arguably, influential voices of democratic commentary and exercises of real free speech. That may not always be so, as hard as it is for bloggers and the like to recognize that.

For example, consider that websites on the Internet are broadcasts. You build it and -- maybe -- they will come. The Internet is increasingly becoming, however, a conduit for "narrowcasting" -- the delivery of individually customized content. Will the "Internet exception" apply then? Well, under the proposed new language -- "Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end of the following new sentence: 'Such term shall not include communications over the Internet'" -- maybe it would. Maybe. But we neither know what form tomorrow's free speech will take, nor how yesterday's free speech may or may not yet be adapted to become a "communication over the Internet."

In fact, there is no principled reason to exempt the Internet from these provisions. If Harry Reid weren't so highly principled, I would think he's merely trying to curry favor with the Blogosphere. But in fact, he's doing something slightly different, and worse: He's offering a separate peace so that the repressive McCain-Feingold laws, bought and paid for by partisan groups with a partisan agenda, can live on.

I am not so sure we should "get behind" this law and thereby take the pressure off the Net and the bloggers, who are the ones who should be fighting the good fight to rid all media of the special treatment given to "the press" for its commercial speech (called "news" and "editorial" content).

That doesn't mean I'm not in favor of bloggers getting the same benefits -- and responsibilities -- as "journalists,"as I have argued before , and today, too, in commentary on Corante to a posting by Alex Wexelblat. I am. I just think everyone should get them -- or get them back. Everyone. And I am afraid that if the pressure is off bloggers, we're more, not less, likely to continue down the path to free-speech hell.

The Matrix Downloaded

Data security and privacy are not big topical interests of mine. Anything Europeans are obsessive about can't be all that important. Throw in the ACLU, that predictable bizarro-world weathervane of right and wrong, and I'm usually pretty sure "what to think." But part of this story about the announcement that LexisNexis databases were compromised far more than had been previously believed caught my eye. It was this:

Data-collection services provided by Seisint, based in Boca Raton, Florida, allow police and financial firms to sift through vast amounts of personal information -- from the color of someone's eyes to the type of car they drive.

One Seisint database called the Matrix, which allows state law enforcers to quickly zero in on criminal suspects, has come under criticism from civil-liberties groups.

Lexis bought Seisint last summer for three-quarters of a billion dollars. The ACLU was screaming about this "Matrix" database for a while now, and while most of their complaints did not move me, it appears that they were right on the nose about the security vulnerability of the data.

Unlike most bloggers (it seems), I am not a libertarian, nor the biggest "civil libertarian." I am skeptical of conspiracy theories and the like. And most private data, the stuff that the privacy fetishists obsess about, is, as one great man said (about something completely else), "dull, boring and omnipresent" and pretty much worthless -- a point I make to the typical would-be Internet defamation or privacy plaintiff in that weekly phone call we get around here.

But I will say this: If government agencies are going to use their presumptive police power to collect data, however legitimately, they are -- regardless of whether they outsource the task or not -- obligated to insure that this information is retained securely. Even a law-and-order, Burkean conservative can recognize that duty, a duty of competence which is after all a premise of civil government ... right after ordered liberty and somewhere above free ham hocks.

It looks like the State of Florida (the increasingly incompetent-looking State of Florida), which has taken a lead role in the Matrix database project, along with LexisNexis, has a lot of explaining to do. Sorry, Mr. Olson, but I suspect that some of them there trial lawyers will have some hand in making them do it.

Amici write to urge the court to adopt a test that will not impede journalist’s use of the Internet to report news, by limiting their constitutional protections when they publish there. They ask that this Court to find that people who publish in online news sources are subject to the same constitutional protections under the reporter’s shield as reporters who publish in traditional media, and urge this Court to adopt the functional test articulated in Shoen v. Shoen, 5 F. 3d 1289, 1293 (9th, 1993) which asks whether the reporter had “the intent to use materials—sought, gathered, or received—to disseminate information to the public and [whether] such intent existed at the inception of the newsgathering process.”

This is the heart of the friend of the court brief that was filed today by Lauren Gelman of the Stanford Law School Clinical Education Center for Internet & Society's Cyberlaw Clinic. Our client, the Media Bloggers Association, was among the parties joining in this brief and requesting permission to argue it before the Supreme Court.

Writing on to Blawg Review

I didn't "go out" for law review in law school -- don't get me started -- and my career has been a pretty sordid exercise since then because of it.

I'm not making that mistake again.

Next week this blog will be host of the second-ever edition of Blawg Review, the "carnival" (why a carnival? just because Glenn Reynolds calls these things carnivals? who made him chief pimp? (Meant in a good way.) Okay, who else besides half a million daily readers? And he didn't even use my "carnival of the cardinals" idea!) -- I mean the weekly festival of law blogs (blawgs, right?).

Information on the rules of the game, including submission guidelines (yes, you must submit) here. This week's Blawg Review here at Evan Schaeffer's Notes from the Legal Underground blog, "A weblog that asks the question--Why are lawyers so stuffy?"

Incidentally, I resent the premise, Evan. Stuffiness is not something just anyone can affect. I have worked long and hard to affect stuffiness.

UPDATE: The emeser mensch, Jeffrey Haemer, writes in to 'splain as follows (hyperlinks added):

FWIW, I think all these are spawn of Silflay Hraka's original "Carnival of the Vanities," which, in turn, is an allusion to the carnival in John Bunyan's Pilgrim's Progress (as is the title of Thackery's Vanity Fair).

Education is a wonderful thing! I will have to try one of these fiction books one of these days. I think we might want to slide Tom Wolfe's Bonfire of the Vanities in there... along with WizBangBlog's own back mutation of the whole thing.

Reporters without Borders Nominates MBA for Freedom of Expression Blog Award

Yesterday the Media Bloggers Association announced that it has been nominated for a "Freedom of Expression Blog Award." You can read about the award here. You can vote for the MBA, and -- entirely incidentally -- thereby make me (the MBA's lawyer) look a little good, here. Do!

Overreaching, Part XXVI -- Major League Bozos?

The Sports Law Blog reports on a story I first saw in the hard copy edition of IP Law and Business. A version of it (that magazine, like almost everything else, is owned by AmLaw Media) can be found here. Bottom line: Major League Baseball is asserting the "right" to the exploitation of baseball statistics, serving up such gopher balls as, "Player statistics are in the public domain. We've never disputed that. But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." The angle? Perhaps, maybe, the stats themselves don't belong to the league, but, uh, the "methodology" for computing them does.

Utterly idiotic. Fabulously obnoxious. Rent your pinstripes, baseball owners! It's not as if you have bigger problems to deal with.

Greg at the Sports Law Blog put it well:

Thus, it seems to me that baseball will lose this claim. Statistics are facts, nothing more, and can be disseminated as freely as can news stories. It is unclear how extending copyright to statistics would not also impact newspapers, television stations and commercial websites that also report baseball statistics. Baseball's methods for "compiling" these statistics consists of the advanced mathematical functions of addition and averaging.

I'm not even sure it's true that MLB itself (which has also had domain name issues of interest to legal professionals) has in any innovated or created the statistics. Most of these seem to have been created by fans (lots of fans) and media outlets.

All of which should make MLB happy. These baseball stats take on a life of their own and just route consumers right back to the product. Why it is that every single damned subsidiary thing that emits from a "property" has to be snagged, bagged and tagged is just, I guess, the waters of capitalism seeking their own level. In this case, however, here's hoping the courts find that MLB is all wet.

UPDATE: David Marc Nieporent (of the famed Jumping to Conclusions blog, and) of our office reports as follows:

If you read the lawsuit for declaratory relief filed by CDC against MLB, attached as exhibits are the C&D letters sent by MLB. They make trademark and publicity claims, but no copyright. (Although the complaint for relief does ask for declaratory judgment on copyright, as well.) http://www.businessofbaseball.com/docs/CDC%20v%20MLBAM.pdf