Category: News Feeds

If Alan Dershowitz were your grandfather, you’d at least take away his phone.

Most of the men accused of having sex with underage girls provided by Jeffery Epstein have issued terse denials and refused further comment. Even Prince Andrew slunk off in silent ignominy after that disastrous interview where he claimed to be unable to sweat due to “what I would describe as an overdose of adrenaline during the Falklands.”

No such dignified silence for the 81-year-old Alan Dershowitz, who was part of the legal team that negotiated Epstein’s slap-on-the-wrist 2008 plea deal in Florida. Through hundreds of media appearances, Dershowitz has attempted to clear his name by describing his “perfect, perfect sex life” and insisting that, although he did get a massage at Jeffrey Epstein’s house “from a woman in her 40s. I think her name was Olga,” it was totally fine because “I kept my underwear on during the massage.”

He’s given countless disastrous interviews trying to establish his whereabouts twenty years ago from flight manifests.

Who is this tweet responding to? Dunno, but whoever it is better stop lying!

The old man yelling at clouds has even written a book about poor, innocent men in the #MeToo era.

Get your copy now, it’s free!

Dersh has had a lot of time on his hands recently, what with being unable to go to his favorite nude beach because of COVID. Did he have time to chat about his unfortunate clothed summer with reporters? You bet he did. Did you need that visual? No you did not!

In his free time, Dershowitz has sued one of his accusers for defamation, waged a flame war against David Boies, and just last week tried to sic law enforcement on Miami Herald reporter Julie Brown for the dastardly crime of reporting in the first degree.

Read all about it in Dersh’s book. Did he mention it’s FREE?

When news of the arrest of Epstein’s alleged procurer Ghislaine Maxwell broke this week, Dershowitz rushed to link his name to hers in the press.

In a Spectator piece entitled “The Ghislaine Maxwell I Know,” he described a long acquaintance with the person accused by multiple women of trawling schoolyards for girls to feed Epstein’s habits, participating in sexual abuse of minors herself, and threatening them if they talked.

Dershowitz defends Maxwell by attacking the credibility of the two accusers who named him personally. No doubt she appreciates the attention, not to mention the free legal advice.

“In addition to presenting factual defenses, Maxwell’s lawyers may argue that the Statute of Limitations have expired on these 20-plus year allegations,” Dershowitz advised, adopting the president’s singular capitalization rules. “They may also argue that Maxwell is protected by Epstein’s original plea deal that expressly included Maxwell as someone who received immunity.”

“Only after a full trial, in which both sides are presented should reasonable people come to conclusions about Ghislaine Maxwell,” he concluded, before heading to Twitter to express his fervent wish that there were videotapes of young women being serially assaulted by Epstein and his friends.

“Reasonable people” would shut the hell up about now. But Dersh … is not reasonable people.

The Ghislaine Maxwell I know [Spectator]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Seven years ago, Daniel Snyder said that he would never change the name of the Washington D.C. National Football League team that he owns. In fact, he was so stern in his position that he told a reporter that caps could be used attached to the word “never.” Yet, the franchise has recently confirmed that it is conducting a thorough review of the team’s name and the press release makes it clear that Snyder is backtracking from his prior statement.

Assuming the Washington D.C.-based team removes the “Redskins” name and mascot, what should be the substitute? One offshore sportsbook has made “Redtails” the favorite, ahead of “Presidents,” “Generals,” and “Memorials.” Interestingly, there is an application to register the “Washington Redtails” pending with the United States Patent and Trademark Office, and PRO-FOOTBALL, Inc. (the owner of the Washington Redskins trademark registrations) is not the applicant.

On February 22, Deron Hogans and Thaniel Van Amerongen, employees at Deloitte and residents of Maryland and Virginia, respectively, jointly filed an application to register the “Washington Redtails” trademark in association with the licensing of intellectual property rights. It was published for opposition on June 23, which is typically one of the last steps in the process prior to receipt of a registration certificate.

No oppositions have been filed against the “Washington Redtails” application; however, the period to oppose or seek an extension to oppose registration of the application does not expire until July 23. Thus, it is possible that the pending application is opposed. If it is not opposed, then PRO-FOOTBALL, Inc. may be beating itself up should it ultimately choose to rebrand from the Redskins name to the Redtails.

Yet, even if Hogans and Van Amerongen get past the publication stage of the trademark registration process, they will still be required to convert their intent-to-use filing to an actual use filing by way of submitting an appropriate statement of use that demonstrates use of the “Washington Redtails” mark in a commercial manner and in conjunction with the licensing of intellectual property rights. Typically this would be demonstrated by way of submitting advertising and marketing materials.

The application appears to be nothing more than a shrewd attempt by a duo to potentially make some money from PRO-FOOTBALL, Inc. should it receive the registration and should the Washington D.C. NFL team be so interested in the name that it is willing to purchase it instead of go through the process of trying to revoke the registration. However, the examining attorney appointed to the file may realize that this application likely does not fall within the scope of what should receive registration in connection with a company or individuals in the business of licensing intellectual property rights. Examples of registrations that make sense in this space are “QUALCOMM,” which is used for licensing its own chip technology and “ASCAP,” which is used in conjunction with licensing music of others.

However, if PRO-FOOTBALL, Inc. decided to file an application to register the trademark for “Washington Redtails” today, it would likely be met with a suspension notice while the application filed by Hogans and Van Amerongen remains pending. It pays to be proactive in seeking trademark registrations, even if you firmly believe you will NEVER need to rebrand.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

I believe this recession will be looked back upon and known as the bursting of the bullshit bubble. All the things that we say we needed, must do, and have no choices about turned out to be bullshit. And, there is no looking back.

— Legal industry advisor Darryl Cross, head of Rainmaker Fitness and HighPer Teams, commenting on the fact that the way the pandemic forced the legal industry to shift to successful remote work environments has enlightened the powers that be as to the wonders of virtual meetings and the “bullshit” that is facetime.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

In a rational world, states would cancel the July administration of the bar exam so applicants could comply with basic public health advice and avoid a large, extended gathering in an enclosed space. The more committed states are to the keeping contact down now, the fewer cases we’ll have later.

Arkansas has taken a different lesson. Piggybacking off of research designed to warn Arkansans that the disease will likely spike if they don’t take steps today to halt the spread, the Arkansas bar examiners took exactly the opposite lesson and decided, “Well, we need to have the July bar exam, because things could be way worse later!”

The Board recognizes and is concerned that racial minorities are at a greater risk of COVID19 infection, hospitalization or death than white Arkansans. Health experts, however, seem to agree that the number of COVID19 cases will continue to escalate dramatically through October. In a University of Arkansas for Medical Sciences report dated June 12, 2020 and entitled “Weekly COVID-19 Trends in Arkansas,” the prediction for the number of positive cases for the end of June 2020 was 15,000. As of Monday, June 29, 2020, Arkansas’ number of positive cases was even higher, reaching 20,257.

UAMS predicts that the positive cases will peak in late September or early October. The Mean-Case Estimate is 133,056 and the Worst-Case Estimate is 251,834. Based on the UAMS estimates, the Board is of the opinion that it would be far more dangerous for anyone to be in a large group in late September or early October than July.

“To avoid the risk of disease spread, we must run our superspreader event early!” is a sobering message from the people supposedly protecting the public from stupid lawyers. Also, the letter was framed by a request from the ACLU to consider the racial dimensions of this decision, which the letter acknowledged before promptly waving the issue away with a vague “If there are additional ideas that you or others may have to help address these issues, we are more than interested in hearing them” request? It seems as if the only additional idea worth mentioning would be “not running the stupid test” and yet it seems to be the only one they aren’t considering right now.

In the exceptionally limited defense of the bar examiners, the bar exam will not be the only reason the state lurches toward catastrophe. Daily new cases are on the rise right now. Without the July bar exam there will still be a massive outbreak that only grows over time. But the argument “well, it could be worse” isn’t particularly compelling. If September and October are going to be deadly, you can ALSO cancel those in-person exams. There’s nothing but a noxious mix of laziness and stubbornness making this an “either-or” equation.

It also completely misses the point. It’s the systematic failure of anyone in Arkansas to take the lead that’s putting people in this situation. Just because the governor is too committed to passing the political buck to take direct action doesn’t mean everyone should just shrug their shoulders and accept their fate. Half the state may refuse to wear masks when they march on Little Rock to demand more Confederate statues, but that doesn’t mean THE BAR EXAM has to run its own superspreader event. If everyone just did the right things that they could control it would be better than doing nothing.

This is the mentality that heard about toilet paper shortages and said, “Well then everyone should rush to the store to buy more toilet paper.” And it’s holding the legal profession hostage.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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Sometimes things are just not what they seem on their face. This maxim seems to hold true in the context of trademark law, especially in light of a recent Supreme Court of the United States ruling involving generic trademarks. In United States Patent and Trademark Office v. Booking.com, the nation’s highest court held that “[a] term styled ‘generic.com’ is a generic name for a class of goods or services only if the term has that meaning to consumers.” What does this mean? All things considered, the impact will probably be less problematic for more obvious reasons than you may think.

First, some background on generic trademarks will help frame the topic. As I have written many times before (see here and here, for example), trademarks help distinguish one owner’s goods and services from those of another. With respect to the Lanham Act, a federal system of trademark registration was created that was built upon this common-law premise. Under 15 U.S.C. § 1127 of the Lanham Act, trademarks are essentially defined as “any word, name, symbol, or device, or any combination thereof” that is used by a person “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” In essence, a trademark distinguishes the owner’s goods and services from those of another through their use, yet also act as a source identifier of the goods and services. These elements are essential not only to obtain federal registration status, but to maintain, protect, and police such rights. So as a matter of definition, trademarks must distinguish as well as provide an identification of source. As a practical matter, generic trademarks cannot do so.

Why not? Justice Ruth Bader Ginsburg in the majority opinion on this case references the point quite simply:

The more distinctive the mark, the more readily it qualifies for the principal register [in the USPTO]. The most distinctive marks — those that are “‘arbitrary’ (‘Camel’ cigarettes), ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)” — may be placed on the principal register because they are “inherently distinctive.” [citations omitted]. “Descriptive” terms, in contrast, are not eligible for the principal register based on their inherent qualities alone … [because] descriptive terms must achieve significance “in the minds of the public” as identifying the applicant’s goods or services — a quality called “acquired distinctiveness” or “secondary meaning.” [citations omitted]. Without secondary meaning, descriptive terms may be eligible only for the supplemental register.

So only inherently distinctive trademarks qualify for the Principal Register at the USPTO, while descriptive trademarks must acquire secondary meaning and may be relegated to the Supplemental Register until such time as they have “acquired distinctiveness.”

As you may have guessed by now, generic trademarks are a type of descriptive trademark but are so descriptive that they cannot operate to distinguish an owner’s goods or services from those of another, or to otherwise designate the origin of such goods and services. For example, the term “beer” would be considered generic if used to describe a fermented beverage made from water, barley, malt, and yeast because it is a generic name for a type of alcoholic beverage commonly consumed worldwide — it simply does not (and cannot) describe whose beer in and of itself. In sum, a generic trademark describes the class of goods or services itself and no more.

In the present matter, the USPTO refused the attempt by online travel booking site Booking.com to federally register a number of trademark applications for “BOOKING.COM” with the USPTO on such grounds (including on appeal to the Trademark Trial and Appeal Board (TTAB) as the USPTO).  In fact, the TTAB ruled that  even if “BOOKING.COM” was descriptive and not generic, it is unregistrable because it lacks secondary meaning. Upon review by the U. S. District Court for the Eastern District of Virginia, however, Booking.com introduced additional survey evidence and persuaded the district court to hold that “BOOKING.COM” was not generic because the consuming public “primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving ‘booking’ available at that domain name.” The USPTO only appealed the holding that “BOOKING.COM” was not generic to the Fourth Circuit Court of Appeals, which affirmed the ruling. Interestingly, SCOTUS decided to hear the case.

In writing for the majority, Ginsburg stated that the inquiry “turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services.” SCOTUS held that “BOOKING.COM” did not do so because none of the evidence presented in the lower courts indicated that consumers considered the compound term to be generic of online booking and travel reservations. In fact, SCOTUS rejected the per se rule preferred by the USPTO that every “generic.com” name should be considered a generic composite. Rather than hinder competition, SCOTUS ruled that current trademark law provides an appropriate “hem” on descriptive marks because any assessment of infringement requires consideration of distinctiveness, and even where some confusion may exist, common principles of fair use continue to apply. In other words, these doctrines protect against potential anticompetitiveness and operate as a check on the scope of protection for such marks.

I have seen my share of ”.com” trademarks in law practice, and rather than sound the alarm I find this ruling to be the culmination of a salient point — where evidence shows that the consuming public identifies a descriptive trademark with the trademark owner, it is likely worthy of federal trademark registration. Just adding a domain name extension does not accomplish this fact — there must be sufficient evidence that the consuming public identifies the entire trademark with the trademark owner’s goods and  services. I appreciate Justice Stephen Breyer’s concerns in his dissent regarding prior case law and how “Company” or “Inc.” add nothing, but those descriptors are a far cry from a generic top-level domain (gTLD) that helps direct the consumer to an online location separate and distinct from other gTLDs. Maybe I am more market-oriented than others, but from my perspective, it is better to let the evidence determine potential acquired distinctiveness with a generic composite trademark than rely on a per se rule that prohibits it in the entirety.

Whether you agree with this perspective or not, the point here is that using a generic term in a generic composite is inherently risky, and SCOTUS seems persuaded by evidence of consumer recognition in interpreting existing trademark law. Simply placing a generic term with a gTLD will not elevate the generic composite to the ranks of inherently distinctive marks, and acquired distinctiveness (albeit possible) is not guaranteed. I appreciate the lack of a per se rule and other established factors under trademark law — it lets trademark owners assess the risks and act accordingly when it comes to generic composites. Simply put, sometimes generic may not be, well, so generic.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

I met Ed Fallon when we were both in our early 20s. I was looking for a third roommate in my run-down, three-story, sloped-floor apartment in Somerville, Massachusetts, on the border of Cambridge.

He was an itinerant musician, believer in all causes to save our planet, and general nice guy. We campaigned against nuclear power together, and I followed his trajectory as he grew from farming his family property in Ireland, to winning a seat in the Iowa house of representatives, to hosting a radio talk-show and, in the past few years, to organizing the longest climate-change march in history.

In 2014, Ed got together 50 people to walk across country from Los Angeles to Washington, D.C. Their efforts were aimed at bringing a discussion of climate change to the people they’d meet along the way. The trip was at once exhilarating, litigious (some group members turned against each other and ultimately voted Ed out as leader), and dangerous, single-filing it along narrow highways, camping along roadsides and in deserts and mountains exposed to both extreme heat and brutal cold. Some 25 made it all the way on foot to D.C., hoping to meet with President Barack Obama. (They met with his key climate staff, instead.) While Ed had been involved in environmental issues most of his life and in climate activism since 2007, he figured he had to do something bigger and more attention-grabbing.

The national climate march was a grueling cross-country trek that drew scattered media attention, required exhaustive planning, cost half a million dollars and, arguably, left the climate no better than before the walk started. You can read about the drama, pathos, and wisdom in Ed’s book, Marcher, Walker, Pilgrim, which I recommend.

Yet, according to Ed, its participants — those who made it by foot, and those who joined along the way — have become lasting save-the-earth guardians. Most continue their work in their communities today.

Social change isn’t easy. It comes in fits and starts and takes concerted effort and planning. I contacted Ed in light of the recent BlackLivesMatter demonstrations to see what advice he’d give those addressing current social justice issues. Although different than climate change, Ed sees a connection.

Here are some excerpts from that chat.

Toni Messina: You spent nine months walking across the U.S., getting sick, and barely making it. Yet, climate change issues are barely better than when you started. Did you reach your goal or was the march a failure?

Ed Fallon: Change doesn’t happen overnight. We spoke to people from everywhere, small towns to big cities. The smaller places were the most rewarding. In one 60-person town in western Nebraska, everyone came out to our campsite to have dinner and talk with us. If we changed one mind, it was worth it, though we changed many. One person might then talk to another, who would speak to another, then another. Eventually the message gets out and spreads. This is a long-term challenge. There’s no change overnight.

TM: What do you think made the biggest difference in communicating with people?

EF: The walking was particularly useful. We’d show up on Main Street, some of us playing instruments. We’d go into local diners and bars and talk to the waitress or the guy at the bar. They’d be curious. Why were we doing this? Who were we? How long did it take? Why were we on foot, especially in a country that’s in love with their cars. Making a one-on-one connection with people helps them see you’re not so different from them.  Even if they didn’t agree with us, everyone respected the commitment we made to walk. That alone was meaningful.

TM: Do you see an intersection between climate change and Black Lives Matter?

EF: Definitely. The people most hurt by climate change are people of color and the poor. In all the cities we walked through and in some rural areas, like the Native lands in New Mexico and the sandhills of central Nebraska, the power plants and factories were in their backyards. Nobody with money wants that. Pollution impacts the health of poor people most. They’re the ones living near the factories or working in them. They’re the disposable underclass. For a country obsessed with making money, you need a disposable underclass for capitalism to exist. Even in my state, Iowa, where we don’t have a large black population, a majority of the people working in the meatpacking plants are immigrants from Central America and Africa. Those packing plants have also been the location of Iowa’s most serious outbreaks of COVID-19.

TM: If you could give any advice to organizers of Black Lives Matter, what would it be?

EF: There’s a lot of overlap between social justice movements and environmental issues, and not just climate change. People should think beyond the immediate reach of their group or message and broaden the view to groups of all kinds fighting for change. These aren’t separate things — the economy, climate change, social justice, education, inequality, health care. They all affect each other. The primary problem is the focus our country puts on consumerism and capitalism above all else.

Ed may not organize another march the size or scale of the walk across America, but he feels it’s changed many lives, including his. “Walking, thinking, contemplating, slowing down to meet with people where they live and work — these are activities we should all do more of.”

“Change never comes easily. It takes concerted action and energy. But anything that brings the issue to the forefront of public discussion is a step in the right direction.”

Ed’s book, Marcher, Walker, Pilgrim, is available at www.boldiowa.com/marcher-walker-pilgrim/.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Virginia isn’t the worst off of any state right now, but COVID infection rates have crept up over the past couple of weeks as America continues its nationwide backslide into the pandemic. And yet Virginia remained one of the astoundingly non-zero number of states insisting on an in-person bar exam this month over every bit of public health advice.

But fear not, the state bar examiners have now heard the calls of applicants, doctors, and law school faculty and decided to cancel… the requirement that men wear ties to the exam.

Because COVID causes pulmonary issues and we don’t want infected applicants struggling with a tie to gasp for air.

The bar exam as a concept is little more than professional cosplay for these people. It is not, in fact, a courtroom or an office or a client meeting. It is not demonstrably useful in protecting the public because it, by design, fails to test applicants on the actual subject material relevant to their future practices (unlike, say, a series of practice area competency exams people could opt into to earn narrowly tailored certificates). It’s just a game where they make applicants dress up and play law school trivia.

And unfortunately when the bankruptcy of this endeavor is finally lined up against real human impacts, states are choosing the charade over public health time after time.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Swiss drugmaker Novartis has agreed to pay more than $729 million to settle a lawsuit filed in relation to an alleged kickback scheme.

The Basel, Switzerland-based company said Thursday that it would pay $678 million in relation to speaker programs and promotional events that took place between 2002 and 2011 and an additional $51.25 million related to support for charitable co-pay foundations between 2010 and 2014. The settlement agreement was made with the U.S. Attorney’s Office for the Southern District of New York, New York state’s attorney general and former Novartis sales representative Oswald Bilotta. The company also agreed to new corporate integrity obligations with the Department of Health and Human Services’ Office of the Inspector General, which it said would change how it delivers peer-to-peer medical education programs.

“Today’s settlements are consistent with Novartis’ commitment to resolve and learn from legacy compliance matters,” CEO Vas Narasimhan said in a statement. “We are a different company today, with new leadership, a stronger culture and a more comprehensive commitment to ethics embedded at the heart of our company. I have been clear that I never want us to achieve commercial success at the expense of our values – our values must always come first and are the foundation of everything we do.”

Bilotta originally filed the whistleblower suit against Novartis in 2011, and the district attorney and New York state attorney general intervened in 2013. The company was accused of paying kickbacks to doctors in order to prescribe its drugs, including speaking fees for supposed educational events.

Novartis’ announcement comes less than a week after the U.S. district attorney for Massachusetts filed suit against Tarrytown, New York-based Regeneron Pharmaceuticals. That suit alleges that the drugmaker paid tens of millions of dollars worth of kickbacks through a copay foundation in relation to Eylea (aflibercept). Regeneron is one of several companies that have received subpoenas alleging similar schemes in 2017 and has said that it will mount a “vigorous” defense against the allegations.

Photo: Novartis

* President Trump’s former lawyer Michael Cohen may have to go back to prison because he dined out last Friday night. Unless that restaurant was Casa Bonita, it wasn’t worth it… [New York Post]

* A Virginia lawyer is in hot water for selling the stock of his two deceased former law partners and pocketing the proceeds. [Roanoke Times]

* Amazon is being sued for allegedly firing an employee for bringing her child to work. [New York Post]

* A Florida lawyer has lost his law license for settling cases without his clients’ permission. [Florida Times-Union]

* Texas has become the latest state to postpone the bar exam amid concerns over COVID-19. [Texas Tribune]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.