Category: News Feeds

How many summer associates did Skadden hire in 2019?

Hint: The firm offers summer associate programs in Boston, Chicago, Hong Kong, Houston, London, Los Angeles, New York, Palo Alto, Tokyo, Toronto, Washington, D.C., and Wilmington.

See the answer on the next page.

Now what? What now? I’m not referring to the three events of domestic terrorism within the past week, although maybe I should. Now that the bar exam is over, purgatory begins, the time between finishing the exam and getting the results. You are neither fish nor fowl waiting for the results.

What to do during purgatory?  There are lots of options, depending upon your situation.

1. For those who have jobs, it’s back to work. And if you have that elusive job, then do your best, but don’t try to be perfect. Deadlines abound. Just get it done.
2. For those looking for work, it’s time to polish that résumé and get as many informational interviews as possible. The more the better. Informational interviews can be as simple as cups of coffee. You want to know everything you can possibly learn about the area(s) of practice you are interested in and who might be able to help you. It’s easy to learn a bunch of new stuff because I assume that you did a brain/data dump as soon as the exam was over, but don’t throw your study materials away just yet. There will be time for it when results are in.
3. Volunteer, be it at a law firm, legal clinic, wherever you can clerk for someone at no cost to them. Everything and anything you learn will be helpful, even if it’s just file maintenance. My law school BFF tells the story of a young man who walked down the entire length of Wilshire Boulevard in Beverly Hills (a not insignificant distance) dropping his résumé off at every law firm of whatever size and hoping to get an interview. His last stop was in my friend’s building.  He snared an interview and clerked for him for six months or so and was even paid!  Persistence and good supportive shoes made the day.
4. If you have any spare cash (ha!), take some time off. If not, don’t fret, as most of the examinees aren’t awash in disposable income. Student loan repayment is high on the list of reasons for “no disposable income.” A way younger friend, who has been paying on his student loans for a decade, says that the loan payments he’s made have not reduced his principal balance by one cent. And one of his friends who committed to working for the government in exchange for student loan forgiveness is not going to receive the benefit of the bargain. She’s been told that a sizable portion of the debt is not eligible. Available data on law school debt sucks. How hard can it be to get accurate and current information? Apparently too hard, or perhaps no one wants to share the dirty little secret that the cost of a law school education is out of control.
5. Spend some time in your local courthouse. You may have vowed to never set foot in a courtroom once you’ve passed the bar, but it’s good to familiarize yourself with not only the physical courthouse (where is the clerk’s office?), but to observe some hearings and even a trial or two. Why? You never know when you might be asked to make a “special appearance” because the attorney on the case is tied up elsewhere, out of town, or “unavailable,” whatever that means.

You need to know courtroom etiquette. (Be polite and courteous to the courtroom staff; they will either be your friends or your worst enemies. Will they put your file on top or at the bottom?) You need to know which side of the counsel table to stand behind. (Hint: plaintiff’s counsel is closer to the jury box.)

You can pick up many clues by just observing law and motion calendars. How do counsel treat each other? How do they treat the court? (You’d probably not be surprised to see how some counsel can border on contemptuous.) A court likes counsel who make things easier for the judge: preparing notices, suggesting dates for further proceedings, being clear and direct in discussions with the court, professional and prepared. You’d be amazed, or perhaps not, when counsel is neither professional nor prepared. It’s cringeworthy. Unless your matter is first on the calendar, other attorneys will be watching. Snickers are something you never want to hear.

You learn who goes first. It’s the moving party. Sometimes the court doesn’t want to hear any argument if “it’s already in the papers.”

If you can find a trial to watch, do so. I learned a lot by watching trial lawyers at work: how they interact with the jury, opposing counsel, and the court. How they handle objections: do they object and simply state the basis for the objection, or do they make “speaking objections,” something courts don’t like. It’s a good way to test your knowledge of evidence, assuming there’s something left after the bar exam brain dump.

Make sure that it’s okay for you to watch. If so, you may find that the clerk and/or bailiff will tell the judge that you’re awaiting bar results and you may be invited into chambers for a brief introduction. Take advantage of it. Everyone you meet may be someone you meet again in your career.

If it’s appropriate, introduce yourself to counsel, and ask if you may ask a question or two about something you noticed while observing. Most attorneys, if they’re not jerks (and you’ll meet some of those along the way), will take at least a couple minutes to explain what was done and why. We’ve all been there.

Once you start practicing, you will wish that you had spent more time learning how to be a lawyer, and while law schools are improving in that area, they are not there yet. Take advantage of this time in purgatory.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

It’s allowing me to pay rent and keep paying my private loans and not run out of money and not default on anything. That’s significant.

I probably would have had to go into some kind of forbearance on my private loans right now if I was still paying my federal loans.

I can’t even start to think about having kids because I have no idea how I would pay for even the regular stuff — the diapers, the food — let alone school, colleges, higher health insurance. If I didn’t have all these loans to pay back I might be able to do that.

— Jeffrey Morgan, a 2007 law school graduate who recently had $38,381.32 of federal loans discharged thanks to the Public Service Loan Forgiveness program, commenting on how his life has changed for the better because of it, if only minutely. Morgan still owes $67,987.09 in private student loans, which are delaying his ability to start a life, but he does not regret his decision to work in public interest.

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.

Last weekend, as the nation tried to come to terms with the mass shootings in Dayton and El Paso, pundits and even the president partially blamed violent video games. This claim has been made before. People tried to blame video games for the Parkland massacre because the shooter was known to play violent video games up to 15 hours per day to escape his depression.

Legislators, either through their own initiative or due to public pressure, may one day propose legislation to control or even ban the sale of certain video games, particularly to children. But doesn’t this violate free speech principles? So today, let’s review a landmark Supreme Court case on this issue and determine whether video games can be regulated.

In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association, which held that violent video games were protected speech under the First Amendment. There, the court invalidated a California law banning the sales of violent video games to anyone under the age of 18. The majority found that violent video games are no different than the violence depicted in protected books and movies. The court noted while video games are interactive, some books also allow interaction where readers can “choose their own adventure” by turning to a certain page depending on their decision.

The majority was not convinced by the studies provided by the State of California showing a connection between exposure to violent video games and harmful effects on children. They found that the research is based on correlation without causation and the studies suffer from admitted flaws in methodology. Finally, the court noted that the video game industry established a ratings system to inform consumers about the games’ content which may make the law unnecessary. The majority concluded that constitutional limits must apply even on governmental action designed to protect children.

Justice Alito’s concurrence, joined by Chief Justice Roberts, agrees that the California law is an unconstitutional violation of the First Amendment. The law is vague because it does not define “violent video games” and other terms with narrow specificity. He also does not believe that the law satisfies the very difficult strict scrutiny test but also acknowledges this analysis might not be appropriate in this case. Finally, he states that playing a video game can be different from reading a book or watching a movie and warns not to quickly dismiss the technological advances in the industry. Today’s most advanced video games have realistic images and sounds and may be virtually indistinguishable from real life footage. Many video games will one day be playable in a three-dimensional setting through the use of special equipment. Also, there are games that let players re-enact mass shootings and sexual assaults.

He concludes by stating that he would not hinder legislative efforts to deal with what some may consider a significant and developing social power. So perhaps a properly framed statute would pass constitutional scrutiny.

Justices Thomas and Breyer separately dissented. Thomas believed that parents had complete authority over their minor children and the government had no business speaking to minors or allowing them access to speech without their parents’ permission. Thus, in light of the historical context of the freedom of speech’s limitation on minors, the ban on violent video games without parents’ authorization is legal.

Justice Breyer’s dissent states that the ban is no more than a modest restriction on expression since children can play violent video games with parent permission. He believes the law would pass a strict scrutiny analysis. First, there is a compelling state interest: passing laws to aid parental responsibilities and ensure the well-being of its youth. Second, the law furthers the compelling interest and there is no equally effective, less restrictive alternative. Breyer is convinced that there is a connection between violent video games and increased aggression.

This case was decided in 2011. At the time, the major video game consoles were the Playstation 2, XBOX 360, and the Nintendo Wii. Since then, all three companies have released newer, more powerful consoles with better graphics, sound, and processing speed. Also, mobile games are becoming more popular.

And new technology may be game changers -– literally and figuratively. Virtual reality technology such as the Oculus Rift, the HTC Vibe and the Playstation VR provides the player with a 360 degree immersive experience. Also, “augmented reality” games gets players out of the house and encourages them to interact with the real world. The game Pokémon GO during its heyday brought out millions of players where they congregated in parks and shopping malls with the occasional flash mob when a rare Pokémon appeared. Unfortunately, this has also resulted in some overly determined players disregarding traffic rules and trespassing in their efforts to catch them all.

Online gaming has also increased in popularity since the Brown decision. The most popular games today are online games such as Fortnite and Minecraft. Some players even stream their games live on Twitch, YouTube, or Facebook. This has led to harassment from some people, particularly to women gamers.

Violent games with adult themes are also some of the best sellers today. This includes games like Grand Theft Auto V, Red Dead Redemption 2, and Mortal Kombat 11. Some of these open world games allow characters to do whatever they want instead of following a pre-set storyline. This includes attacking and killing innocent bystanders and police although doing so has in-game consequences.

Can Brown be overturned today? While this was a 7-2 decision, it was a very delicate one and in some ways was more like a 5-4 decision. Two of the justices in the majority -– Scalia and Kennedy -– are no longer on the court. It is unclear how their successors will decide as the split was not based on party lines. Justice Kagan later said that the Brown decision was the toughest case she decided and was unsure whether her decision was right. Also, it seems that the court today is more willing to overturn its own precedent as it recently did in Franchise Tax Board v. Hyatt.

Also, would a law banning violent video games be effective today? Maybe. But parents have greater control than over video games than they did in the past. Every modern video game console has parental control features that allows them to block their children from playing certain video games.

Also, parents today grew up playing video games in some form and fathers have likely played at least a few violent and other inappropriate games (like Leisure Suit Larry) while growing up. So they will have a better idea as to which games are appropriate for their children. On the other hand, children can be sneaky and resourceful when it comes to bypassing security features. If they want to play a certain video game bad enough, they will eventually find a way to play it.

People will disagree on whether violent video games makes its players more violent in real life. But with people pointing to video games as one of the causes of antisocial and violent behavior, it is only a matter of time before a legislature tries to regulate video games. While Brown v. Entertainment Merchants Association held that video games are protected free speech, it is possible that a law can survive constitutional scrutiny if the law is drafted the right way and addresses how technological advances in video game technology can impact impressionable youth.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

There’s a wild writeup in the Miami Herald covering the disbarment of attorney Christopher Brady and yet somehow the story leaves us with one fairly glaring question.

Brady, a Nova Southeastern grad, worked with the Barak Law Group but after the firm let him go, he tried to start a rival firm with the same (arguably) name:

Brady quickly started the website www.baraklawgrouppa.com. He tried to register “Barak Law Group P.A.” with the state of Florida and claimed his former employer wasn’t a professional association because there were no periods in the registered firm name’s “PA.” Later, he also tried to use punctuation to claim the restraining order wasn’t valid as the firm put the periods in when filing for it.

The courts did… not agree with the punctuation theory. However, the Barak Law Group P.A. iteration of the firm apparently took an unconventional approach to its management.

[Opposing Counsel Edwin] Valen also wrote his most recent phone call was with Christopher Brady’s twin brother, Matthew Brady, “in which I was told they had a shareholder meeting at 4 a.m. and that they were at a Walmart camping aisle spending corporate resources on knives? Very strange.”

To be honest, that’s exactly how the Wachtell executive committee operates.

Both the Manatee County Sheriff’s Office and the referee say surveillance video caught Christopher and Matthew Brady tethering the front door handles to the rear of Christopher Brady’s Ford F250 and punching the gas. With the doors ripped open, the Bradys swiped a safe, a computer server and a key to the Barak Law Group’s storage unit.

Take that Chevy! Seriously, this is some old West stuff right here and it earns my complete respect. In any event, it’s the key to the storage unit where things pique my curiosity.

Getting the key allowed the Bradys to walk into the Barak Law Firm unit at Midgard Storage in Bradenton on Aug. 15 and, after finding out which unit the firm rented, walk out with two office chairs and a Colt AR-15, .22 caliber rifle in its original cardboard box.

Midgard hasn’t protected that kind of firepower since Odin hid Mjolnir. That joke was for about 10 of you, but you’re welcome. When arrested, Brady admitted to stealing the AR-15 and currently faces two counts of burglary of an unoccupied structure and one count of grand theft firearm.

So I’m confused as to why the law firm has a storage arsenal. Why is this not fleshed out in this Miami Herald piece? It seems like every time I read a “Florida lawyer…” story there’s some really eye-popping detail that gets thrown out there and never explained as if it’s something we’re supposed to assume is totally normal:

A Florida attorney has received a three-month suspension for commingling funds and other trust account related violations. He admitted the error and said his mistake stemmed from his efforts to cross-breed his cat with a raccoon. The firm, which specializes in white-collar criminal defense, states that no client funds were lost and expects to maintain client services because of the firm’s deep bench of talented litigators.

I digress. Why does the firm have an AR-15? Is there a “Were you injured in an accident? Well, we’ll get the motherf**kers!” commercial in the works?

A law firm fired an attorney. He became the firm’s stalker and stole an AR-15, cops say [Miami Herald]

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.

Talk about dragging your feet. Oral argument took place in the case of In Re Gestational Agreement before the Utah Supreme Court in September 2017. A time when Prince Harry and Meghan Markle weren’t even engaged yet! But hoping to avoid the dreaded two-year mark, the Utah Supreme Court finally issued its opinion in the case last week. At 75 pages, the opinion is long, but it has a good ending for hopeful LGBTQ parents.

The case arose because the Beehive state had a law on its books regulating when a person or couple could turn to the process of surrogacy to have a child. Specifically, the statute required that all parties (intended parents, surrogate, and surrogate’s spouse) together must petition a court to validate their gestational agreement before the parties can move forward. That’s obviously no light burden by itself. But more, as a prerequisite of the court validating the gestational agreement, the court must find that there is “medical evidence … show[ing] that the intended mother (emphasis added) is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health of the unborn child.” So for you eagle-eyed readers, you can see where this is headed.

Prior to this case, many Utah district court judges — even behind the “Zion Curtain” — took the reasonable path of reading the medical requirement regarding the “intended mother” in a gender-neutral manner. That meant that same-sex male couples could move forward with surrogacy. After all, since generally, neither intended parent in a same-sex male couple has a uterus, that is pretty solid medical evidence that both are unable to bear a child. But the parties to this case were assigned to a judge who opted to go a harsher route, and ruled that the statute did not apply to same-sex male couples at all, since they lack an “intended mother.” The judge denied their petition.

The parties quickly appealed to the Court of Appeals, and the case went to the Utah Supreme Court as a matter of first impression.

Everyone Is On The Same Page

Fascinatingly, unlike most cases on appeal, there was no opposing party defending the ruling below. All parties — the intended parents, gestational surrogate, and her spouse -– wanted to move forward with the planned surrogacy arrangement to give the intended fathers a chance of becoming parents. Not only were there no private parties in opposition, but to its credit, the State of Utah itself supported the parties and submitted an amicus brief arguing that the statute should be read in a gender-neutral manner.

Supreme Court Says No To Gender-Neutral Reading Of The Statute

Despite all the parties and the State’s amicus brief arguing for a neutral-reading of the statute, the Utah Supreme Court determined that that was not possible. Instead, the court found that the proposed gender-neutral statutory interpretation would be “inconsistent with the manifest intent of the Legislature” and “repugnant to the context of the statute.” Oh, that seems bad.

Not so fast, though.

The court instead turned to arguments under the U.S. Constitution, and, in light of the 2015 Obergefell ruling requiring states to recognize same-sex marriage — and the subsequent case Pavan, which confirmed the constitutional right of same-sex couples to the “constellation of benefits” tied to marriage — the court found the “intended mother” requirement of the statute was wholly unconstitutional. So it just struck down the provision.

I spoke with Robert M. Tzall, an assisted reproductive technology attorney practicing in Utah (as well as Nevada, New Jersey, and New York). “From any reasonable understanding of equal protection and due process, and as confirmed by the lack of a dissent, it hard to imagine the court coming to any other ruling. That’s why ART attorneys throughout Utah could not understand what was taking so long.”  Despite the long wait, Tzall was “pleased that as a practitioner, I can now provide certainty in the law to all my clients interested in building their families in Utah.”

Of course, the constitutional findings were resolved within the first 25 pages of the opinion. So what were the next 50 pages about?

Concurrences

Justices Pearce and Lee each spent quite some time discussing whether it is a problem for the court to hear a case lacking adversarial parties. I won’t bore you with the details, but each of the justices spent a great deal of time addressing very meta questions about whether the court ought to address cases without an adversarial relationship between the parties in the first place.

So for all you interested in reading about the Utah Supreme Court’s jurisdiction over non-controversies, check out pages 26-75 of the opinion. For the rest of us, just focus on the part that clears the path for LGBTQ couples to move forward with growing their families through surrogacy in Utah.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Several months ago, the Mississippi Supreme Court adopted a rule restricting the number of times an individual can take the bar exam.  Under the new rule, people who fail the bar exam three times must go back to law school for 12 semester hours before they will be allowed to retake the exam.  There are, of course, a number of reasons for rules like this, and some might argue that such rules increase bar passage rates and protect the public from attorneys who might not understand critical legal concepts.  However, three-strike policies and other limitations on the number of times you can take the bar exam are bad for a number of reasons.

For one, people sometimes perform poorly on the bar exam because of external factors that affect them on exam day.  Most of us probably know someone who got extremely sick on exam day or had to deal with the loss of a loved one right before taking the bar exam.  Furthermore, this website has detailed at length how individuals have gone into labor during the bar exam, dealt with bats in the exam room, and endured a number of other issues while taking the bar exam.  I remember hearing a story about one test-taker a while back who overslept one time he took the bar exam, and then locked his keys in his car during lunch another time he took the bar exam.  Needless to say, this person failed both times.  By decreasing the number of times individuals can take the bar exam before experiencing major consequences, bar examiners are increasing the likelihood that bad luck and other external factors can influence a bar candidate’s future livelihood.

Furthermore, limiting the number of times an applicant can take the bar exam before facing major consequences can put enormous pressure on test-takers.  Repeat bar candidates already need to contend with the emotional strain and stigma of failing the bar exam in the past, and this trauma will only be compounded if applicants will face huge consequences if they fail the exam again.  It is undeniable that people perform worse when they are under pressure, and some firms lessen stress by having a policy to assure employees that they will not be terminated from employment due to failing the bar exam the first time.  Of course, people could argue that pressure is a part of the legal profession, so repeat test-takers should be able to cope with any additional stress.  However, it is unfair to place this burden on bar candidates when they are already under enough pressure as it is.

In addition, policies requiring bar candidates to go back to law school if they fail the bar exam a certain number of times are misguided.  As most people already know, attending law school does very little to prepare students to become practicing attorneys and pass the bar exam.  Indeed, even if repeat test-takers are compelled to take law school courses on bar exam subjects, they will likely still not learn much of the black-letter law needed to pass the bar exam.  This is because law schools typically teach students methods, like digesting cases and reciting facts and law, strategies that test-takers presumably already learned during their initial three years of law school.  If rules required repeat test-takers to enroll in a bar review course, this would make more sense, since this type of regimen would ensure that the repeat test-taker is specifically studying to take and pass the bar exam.  However, requiring bar candidates to head back to law school will do little to improve their odds of passing the bar exam.

Furthermore, limiting the number of times you can take the bar exam compounds the law school debt crisis.  Repeat test-takers are usually in a dire financial situation unless they receive help, since they usually have to borrow money to attend law school and to support themselves while studying for the bar exam.  If repeat bar candidates need to take additional law school classes before they can sit for the bar exam again, this will increase the amount of debt they have.  Furthermore, making repeat test-takers spend more time without higher-paying attorney jobs makes it more difficult for bar candidates to pay off their debt.

In addition, it is unclear what threat to the public bar authorities wish to ameliorate with limiting the number of times you can take the bar exam.  As most people understand, taking and passing the bar exam has little relevance to what type of lawyer you will become when licensed.  Indeed, the bar exam often does not test much of the procedures that are necessary to know in practice.  Furthermore, a number of high-profile individuals have failed the bar exam, so it is clear that people of all stripes can simply be bad at test-taking without posing a risk to the public.  Furthermore, taking the bar exam usually costs hundreds of dollars that goes into the coffers of state bar authorities.  As a result, it does not seem as if resources are being wasted on repeat test-takers.

It remains to be seen if additional states get on the three-strikes bandwagon and impose restrictions on the number of times you can take the bar exam.  However, such limitations should not be implemented for a number of reasons.  Not only do such restrictions increase the pressure on repeat test-takers and compound financial issues, but it is not clear which policy goals such limitations are aimed at achieving.

Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. 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 jrothman@rothmanlawyer.com.

In recent weeks, the Gibson Guitar Company has been unfairly painted by certain not-entirely-objective interests on the internet as an IP Maximalist Boogeyman. The critiques center on Gibson’s “Play Authentic” campaign, which provided notice that Gibson holds trademarks for The Les Paul, Flying V, and Thunderbird guitar shapes, amongst others. The notice was delivered via video by Mark Agnesi, Gibson’s Director of Brand Experience, and advised that legal action would be forthcoming against those who exploited Gibson’s marks without consent.

The reaction to the “Play Authentic” advertising campaign and Gibson’s ongoing trademark actions in both Texas and the European Union has been just shy of riotous. For Gibson, their real mistake was not their current attempt to enforce their statutory rights, but the fact that they waited so long to do so, and the manner in which it delivered its message that it will now enforce its rights.

The purpose of intellectual property law is to encourage innovation and quality by giving creators a limited monopoly on their inventions and brands the exclusive right to enjoy the goodwill associated with their trademarks. If you create the Next Big Thing and others want to use your design or mark, they are free to approach you about entering into a licensing agreement. If it weren’t for the legal structures creating this licensing marketplace, only suckers would create anything truly new, as it would be more financially beneficial to avoid the labor and expense of R&D, instead rebranding the creations of others. This is essentially what every guitar manufacturer who creates a “singlecut” type guitar is doing.

So why is Gibson the bad guy? The short answer is it really isn’t — the company’s chief sin was the bizarre manner in which they announced and publicized their campaign, which campaign was itself no different from many other brands’ attempts to protect their IP. The long answer is the paradox of trademark. What Gibson did wrong was not register trademarks for their iconic designs before they were iconic. They are now being viewed as IP maximalists because they were not enforcing their rights earlier.

On the most basic level, trademarks exist to keep customers from being confused. This allows a customer to feel confident in the quality level of their purchase and allows companies who have heavily invested in quality control and consumer goodwill to profit from those investments.

Once a product’s distinct qualities have acquired a “secondary meaning,” be that a shoe with a contrasting red sole, like Christian Louboutins, or Gibson’s famous Les Paul electric guitar, trademarking those unique qualities allows the manufacturer or designer to prevent others from counterfeiting their products.

Trademarks also prevent others from free-riding on the goodwill associated with those products. However, in order to keep their statutory trademark, the manufacturer is required to enforce their rights, lest they be adjudged “abandoned.” Sleeping on your rights also exposes the trademark to the risk of destruction by “genericide”: loss of trademark protections because the product is no longer associated specifically with the trademark holder’s product. So brands are faced with an enforce-it-or-lose it type of situation, and any trademark lawyer worth her salt would advocate for enforcement.

Now, Gibson’s Flying V guitar design was created in 1958, but it was not registered with the trademark office until 1997. This puts Gibson in the odd position of owning a product, design, and mark that they created but which they no longer can claim was only associated with their brand. Why was it not associated only with Gibson? Because Gibson was totally chill about their IP between 1958 and 1997 and did little as other companies ripped off their work and marketed copies. By standing down in the exact way they are currently being admonished for not doing, Gibson waived or at least limited their statutory right to maintain the uniqueness of their marks. Since IP law is supposed to encourage innovation, Gibson maintaining the Flying V solely for themselves would have forced other guitar manufacturers to create competing cool designs. If they’d enforced their rights, we’d likely be swimming in a sweet sea of dope axes.

Instead, we are swimming in a rancid sea of fetid litigation. In one of the more recent cases, Gibson filed suit against Armadillo, which markets the Dean and Luna guitar lines. Gibson alleges that certain of these guitars violate its trademarks in the Flying V and others. But, as noted above, Gibson has historically been lax about enforcing its rights and a chief defense for Armadillo is that it has been marketing and selling (and even building up goodwill in) these guitars for decades.

But what is really at stake for Gibson here is consumer goodwill and control over its marketing messaging — if a consumer or listener has a bad experience playing a Dean V guitar or hearing someone coax a mediocre tone out of one in a smokey bar, that will negatively affect Gibson’s goodwill in its Flying V. Perhaps a concertgoer mistaking a Dean V for the Gibson product would be injurious to Gibson as the concertgoer may reconsider purchasing a Gibson on that basis (unless of course, said concertgoers are Megadeth fans looking to emulate Dave Mustaine, who rocks the Armadillo product). And for the customer wanting to sound like Grace Potter (who until recently had an artist model Gibson Flying V), an association with Megadeth may mega-cost Gibson a sale.

While Gibson may not have been spending great resources on enforcing its trademarks, they have always carefully curated their roster of official Gibson artists as a means of marketing their instruments to a broad clientele. When other guitar manufacturers curate artists with a different aesthetic playing instruments that could easily be mistaken for a Gibson, Gibson loses control over brand messaging for their own products, which is exactly what trademark law should protect against. If Gibson had delivered its message to alleged and potential infringers via a different medium, and perhaps with a smile, its message would likely have been more well-received. But, for now, the trademark disputes rage on.

Ed. note: This article was written with valuable contributions from Doniger / Burroughs summer law clerk Jeremy King, who rocks a guitar when not Shepardizing and can be found on Twitter and Instagram at @jeremykingmusic.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.