Trademark owners agonizing over internet search engine technology and their ability to protect their brand scan step back from the ledge, at least for the moment. The fact that their trademarks may serve important indexing or advertising functions for internet search engine companies, like Google or Bing, does not serve to immunize search engine providers from liability for trademark infringement. On Monday, April 9th, the Fourth Circuit breathed new life into Rosetta Stone’s trademark suit against Google, vacating in large part the Eastern District of Virginia’s 2010decision dismissing Rosetta Stone’s claims against Google on summary judgment. The Fourth Circuit remanded Rosetta Stone’s claims for direct trademark infringement, contributory infringement, and trademark dilution for further proceedings.

As reported by Forbes, a U.S. District Court sanctioned a prominent U.S. law firmfor manufacturing a frivolous lawsuit.  The case is Lavesky et al. v. ITT Educational Services, Inc., filed under the False Claims Act (“FCA”).  The Lavesky court did not mince words in sanctioning plaintiff’s counsel: “From what the Court can gather, [plaintiff’s attorneys’] view is that virtually any ex-employee will do for purposes of manufacturing an FCA lawsuit.”  

The smooth transition of NFL jersey production responsibilities from Reebok to Nike hit a snag this week with the filing of a lawsuit by Nike against its rival. Nike filed suit in federal court against Reebok over Reebok’s swift production of Tim Tebow-New York Jets jerseys after Tebow’s trade to the Jets. The trade announcement on March 21st left an extremely tight window of time for Reebok to capitalize on the deal before its contract with the NFL expires on April 1, 2012.  

Many people will not be shocked by the title of this post.  However, a new report issued by an advocacy group for the U.S. Chamber of Commerce was recently released that was entitled, “The Plaintiffs’ Bar Goes Digital, an Analysis of the Digital Marketing Efforts of Plaintiffs’ Attorneys and Litigation Firms.”  The report found that marketing efforts were being camouflaged as forums or support group sites.   The report estimated that law firms had spent more than $50,000,000 on Google advertising in 2011.  The overwhelming majority of that was spent by Plaintiff’s firms.  However, despite the fact that the amount of spending does not rank with large corporations, it is disproportionate for the size of the industry.  The report is critical of the Plaintiffs’ Bar because of a lack of transparency that many of their sites were actually marketing for law firms.  

If you use the Google search engine (and I’m guessing that includes pretty much everyone) you may have noticed a text box appearing on the screen during the past couple weeks, imploring you to read Google’s new privacy disclosures, along with the caveat “this stuff matters.”  That text box stopped appearing on March 1, when Google introduced its new privacy policy.  According to Reuters, at the beginning of the year, Google began reporting that it was simplifying its privacy policy, consolidating 60 guidelines into a single policy that applies to all its services, including YouTube, Gmail and the social network Google+. 

According to the title of a Washington Post article, the “New privacy policy lets Google watch you – everywhere.”  More specifically, the new policy allows Google to track users’ activities by consolidating information it gathers on them across all of the company’s platforms.  Users cannot opt out of the new policy if they want to continue using Google’s services.  A company representative, Alma Whitten, noted that until now, the company has been restricted in their ability to combine YouTube search histories, for example, with other information on a user’s account (email activity).  Although the company claims that it does not sell or trade personally identifiable user information, it now shares usage habits and historical data across all platforms and uses the information to match ads to your online behavior .  Moreover, the fact that Google is gathering so much user specific information on individuals creates the potential for additional privacy implications in the future.  

The National Association of Attorneys General sent a letter to Google signed by 36 members expressing concern about the new policy.  In part, the letter noted:

Consumers have diverse interests and concerns, and may want the information in their Web history to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.

EU Justice Commissioner Viviane Reding stated that data protection agencies in European countries have concluded that Google’s new privacy policy is in breach of European law.  Given the amount of attention the new privacy policy has generated, it appears as though it’s only a matter of time before the company faces its first significant legal challenge to the policy.  Until then, the digital footprint of all internet users will undoubtedly continue to grow.

Chad Godwin

Attorney

Carr Allison

A recent article published on socialmediatoday.com suggests that unlike other professional industries, health care providers have been slow to engage on social media.  The article posits that the key reasons for their reluctance stem from concerns about accountability and privacy.  At its root, the issue seems to be that between the protections afforded under the Health Insurance Portability and Accountability Act (HIPAA) and more generalized notions of physician-patient confidentiality, many providers are concerned that a presence in social media threatens patient confidentiality and exposes them to expanded liability.  The article makes the point that a lack of social media presence is itself risky for health care providers, and argues that the risk of not establishing a presence subjects providers to potentially negative commentary and characterization.

The risks to physicians, hospitals and similar providers posed by interaction on social media are analogous to a large extent to those faced by lawyers, a group which in my experience has fairly enthusiastically embraced social media, and opportunities for professional on-line communication and networking.  Like physicians, lawyers are bound by client confidentiality.  We are also bound by rules of professional conduct that regulate what we are permitted to communicate about our services and our experience.  This does (or should) cause us to be cautious and deliberative when engaging social media, particularly when we do so under color of our profession and/or our firm.  Notwithstanding these restrictions, lawyers have been active in social media for many years.

On the other hand, health care providers have to be concerned about additional scrutiny that we lawyers do not.  This includes state and federal oversight associated with Medicare and Medicaid, as well as board licensure review.  Health care providers also face heightened attention and expectations of accountability when there is a bad patient outcome.  Providers may be understandably leery of engaging in yet another form of exposure and communication in which there is certainly opportunity for “bad press.”  However, as the socialmediatoday.com article suggests, media silence can be detrimental both from a financial point of view and in the arena of public opinion.  Even social media silence.

Media strategy and the tips and tactics of developing female organizational power were the big topics of the morning at this year's DRI Sharing Success seminar in sunny Scottsdale at the Westin Kierland Resort.  The morning started off with TV and radio personality, Mary Katherine Ham.  She regularly defends her political opinions on her morning radio program, The Morning Majority, and against Bill O'Reilly on The O'Reilly Factor.  Her presentation focused on finding our voice and crafting our message and defense in the media - be it in the press, on tv, or on the Internet at large through social media.  Enlightening and refreshing and a great start to the morning. 

Linda Bray Chanow from the Center for Women in the Law spoke next and offered a very interactive discussion on the perceptions of female power in business and law. Simply by starting with a classic scenario we've all seen in our professional careers,  attendees peppered Ms. Chanow with questions and comments. Overall an incredibly collaborative and insightful presentation that will surely lead to continued discussions amongst all the attendees during the rest of the seminar.  Definitely excited to see what the rest of day has to offer.  

In March, following failed efforts to negotiate a new collective-bargaining agreement (CBA), the NFL owners locked out the NFL players.  After five months of lawsuits, posturing, and bargaining, both sides kissed, made up, and went back to work.  The football season was saved, and all was right with the world (well, except the world economy, conflict in the Middle East, and rumors of Paula Abdul’s imminent return to television.)  Sports reporters allowed fans to relax for a bit, but issued a warning: a looming basketball war was right around the corner.  And this was no bluff.  A similar scenario occurred in 1998, when 50 regular-season NBA games were lost before the two sides executed a new CBA.

The NBA labor dispute has been simmering for some time.  The last NBA CBA was signed in 2005.  In August 2009, negotiations on the next CBA commenced.  On July 30th of this year, the existing CBA expired.  The following day, NBA owners locked out players from training camp. Since then, little has happened, save for some hand-wringing.   

On September 23rd, that changed when NBA owners announced that they were cancelling forty-three preseason games scheduled to go forward between 10/9 and 10/15.  If the parties fail to reach an agreement by the close of September, all remaining pre-season games will be lost.  If the standoff continues through the first week of October, the regular-season schedule, which starts on November 1st, will be at risk.

What’s It About?

Money, mostly.  What else?  According to some reports, 2010 was the most successful NBA season ever, with league revenues approaching almost $4 billion.  That’s more income than some small countries and Oprah (maybe) see annually.  The details of the fight are as follows:

1.  Dividing the Pie 

By far, the most important issue driving the dispute is the division of revenues.  Owners want to change the 57-43 percent revenue breakdown that currently favors the players.  The most recent NFL CBA flipped a 51-49 split in favor of the NFL players to a 53-47 split in favor of the NFL owners. In lobbying for that change, NFL owners claimed, in part, that the change was justified by a need for the owners to invest more money into stadiums and other long-term football-related investments.  NBA owners now want a similar deal. NBA Commissioner David Stern claims that changes are needed because the league lost $300M last year. (If I had gone to business school instead of law school, I might understand how an enterprise could make $4B during its “most successful season ever,” and yet “lose” $300M during that same year.)  Alleged insiders claim that the NBA players have given significant ground, but that the parties remain substantially apart. 

2.  Contract Length

The NBA owners wants to limit the length of guaranteed contracts to 3-4 years, down from the current maximum length of 5-6.  In this respect, NBA contracts would look more like NFL deals than those for Major League Baseball. 

3.  LeBron Backlash

Small-market owners insist on creating some device to keep a superstar with his existing team similar to the "franchise tag" in the NFL.  Doing so would limit high-profile free agents from jumping to bigger markets and leaving destruction, mass depression, and torn-up season tickets in their wake. 

4.  Salary Cap

Owners claim that the imposition of a salary cap would make the league more competitive by preventing wealthier clubs from hording talent.  To prevent penny-pinching owners from directing all dollars into their own bank accounts, the spending floor for each team would be 75% of the cap. 

At the end of the day, expect a victory for the owners.  They likely will concede on some of the lesser issues, but they will receive a majority of the revenues going forward. 

Legal Issues

Now for the sideshow that only attorneys care about: The legal disputes forming part of the owner-player NBA battle mirror those that arose during the NFL conflict.   

On May 24th, the NBA players filed an unfair-labor-practices claim against the league with the National Labor Relations Board, alleging that the league is “making harsh, inflexible and grossly regressive ‘takeaway’ demands . . . not supported by objective or reasonable factors or balanced by appropriate trade-offs.”  The union argued that the league has engaged in “classic take-it-or-leave-it bargaining . . . intended to delay action on a renewal CBA until the NBA locks out the . . . employees in order to coerce them into accepting the NBA’s harsh and regressive demands.” Players also claimed the league had exhibited “hostility” to a fair bargaining process, leaving the players to assess that back-and-forth exchanges are “futile.” 

On August 2nd, the league and owners collectively filed suit in the SDNY and their own proceeding with the NLRB, claiming that the players have failed to bargain in good faith.  Specifically, they claim that, despite 40 years of bargaining history, the defendants are seeking illegally to decertify their union for the purpose of attacking the lockout by filing an antitrust claim against the owners.  What is currently a lawful practice by the owners magically becomes an anti-trust action with union decertification.  The owners point to the same tactic tried by the NFL players, who re-certified their union as soon as the two sides struck an agreement.  

During the NFL dispute, the 8th Circuit handed the owners a victory.  One presumes that the NBA owners filed suit in the SDNY expecting that the 1st Circuit will do the same for them if the lockout continues. 

I see a pattern.  As a sports fan, it would be nice if the Supreme Court or, even better, Congress jumped in to settle the underlying issues so as to avoid our having to see them pop up again the next time a major-sport CBA expires.  This is unlikely to happen anytime soon. 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP.  He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees, Vice Chair of DRI's Sports Law Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.

I'm sorry, but I don't get it. Once an elected official has lost the confidence of the people he serves, morality, ethics and the public trust require an introspective analysis into whether continued service is desirable or appropriate. The people of Illinois deserve a Governor who not only avoids the appearance of impropriety but actively tries to avoid embarrassing himself and his so-called constituency.

Forget the impeachment trial in Springfield for a moment. It is nothing more than a constitutionally permissible recall vote. It is not a criminal trial and the rules pertaining to civil liberties and the rights of the criminally accused just do not apply. Is there a basis to remove this Governor from office? You bet! Has the Governor acted responsibly and appropriate in the face of the charges brought upon the impeachment? No way!

Whether Mr. Blagojevich is criminally guilty of any of the charges in the criminal complaint or in the soon-to-be-filed indictment is for a court of law with all the necessary protections applied including the right to jury trial, due process, the right to confront your accusers, and guilt beyond a reasonable doubt. What is at issue this week has been a reprehensible media circus filed with sound bites and attempts to invoke such honored men as Gandhi, Mandela and King.

When others in elected positions have faced personal or professional embarrassment which impeded their ability to continue to serve in office, the high road was usually selected which involved a mea culpa and a resignation. These matters involve the court of public opinion and not a court of law. There are no issues of due process at play here. Let's stop the charade and do what is right and fair for the people of Illinois, Mr. Governor. Tender your resignation and allow us to move forward from this pitiful chapter.

Charles H. Cole
Schuyler Roche, Chicago IL

As I write, the spectacle of the impeachment trial of Illinois Governor Rod Blagojevich has just completed day two.  Earlier in the day, as in the previous days, the popular and not so popular press decried this man as a "blow hard," "publicity hound," "crook," "idiot," and all the rest, and will likely continue to do so in the days ahead.  The media accounts profess shock and amazement that this man would take to the public airways to make his case rather than defend himself in the proceedings in Springfield, Illinois, birthplace of the political careers of Presidents Lincoln and Obama.  Sadly, it makes sense to us to try this man in the press, pronounce his guilt, cast him aside and move on to the Oscars, the ups and downs of Brittany's career or the public interest story of the day.  After all, the press has received the evidence, weighed it, and presented it, and we, the jurors of right and wrong, the public at large, can decide the case and punish this man with our scorn and contempt and move on to our next tasks.

This spectacle, and its reporting, erodes the public's trust in judicial or quasi-judicial process.  Jury trials are a far cry from the impeachment "trial" taking place in Illinois.  In American courts, judges decide what evidence the jury will hear.  Both sides have subpoena power and can seek enforcement by the court.  Witnesses can be confronted in open court and cross-examined to determine their truthfulness and veracity.  The jury's role is to sit in judgment of the evidence it hears after being instructed in the law by the court.  The jury is admonished not to be influenced by outside events or to read press reports of the proceedings.  The entire process is fair and just.  And in 99 percent  of the cases tried before a jury in this country, a just result is attained.  Wrongs are righted by appellate courts, if appropriate.

Not so the rules governing the Illinois Senate impeaching Governor Blagojevich.  The Senate, not the presiding Illinois chief justice, decides by vote which witnesses the governor can call, which can be subpoenaed, and what evidence can be heard.  Oh yes, he can move the Senate to admit certain evidence, but the Senate "rules" on the motion.  The right to confront witnesses and cross-examine them is not preserved.  The rules of the courts of the state of Illinois and the United States are expressly disregarded.  You are encouraged to review the rules for yourself.  The link is: http://www.ilga.gov/senate/committees/Documents/Proposed%20Senate%20Impeachment%20Rules.pdf.

Ask yourself, would you like to be tried in this court before this jury using rules expressly created for your prosecution by politicians whose heart ticks to the beat of popular opinion?

The entire Blagojevich fiasco is sad.  The saddest aspects are that our faith in what is just in our country is eroded by proceedings such as the Senate impeachment trial in Illinois and the way the press has covered it.  We must measure what is just by the way we treat the unpopular, the weak, and the unfortunate.  The Illinois governor is not weak and is unlikely unfortunate.  He is, no doubt, extremely unpopular.  The treatment of him erodes our confidence in what is fair and just to the detriment of all.

Mike Weston
Lederer Weston Craig, P.L.C., Cedar Rapids, Iowa