Wednesday, August 14, 2002, 7:41 p.m.
I didn't get fired today. And I didn't suffer any ire from my boss. He was in a jolly good mood all day. Whew!
From the What Up With Monster Law Firms Department. Today's Cnet News.com has an article entitled Godzilla vs. the blog thing:
The letter, sent by U.S. law firm Seyfarth Shaw on behalf of Japanese retail and entertainment company Toho, claims that Dave Linabury's Web site Davezilla infringes on Toho's Godzilla trademark both in name and in its lizardlike mascot.
This is a grand example of ridiculosity on several fronts.
What is a trademark? Simply stated, according to this web site at Harvard Law School:
A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. 15 U.S.C. §1127. For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas). Similarly, the trademark "Coca-Cola" distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g. Pepsi).
What constitutes trademark infringement? Reading further, we learn:
If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. §§1114, 1125. The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).
Go to Dave's web site and let me know if you're confused. I'm not. Nor was I confused when I (regrettably) downloaded Gozilla. I won't even discuss that wonderful technology called Mozilla presently being brought to us by another corporate monster.
To me, while not the bigger aspect of this whole Zilla issue, the more fascinating aspect is the legal advice the owner of the Godzilla trademark is getting from their American Lawyers. Why wouldn't Seyfarth Shaw lay it on the table for Toho? Why wouldn't Seyfarth Shaw just tell Toho that Dave's web site in no way constitutes trademark infringement? They certainly can't believe "Davezilla" crosses that line? Can they?
I'm disappointed. I recall Seyfarth Shaw from my days as a legal secretary in Chicago, but they had a much longer name then. It was a highly respected Chicago firm and probably still is, even if it is a little disconcerting to note that they've grown from three attorneys in Chicago to approximately 500 attorneys in nine offices throughout the United States and one in Brussels. Holy Smokes! Talk about monsters?
Okay. This is my observation from all my years working for lawyers. Say you think you've got a case. Could be anything. You Go to a lawyer, right? If it turns out that you don't have a very good case, one of three things might happen: (1) the lawyer tells you he'll take your case; (2) the lawyer tells you in the most civil of tones that he just doesn't have time to devote to your case and possibly pawns you off on another lawyer (the referral). Or, and this is the rarest of birds (legal eagles), the lawyer looks you straight in the eye and tells you the truth: sorry, you really don't have a very good case. Those are not necessarily verbatim, and there are other variables to consider. Just my observation.
Well, la-te-da. Ms. Jill A. Jacobs, the attorney who sent the cease and desist letter to Dave is located in Seyfarth's Los Angeles office. Uh huh. She's been out of law school since 1995, which puts her on the cusp of becoming a partner, assuming she's been with the firm since graduation. Anyway, you can't entirely blame her. You can bet she's not at the top of the totem pole on this. I'd like to think she tried to tell them that attempting to take down Davezilla will do more harm to their image than Davezilla ever could.
According to the Cnet article, AOL Time Warner has cut a deal with Toho for the use of "zilla." Aww. One thing to consider, if Dave is forced into litigation with Toho, it's quite possible that the terms of that deal could be revealed. I think. Not sure. Here's a wild speculation. Perhaps AOL Time Warner, in an effort to keep the terms of their deal secret, might pitch in in some way on behalf of Dave? Ya think? Nah.
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