Thursday, April 03, 2008


Apple v. Big Apple

If this keeps up, we may eventually need a new name for that fruit whose daily dose keeps the doctor away. As you will recall, last year computer maker Apple Inc. and The Beatles' company Apple Corps Ltd. settled their prolonged battle over use of the Apple name, with the California company getting ownership of the Apple trademark and licensing it back to Apple Corps. Now, Apple is taking on The Big Apple, claiming that New York City's GreeNYC environmental campaign uses an apple in its logo that too closely resembles Apple's apple.

New York has filed for a trademark on the stylized apple and Apple has responded by filing a formal opposition. Gerald Singleton, the IP lawyer representing the Big Apple, tells Wired magazine, "The city believes that Apple's claims have no merit and that no consumer is likely to be confused. This well-known city is using its new design in a variety of contexts that have absolutely nothing to do with Apple Inc." As for that fruit, perhaps the name "microsoft" could become available.

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Posted by Robert J. Ambrogi on April 3, 2008 at 09:48 AM | Permalink | Comments (0)

Penalty for Libel: Banishment?

Because tribal reservations have sovereignty over many of their own affairs, their laws sometimes veer away from the common law most of us are accustomed to. But tribal leaders at the Rocky Boy's Reservation in northern Montana apparently went too far astray from accepted notions of fairness when they adopted an anti-defamation ordinance Feb. 7 that allowed them to seize a defamer's personal property and permanently banish the offender from the reservation. A tribal member found to have slandered another could face loss of home and property, relinquishment of tribal membership, and status as a "nonentity with no civil rights."

Some reservation members were none too happy with the ordinance, which was enacted in the wake of letters disparaging tribal council members and their families. But unhappiness turned to anger when tribal police arrested a 70-year-old woman for allegedly circulating a defamatory letter about the tribe's leaders after she was unable to get financial help to fix her roof. "No place else in the United States could this happen, but on the reservation," said another woman who was questioned by police under the defamation ordinance.

Members of the tribe revolted. They organized a petition drive and were successful in convincing the tribal council to repeal the ordinance in a unanimous vote. Recounting the story in the Helena Independent Record, columnist Jodi Rave says it demonstrates that "some tribal leaders are willing to gamble with -- and ignore -- citizen rights." Of course, it also demonstrates the power of citizens to fight back and win.

[Hat tip to Reporters Committee for Freedom of the Press.]

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Posted by Robert J. Ambrogi on April 3, 2008 at 09:37 AM | Permalink | Comments (0)

Crossdressed Judge Reconsiders Resignation

Is it just that I live in Massachusetts, or is prudishness really dead? The most remarkable aspect of U.S. Bankruptcy Judge Robert Somma's OUI arrest was not that he was dressed in drag, but that the legal community's response was to say, "So what? Let's get back to work." When news of Somma's crossdressing broke a week after his arrest, he quickly submitted his resignation, anticipating a "media frenzy." But when area lawyers rallied to urge him to stay, citing his skill on the bench, no doubt even he was surprised. In a letter this week to Massachusetts Lawyers Weekly, the judge wrote:

I am gratified and humbled by the kind words expressed by so many in personal letters I received and in the several letters that were sent to the Court of Appeals supporting my reinstatement. That outpouring of support has led me conclude, contrary to my initial belief, that the media frenzy occasioned by this episode would not be an impediment to my continued service as a judge. Consequently, over the past few weeks I have been communicating with the Court of Appeals concerning my status and expect that these discussions will continue.

The circuit executive for the 1st U.S. Circuit Court of Appeals confirms that the effective date of Somma's resignation, which was to be April 1, is now extended to May 15. No one at the court is saying why the date was pushed back, but The Boston Globe reports today that some lawyers interpret the delay as intended to allow the circuit court time to consider rescinding Somma's resignation. Still, the article points out, rescission is by no means a done deal.

The real story here, as I said at the outset, is the legal community's reaction. The letter circulated in support of Somma said, "Recent events do not in any manner diminish Judge Somma's ability to fulfill his duties and to remain as a highly respected member of the bench." Globe writer Jonathan Saltzman zeros in on the import of this when he says:

The letter-writing campaign illustrates how perspectives have changed about behavior such as cross-dressing. Twenty years ago, several lawyers acknowledged, it was highly unlikely that the legal community would have rallied around a judge who was arrested under circumstances like those in the Somma case.

Is a judge's private life always out of bounds? Of course not, if it involves unlawful or unethical behavior. As Jeffrey Rosen writes this week in The New Republic, "Americans are infinitely tolerant of moral transgression, except where they're not." But perhaps the legal profession has reached the point where it accepts that a judge's personal preferences, provided they are lawful, are not reflections of morals and have no bearing on qualification to serve.

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Posted by Robert J. Ambrogi on April 3, 2008 at 09:33 AM | Permalink | Comments (0)

Justice Goes to the Dogs (and Cats)

Pet food maker Menu Foods is ready to settle claims that its tainted products killed or injured thousands of household pets. The New Jersey Law Journal reports today that the Canadian manufacturer has reached a settlement in principal with lawyers for plaintiffs in the multi-district litigation, which consolidated some 120 lawsuits from throughout the U.S. Last year, Menu recalled 60 million containers of pet food after it received complaints of pets dying and ill after eating pet food contaminated with tainted flour imported from China.

No terms have been disclosed. A notice posted by Menu Foods on its Web site says that the terms of the settlement will be filed May 1 in federal court in New Jersey, with a hearing scheduled there May 14. The company had earlier estimated its costs associated with the recall to be $55 million (Canadian), and its notice this week said that estimate "remains unchanged." Allowing for other costs, that would suggest that the settlement amount is somewhere south of that.

Complicating these cases from the outset -- as Carolyn Elefant noted here when they were filed -- was the measure of damages for loss of a pet. Carolyn pointed to a post at the Milwaukee Injury Board in which David Lowe discussed the types of damages that may be available to pet owners. Arriving at an answer is complicated, Lowe said, because damages for loss of a pet vary significantly from state to state. But the scope of the recall, he wrote then, could present the appropriate opportunity "to test the old assumptions and make some new law in this area."

This week's settlement might indicate that neither side is ready to test those old assumptions. If that is not to be the legacy of this litigation, perhaps -- as Kia Franklin suggests at TortDeform -- it at least will lead to tougher regulation. After all, when it comes to the well-being of their dogs and cats, pet owners are not likely to roll over and play dead.

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Posted by Robert J. Ambrogi on April 3, 2008 at 08:09 AM | Permalink | Comments (0)

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