Tag Archives: Legal

Non-Traditional Legal Fees

Do you speed when driving your car? I fix tickets for friends, family and clients. For that, I get non-traditional (as in non monetary) legal fees.

(NB#1 – Background: I’m not sure where you’re reading this blog. It has a global reach for some reason. But in Missouri, in central USA, when someone gets a moving violation that ticket frequently results in “points” against a driver’s license. Those points accrue and eventually cause insurance rates to rise. This is a pure hypothetical situation: You are speeding, doing 70 in a 60 MPH zone and get a ticket. Officer Friendly gives you a citation with a court address and hearing date. You come to me. I send your ticket and some lawyer-y paperwork to the court requesting that your moving violation be amended to a non-points non-moving violation. In my experience, these requests are usually granted [this is extremely subjective and based only on my actual experience in mid-central-eastern Missouri]. Your speeding is now littering or illegal parking or [my favorite] excessive vehicle noise. That $100 speeding ticket is now a $150 non-moving violation and has $50 court costs. You get zero points and pay the municipality coffers a little extra, money that you would otherwise spend in duplicate to your insurance carrier. I’m talking simple speeding or rolling stop signs here… no DUI, resisting arrest, open container, reckless driving, etc. I don’t handle that nonsense.)

(NB#2 – Disclaimer: I strongly doubt this is necessary, but I’ll be safe: The choice of a lawyer is an important decision and should not be based solely on advertisements. Nothing here is legal advice. Reading this blog post does not create an attorney-client relationship. Submitting a comment or emailing me similarly does not create an attorney-client relationship. If you seek legal advice from a BBQ & Beer blog, you fail at life.)

The Missouri Supreme Court Rule of Professional Conduct 4-1.5 states that my fees must be reasonable for the work performed and that I may accept property in exchange for legal services. My clients and I have come to the understanding that my reasonable non-monetary fee for handling a traffic ticket is beer:

Law school pays off!

Law school pays off!

I’ve been paid all kinds of beer for tickets, but this client did it right. Just this year, I had a modest bar tab paid after some pickup basketball, I was given some Fat Tire by a friend’s adult daughter, and now this bounty of Urban Chestnut. I’ve even accepted a borrowed Keystone Light from an indigent friend client on a night I wasn’t drinking. What can I say… I’m flexible and generous.

Earlier this year I wrote the Terms of Use for a friend’s website. He told me to go Full Snark, so I did. I took a really nice Belgian beer sixer as payment. I had as much fun writing that silliness as I did drinking the beer and telling the story of writing the Terms of Use in exchange for beer! (NB#3 – I have received prior verbal permission from this client to tell this story and link to the TOU on this blog.)

If you’re speeding in STL, you could go to the cesspool of legal services on Craigslist and pay anywhere from $35-$50+ for getting a ticket fixed, or you could call your attorney buddy (not necessarily me) and offer some suds for a shot at a non-points violation.

The bottom line is I hope this particular guy speeds more often because I really enjoy good beer.

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Dingbats Aren’t Just Bud Light Drinkers

Yet another post that has nothing to do with BBQ and is only tangentially related to the substance of beer, though two breweries are involved. Keep scrolling, Mr. Chug-A-Lug or Ms. Brisket Lover. This isn’t the blog entry for you.

When I’m not loading my body with the poisons of alcohol and cholesterol, I pay bills as an Intellectual Property attorney. That means that before continuing, it’s time for the Disclaimer: In case you didn’t already know, nothing here is legal advice. Don’t rely on anything here as legal advice. Remember that seeking legal advice from a BBQ & beer blog = You fail at life.

A friend shared an article on Facebook about a lawsuit filed by fairly well known brewer Magic Hat against relative newcomer West Sixth Brewing Co., out of Lexington, KY. Intrigued by craft breweries in litigation, I clicked. Turns out Magic Hat, owner of the #9 trademark and current applicant for the #9 design registration for their #9 beer, took exception to the West Sixth logo.

Look for yourself.

This is the federal mark that Magic Hat filed with the US Patent & Trademark Office (image from the USPTO TESS database):

#9 is divine

#9 is divine

It doesn’t come in black & white on the shelf. Here is a pic from an early Drink This Beer from this very blog:

Drink this beer

Drink this beer

And, here is the West Sixth logo that caused all the hubbub (image from the currently-overwhelmed by traffic westsixth.com, via Google images):

It's a 6, you dingbat!

It’s a 6, you dingbat!

Factoid of the day: That little eight pointed star is called a dingbat. Frankly, I think it’s an important part of this case for reasons I’ll explain.

Taking the very, very 10,000 foot view on this issue, the case comes down to customer confusion between these two marks. There’s a series of factors involved, but that’s it. Are you confused? Would you ever buy West Sixth thinking you were buying Magic Hat #9?

As for me, the answer is no. Every case is subjective, but I (1) read labels, and (2) like to think that I know at least a little more than the average beer drinker.

More specifically, there are well-known factors that courts use to determine when a trademark is infringed. For guidance, let’s look to Harvard Law, who wouldn’t touch my undergraduate transcript with a ten foot cattle prod:

“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).”

In plain English, the Court will evaluate these and other factors to determine if West Sixth is on the hook for infringement liability. Here’s my take on each:

Strength of the Mark – Magic Hat has two trademarks here. The first is the #9, which has been around so long that it’s literally considered incontestable, and for which Magic Hat has a federal registration. The second is the #9 design shown above, minus the color scheme (which is part of the trade dress, not necessarily the trademark… just stick with me here). The second one is merely a registration but has been on file for a few years and I consider it to be a logo that I know on sight. I’d award this point to Magic Hat. It’s not the Budweiser or High Life logo, but it’s a fairly well known mark in its own right.

Proximity of the Goods – Both are beers, both available in Kentucky (the locale of the Federal District Court where this case was filed). Easily a point for Magic Hat.

Similarity of the Marks – A 6 is not necessarily a 9; My kindergarten-aged daughter can tell you that. But, 180 degrees is all that separates the two, and they appear to be in similar if not the same font. The Magic Hat mark has much more in the way of design elements, and the sizing / location of the numbers with respect to the overall logo isn’t the same. There’s also no # in the West Sixth mark. With only these facts I’d be inclined to lean towards West Sixth.

Here is my hangup: The Dingbat. I can’t imagine that many beers have this unique eight point star shape on their beer label. Indeed, none come to mind. It’s right there in the loop of the 9 and next to the upper half of the 6. Yes, the eight points on #9 seem similar, as opposed to the elongated N, S, E & W points on the 6, but it seems like a pretty wild coincidence that you’d have this shape in both labels. I think there’s a chance that a reasonable judge or perhaps jury might award this point to Magic Hat as well. This is very hard to predict.

Evidence of Actual Confusion – I can’t imagine there’s any. West Sixth is a purely local beer, and any Kentucky buyer isn’t going to pick up West Sixth on accident while looking for Magic Hat. We might have a case of reverse confusion, however, where a KY buyer purchases #9 on accident. This one is probably awarded to West Sixth, and is a draw at worst for them.

Similarity of Marketing Channels Used – I can’t comment on this except that the lawsuit alleges that the same distributors may be shuffling this beer around stores. That means they could be on the same shelves in the same parts of the beer aisles at the local grocer. Point to Magic Hat.

Degree of Caution Exercised by Typical Purchaser – This could turn into a powerful point for West Sixth. What is a typical purchaser? If you believe that the typical beer buyer is a moron, you’d be right. Bud Light and other mass-produced scuzbrew dominates both the bestselling beer list as well as the worst beers in the world list. The degree of caution is limited by (1) what’s on sale, (2) what’s on the aisle end cap and saves me some extra walkin’, and (3) what gets me good n’ drunk?

But what about the typical craft beer buyer? That guy who is in the minority of beer buyers who is looking specifically for hand-crafted beer, someone who eschews the watery dreck of Super Bowl ads… what is his level of caution? I’d say it’s pretty high. That guy, the guy in Kentucky who is looking for local craft beer will not pick up Magic Hat #9 on accident. He or she knows brands, knows beer styles, understands hops, can tell you what IPA stands for. That customer is not going to be confused, and that’s ultimately what would I emphasize if I were West Sixth’s counsel in this case. The degree of caution for a typical craft beer purchaser is very high. Point to West Sixth because I’m proud of that distinction.

Defendant’s Intent – I am inclined to believe that West Sixth, a local brewer in Kentucky wasn’t looking to trade off the goodwill of a far more established New England brewer. Did the graphic design guy who did their logo draw inspiration from #9? Maybe, but who can say. I give this one to West Sixth.

CONCLUSION – I’m not a judge and I’ve never been on a TM jury. That Polaroid case may not even be good law anymore. Hell, I’m drinking beer right now (FYI, O’Fallon Kite Tail)! I can tell you this case passes the smile test and Magic Hat may have tried to resolve this without litigation. To file this case, they had to come down to Kentucky. They are going to get some bad press from craft beer lovers, as well as people who look at the logos and think they look nothing alike. This isn’t quite at the scale of Budějovický Budvar vs. Anheuser-Busch (now AB/InBev), but it’s still a relevant dispute in my areas of expertise (IP & Beer).

I’m going to barely side with West Sixth because I don’t see (and can’t imagine) any actual confusion has taken place. I also believe that the craft beer drinker is a man or woman of discriminating tastes who knows what he or she is buying. Litigation is a total crapshoot, so this could turn out totally differently.

(Note to nitpicking lawyers reading this: Yes, I know there is a trade dress claim, state claims, etc. My readership is barely literate and probably came here trying to learn about 55 gallon drum smokers, parboiling ribs, or some other nonsense. This is over-simple, and probably not 100% accurate. Thanks in advance for being kind if you choose to comment.)

My final thought on this is that, even though being sued sucks and is expensive, I have a feeling that this is going to be one of the best things to ever happen to West Sixth. I had never heard of them until today, and I imagine the same can be said for thousands of others who read this or a similar article. This isn’t bad press, it’s a mountain of sympathy press that can be spun as the big out of town brewery coming into Kentucky to push around a little guy… a little guy who sells beer you may want to try.

Updated May 22, 2013: Although I had seen the social media campaign yesterday from West Sixth, only today I came across Magic Hat’s response (other than the lawsuit, which is a pretty powerful response in and of itself), via Magic Hat’s Twitter account. I’m posting both in the interest of fairness. I’ll even link to the Reddit thread.

Updated (Again!) May 22, 2013: The plot thickens! West Sixth isn’t backing down and fired back at Magic Hat. This has gone from interesting to compelling. I’m curious what’s next.

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Cold Calling A Patent Attorney

BBQ & Beer enthusiasts, this one probably isn’t for you (unless you need an IP attorney, in which case you may learn a little about cold-calling).

As you might know, my day job entails lawyering. Not just any lawyering, but the specialty known as Intellectual Property. Because of that, I get phone calls.

(Disclaimer: In case you didn’t already know, nothing here is legal advice. Don’t rely on anything here as legal advice. Remember that seeking legal advice from a BBQ & beer blog = You fail at life.)

The subject of cold calling a lawyer has been very well-addressed by Ken at Popehat (although we get different types of calls since we are in different practice areas). This post is a little more specific to intellectual property law.

I do my best to avoid taking legal work from clients who are going to turn into problems. This is not taught in law school. If Mr. or Mrs. Cold Caller seems like someone who will be a nightmare client or, even worse, a nightmare malpractice plaintiff, then I decline. I prefer to let someone else take on the risk of that type of client – as a solo practitioner with a wife, kids, house, dog, massive student loans, etc., I am exceptionally risk-averse.

Each of these things (I swear this is all true) have been said to me. It’s at that point in the call when I know I will never ever agree to take your case.

Invention worth millions of dollars.” – The red flag of all red flags. I hear this MONTHLY. Any iteration of this is an immediate referral out to the bar referral service. It’s a sign of delusion. If you’re deluded about your invention and the chances of becoming a millionaire, then who are you going to be mad at (read: sue for malpractice) when your seven figure check doesn’t arrive? Me. No thanks.

I fired my last patent attorney.” – This isn’t necessarily a 100% dealbreaker, because maybe he/she truly did a horrible job. I can read the patent file online and see the state of the case, but odds are high you are either a pain in the rear client or the application is FUBAR. Either way, my risk-aversion says I’m not the attorney for you.

I filed my own patent application...” – I’m not much of a gambling man. I play a little poker here and there with friends, and I have been known to wager beer during the fantasy football season. But I’ll bet that your application has been hopelessly screwed up by your own hands. It’s a nearly ironclad rule that no one should ever file their own patent application. When the client is looking for someone to blame down the road, it is either them or you… who do you think they’ll choose?

I filed my own provisional patent application 11 months and 3 weeks ago…” – See above. If you file your own provisional patent application because it was super cheap and super easy, you likely super messed it up. You have 12 months from filing to file a non-provisional based on the (probably toxic) provisional. I might be able to help you out in this small window of time, but the earlier filing date is probably forfeit.

The Lord delivered you to me.” – I got this verbatim, followed by lots of Bible quoting and failing to give me the name of the jackass who provided my number. This one was referred to a large general practice firm that I especially dislike.

The FBI is tracking me because of what I have to tell you.” – Not a lie. This guy called me and then showed up unannounced at the office and scared the holy hell out of the receptionist. He was in pajamas, slippers, a robe, had mussed hair, and was obsessed with organizing the sugar packets and pencils at the front desk. Mr. Managing Partner told me that this guy needed to go, so we sent him to the bar referral service.

[Absolutely non-extendable statutory deadline] was last week, but I still want to file. I need [fraud & unethical conduct].” – Sorry, but I’m not risking my law licenses for you. I got this phone call mid-morning the day after Christmas a couple years ago, and a hard 12 month deadline had passed the prior week. Someone really truly asked me to commit fraud on the Patent Office, and I respectfully declined.

My unpatented invention of [ubiquitous product] was stolen by [huge multinational company] and I want to sue.” – This has happened a few times, and the “inventor” can never prove their case. I’m not a fan of being sanctioned by the Courts for bringing cases like this.

Cold caller wants me to take their patent application pro bono. – Pro bono work is not often associated with intellectual property. Indigents who are facing an unflinching criminal justice system, or a destitute person being evicted… that’s pro bono work. You don’t want to pay for a patent application? Not quite pro bono work.

Cold caller wants me to draft application for free (and pay the filing fee!) for a small slice of their future multimillion dollar company. – No, you sleazeball.

Cold caller will only tell me about the invention after I sign an NDA. – I don’t sign Non-Disclosure Agreements. I am bound by the Missouri Rules of Professional Conduct, so anything a prospective client tells me in confidence stays in confidence. (With exception. “I’m off to kill / maim someone…” gets reported to the cops.) If I explain that and they insist I sign, then goodbye and good luck.

Cold caller touts their “social network” invention as the “next Facebook” and wants free legal work – Maybe I’ll look back on this with regret, but probably not. Decline.

Cold caller’s invention cures a serious disease through a special diet – Yes, I got this call. I hesitate to say the illness, but I passed this single-claim inventor-drafted application on to someone else who handles this type of stuff. I hope the inventor is correct.

The one I’m waiting for, and it would make my day: Cold caller has invented a perpetual motion machine. – Please, Jebus, deliver this person and their contraption to me.

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Scammers are Scum

This is not related to BBQ or Beer. Well, I am drinking some beer while writing this, so that’s about it. During my day job, when my daily Simvastatin regimen is not battling the pork / alcohol regimen, I pay the bills as an intellectual property attorney.

On the short list of things that irritate me are people who order Bud Light in a bar. Gawd, that beer is awful. Another thing? Ripoffs. One type of ripoff is the scam. If it smells like a scam, looks like a scam, etc., then it’s probably a scam. Remember: Scammers are scum.

Mr. Big Client got this (redacted) item in the mail the other day:

Who can spot the clues?

Mr. Corporate Finance Guy at Mr. Big Client may just pay this in due course. $375 isn’t much for some important trademark bill. Shit, it’s DUE NOW?! PAY ASAP! On to the next invoice… this is what the people cashing the sucker check are hoping happens.

Let your common sense decide if this is legit. I will provide some research and opinion. Here’s the clues.

1. US Trademark Registration Office. Never heard of it. Ever. It sure looks a lot like the US Patent & Trademark Office, where you send actual, official filings and filing fees for federal trademarks. Heck, even USTRO looks amazingly similar to USPTO.

2. The real USPTO has no office in Los Angeles that I am aware of. They are based in Alexandria, Virginia. The vast majority of the Executive Branch is based in the greater Washington, D.C. area.

3. What’s at 633 West Fifth Street in Los Angeles? Amazingly, it’s the building at the epicenter of one of the first alien attacks in Independence Day! Remember that party on the roof? Didn’t end well.

Maybe E.T. got one of those invoices.

Well, it’s also the location of a company that lets you host a virtual office, coincidentally also located on the 28th floor of that building. So maybe USTRO is just using this prestigious address for mail delivery? Do they even have operations there?

4. So, what does this cost? A mere $375? Now, where have I seen that fee before? Ah, yes, that’s the fee for filing a trademark application the old fashioned way – through the mail. (It’s cheaper to file online.) We just paid a $375 bill a couple months ago on this, must be another one just like it… may as well pay it!

5. What I find truly amazing is that they posted the required statutory language in the mailing. You cannot mail a solicitation that is disguised as an invoice unless you prominently state that it is a solicitation. This guy either is (or was) an attorney, has an attorney, and/or is seriously experienced at this type of activity. Of course it’s buried at the end of some paragraphs containing references to official government agencies and references to cancellation of the trademark, but it’s still on there.

6. No phone number, no email, no fax – no surprise. I also can’t find anything on the California Secretary of State business entity search database. How odd.

7. Ah, Google. My dear friend. If you search this… entity, you get accidental hits to the USPTO, followed by a bunch of complaints on ripoffreport.com. This started in December 2011 and I found at least 19 separate complaints on that site alone. When a bunch of people suddenly start complaining, it may not be a coincidence.

8. Looking to the uploaded documents on the Rip Off Report website, you might notice something common about them! Each reference number is friggin’ identical: TRB-1781712. In fact, the numbers under the bar codes (2011-2REQ-5FGJ-USTRO and 2REQ-5FGJ-USTRO) are also consistent throughout the postings. Each matches with the document sent to my client. So… I guess these are not unique to each recipient? Do they have any meaning whatsoever, other than to give the impression of random numbers meant to distinguish between clients and/or trademarks? Were these the lucky numbers on the back of last night’s fortune cookie scroll?

9. Wow, they have a Trademark Registration and Monitoring Division within USTRO. Perhaps this is distinct from, and I’m just speculating wildly here, the Uh, Oh The Feds Are On To Us Division and the Time To Change The Name Of The Company Again Division.

10. Finally, the USPTO (not the USTRO) and the International Trademark Association have warnings about sketchy mailings that look official and want money in return. USTRO is not listed there, and I’m sure it’s not because they’ve only been around since December 2011. I’m totally sure it’s because this is a legit enterprise and this is all a huge misunderstanding.

Needless to say, Mr. Big Client did not pay this invoice.

In my humble opinion, this smells scammy. Scammers are scum, so I avoid the stench. I’ll drink to that.

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