Samsung’s Super Bowl ad, IP enforcement, and feedback loops

So let’s talk about the SUPER BOW…[SHHHHHH!!!]

Samsung has posted a really funny video of a Super Bowl ad where a fictional Samsung executive cautions two ad writers that Samsung may not use trademarked terms such as SUPER BOWL, BALTIMORE RAVENS, or SAN FRANCISCO FORTY-NINERS.

The video is a hoot, starring Seth Rogen and Paul Rudd as the young admen, and the incomparable Bob Odenkirk (the lawyer “Better Call Saul” from Breaking Bad) as the executive who lives in deathly fear of an IP lawsuit.

Perhaps the video is only funny to me because of my IP background. But I doubt that the humor is just for IP profs: after all, why would Samsung make a commercial just for me? Sadly, in our “IP licensing” culture, overblown IP claims are ubiquitous, and I have little doubt that the general public will immediately see the absurdity in the video’s “conclusion” that Samsung may only refer to the game as “THE BIG PLATE” (watch the video, you’ll see), and to the teams as the “BALTIMORE BLACKBIRDS” and “SAN FRANCISCO FIFTY-MINUS-ONE-ERs.”

You have to love the fact that Samsung — which lost a $1 billion IP suit to Apple (for patent and trade dress, the latter a variety of trademark) — is now professing a fear of overblown IP claims. Kudos to a company that can laugh at itself after it’s been told it committed a billion dollars worth of IP infringement.

Sadly, the real-world use by some of “THE BIG GAME” to refer to the Super Bowl is an example of an all-too-common feedback loop: overblown claims by IP rights owners, leading to third parties who self-censor out of fear of suit, leading to additional overblown IP claims. These feedback loops require little real-world litigation, instead relying primarily or solely on private IP enforcement. I wrote about similar feedback loops arising from private enforcement of IP rights in this article.

The video ably underscores the importance of doctrines such as nominative fair use, which when met, allows others to refer explicitly to the “Chicago Bulls” rather than having to use tortured phrases such as “the professional basketball team from Chicago.” Or for that matter, the need to talk about the “San Francisco Fifty-Minus-One-ers.” So, shame on you, NFL — or should I say, shame on the “premier professional football sports league in the United States.” Of course, this wouldn’t be the first time somebody’s pointed out the NFL’s seeming habit of overstating its IP rights.

On to The Big Game: I wish I could say I’m excited about the game, but it’s between the Forty-Niners (meh) and the hated Ravens (grr-argh). I’m a Steelers man through and through. As one joke said, I’d rather root for an asteroid, but I think host city New Orleans has seen enough woes as of late.

Thanks to law prof Michael Risch for bringing this nominative fair use example to my attention. Cross-posted to Infoglut Tumblr.

Updated 6/10 – video link was broken, changed to another location.

Social networking word-of-the-day: “thinvisibility”

A new word for Facebookers and social networkers who cavalierly post embarrassing information about themselves to the web: thinvisibility:  Here’s a starting definition:

Thinvisibility: n.

  1. Being neither completely visible nor completely invisible.
  2. Being a tiny, shiny needle in a haystack of information overload.
  3. Being invisible to everyone except data aggregators and digital preservationists such as Google, the Wayback Machine, the NSA, and others.
  4. Being invisible to employers, colleges, police, neighbors, friends, exes, stalkers, acquaintances, and others, who are not interested in you, until they are.
  5. Being visible.

Animals, information, and language

This summer has been a wonderful three months of reading and writing. Currently, I’m reading Alex Wright’s Glut: Mastering Information through the Ages, a book about information and information overload, a topic of long interest to me. Wright’s book includes interesting discussions of just how basic information management techniques are to humans and others, including how non-human species such as insects and birds preserve and disseminate information for the benefit of the group. Serendipity also struck when I recently came across this video from Time Magazine, showing Kanzi, a bonobo ape from the Great Ape Trust, who has a vocabulary of nearly 400 words that he expresses using a touch screen. Through Kanzi and earlier apes such as Koko (who used sign language to ask for a pet cat), we need to be reminded that information management and language skills are not limited to homo sapiens.

Another Civil Procedure limerick

I’ve written previously about judges using limericks in their opinions.  Here’s another.  The ABA Journal notes that U.S. District Judge Ronald B. Leighton found a plaintiff’s 465-page complaint to violate Federal Rule of Civil Procedure 8(a)‘s requirement that a complaint contain “a short and plain statement” of the plaintiff’s claim.  Noting Lord Polonius’ line in Hamlet that brevity is the soul of wit,” Judge Leighton stated that “[b]revity is also the soul of a pleading.”  He concluded with a limerick:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Hat tip to my St. Thomas colleague Fred Light for sending this to me.

A Civil Procedure limerick

Continuing this week’s Civil Procedure and golf themes, a judge from the Eastern District of Pennsylvania dismissed a third-party complaint because it was filed by the defendants too late and without court permission.  Federal Rule of Civil Procedure 14 states that a defending party filing a third-party complaint “must, by motion, obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer.”  Here, the defendants filed their third-party complaint more than five months after they answered, and without first seeking leave of court.

The defendants’ names? Limerick Golf Club, Inc. and Limerick Golf Club Estates, Inc. (collectively, “Limerick”).  Concluding that Limerick didn’t justify the late filing, Judge Berle M. Schiller dismissed their third-party complaint.  Stating that Limerick’s “sub-par performance occurred in the pleading stage of this case and not on the golf course,” the court closed with a rhyme:

With arguments hard to resist,
The movant correctly insists,
His joinder was tardy,
And so the third party
Complaint is hereby dismissed.

Hat tip to Law.com for the story and where you can find additional details on the suit.  Court’s opinion here.