Eric S. Wachspress/Attorney-at-Law

I am writing to share with you important news regarding my practice. 

After practicing trademark law for 45 years, first with the United States Patent & Trademark Office and subsequently in private practice here in Chicago, I have decided to retire and close that practice, effective on May 12th. I have gotten to know many of you personally over the years and would like to let you know that my phone number will remain the same if you want to chat. However, I will no longer be practicing law.

Because most of you either have pending matters before the U.S. Patent & Trademark Office or registered trademarks that need to be maintained, to ensure a smooth and easy transition for you and to ensure that your rights will be protected, I have arranged for the orderly transfer of my trademark practice to McAndrews, Held & Malloy, a Chicago-based boutique firm with deep experience in trademark prosecution and portfolio management, as well as a full range of other IP services. Two McAndrews shareholders, Ron DiCerbo (a World Trademark Review 1000-recognized attorney) and Paul McAndrews, should have already contacted you with introductory information and next steps.

You can find out more about the firm at mcandrews-ip.com, but I can say that their firm model is similar to my own – to provide elite legal services with a personal touch and a high level of value. If you choose to work with them, I am confident that you will be in the best of hands. I should also note that I am receiving no monetary compensation from McAndrews. My interest is simply to find you the best possible legal resource as I retire. If you have a pending matter, your billing rate will not change. If you have a registered trademark, my power of attorney ended when that mark registered.

Ron and Paul have told me that they will happily enter into the same kind of fixed-fee arrangement that you have enjoyed with my firm. Many of their flat fees will be less than I have charged. If you are comfortable with this transition, please contact Ron Dicerbo at RDICERBO@mcandrews-ip.com. If you prefer to select different counsel, or do not wish to have your matters transferred to another firm, please notify me in writing by no later than April 15th . Note that where you have either a pending or registered trademark with the U.S. Patent and Trademark Office, copies of any correspondence with that Office as well as a copy of your registration certificate, if applicable, is a matter of public record and is available at that Office’s website. You should also already have copies of all correspondence as well as invoices between us.

If neither I nor the McAndrews firm hear from you, responsibility for the maintenance of your matters will be transferred to you!

Above all, please know that it has been an honor to serve as your attorney.

If you have any questions, feel free to call me at any time.

[Note that if I am acting as your registered agent, I will continue to do so. In Illinois a registered agent does not need to be an attorney.]

See https://www.inta.org/perspectives/law-practice/united-states-burden-on-opposer-to-establish-non-use-of-third-party-registrations/

UNITED STATES: Burden on Opposer to Establish Non-Use of Third-Party Registrations

SEE https://www.reuters.com/legal/us-supreme-court-tosses-hetronics-96-million-trademark-win-against-european-2023-06-29/

The lawsuit began like so many others: A man named Roberto Mata sued the airline Avianca, saying he was injured when a metal serving cart struck his knee during a flight to Kennedy International Airport in New York.

When Avianca asked a Manhattan federal judge to toss out the case, Mr. Mata’s lawyers vehemently objected, submitting a 10-page brief that cited more than half a dozen relevant court decisions. There was Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, of course, Varghese v. China Southern Airlines, with its learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.”

There was just one hitch: No one — not the airline’s lawyers, not even the judge himself — could find the decisions or the quotations cited and summarized in the brief.

That was because ChatGPT had invented everything.

The lawyer who created the brief, Steven A. Schwartz of the firm Levidow, Levidow & Oberman, threw himself on the mercy of the court on Thursday, saying in an affidavit that he had used the artificial intelligence program to do his legal research — “a source that has revealed itself to be unreliable.”

Mr. Schwartz, who has practiced law in New York for three decades, told Judge P. Kevin Castel that he had no intent to deceive the court or the airline. Mr. Schwartz said that he had never used ChatGPT, and “therefore was unaware of the possibility that its content could be false.”

He had, he told Judge Castel, even asked the program to verify that the cases were real.

It had said yes.

Mr. Schwartz said he “greatly regrets” relying on ChatGPT “and will never do so in the future without absolute verification of its authenticity.”

Judge Castel said in an order that he had been presented with “an unprecedented circumstance,” a legal submission replete with “bogus judicial decisions, with bogus quotes and bogus internal citations.” He ordered a hearing for June 8 to discuss potential sanctions.

As artificial intelligence sweeps the online world, it has conjured dystopian visions of computers replacing not only human interaction, but also human labor. The fear has been especially intense for knowledge workers, many of whom worry that their daily “The discussion now among the bar is how to avoid exactly what this case describes,” Mr. Gillers said. “You cannot just take the output and cut and paste it into your court filings.” may not be as rarefied as the world thinks — but for which the world pays billable hours.

Stephen Gillers, a legal ethics professor at New York University School of Law, said the issue was particularly acute among lawyers, who have been debating the value and the dangers of A.I. software like ChatGPT, as well as the need to verify whatever information it provides.

The real-life case of Roberto Mata v. Avianca Inc. shows that white-collar professions may have at least a little time left before the robots take over.

It began when Mr. Mata was a passenger on Avianca Flight 670 from El Salvador to New York on Aug. 27, 2019, when an airline employee bonked him with the serving cart, according to the lawsuit. After Mr. Mata sued, the airline filed papers asking that the case be dismissed because the statute of limitations had expired.

In a brief filed in March, Mr. Mata’s lawyers said the lawsuit should continue, bolstering their argument with references and quotes from the many court decisions that have since been debunked.

Soon, Avianca’s lawyers wrote to Judge Castel, saying they were unable to find the cases that were cited in the brief.

When it came to Varghese v. China Southern Airlines, they said they had “not been able to locate this case by caption or citation, nor any case bearing any resemblance to it.”

They pointed to a lengthy quote from the purported Varghese decision contained in the brief. “The undersigned has not been able to locate this quotation, nor anything like it in any case,” Avianca’s lawyers wrote.

Indeed, the lawyers added, the quotation, which came from Varghese itself, cited something called Zicherman v. Korean Air Lines Co. Ltd., an opinion purportedly handed down by the U.S. Court of Appeals for the 11th Circuit in 2008. They said they could not find that, either.

Judge Castel ordered Mr. Mata’s attorneys to provide copies of the opinions referred to in their brief. The lawyers submitted a compendium of eight; in most cases, they listed the court and judges who issued them, the docket numbers and dates.

The copy of the supposed Varghese decision, for example, is six pages long and says it was written by a member of a three-judge panel of the 11th Circuit. But Avianca’s lawyers told the judge that they could not find that opinion, or the others, on court dockets or legal databases.

Bart Banino, a lawyer for Avianca, said that his firm, Condon & Forsyth, specialized in aviation law and that its lawyers could tell the cases in the brief were not real. He added that they had an inkling a chatbot might have been involved.

Mr. Schwartz did not respond to a message seeking comment, nor did Peter LoDuca, another lawyer at the firm, whose name appeared on the brief.

Mr. LoDuca said in an affidavit this week that he did not conduct any of the research in question, and that he had “no reason to doubt the sincerity” of Mr. Schwartz’s work or the authenticity of the opinions.

ChatGPT generates realistic responses by making guesses about which fragments of text should follow other sequences, based on a statistical model that has ingested billions of examples of text pulled from all over the internet. In Mr. Mata’s case, the program appears to have discerned the labyrinthine framework of a written legal argument, but has populated it with names and facts from a bouillabaisse of existing cases.

Judge Castel, in his order calling for a hearing, suggested that he had made his own inquiry. He wrote that the clerk of the 11th Circuit had confirmed that the docket number printed on the purported Varghese opinion was connected to an entirely different case.

Calling the opinion “bogus,” Judge Castel noted that it contained internal citations and quotes that, in turn, were nonexistent. He said that five of the other decisions submitted by Mr. Mata’s lawyers also appeared to be fake.

On Thursday, Mr. Mata’s lawyers offered affidavits containing their version of what had happened.

Mr. Schwartz wrote that he had originally filed Mr. Mata’s lawsuit in state court, but after the airline had it transferred to Manhattan’s federal court, where Mr. Schwartz is not admitted to practice, one of his colleagues, Mr. LoDuca, became the attorney of record. Mr. Schwartz said he had continued to do the legal research, in which Mr. LoDuca had no role.

Mr. Schwartz said that he had consulted ChatGPT “to supplement” his own work and that, “in consultation” with it, found and cited the half-dozen nonexistent cases. He said ChatGPT had provided reassurances.

“Is varghese a real case,” he typed, according to a copy of the exchange that he submitted to the judge.

“Yes,” the chatbot replied, offering a citation and adding that it “is a real case.”

Mr. Schwartz dug deeper.

“What is your source,” he wrote, according to the filing.

“I apologize for the confusion earlier,” ChatGPT responded, offering a legal citation.

“Are the other cases you provided fake,” Mr. Schwartz asked.

ChatGPT responded, “No, the other cases I provided are real and can be found in reputable legal databases.”

But, alas, they could not be.

These are the Intellectual Property Law and Corporate Law services that my firm provides:

Corporate Formation

We will conduct a search and advise you as to whether your proposed corporate name is also available as a domain name.

We will advise you as to which domain names you should register to protect yourself against cybersquatting.

We will conduct a trademark search to determine if your proposed corporate name is available for your use as a trademark and is registrable with the United States Patent and Trademark Office, thus offering you national protection for that name.

We can incorporate your entity in Illinois as a corporation or form it as a limited liability company as well as advise you as to which entity form best meets your needs.

Internet Services

We can prepare the necessary language for your website to protect you against potential liability, set forth terms of use and provide your customers and clients with the necessary privacy policy language.

Where appropriate, we can assist you to register your domain names with the Library of Congress, thereby providing you with additional protection against potential infringement claims.

If an infringement problem does arise, we can take action against the infringer to stop those infringing activities as well as defend you against claims of infringement arising from your adoption and use of your domain name.

Trademark Services

We can assist you in the creation of strong brand names and logos to offer you the broadest protection for your corporate, product and service names and logos, including conducting searches to ensure that those names and logos are available for your use and registration as trademarks and service marks.

We can register your corporate and product names, including your logos and trade dress, as appropriate and necessary to provide you with nationwide protection for those names, logos and trade dress as well as register those names and logos abroad, if necessary, to protect your names and logos against foreign infringement.

We can maintain your existing portfolio of registered and applied-for service marks and trademarks.

We can take action against potential infringers of your marks as well as defend you against claims of infringement, including trademark, service mark and trade dress infringement.

Trade Secret Services

We can create a plan to ensure that your vital corporate information, including marketing plans, product development plans, supplier and customer information, formulas, data, etc. are kept confidential and protectible as trade secrets.

To do this, we can provide you with the necessary Employment Agreements, Confidentiality Agreements, Non-Disclosure Agreements, etc. to protect that information and ensure that you have a legal remedy if that information falls into the wrong hands.

Copyright Services

We can register your computer software, writings, musical compositions, art, photographs and product designs, to the extent that U.S. law may protect the latter, with the U.S. Copyright Office so as to provide you with the right to sue for infringement of these works should infringements occur.

We can defend you against claims of copyright infringement of such works as well as assert such claims as necessary to protect your rights.

Working with Patent Counsel, we can assist you to determine how you may best protect your products, designs, and formulations against infringement through either copyright, patent or trademark protection.

Other Legal Services

We can prepare by-laws for your newly-formed corporation or an operating agreement for your limited liability company.

Should you decide to sell your business, we can prepare both asset and stock purchase agreements, where appropriate to effectuate said sale.

As noted above, we can prepare a wide range of business agreements for your use, including but not limited to Employment Agreements, Confidentiality Agreements, Non-Disclosure Agreements, Operating Agreements, License Agreements, Manufacturing Agreements, Vendor Agreements, Internet Provider Agreements, Supplier Agreements, Model Releases, Settlement Agreements, etc.

Who needs trademarks? Apparently smokers do!

Who would have thought the Marlboro Man could have discouraged smoking; at least of other brands!

In September 2020 the journal NATURE published a study of the effectiveness of Australia’s 2012 law requiring that cigarettes be packaged without any branding in plain boxes. It compared tobacco consumption in Australia with that in New Zealand which allowed branded packaging.

It found that after the plain packaging law was passed Aussies increased their cigarette consumption by 6.5 cigarettes per week compared with their Kiwi neighbors. Despite the science Singapore has now also required that cigarettes be sold in brandless packaging and Chile has done the same for snack foods. When Ireland required that cigarettes be sold in brandless packaging, the consumption of counterfeit tobacco increased.

What this means is that trademarks, in whatever form they take; whether a brand name, a distinctive color or image on a container, or the shape of that container, give consumers a choice. And that choice includes the choice not to buy a product. If a store doesn’t carry a brand that they like, they will leave that store and either go to another store to make their purchase or postpone that purchase. If they don’t have a choice; and there’s is only one brand of cigarettes available, given the addictive nature of nicotine, they won’t walk away…they’ll buy the cigarettes as it doesn’t matter what they buy, even illegally sold cigarettes….they just want to get some smokes.

So, a better method of restricting smoking would be to carry brands that people desire but make it inconvenient to purchase them. This is the philosophy by which certain states forbid the sale of hard liquor in supermarkets and drug stores and others require that they be purchased in separate locations, necessitating an extra shopping trip. Other states go so far as to require that hard liquor be sold in “state stores,” stores operated by the government. By limiting where liquor is sold, it can also be taxed at a higher rate. In addition sales can be controlled.

Branding can also give a product an air of exclusivity. An example of this can be found in the branding of cannabis products which then can be sold at a premium price relative to other brands.

So, before you do any advertising, just picking the right name and package design can do a lot to set your product apart in the marketplace. Just remember to make sure that that trademark is available first, which is where I come in.

Beginning on December 3, 2022, trademark applicants will have three months (with a possible three-month extension), instead of the current six months, to respond to office actions issued during the examination of a trademark application at the United States Patent and Trademark Office (USPTO). This change only applies to office actions issued on or after December 3.

By shortening the response time, the USPTO intends to:

• Decrease the time it takes to get a registration
• Provide the flexibility to request additional time to respond to more complex office actions

This new response period will not apply to post-registration office actions on December 3, 2022. Changes to the post-registration response period will be implemented on October 7, 2023.

You must file your response by the deadline. You can calculate the three-month deadline from the “issue date” in the office action.

Your application will be abandoned if you don’t respond to your office action or request an extension on or before the three-month deadline. This means we will no longer process your applicatio

McDonald’s is extremely popular among Russian consumers. Now its American parent has chosen to close its Russian outlets. In retaliation many of these outlets have become Uncle Vanya’s. McDonald’s trademark licenses have been expropriated and it has lost control over both its famous trademark and quality control over its menu and ingredients.

Now several applications have been filed with the government there using McDonald’s name or signature Golden Arches.

See https://www.cbc.ca/news/business/russia-mcdonald-s-logo-1.6389887

The current issues involving the supply chain carries consequences for trademark applicants and registrants. 

One of the biggest stories in the news lately has been the problems with the supply chain. See

https://www.nytimes.com/2021/10/22/business/shortages-supply-chain.html?smid=em-share for a summary of the issues involved. 

For trademark applicants and registrants here are some additional issues to be considered.

You decide to file an application based on Section 1(a) of the Trademark Act based on your use of your mark in commerce. Your mark has been displayed on labels affixed to your goods or on the packaging therefore in a manner in which customers are accustomed to seeing those goods marked with a trademark. See 37 C.F.R. sec. 2.56. To complete your application you must state a date of first use in commerce. The date of first use in commerce is the date when the goods were first sold or transported under the mark in a type of commerce that may be lawfully regulated by the U.S. Congress, See 15 U.S.C. sec. 1127. This could be either interstate commerce or commerce between the United States and a foreign country. 

But what if, because of a single case of Covid-19, your product for which you were seeking to file a U.S. Trademark Application for is sitting in a port in Ningbo, China, the world’s third busiest port. See https://fortune.com/2021/08/13/ningbo-port-closure-covid-china-shipping-backlog/ Of course, you can toss your Section 1(a) application out and apply to register your mark as an intent-to-use application, but as long as your product is sitting in Ningbo, it would be hard to demonstrate that that product and the mark that it bears is in commerce between the U.S. and China.  

In normal times, it would not be unusual to assume that that product would make it to the U.S. in less than two weeks at which time you would have a first date of use in commerce to support a Section 1(a) application, which would expedite your registration process, as within three months after that application is allowed by the U.S. Patent & Trademark Office you would have your trademark registration and avoid the additional step of filing a statement of use which you would have to do with an intent-to-use application.

Once you have obtained a trademark registration by the end of both the 6th year subsequent to obtaining that registration and the 10th year subsequent to obtaining that registration, not including the six-month grace period, to retain that registration you must, under Section 8 of the Trademark Act, affirm that that mark is still being use on product sold or transported in commerce, e.g., in interstate commerce or in commerce with a foreign country.  Again, what do you do if your product is stuck in Ningbo or another foreign port near where that product is manufactured due to supply chain issues. 

“The purpose of Section 8 of the Trademark Act is to remove from the register those registrations that have become deadwood.   See Morehouse Mfg. Corp. v. J. Strickland & Co., 407 F.2d 881, 160 USPQ 715 (C.C.P.A. 1969) .  It is not intended, however, to cancel registrations because of a temporary interruption in the use of the mark due to circumstances beyond the control of the owner of the registration.   In re Moorman Mfg. Co.,203 USPQ 712 (Comm’r Pats. 1979).  Thus, if the mark is not in use in commerce but the owner believes the registration should not be cancelled, the owner may file an affidavit or declaration showing that nonuse is due to special circumstances that excuse the nonuse, and is not due to any intention to abandon the mark.  See 15 U.S.C. §1058(b)(2); Ex parte Kelley-How-Thomson Co., 118 USPQ 40 (Comm’r Pats. 1958). Section 1604.11 of the Patent Office’s Trademark Manual of Examining Procedure states, “Trade Embargo or Other Circumstance Beyond Owner’s Control.  Nonuse may be considered excusable where the owner of the registration is willing and able to continue use of the mark in commerce, but is unable to do so due to a trade embargo.”

While the U.S. Patent & Trademark Office has stated that any trademark owner that has been impacted by COVID-19 resulting in a disruption in the use of a mark may make a claim for excusable nonuse on that basis, it is not clear that a claim based on a supply chain disruption, although indirectly caused by the pandemic would be accepted as a Covid claim. It may be that the “Trade Embargo” rationale is a better analogy.  “Affidavits or declarations should specify the reason for nonuse, the specific steps being taken to put the mark back in use, and any other relevant facts to support a finding of excusable nonuse.”

However, beware that if there has been a period of nonuse, even if it is beyond the trademark registrant’s control, that registrant will be barred from filing a Section 15 Declaration of Incontestability under the Trademark Act as such a filing requires an assertion that the registered mark was in continuous use in commerce for five consecutive years from the date of registration.

More Mercantile Mischief

Scores of you have sent me emails that flag artful, whimsical and just plain eccentric business names that currently exist or once existed. As promised, I’ll occasionally share some of those.

This week’s winners:

A plumbing company in Ithaca, N.Y., called the Drain Brain (thanks to Christine Sheola of Ithaca for flagging this)

A therapeutic massage business in Aiken, S.C., called — you can see it coming! — My Aiken Body (Mary Azoy, Chapel Hill, N.C.)

A tailoring shop in Toronto called Boulevard of Broken Seams (Janet Sailian, Fort Myers Beach, Fla., and JoAnne Harrop, Toronto)

A tattoo removal service in Denver called What Were You Inking (Athalie White, Milton, Ga.)

A manicurist in Brooklyn, N.Y., called You’ve Got Nail (Will Everett, Queens, N.Y.)

A cafe in Oakland, Calif., called the Edible Complex (Sherri Hallgren, Andover, Mass.)

An Asian fusion restaurant in Rehoboth Beach, Del., called Saketumi (Jerry Graff, Ocean View, Del.)

Dozens of you have also sent in business names that, in a world even more playful and imaginative than ours, would exist. Those include:

An orthopedic shoe store called I Stand Corrected (Leslie Bell, Signal Mountain, Tenn.)

A restaurant showcasing a crab especially prevalent in the Pacific Northwest called Dungeness Liaisons (Dave Fisher, Olympia, Wash.)

More Mercantile Mischief

Scores of you have sent me emails that flag artful, whimsical and just plain eccentric business names that currently exist or once existed. As promised, I’ll occasionally share some of those.

This week’s winners:

A plumbing company in Ithaca, N.Y., called the Drain Brain (thanks to Christine Sheola of Ithaca for flagging this)

A therapeutic massage business in Aiken, S.C., called — you can see it coming! — My Aiken Body (Mary Azoy, Chapel Hill, N.C.)

A tailoring shop in Toronto called Boulevard of Broken Seams (Janet Sailian, Fort Myers Beach, Fla., and JoAnne Harrop, Toronto)

A tattoo removal service in Denver called What Were You Inking (Athalie White, Milton, Ga.)

A manicurist in Brooklyn, N.Y., called You’ve Got Nail (Will Everett, Queens, N.Y.)

A cafe in Oakland, Calif., called the Edible Complex (Sherri Hallgren, Andover, Mass.)

An Asian fusion restaurant in Rehoboth Beach, Del., called Saketumi (Jerry Graff, Ocean View, Del.)

Dozens of you have also sent in business names that, in a world even more playful and imaginative than ours, would exist. Those include:

An orthopedic shoe store called I Stand Corrected (Leslie Bell, Signal Mountain, Tenn.)

A restaurant showcasing a crab especially prevalent in the Pacific Northwest called Dungeness Liaisons (Dave Fisher, Olympia, Wash.)

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Given the notoriety of recent events indicating a changing climate, e.g., heat waves, wildfires and the like, marketers will be tempted to promote the environmental friendliness of their products.

They may do this in how they brand their products, in their advertising material and on their labeling. When they do this, they need to be aware of the legal implications.

BRANDING:

The United States Patent & Trademark Office will refuse the registration of a mark if that mark is deceptive or deceptively misdescriptive. A deceptiveness refusal is an absolute bar to the registration of a trademark and evidence that that mark is distinctive will not overcome that refusal.

The Court of Appeals for the Federal Circuit has articulated the following test for whether a mark consists of or comprises deceptive matter:

1. Is the term misdescriptive of the character, quality, function, composition or use of the goods?
2. If so, are prospective purchasers likely to believe that the misdescription actually describes the goods?
3. If so, is the misdescription likely to affect a significant portion of the relevant consumers’ decision to purchase the goods?

A deceptive mark may be comprised of: (1) a single deceptive term; (2) a deceptive term embedded in a composite mark that includes additional non-deceptive wording and/or design elements; (3) a term or a portion of a term that alludes to a deceptive quality, characteristic, function, composition, or use; (4) the phonetic equivalent of a deceptive term; or (5) the foreign equivalent of any of the above.

Deceptive marks may include marks that falsely describe the material content of a product and marks that are geographically deceptive.

However, marks containing a term identifying a material, ingredient, or feature should not be refused registration under if the mark in its entirety would not be perceived as indicating that the goods contained that material or ingredient.

In addition, formatives and other grammatical variations of a term may not necessarily be deceptive in relation to the relevant goods. For example, “silky” is defined, inter alia, as “resembling silk.” See The American Heritage® Dictionary of the English Language: Fourth Ed. 2000. Thus, a mark containing the term SILKY would not be considered deceptive (but might be unregistrable as a descriptive term. Dictionary definitions of such terms should be carefully reviewed to determine the significance the term would have to prospective purchasers. For example, although the term GOLD would be considered deceptive for jewelry not made of gold, the term GOLDEN would not be deceptive.

If the first two elements of the test set forth by the Federal Circuit above, i.e., whether a mark is misdescriptive of the goods/services and whether prospective purchasers are likely to believe the misdescription, are answered affirmatively, then the mark is deceptively misdescriptive of the goods/services under §2(e)(1) of the Trademark Act. That is, if the misdescription is not a material factor to the purchasing decision, then the basis for refusal would be not that the mark is deceptive but that the mark is deceptively misdescriptive of the goods.

Marks that have been refused registration on the ground of deceptive misdescriptiveness may be registrable upon a showing of acquired distinctiveness, or on the Supplemental Register if appropriate. Similarly, marks that contain registrable matter in addition to deceptively misdescriptive components can be registered with a disclaimer of the deceptively misdescriptive matter, when appropriate. 

LABELING GUIDELINES:

Examples of deceptive or deceptively misdecriptive brands that promote environmental friendliness may be suggested by looking at the Federal Trade Commission’s “Green Guides” which cover product labeling and advertising. See https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-green-guides/greenguidessummary.pdf

Here is a brief summary of the FTC’s rules:

Marketers should not make broad, unqualified general environmental benefit claims like ‘green’ or ‘Eco-friendly.’ Broad claims are difficult to substantiate, if not impossible.

Marketers should qualify general claims with specific environmental benefits. Qualifications for any claim should be clear, prominent, and specific.

When a marketer qualifies a general claim with a specific benefit, consumers understand the benefit to be significant. As a result, marketers shouldn’t highlight small or unimportant benefits.

Claiming “Green, made with recycled content” may be deceptive if the environmental costs of using recycled content outweigh the environmental benefits of using it, e.g., if the content needs to be shipped halfway around the world to be recycled.

Marketers should disclose whether a carbon offset purchase pays for emission reductions that won’t occur for at least two years. Marketers should not advertise a carbon offset if the law already requires the activity that is the basis of the offset.

Marketers who claim a product is compostable need competent and reliable scientific evidence that all materials in the product or package will break down into — or become part of — usable compost safely and in about the same time as the materials with which it is composted.

Marketers may make an unqualified degradable claim only if they can prove that the “entire product or package will completely break down and return to nature within a reasonably short period of time after customary disposal.” The “reasonably short period of time” for complete decomposition of solid waste products? One year

Marketers who claim that their product is non-toxic need competent and reliable scientific evidence that the product is safe for both people and the environment.

It is deceptive to misrepresent that a product is ozone-friendly or safe for the ozone layer or atmosphere.

If recycling facilities for a product are not available to at least 60 percent of consumers or communities, a marketer can state, “This product may not be recyclable in your area.” If recycling facilities for a product are available to only a few consumers, a marketer should use stronger qualifying language: “This product is recyclable only in the few communities that have appropriate recycling programs.”

Marketers should qualify claims for products or packages made partly from recycled material — for example, “Made from 30% recycled material.”

Marketers should not make an unqualified “made with renewable energy” claim unless all, or virtually all, the significant manufacturing processes involved in making the product or package are powered with renewable energy or non-renewable energy, matched by Renewable Energy Certificates.

Unqualified claims about renewable material may imply that a product is recyclable, made with recycled content, or biodegradable. One way to minimize that risk is to identify the material used clearly and prominently, and explain why it is renewable, e.g., “Our flooring is made from 100% bamboo, which grows at the same rate, or faster, than we use it.”

When it comes to “green” trademarks one way to avoid a deceptive or deceptively misdescriptive objection is to make sure that your mark is merely suggestive, e.g., EARTHWISE, ECOMAX, RECYCLAY.

As a trademark lawyer, I help to bring my clients’ ideas for products to market. No one was better at bringing his products to a skeptical marketplace than Ron Popeil. He died last Wednesday at the age of 86 leaving the world such products as the VEG-O-MATIC (See U.S. Trademark Registration #6396328), the POCKET FISHERMAN (See U.S. Trademark Registration #3380017, MR. MICROPHONE (a wireless mike that played through the radio) (See U.S. Trademark Registration #1150877) and “GLH,” a product commonly known as “hair in a can.”

Popeil started in a rough neighborhood; Chicago’s Maxwell Street Market. At sixteen, Ron began to sell the very products his father’s factory produced in the flea markets on Maxwell street in Chicago. Storing his goods and table in the back of a grimy fish store. Ron would start his day there at 5 AM to set up and would gross as much as $500 per day; a huge success for a kid in the 1950’s.

In need of jobs and quick cash, fledgling entrepreneurs came to Maxwell Street to earn their livelihood. Many say it was the largest open-air market in the country. From clothes, to produce, to cars, appliances, tools, and virtually anything anyone might want, Maxwell Street offered discount items to consumers and was an economic hub for poor people looking to get ahead. Merchandise was often considered to have originated from hijacked or pirated railcars/railyards and transport rigs for quick resale and dissemination of articles. Few questions were asked about the origin of a vendor’s items for sale, particularly if the price was “right.”

Maxwell Street Market also represented a fundamental change in American retail and economic history. The market was a response to and rejection of stand-alone retail establishments and their price structures. This microcosm of commerce recognized the availability and influx of Asian and world imports and markets (Taiwan, Japan, China, Mexico) priced dramatically lower than American produced goods. Wholesalers lined Roosevelt Road with goods from all over the world; savvy vendors would buy from them to resell on the market at a profit, usually at a 100% markup. The resulting price(s) fell well below goods available elsewhere, due to low overhead. The market also responded to the spending power of immigrants and minorities; they could take their cash where they were welcome, accepted, and could shop.

See https://commons.wikimedia.org/wiki/File:Photography_by_Victor_Albert_Grigas_(1919-2017)_PEOPLE_00003_(49323228683).jpg#/media/File:Photography_by_Victor_Albert_Grigas_(1919-2017)_PEOPLE_00003_(49323228683).jpg and https://commons.wikimedia.org/wiki/File:Maxwell_Street_Camp_Meeting.jpg#/media/File:Maxwell_Street_Camp_Meeting.jpg

Popeil took what he learned on the streets of Chicago and moved on to television selling such products as those identified above to people like Homer Simpson who in numerous episodes would grab his telephone and credit card and purchase a product like the following while watching a television commercial like one of these.

This last one is my favorite:

So, when a client comes into my office, in the tradition of such great American salesmen as Ron Popeil and Steven Jobs, I leave my skepticism at home. Sometimes, a new product with the right pitchman can change the world:

Without the iPhone, there would be no Uber, Twitter, Facebook, Instagram, Spotify, You Tube, and the list goes on. But as Ron Popeil and Steven Jobs has demonstrated, a product doesn’t sell itself. It takes a good presentation and a good presenter.

A day before Jeff Bezos rode Blue Origin’s New Shepherd spacecraft on his ten minute excursion through the atmosphere to space and back I got an email advising me of Amazon’s updated Conditions of Use. [Note these were effective last May 3^rd.]

Here are some of their highlights with an emphasis towards I.P.:

COPYRIGHTS

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43 PEOPLE

43 PLACES

43 THINGS

+44

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206 C Design

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365

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END USER

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FOUR MORE SHOTS PLEASE

FREE MEEK

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GABCAB

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GET ONLINE, NOT IN LINE

GET STUFF. DONE.

GETPHRASE

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GLAMAZON FASHIONWEEK

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GLOBEX

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GOOD AT FINDING GOODS

GOODREADS

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GOODSPORT GS Design

GOODTHREADS

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GORTIMER GIBBON’S LIFE ON NORMAL STREET

GRAND HARBOR

GRAND HARBOR PRESS Design

GRAPH CACHE THRASH

GREEN 3

GROWNUP SCHOOL

HAND OF GOD

HAPPY BELLY

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HEERA and Design

HELPBIT

HIGHSTON

HOLITUDE

HOMEBASE

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HOUSE & SHIELDS and Design

HUB

HUZZAH

I WANT ONE!

IBERLIBRO

IMDB

IMDB ME

IMDB SHOW

IMDBPRO

IMDBRIEF

IMPROVE YOUR HOLITUDE

INNOVATIONS IN SEARCH TECHNOLOGIES

INTERNET OF USEFUL THINGS

IRIS LILLY and Design

IVONA

J Design

JAM & HONEY

JESSY AND NESSY

JESTINATION UNKNOWN

JET CITY

JET CITY COMICS

JOY. DELIVERED.

JOYO Design

JUST ADD MAGIC

JUSTBOOKS

KEY BY AMAZON

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KIDS.WOOT!

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KINDLE CERTIFIED EDUCATION SERVICE PROVIDER

KINDLE CERTIFIED SERVICE PROVIDER

KINDLE CLOUD READER Design

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KINDLE FIRST

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LAKE UNION PUBLISHING

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LEVEL

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ONE DAY, YOU’LL UNDERSTAND

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PHOTOSLAM

PIC PACK PAISA

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[RE]DISCOVER

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SELL ON AMAZON

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SHELFARI

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SHOULD DO THIS

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SILVA-SE QUEM PUDER

SIMPLZ: ZOO

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“Amazon does not warrant that product descriptions or other content of any Amazon Service is accurate, complete, reliable, current, or error-free.” “Further, the Amazon services and all information, content, materials, products (including software) and other services included on or otherwise made available to you through the Amazon services are provided by Amazon on an “as is” and “as available” basis, unless otherwise specified in writig. Amazon makes no representations or warranties of any kind, express or implied, as to the operation of the Amazon services, or the information, content, materials, products (including software) or other services included on or otherwise made available to you through the Amazon services, unless otherwise specified in writing. you expressly agree that your use of the Amazon services is at your sole risk. To the full extent permissible by law, Amazon will not be liable for any damages of any kind arising from the use of any Amazon service, or from any information, content, materials, products (including software) or other services included on or otherwise made available to you through any amazon service, including, but not limited to direct, indirect, incidental, punitive, and consequential damages, unless otherwise specified in writing.”

DISPUTES

And should you have a dispute with Amazon relating in any way to your use of any Amazon services, don’t expect Amazon to come to your door as, “Any dispute or claim relating in any way to your use of any Amazon Service will be adjudicated in the state or Federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts. We each waive any right to a jury trial.” And you could be dealing with the “Hand of God,” one of Amazon’s trademarks.

In Van Buren v. U.S., the Supreme Court in a 6-3 decisions handed down today, held that the Computer Fraud and Abuse Act (“CFAA”) didn’t apply where a Cumming, Georgia police sergeant used the department’s computer system to access federal and state crime databases to provide information about a woman his friend had met at a strip club. While the sergeant had authorization to access the computer he did not have authorization to access those databases for non-police purposes.

He was charged with violation of the CFAA. That statute makes it a crime when a person “intentionally accesses a computer without authorization or exceed authorized access, and thereby obtains…information from any protected computer.” A “protected computer” includes any computer “which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the U.S. that is used in a manner that affects interstate or foreign commerce or communication of the United States.”

The provision referring to “intentionally accessing a computer without authorization” was written to cover outside hackers,

The Court’s majority noted that the Act, if read otherwise would encompass everyday violations of terms of service, such as use of a work computer to order personal goods from Amazon, posting on Facebook, or checking last night’s sports scores. The Court held that such practices did not exceed authorized access related to computer structures., i.e., prohibitions against accessing certain files, folders or databases to which access does not extend.

So, if you’re an employer, your rules guiding computer use better be detailed and made explicit in personnel manuals, signage, and employee handbook if you want to keep your employees from using their time to surf the net.

See https://www.supremecourt.gov/opinions/20pdf/19-783_k53l.pdf