Lars S. Smith's blog

Consumer Surveys in Trademark Cases


Here are a couple of blog posts (here and here) about Judge Posner's criticism of consumer surveys trademark cases. The case at issue is Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396 (7th Cir. Nov.  14, 2013).

 I thought the postings, and the Kraft case itself, were interesting. Judge Posner's main concern is that such surveys are prone to bias because they are designed by experts hired by the parties, and many surveys are conducted in a way that is very different from how consumers encounter marks in the market place. He recommends perhaps relying on more objective, scientifically valid statistical analyses, or experts in the industry. Perhaps this case will push the develpment of more consistent standards of what consititutes a valid consumer survey. I think courts need the help. 

Some days Starbucks gets the bear, some days the bear gets Starbucks

Nice explanation by Prof. Rebecca Tushnet on her blog about the Starbucks v. Wolfe’s Borough Coffee case. Starbucks lost a dilution case based on the use of the mark CHARBUCKS. 

Great explanation of why downloading music doesn't seem as bad as stealing a car.


A student in my IP Survey class sent me a link to a youtube clip by Mindy Kaling (who played Kelly from The Office) giving a great explanation of why downloading music without paying doesn't seem as bad as stealing a car. She gets why comparing downloading music to theft of physical goods doesn't really work. Enjoy.

Mortgage Crisis's Effect on Registry of Deeds


Earlier in the week, the Wall Street Journal ran an editorial criticizing the Massachusetts Attorney General's lawsuit against banks that did not follow the law on foreclosure procedures. The essence of the editorial is that "processing errors don't necessarily rise to the level of deception and fraud." Martha Coakley, the Massachusetts AG, responded today with a letter to the editor in the WSJ. Her main argument: "The large banks fraudulently signed foreclosure documents, made deceptive and false promises to provide loan modifications and unlawfully foreclosed on homeowners without even holding the mortgages."

I am not posting to argue the merits of the editorial or the AG's case. It was the next letter that I found interesting, as a propery professor. As part of first year property, I always cover the real estate filing system in some detail. The idea is that by creating a public system for recording instruments relating to title to property, ownership to such property is made transparent and the process for transfering property is made more efficient. However, for the system to work effectively, it is necessary for the parties that utilize the system to file timely and accurate documents. Which leads me to the letter written by John L. O'Brien, Southern Essex District Register of Deeds:

Sloppy paperwork? No, fraudulent paperwork, and let's not blame Massachusetts Attorney General Martha Coakley for prolonging the pain for homeowners. Let's blame the real culprits who have filed to date 31,897 fraudulent documents in my Registry of Deeds alone. I challenge anyone who comes to see these stacks of documents to honestly say that this crime scene is merely "sloppy" paperwork. The real pain for homeowners is the havoc that these lenders have wreaked on the chains of title and property rights.

The solution is not to allow the lenders that created a "cyber" registry for their own self-profit to be slapped on the wrist for using fraudulent documents and for failing to record assignments of mortgages. I have been fighting for the "little guy" and I am very happy that the Massachusetts's AG has chosen to do the same.

John L. O'Brien, Letter to the Editor, Wall Street Journal, 7-8 Jan. 2102: A14. Print.

As my students (hopefully) will recall, anything filed in the registry that causes confusion as to who actually has rights to the property is a "cloud on title," making title unmarketable. Since most buyers will only accept marketable title, such clouds make selling property difficult. If the banks' failure to accurately record mortgage assignments and to follow foreclosure procedures causes homeowners to have diffculty in selling their homes, this is in fact a terrible result which will dramatically interfere with the operation of the real estate market that has up until now been efficient and effective. While the banks' actions can be dismissed as merely sloppy paperwork, shouldn't such banks be held to account when that same sloppy paperwork dramatically depreciates the single most valuable asset owned by most people?

Win a Free Patent Bar Review Course


Gene Quinn, an LL.M. classmate of mine from Franklin Pierce Law Center (now known as UNH Law and the Franklin Pierce Center for Intellectual Property), runs the web site As part of his efforts to be the top-rated IP website in the ABA Journal Blawg 100, he is running a promotion to encourage people to vote, where he is giving away 1 free PLI Patent Bar Review Course. If you are thinking of taking the patent bar, check it out here:

Chilling Trademark Dispute

The Wall Street Journal has an interesting article today about a trademark dispute in Louisiana. Apparently a group of snowball vendors have taken issue with another vendor's attempt to claim trademark rights in certain snowball flavors (a snowball is a shave ice treat). A perfect dispute on a hot summer day!

Kissinger on China

There is an interesting piece in the Wall Street Journal about his secret trip to China in 1971, and the challenges of US-China relations today.

Blogging backlog in China


I hope to catch up blogging abou the details of teaching and lecturing in China. However, if you are interested, we have been maintaining a family blog about our personal experiences, here. Make sure to look at the archives, to catch the early part of our Fulbright experience in China.


Trademark Team Takes National Championship!

The details are posted elsewhere on the law school web site, but I wanted to offer my personal congratulations. Marilyn Osborn and Whitney True did a great job. We've competed in the Lefkowitz moot court competition every year for the better part of 15 years. This is the first time we've won the entire competition. Last year, Marilyn Osborn was on the team that won the South Regional competition, with her teammates Justin Capps and Mari-Elise Gates. Special thanks to Jack Wheat of Stites & Harbison in coaching the team this year (and last).

Questions during office hours


I told the students that I would have office hours on Thursdays from 1 to 4, and that they should stop by. I told them they should feel free to come and talk about anything, not just material from the class. The Fulbright program wants the scholars to engage the students in a cultural exchange, not just to lecture. Over a dozen of them took me up on my offer, and sat in my office for over three hours! 


Here are some of the questions and comments from students during my first office hours:


  • Why did you quit being a lawyer, and start teaching? (because of June and July. Actually, a great question, with an easy answer for me: I fell in love with teaching while I was getting my LL.M.)
  • Do you know the show Boston Legal? (to which I responded, I am Denny Crane)
  • Who is my favorite actor? (Obviously, William Shatner)
  • What do I think about the U.S.'s relationship with Taiwan? (Very complicated (I punted))
  • Tell me about your daughters. (They were very interested in hearing about them, and were all eager to meet them.)
  • Do you know the history of China? (as I admitted to them, some, but not much. I explained that Americans don't see much about China on the television, the way they see shows about the U.S. However, I cautioned them not to believe everything they see on U.S. TV shows, such as Boston Legal (I shudder to think that anyone would believe that law is actually practiced in the U.S. the way it is depicted on Boston Legal.)
  • What do you think about people selling DVDs on the street? (It's bad, but it happens in the U.S., too. I told them I thought that when Chinese artists, musicians and directors started demanding to get paid, then there would be more enforcement of copyright in China. One student summarized it best: when the internal demand for stronger enforcement increases, so will the enforcement of IP laws. As I pointed out to the students, for the first century of US copyright law, we did not grant protection to foreign authors. Dickens never got paid a dime for the publication of his books in the U.S. Once the U.S. started becoming an exporter of copyrighted works, then we began broadening the scope of protection for foreign works).
  • What do you think about Open Source software? (I said it's a neat idea that depends entirely on their being a strong copyright law - the GPL only works because it is backed up by copyright law.)
  • Do you know Lawrence Lessig? Have you read Lawrence Lessig's book Code? (Yes, but not personally. And Yes, I read "Code", which is an excellent book)
  • We would like to show you around Wuhan. Would you like to see the Provincial Museum? (Yes! and can you also take us shopping, so that we don't get ripped off by the street vendors (or as we Fulbrighters put it, paying "the foreigner" tax).