Glenn Be( )k

Not only does he not know how to spell “oligarchy,” he doesn’t have a clue what the word means.

Full Tilt: Full Time: Retired

Tedy Bruschi has retired.

I am very sad.

Medinol v. Neuro Vasx is Dead

In Medinol Ltd. v. Neuro Vasx Inc., 67 U.S.P.Q. 2d 1205 (TTAB 2003), the Trademark Trial and Appeal Board held that a trademark registration that contains erroneous information, such as goods and services that were never sold under the mark, would render a trademark registration as fraudulent and subject to cancellation. The TTAB imposed a constructive knowledge standard for errors in the trademark application. Calling a mere error “fraud” seemed like harsh medicine.

Under Medinol, if an applicant for a trademark says that he sells Widgets, Donkeys, and Thingamajigs under the trademark RANDUZZI, he had better actually sell Widgets, Donkey, and Thingamajigs under that mark. If the applicant only sells Widgets and Donkeys, Medinol said that he committed “fraud” — therefore the application is void. To the best of my knowledge, nobody has been prosecuted for fraud, nor perjury under this standard — it has just cost them their trademark registration.

There has been a lot of consternation over this case. Calling an honest mistake “fraud,” rubs some people the wrong way. Well, it sure rubbed the Court of Appeals for the Federal Circuit the wrong way. The CAFC just ruled that Medinol is no longer good law. See In Re Bose Corporation, Opposition No. 91/157,315.

The Board stated in Medinol v. Neuro Vasx, Inc. that to determine whether a trademark registration was obtained fraudulently, “[t]he appropriate inquiry is . . . not into the registrant’s subjective intent, but rather into the objective manifestations of that intent.” 67 USPQ2d 1205, 1209 (T.T.A.B. 2003). We understand the Board’s emphasis on the “objective manifestations” to mean that “intent must often be inferred from the circumstances and related statement made.” Id. (internal quotation marks omitted) (quoting First Int’l Serv., 5 USPQ2d at 1636). We agree. However, despite the long line of precedents from the Board itself, from this court, and from other circuit courts, the Board went on to hold that “[a] trademark applicant commits fraud in procuring a registration when it makes material representations of fact in its declaration which it knows or should know to be false or misleading.” Id. (emphasis added). The Board has since followed this standard in several cancellation proceedings on the basis of fraud, including the one presently on appeal. See Bose, 88 USPQ2d at 1334.

By equating “should have known” of the falsity with a subjective intent, the Board erroneously lowered the fraud standard to a simple negligence standard. See Ileto v. Glock, Inc., 565 F.3d 1126, 1155 (9th Cir. 2009) (“Knowing conduct thus stands in contrast to negligent conduct, which typically requires only that the defendant knew or should have known each of the facts that made his act or omission unlawful. . . .”). (Op. at 5-6)

This result seems fair. Should a company lose its trademark simply because of what could have been an honest error in its original application? On the other hand, this case might prove to be all that is necessary for sleazy companies and sleazier lawyers to make “mistakes,” under a standard that will essentially free them from any responsibility at all. Nevertheless, for better or worse, Medinol v. Neuro Vasx is dead.

DHS Issues New Border Search Rules for Electronic Media

by Jason Fischer

The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . (source).” Since 9/11, a good number of feathers have been ruffled, debating what constitutes an “unreasonable search.” Pundits a plenty have been ranting about “privacy this” and “warrantless that,” but the simple truth is that there are many situations where it is not “unreasonable” for the government to conduct a “search,” without first obtaining a warrant.

A classic example is when officials, employed by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Patrol (CBP), search your possessions upon entry into the United States from a foreign country. Mechanically, the presumption is raised that you consent to the search by entering the United States. If you don’t want to be searched, don’t come in. Ostensibly, the goal is to prevent certain items from being smuggled into the country — drugs, explosives, etc. — or, in the words of our Department of Homeland Security (DHS), “to combat transnational crime and terrorism . . . (source).” That all seems reasonable, but a hardcore civil libertarian would likely quote Benjamin Franklin in opposition: “Anyone who trades liberty for security deserves neither liberty nor security (source).”

Hang on there, Benji — an act of “terrorism” in your day was dumping some Lipton in the harbor. It’s pretty hard to uphold the standard of the Founders in the face of more modern concerns (e.g., dirty bombs, heroin, anthrax), but try we must. Unfortunately, it seems like our government doesn’t try very hard sometimes, as demonstrated recently by DHS, which is responsible for controlling ICE and CBP.

In the face of these more modern threats, coupled with advances in technology that make it possible to transport large amounts of data, ICE and CBP have in recent years begun detaining and searching digital media — e.g., laptops, portable hard drives, thumb drives, CDs, DVDs, iPods, yadda, yadda, yadda. What are they looking for, you ask? Answer:

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement. (source)

Terrorist plans — I get it. IP infringement — I don’t. Child porn — really? Gotta throw that one in, so that anyone who makes a stink will look like a pedophile, I guess.

Come on, people. Get mad. They’re insulting your intelligence here. DHS is charged with protecting the security of the homeland, not carrying out the marching orders of the MPAA or RIAA, all without the procedural protections of a warrant. We’re not just talking about rifling through my dirty underwear anymore, looking for that kilo of cocaine. You’re potentially reading my emails, skimming my privileged work product, or ogling the naughty pictures I took of my wife while we were having sexy time — all without a lick of probable cause that I’ve done anything illegal. Not Cool.

So the question remains: How do you authorize customs officials to look for the really bad stuff (e.g., shoe bomb schematics), and, at the same time, protect the stuff that they should need a warrant to view?

To quiet concerns about potential violations of privacy, DHS issued directives this week to ICE and CBP, supposedly ordering those agencies to behave. The new directives contain a number of “safeguards” that are designed “strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders (source).” They read like a bunch of false measures (to me, anyway). A few examples:

• Providing a leaflet to travelers, whose digital media has been detained, explaining any available administrative recourse
• Hanging signs around borders and ports of entry, informing that digital media is subject to search and potential detention
• Requiring approval of a supervisor to extend a detention of digital media beyond thirty days
• Allowing only a supervisor to copy information from detained digital media
• Directing a customs officer to consult with local counsel or the U.S. Attorney’s Office, if a traveler asserts that the information contained in the digital media is subject to attorney-client privilege

You can read the entire “Privacy Impact Statement” here.

I don’t know what the right answer is to the question posed above, but I do know that I expect my government to respect the notion of freedom that this nation was founded upon. We left Britain, at least in part, because the police could stop anyone on the street at any time and demand to see their papers. The Fourth Amendment was carefully crafted to prevent this type of abuse in the United States. @DHS: ur doin’ it wrong.

That’s right… Broward County, FL

Parental Rights Fail

(source)

Twitter is Stupid, Give Up

I have been thinking about composing a piece on why Twitter is stupid, but making money got in the way of that. And, in the meantime, someone else wrote the perfect piece. See Devin Coldeway, Why I Don’t Use Twitter.

In your face, Fischer!

Mexican Pole Dancing

by Tatiana von Tauber

A Facebook friend of mine posted this very sexy pole dancing video. I have yet to find any vulgarity in the dancer’s moves. Not only does this particular interpretation of pole dancing show off the beautiful female body in movement but oozes with sensuality and eroticism. I’d hand her some hard earned cash for the performance. It takes the “nasty” right out of the stripper’s arena.

Chick-Fil-A, Breast-Feeding and A Whole-Lotta First-Amendment Bad-Assery

Zac - Breast Correspondent

By: Zac Papantoniou

While en route to check-off another item on my epic list of neglected errands thrown to the wayside while studying for the state bar exam I just took, I happened to catch a story being discussed on a local talk-radio station (yes, I listen to talk radio while driving . . . obsessively). They mid-morning show (The Buckethead Show) on 104.1 FM happened to be discussing a story involving two subjects I take interest in . . . protesting and breasts. Apparently, around noon today, a “nurse-in” was going to be held at a Chick-Fil-A not far from where I was; what’s a “nurse-in,” you ask? Well, hell if I know, but the back story goes a little something like this:

This past Tuesday, while breastfeeding her 6-month-old baby inside the Chick-Fil-A on University Rd. and Forsyth (that’s in Winter Park, FL, for those folks not familiar with my current stomping grounds), 27-year old mom Chylain Krivensky was asked to cover up, by the store’s manager. Krivensky explained, “The manager came up and introduced herself and told me she believed in what I was doing, but asked me if I could cover up cause there were children around.” Already feeling humiliated by the request, Krivensky’s feelings worsened when the manager handed her a kitchen towel to put over the feeding baby’s head. “My thought was, no one would put a towel over their head to eat it’s the same thing with a blanket I don’t put a blanket over her head to eat, covering somebody up to eat is ludicrous,” Krivensky exclaimed (on this point alone, I completely disagree with the young mother; on more than one occasion I have been known to play a little game I like to call “Treasure Hunt,” which involves a box of lucky charms, a bottle of Jameson’s Irish Whiskey, and a giant “American Tail” comforter I’ve had since I was the age of five, complete with life-size renderings of Fievel Mousekewitz on it . . . I’ll leave the rest up to your imagination). Krivensky asked the people sitting around her table if they felt uncomfortable with the feeding, to which she received no replies in the affirmative. Quickly thereafter Krivensky left the Chick-Fil-A, went home, and told her online friends about her ordeal. After complaining to Chick-Fil-A’s corporate office, the group of women organized what they decided to call a “nurse-in,” to quietly protest the wrong they believed had been done to Krivensky. (source)

Krivensky, was in the right; Florida Statute 383.015(1) states:

The breastfeeding of a baby is an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values, and in furtherance of this goal . . . A mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breastfeeding. (source)

The First Amendment in action, babies and breast-feeding moms, what more could I ask for out of a lunch-time, first-person documented, Satyricon blog-post topic? I made a quick U-turn and proceeded to make my way to the Chick-Fil-A, so that I could be up-close and personal to what I thought was going to be the oddest protest these young eye’s had ever seen. I expected chanting women, screaming babies and a heated battle taking place, between frazzled moms on the receiving end of long nights spent awake created by the round-the-clock care needed to appease newborns and the cold-hearted fast-food corporate managers who always seem to have a psycho-analytical complex which can only be described as falling somewhere between the characteristics displayed between God and Napoleon Bonaparte . . . what I found upon my arrival at the Chick-Fil-A was anything but.

What occurred in my presence was a situation, rarely witnessed, when it comes to unhappy protestors and fast-food conglomerates; I saw the owner, managers, and employees of that Chick-Fil-A acknowledging that they were wrong and doing their darndest to turn a negative situation into a positive learning experience. Unbeknownst to me, after Krivensky complained to Chick-Fil-A’s corporate office, the same manager who offered her a kitchen towel on Tuesday invited her to fill the restaurant with mothers and babies this afternoon. “When I spoke with her yesterday she was mortified,” Krivensky said. “She had no idea there was a law. She’s the reason this has turned out so wonderful. It is not her fault that she was not educated about the law.” The manager said the idea to show support for breastfeeding came after the women complained. The manager and owner also offered to comp the women’s meals during the event, but most of the women did not accept.

The owner, managers and owner were walking around not only doing interviews with the local news stations, but also explaining the situation to other mystified patrons, who had no idea what was going on. I spoke to an Assistant Manager, while eating a delicious chicken sandwich, named Tonya who told me, “[we] were wrong, and we’re happy, to not only have been educated on the law, but to also be able to give these women a forum to express their fundamental rights. We’re now trying to do our best to educate all of our employees, working at this store, on the law.” This heart-warming moment was then cut short by a giant cow mascot handing out toys to kids, and other people needing Tonya’s attention. Tonya told me to have a nice day, and as I headed out the door, I smiled at the thought of at least one corporate store, who seems to be doing things right. That’s why, Chick-Fil-A on Goldenrod and University, in Winter Park, FL, gets my vote for “First-Amendment Bad-Ass of the Week.”

Women Take the Helm in the Market for Porn

As my co-blogger, Tatiana, often proves to us – modern, third-wave feminism isn’t about wearing birkenstocks and not shaving. It looks like ABC News finally caught up to Tatiana. See ‘Adults-Only’ Businesses Find Growing Market Among Women.

Girls as Musical Instruments

This is cool

This is cooler and came first

Some Religious People Actually Get It

I can forgive any confusion that anyone might have held about the teachings of Jesus Christ or any other “prophet,” as long as that confusion occurred before 1989. In 1989, we received the word from Bill and Ted’s Excellent Adventure.

“Be Excellent to Each Other”

It looks like there are some religious leaders in California who saw the film.

Kitty Porn

A Flori-duh man has the best excuse ever for having child porn on his computer. He says that his cat downloaded it.

Fuck the NSFW Label

How's this for NSFW?

As regular readers know, I have no problem using George Carlin’s septumvirate of “dirty words.” (shit, piss, fuck, cunt, cocksucker, motherfucker, and tits). I also link to images and websites that some might call “Not Safe For Work” or “NSFW”. In fact, I have gotten a few nasty emails from readers who have complained that I should have labeled some posts, links, and images as such.

Fuck that.

I have, once or twice, used the NSFW tag, but for the most part I have eschewed its use — and I wish that everyone would join me in stamping out the label.

I’m not just being stubborn. I understand the dilemma in which many people find themselves. They want to be able to read and view what they like — and it is an unfortunate reality that American employers must constantly be vigilant that no worker ever sees or hears a sexual or profane thought at work, lest someone looking for a free lunch seize the opportunity to turn a co-worker’s frolic and detour into their own personal pay day.

The first step in getting out of a hole is to stop digging. I take the position that we are in a hole (dug for us by assholes) and the only way out of it is to reject this long-standing attempt to allow these assholes to define what is “offensive to them” as “un-safe.”

The short version of the story: Once upon a time, there was a douchebag named Anthony Comstock. This right wing religious nut wanted to cleanse American society of all sexual expression. He invented “comstockery:” Censorship of literature and performances because of especially broad definitions of obscenity or immorality. (Well, George Bernard Shaw coined the term, and I’m sure that AC wasn’t too pleased about it). Comstock was one of the first Americans to learn that carrying the censorial standard for “decency” was a nice short cut to being perceived as important and to gathering a nice quick charge of power.

Fast forward to the 1980s. Comstock is dead, but comstockery lives on. However, this time Comstock’s spirit comes to us in the form of a left-wing woman, Catharine MacKinnon. She grew up the privileged daughter of a conservative federal judge. As many poor little rich girls do, she got pissed off at daddy (while studying at Smith College on his dime no less) and decided to rebel against him. Hence, she joined the second-wave feminist movement (the kind with really comfortable shoes and really pissy attitudes). Hell, it is belittling to say she merely “joined” it, she picked up its flag and ran to the head of the army.

I don’t mean to demean the whole effort. There was a time when a boss could say “suck my dick or you get fired.” Those were bad times. That is a bad thing. But, like most on the left, MacKinnon and her whining minions couldn’t be satisfied with the power that comes from merely doing good. Like her spiritual ancestor, Anthony Comstock, MacKinnon also wanted to censor expression because of broad definitions of immorality and the delicious power that comes along with grasping that big red marker in her hand. By the time she was finished, she had linked up with right wing censors and the ever ludicrous Andrea Dworkin to pass unconstitutional pornography ordinances and to take an instrumental part in our current sexual harassment legal regime.

Today, Comstock and MacKinnon have intellectually mated without actually fucking — like slimy fish that shoot their loads on the sea floor while never actually meeting. From this unholy dark and cold union, the MacKinstock monster hatched, and it now gives us sexual harassment laws that have gotten so absurd that if a guy (or a girl) looks at Xbiz at work, there will be some lazy ass at that job who will pounce upon it as their ticket to the “sexual harassment jackpot.” Accordingly, virtually every workplace has to tell its employees that any “inappropriate” material could get them fired — lest the employer have to pony up an absurd award for some delicate flower’s “emotional distress.”

I know that I’ll lose some readers by never using the NSFW label. (This blog is already blocked by a number of filter programs — including those used by the U.S. military. How’s that for irony?). Nevertheless, I don’t make any money off this blog anyhow — so there’s that. Even if I did, I wouldn’t sell my principles for a few clicks and pennies.

Fuck the NSFW label. If someone wants to propose a new label, I may consider using it. But, I absolutely reject the notion that there is such a thing as “safe” pictures or “safe” words. The only thing that is un-safe is our civil liberties when we adopt newspeak definitions for words like “safe,” and try and make it mean “devoid of sexual content.”

Fuck that.

UPDATE: A reader made a good suggestion. We still need something to let you know that you might get fired. So, I will (from now on) try and label stuff that might get you in trouble with WYB (Watch Your Back) as in, look over your shoulder to make sure some bitchy asshole isn’t watching.

Using “Pornography” For The Purpose of Personal Retribution and Political Oppression

By: Zac Papantoniou

For most people, the hurried rush of their everyday lives allows them to bustle about their routine, often taking for granted the protections afforded to them by our country’s Constitution. In the good ol’ U-S-of-A, most people wouldn’t think twice about criticizing the government; because here, in the land of freedom and opportunity, there really aren’t any repercussions to be faced when we express our point-of-view with regard to the way things are being run. This type of willful blindness allows us to forget that people in other parts of the world are being tried as criminals for simply trying to raise awareness on a matter that is crippling their country’s healthcare system.

In Zambia, a ban on pornography is apparently being used for the purpose of personal retribution and political oppression, where Chansa Kabwela (the news editor of the country’s largest independent newspaper, “The Post”) has been arrested and put on trial for “distributing obscene images.”

Kabwela, in an attempt to call for an end to a nurses’ strike that has crippled Zambia’s healthcare system, sent two photos to the country’s vice-president, its health minister, and various human rights groups. The two photos were of a woman, who had earlier been turned away from two medical clinics, giving birth without medical help. The “obscene images” contained in the photos were of the woman’s baby in the breech position, with its shoulders, legs and arms emerging from the woman’s vagina, but with the head still inside. By the time the woman was finally admitted to a hospital, it was too late for their surgeons to save the child, which died of suffocation.

Kabwela, who states she was given the photos by the woman’s relatives, sent the photos to the aforementioned government officials. Within a short matter of time, Zambia’s President Rupiah Banda demanded a police investigation, calling the pictures “pornographic.” Quickly thereafter, Kabwela was arrested for “distributing obscene material with intent to corrupt public morals,” a charge that carries a possible five-year prison term.

However, multiple organizations are claiming that the trial is likely not about the photographs at all. According to a “BBC News” story, the independent newspaper that Kabwela works for, “has relentlessly pursued the government with allegations of corruption, and the president has made no secret of his dislike of the paper.”

After reading this story, I stopped for a moment and took note of all the freedoms I have nonchalantly taken for granted on daily basis; freedoms, that I generally don’t think twice about, like expressing my opinion about the government without fear of criminal charges being brought against me, and being able to look at porn if I should so choose (though I can’t ever recall an instance where I looked at images of a woman in need of serious medical attention, due to a breeching infant, and considered those images “titillating,” “pornographic,” or “obscene” . . . usually I see those images on “Lifetime” when I’m trying to eat dinner, which I subsequently lose my appetite for, which leads me to quietly remind myself never to flip past that channel at 7 pm again . . . EVER).

H/T to Mark Kernes at Adult Video News

Flori-duh Congressman and Faux News Crying About the NEA