Don’t you “Krave” an interesting cybersquatting case?

By J. DeVoy

Vegas Inc., which provides excellent coverage of Las Vegas’ legal developments (such as its remarkable dedication to the Righthaven saga), reports on a lawsuit filed by the operator of Piranha Night Club and 8 1/2 Ultra Lounge against Krave over the domain name <piranhalv.com>.  Historical note: from 2004 to 2008, Krave was home to the theatrical adaptation of John Stagliano’s / Evil Angel Video’s Fashionistas.

The Complaint is available here.  It alleges a fairly common cybersquatting claim: The <piranhalv.com> domain name was registered by Krave’s operators and its agents in derogation of Piranha’s trademark rights, as it was supposedly done to mislead and confuse the consuming public.  The Complaint also alleges trademark infringement under 15 U.S.C. § 1125(a) and at common law; it goes on to seek an injunction, and a declaration that the Piranha Night Club’s operator is the proper owner of the domain name.

In the Complaint’s other causes of action, though, it invokes some claims one doesn’t always (or even often) see in trademark matters: Unfair, Deceptive and Fraudulent Business Practices under NRS 598A; Intentional Interference with Prospective Economic Advantage; Tortious Interference with Contractual Relations, and; Piercing the Corporate Veil under NRS 74.787 (since the domain name registrant is a party other than Krave’s owners/operators).

The case is Manhattan West LLC v. Century Partners Ltd. et al., 2:11-cv-01898 in the District of Nevada, and may be worth a PACER notification for those interested in trademark and domain name disputes.

More supplements for better living, lawyering

By J. DeVoy

I previously extolled the virtues of zinc for lawyers on this blog, and those who began using it after that post have all agreed that it was an excellent addition to their routine.  Since then, I’ve been tinkering in the lab with more life-enhancing supplements.  My regimen is not as exhaustive as this one promoted by Crime & Federalism, but it works for me and should help others as well:

-Apple Cider Vinegar.  Every morning, take two tablespoons of the stuff.  Don’t buy the pasteurized Heinz vinegar – go to whole foods and get the murky unpasteurized kind.  The mother of vinegar contains most of the good stuff for you, and it burns less on the way down than something that’s been refined into a cleaning agent.

The science on Apple Cider Vinegar is mixed at best, and generally inconclusive.  Even if its used solely for a placebo effect, it’s a pretty good one.  My hair is naturally shinier now, and since I’ve been using ACV every morning, my subcutaneous fat – the hard-to-hit trace amounts that I no longer have infinite time to run off each week – has been melting away.  Some claim that ACV is an appetite suppressant.  I say: No shit.  For about 4-6 hours after taking a shot of vinegar, eating anything is pretty far from your mind.  For how much $5.00 buys, it’s worth trying.

-Vitamin D.  I can’t point to a specific benefit here, since I began using it with Zinc, but before the ACV.  There is, however, an observed link between Vitamin D, sunlight and mood.  For people with Seasonal Affective Disorder, the lack of sunlight is particularly significant.  Vitamin D should help keep the sun-deprived – a population that likely contains many lawyers - on an even keel.

-Nitrous Oxide.  I started using this powder as a pre-workout supplement to wake me up and bring purpose to my actions without getting wired on coffee.  On particularly hectic days, I take it before going to the office.  The effect when desk-bound is not as profound as when trying to keep 200+ lbs of iron from crashing on your head, but it definitely exists.  The advantage Nitrous offers over coffee is that the Nitrous energy is a bit more focused and sedate – simulating the effectiveness of a fabled “well-rested” person – as opposed to the stress-amplifying energy boost provided by coffee.

-Whey Protein.  Boosts immunity and replaces calories that otherwise may have come from donuts. I have nothing against donuts; I think they’re a very decadent snack.  I also acknowledge that they’re terrible from a health perspective.  While a serving of whey protein packs about 150 calories per 20-25 grams or protein, the protein gives more energy, boosts immunity, and can actually help cut fat as long as its being used to replace at least some unhealthy eating.  (Drink enough of the stuff and the substitution for unhealthy foods will be inevitable.)  Generally, more protein = more energy = better productivity.  Think of it as eating a few pieces of chicken, but in liquid form and with a disgustingly obvious fake flavor like “strawberry.”  The real advantage, however, is immunity, as it is easier to swim faster than the crowd when they are besieged with effete “diseases” like the “cold” and “flu” while you continue to put in face time and bill, courtesy of your superior immunity.

Establish religion, then tax its followers

By Jay Wolman

I’m impressed.  The Department of Agriculture may have violated two First Amendment provisions at once.  As set forth in the November 8, 2011, Federal Register,  there is a new Christmas Tree Promotion Board.  I’m thinking–Establishment clause violation, perhaps?  But, it gets better.  To fund it, there are assessments (i.e. taxes) on Christmas trees.  A tax on Christians.  Free Exercise clause violation, maybe?

So there’s no confusion:

Sec.  1214.3  Christmas tree.

Christmas tree means any tree of the coniferous species, that is  severed or cut from its roots and marketed as a Christmas tree for holiday use.

The USDA does address the Establishment clause question:

Another commenter in opposition raised concerns that the proposed  Order may violate the Establishment Clause. The commenter stated that government speech cannot advocate religion or religious symbols.  USDA considers Christmas trees to be an agricultural commodity which is reported as such in various USDA crop reports and statistical data reports (e.g. 2007 Census of Agriculture, National Agricultural  Statistics Service). The Act in section 512 provides for the establishment of generic promotion, research and information activities for agricultural commodities, including Christmas trees.

I don’t buy it.  Just because it may be an agricultural commodity doesn’t mean that singling it out for special treatment doesn’t violate the Constitution.  If they left it at ”any tree of the coniferous species”, I think they could get away with it.  But once they add in the relationship to Christmas itself, therein lies the problem.  But for Christmas, there is no Christmas tree tax.

The USDA can regulate cotton, too.  But that doesn’t give them the power to make a similar Mormon Underwear Promotion Board, or Muslim Prayermat Promotion Board, or Yarmulke Promotion Board, with an attendent assessment.

Cain hires ‘pit bull,’ ‘anti-Gloria Allred’ libel lawyer

Republican presidential candidate Herman Cain recently hired celebrity “pit bull” libel lawyer Lin Wood to defend him against the multiple sexual accusations that have surfaced in recent weeks.

Wood became earned his libel litigation chops after representing Richard Jewell, the American security guard who police considered to be a suspect in the Centennial Olympic Park bombing at the 1996 Olympics in Atlanta. Later, Wood represented the parents of JonBenet Ramsey, the woman who accused Kobe Bryant of sexual assault, and Gary Condit, the politician who was thought to be connected with the disappearance of intern Chandra Levy.

Slate Magazine’s XX Factor columnist Kate Julian even dubbed Wood the “anti-Gloria Allred” based on the juxtapositions of why the two attorneys originally made the choice to enter law school (Allred says its because of a comment a nurse made to her after receiving a botched illegal abortion after being raped; Wood says he knew he wanted to become an attorney after finding his father crying with the lifeless body of his mother lying nearby) and because Allred represents Sharon Bialek, one of Cain’s accusers. Needless to say, Cain has brought in the big guns. Anyone another attorney describes as the “pit bull you have chained to a stake guarding your house” is someone to be feared in the courtroom.

Wood maintains that he isn’t planning to litigate yet, but told the Atlanta Journal-Constitution that the accusers “should think twice, anyway.” Ladies, you are now on notice.

However, if Cain does end up filing defamation claims in court, he will have a high hurdle to jump. Because of Mr. Cain’s status as a public figure, in a claim of defamation, he needs to show actual malice. Actual malice is knowledge that a statement is false, or publishing a claim with reckless disregard as to its validity.

Of course, truth is an affirmative defense to claims of libel or slander. If the allegations against Cain turn out to be true, he is just plain out of luck. However, even if their validity cannot be proven, Cain faces the additional challenge of showing actual malice. Such a showing can be difficult to prove, as it speaks to the knowledge the publisher of the information had that it was false. According to the standard set forth for libel in New York Times Co. v. Sullivan, 376 U.S. 254, actual malice isn’t a simple matter of, say, a newspaper failing to adequately check its sources, but requires “recklessness” with the handling of the information. This means that in order to prove a claim of libel, the plaintiff would have to show that the defendant had actual doubt of the truth of the information, and acted recklessly in publishing the material, which it knew to not be true.

At this point, it isn’t clear who is telling the truth. Karen Kraushaar, the other non-anonymous accuser, has said she won’t comment further on the situation until the other women come forward and identify themselves. But, we may very well soon see the pit bull be let loose from the stake.

Everything you need to know about Herman Cain in 3 minutes

By J. DeVoy

Music originally by Tim Heidecker, best known for playing himself in the semi-eponymous Tim and Eric Awesome Show Great Job (“TEASGJ”); video created by @thatslayerchick.

TEASGJ was one of the funniest shows on television during its brief reign.  It says a lot about how clueless mainstream culture is when a diamond like TEASGJ has to be broadcast late at night on the Cartoon Network despite being on a Kaufman-esque level of brilliance, all while an obviously unfunny shit heap like “Community” is allowed to writhe and suffer in its natural, talentless state for nearly three years until NBC puts it out of its misery.  I understand how most Americans would “get” and “identify with” Community, a show about a bunch of unremarkable, talentless and self-aborbed cretins doing nothing – life imitating art and all – but the cynicism of TEASGJ provided a more realistic and, dare I say, hopeful view of the world.

While Tim and Eric mocked and insulted its viewers and the world around them, they inspired hope for the future.  Those are the dreams that need to be on NBC at 8:30 pm with 8-figure budgets – not something that accurately depicts the drudgery of our real lives.

This is why you’re fat (Pizza Edition)

By J. DeVoy

Congress, in its infinite wisdom, is effectively trying to make pizza a vegetable so that it can be served even more frequently in school lunches.  Is that even possible?

Republicans have added provisions into a spending bill that would have the following effects on existing USDA laws and regulations:

• Block the Agriculture Department from limiting starchy vegetables, including corn and peas, to two servings a week. The rule was intended to cut down on french fries, which some schools serve daily.
• Allow USDA to count two tablespoons of tomato paste as a vegetable, as it does now. The department had attempted to require that only a half-cup of tomato paste could be considered a vegetable — too much to put on a pizza. Federally subsidized lunches must have a certain number of vegetables to be served. (source)

Amy Dawson Taggart, director of the group Mission: Readiness, said that these proposed changes “would effectively categorize pizza as a vegetable in the school lunch program.” (source)

The republican rhetoric of not limiting the choice of children as to what they eat is disingenuous.  First off, what choice is there when an absence of legislation will produce the cheapest crap that the market will eat – which tends to be stuff like pizza and french fries?  Moreover, children are legally, if not practically, incapable of making good decisions.  Perhaps Johnny has a fast metabolism, or is living in a brief fitness bubble between 14-18 when he plays three sports.  Once that ends and he enters The Real World, it will be much harder to break his unhealthy eating habits, which will manifest in the form of the Freshman Fifty.  And for women, well…

That said, many people choose to let their health take a backseat to other priorities as they get older, such as their careers and families.  While I don’t necessarily agree with that, I respect it, because they are adults and it is a choice they have made – whether affirmatively or by omission.  In contrast, school lunches are essentially poisoning children with this crap as a default position, assuming that the parents will step in if there are any problems with the school-provided food’s nutritious sufficiency.  Based on a totally random and non-scientific sampling of people I see pushing strollers on a regular basis, this is a very bad assumption when made writ large.

I know that someone in the comments will inevitably protest that not ALL pizzas are unhealthy.  Yes, there are whole grain pizzas that use olive oil and goat cheese, with heirloom tomato slices and basil leaves as toppings.  Unfortunately we’re talking about children and public education, so I don’t think there’s any dispute that we’re considering pizza of the greasy cheese-and-pepperoni variety.

In America’s twilight, it has entered a phase described by The Thinking Housewife as The Age of Pizza.  This sounds delightful, if you’re eight years old.  For adults and everyone else, though, it is a living hell from which pizza cannot be escaped.  At family gatherings, office functions, law school events, and any meeting where undergraduates are present, there is pizza.  Even within politics pizza is inescapable, as it is precisely where THE Herman Cain made his fortune.  Pizza has become the default nourishment for the dead-eyed soul.

There is, however, one redeeming point to the ubiquity of pizza.  It is the gift of the Baby Boom generation’s cynical desire to put pizza on anything – pizza chips, bagels, hot pockets – and make it available morning, noon and night, for a profit.  Baby Boomers can lift high the pie of sloppy sauce and refute the allegation that they never gave anything valuable to subsequent generations.  Sure, your student loans may carry interest in excess of 7%, and all of the jobs you went to college – at the Boomers’ urging – to obtain may have evaporated so the Boomers’ quarterly earnings could have been a few points higher; but dammit, they gave you pizza in the schools, and everywhere else, at the expense of all other choices.

H/T: Bronan the Barbarian

Best. Headline. Ever.

H/T: Rogier Van Bakel

What’s More Christian Than a 30 Foot Cross?

By Sean McGilvray

The 9^th Circuit recently denied a rehearing for the case in which they ruled that the giant cross that sits on federally owned land atop Mount Soledad in La Jolla, California is unconstitutional. In January of this year, the 9^th Circuit took the entirely reasonable position that when the federally-maintained Mt. Soledad Veterans Memorial tops itself with a 25 foot tall representation of the most fundamental symbol of Christianity, they are sending a message of wholesale endorsement of the Christian faith in violation of the Establishment Clause.

The Mount Soledad Cross has a long history of controversy, but the latest round of litigation kicked off after the state of California got sick of arguing about it and transferred the land on which the monument stands to the federal government in 2006. The ruling in January spelled it out:

“… after examining the entirety of the Mount Soledad Memorial in context—having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross—we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.”

Last month, the court declined to review or reverse their earlier decision, which places this case in a prime position to move further up the chain and appear before the U.S. Supreme Court. Not all of the Circuit Judges agreed with the decision however, and Judge Carlos Bea wrote a lengthy dissent attacking the earlier decision and disingenuously suggests that a giant cross has nothing to do with Christianity.

Bea attacks the reliance on the three part test used in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, government action has to meet the following three criteria to avoid violating the Establishment Clause:

1. It  must have a secular legislative purpose.
2. It  must not have the primary effect of either advancing or inhibiting religion.
3. It  must not result in an excessive government entanglement with religion.

Despite the always colorful potshots that conservative justices like Scalia have taken over the years at this standard (“like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” 508 U.S. 384, 397 (1992)) the Lemon Test is good law.

Under this standard, the government action of acquiring a hunk of land with a giant cinderblock cross and maintaining the monument as-is seems like a cut and dry example of advancing the Christian religion and getting excessively entangled with it. Judge Bea pushes for an application of an exception to the Lemon Test from Van Orden v. Perry, 545 U.S. 677 (2005). In certain borderline cases where the religious iconography in question is part of a larger secular context, the court has to engage in a fact-intensive assessment of a host of factors, including the monument’s purpose, the perception of that purpose by viewers, and the monument’s history. The standard came from the Texas Ten Commandments sculpture case.

Although the Court in Van Orden explicitly eschewed the notion of simple formula in favor of an intensive fact-based analysis, Judge Bea helpfully condenses this analysis to look at the use and context of the Mount Soledad Cross.

Of course the earlier 9^th Circuit decision considered all these factors in addition to their Lemon Test analysis and found that the Soledad Cross was inherently Christian in nature. Judge Bea argues that the fact that Cross is currently part of a veteran’s memorial and is festooned with plaques and American flags somehow negates the religious undertones as though crosses are not associated with memorials precisely because of the religious connotations of the afterlife.

Bea also argues that the history and context of the cross are secular, or at least as secular as a representation of the deity worshipped by the majority of Americans can be. By focusing narrowly on Mount Soledad Cross only as part of a memorial for the veterans since 2006 (when the U.S. government acquired the property) Judge Bea willfully ignores the broader history of the Cross which was a focus for annual Easter services for over forty years. He is a big fan of history when it comes to pointing out that the monument stood unchallenged until 1989 and that this long run without opposition somehow drains the cross of its Christian meaning.

It remains to be seen if the Supreme Court will grant cert for this case and if they do, whether the current lineup will be inclined to see the case the same way as Judge Bea but for now this particular victory in the war to keep church and state on opposite ends of the block has been reaffirmed.

Kids today.

Move over Florida!  Looks like Arizonans are overtaking you in the WTF department. Not content with traditional methods of imbibing alcohol, Arizona teens are soaking tampons in Vodka and shoving them in…well you get the idea.    Source.

Apparently, its a quicker high.  They’ve also discovered the beer bong in the ass is quite effective as well.  They call it “butt chugging”.

Baaaa haaaaa haaaa haaaa!!!!!!

Fucking idiots.

 

 

 

 

The Internets in ’69

“what the wife selects on her console, will be paid for by the husband on his counterpart console…”

Ok, that is how it works for me…

News Flash Update: Counterfeit Goods Come From China

Guess what? 1,800 cases of  electronic parts from China were sold to the Pentagon for their fancy high-end weapons systems! Neat-O! But made in China? Are we sure that’s safe? Psha- no big deal-people buy stuff made in China all the time.

Aw shucks, did I mention the parts were counterfeit? Source 1. Source 2.

Ask a teenager where to get counterfeit sunglasses and handbags and crap like that and she’ll tell you. Shoot, I can tell you. Go to Chinatown. Any Chinatown. In any city. But it took the  Senate Armed Forced Committee months to figure this one out.

Riddle me this: How come our elected officials only care about counterfeiting when it comes to profit margins of high fashion power houses and finding new and creative ways to treat the USPTO like a cash cow?  How-in-the-name-of-all-that’s-holy did someone not verify if the chips for a fracking missile defense system were the real thing?

I wonder if they got tipped off about this by finding a shiny bomb casing filled with used pin-ball machine parts?

Bunnies!

“Got the weirdest catalog in the mail. Basic premise: buy cute animals for starving children in Africa to eat.” – A friend of mine on his Facebook Page.

Nevada keeps meetings open to the public

Those lobbying for more transparent government scored big victories this year in the Nevada Legislature. Nevada Senate Bill AB59 created an Open Meeting Law Task Force to make changes to the law, which previously had been cobbled together by a collection of statutes and case law and was difficult for government entities to follow.

The changes include a monetary penalty for officials who have violated the open meeting law and increased public awareness when those violations occur. The language also expands the open meeting law to apply to quasi-judicial bodies, with the exception of parole boards.

If a public body is believed to have violated the opening meeting law, someone can complain to the attorney general’s office, which will send a letter to the council in violation. The entity must then post on the agenda that a violation has been reported, and include the letter reporting the violation at the end of the agenda. The AG was also given subpoena power when investigating alleged violations. Repeated violations come with a $500 fine.

The law also requires that if a public body holds a meeting to consider the “character, alleged misconduct, professional competence, or physical or mental health of a person,” it must provide written notice of that meeting, and must allow in certain individuals if that meeting is closed. Public notice includes publication in a newspaper of record and on the Internet.

The task force also fought to make sure that the definition of “reporter” was as expansive as possible, including citizen journalists and bloggers in the mix. In related action, the Nevada Supreme Court recently altered the camera rules for court proceedings. Reporters are now able to live tweet or send news flashes during open hearings and trials from laptops or cell phones, provided those devices do not make noise or cause disturbances. The NV Supreme Court also changed the requirement of 72 hours’ notice for requests for camera use in courts to 24 hours’ notice. In addition, judges can waive the notice for good cause.

The complete language of the bill can be found here.

In Texas, government officials recently have challenged the validity of the state’s open meeting law, claiming that the law violates government employee’s First Amendment rights. Even though Texas’ $500 fine and six months in jail penalty rarely is levied, officials filed suit challenging the constitutionality of the penalty attached to violating the law. Texas’ penalty is more severe than Nevada’s, which only attached a civil penalty for “willful violation” of the Open Meetings Act.

Texas officials brought the first suit after four Alpine City Council members exchanged emails about an upcoming meeting. According to Texas’ open meeting law, a quorum of public officials must be present to discuss public business. The officials claim it was a violation of their First Amendment rights.

Reporters in Texas fear the Fifth Circuit may strike down the Texas Open Meeting Law, leading to similar actions throughout the rest of the country. Every state has some sort of open meeting law. Supporters of the Texas law argue that the framers did not intend to protect government officials’ ability to congregate in secret.

Public officials are held to a different standard than the average citizen. Courts have consistently struck down First Amendment challenges to open meeting laws by public officials. Open meeting laws ensure that government dealings subject to public scrutiny remain public in order to protect the citizens they govern. While such laws should not prohibit public officials meeting for a friendly drink where the subject of public business is never broached, the laws should hold public officials accountable for their conduct.

Former Governor’s Suit Against TSA is Dismissed

by Charles Platt

Jesse Ventura’s suit against the TSA has been dismissed because the judge claimed lack of jurisdiction. The issue seems complicated by the fact that TSA’s orders and procedures are secret (for our own protection, of course), thus making them difficult to challenge. Ventura commented that he would rather face terrorists “than give up one of my rights.” Sorry, Jesse, you do not have that choice. Story here.

The Mark of Cain

Looks like Herman Cain is having a three way and not in the awesome sense.  A third woman has reportedly come forward with an allegation that Mr. Cain acted inappropriately toward her.  While I’m sure someday Mark might take a pro-sexual harassment case to the Supreme Court, arguing for the 1st Amendment right to be saucy, for now it is considered unlawful.

A side note to political candidates:  if you have a skeleton or three in your closet, reveal it yourself.  It will come out and you want to control the message.

Sexual harassment is a fascinating area of the law.  Sometimes, and rarely, it is blatant quid pro quo, the old casting couch.  Most times, it is something said that offended the listener, with some sexual or gender based content, that is deemed to have gone too far.  It’s like pornography, Rule 34 aside, you generally know it when you see it.  The hard fought cases are the ones where it is less clear.  According to the article:

she said Cain told her that he had confided to colleagues how attractive she was and invited her to his corporate apartment outside work.

Maybe that implied he wanted to sleep with her.  Maybe he was paying her a compliment and the invitation was platonic or business related.  President Obama is an attractive man and I’d welcome him to dinner at my house.  It doesn’t mean I want to become the First Lady by proxy.  As to the complaint Mr. Cain “settled” or reached an “agreement” on (synonyms to me, different to him), he states that it was about a comparison he made of a female coworker to the height of his wife.  If that was a pickup line, it is the worst ever; what woman gets turned on by a man who compares her to his wife?  I’m pretty sure that violates Ashley Madison’s own standards.  But, she may have taken it as such, and maybe that is what he intended.  There may be more to it, but he isn’t talking and she is bound by a confidentiality agreement.  Given both of these, and whatever the third is, you can see why these cases take a lot of lawyering.

As to the two that settled, it sounds like a year’s severance was given for one, and the other got something confidential.  A year’s severance is a pretty nice package; it’s not nuisance.  Confidentiality, on the other hand, does not imply a large settlement; some companies demand it even for nuisance suits.  They don’t want to set any form of precedent.

Some commenters have suggested she breach the confidentiality clause.  That is a huge no-no.  She’d likely have to repay the money, and the statute of limitations has run on filing a claim.  Plus, she’d probably owe attorneys’ fees.  And we’ve all seen how much it sucks to be hit with attorneys’ fees.  Others have suggested Mr. Cain is violating a non-disparagement clause.  My guess is: no.  Like confidentiality clauses, these are typically one sided.  An employee might get a neutral reference clause, but it usually isn’t as broad as the non-disparagement clause given to the employer.

My advice to Mr. Cain:  don’t blame Gov. Perry or Romney.  Air your dirty laundry now.  And watch what you say in the future.  I don’t want to hear any claim that “is” is ambiguous.