IP Law Chat -- Hendricks & Lewis, intellectual property, trademark, copyright and technology attorneys

In May 2007, Tara Richerson was transferred to a new position with the Kitsap County School District that included responsibilities with a new instructional coaching model where she would work with teachers to enhance their professional development.  The coach's role was to be a mentor and develop a "trusting" and "confidential" relationship with the classroom teachers.

Ms. Richerson also maintained a blog in which she recounted her observations as an employee of the school district.  In one entry, she commented as follows on the person hired to replace her when she was assigned to her new position:

Save us White Boy!
I met with the new me today: the person who will take my summer work and make it a full-time year-round position.  I was on the interview committee for this job and this guy was my third choice . . . and a reluctant one at that.  I truly hope that I have to eat my words about this guy. . . . But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. . . He comes across as a smug know-it-all creep.  And that's probably the nicest way I can describe him. ... He has a reputation of cra**ing on secretaries and not being able to finish tasks on his own. ... And he's white.  And male.  I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community. ... Mighty White Boy looks like he's going to crash and burn.

When the school district learned of the blog entry, Ms. Richerson was verbally reprimanded for violating the confidentiality required of a member of an employee interview team and a confirming letter was placed in her personnel file.

At some point, the school district also received a complaint from a district teacher and lead union negotiator about another entry on Ms. Richerson's blog, which the teacher construed as a personal attack on her.  The entry apparently included the statement, "What I wouldn't give to draw a little Hitler mustache on the chief negotiator."  The school district then advised Ms. Richerson that she was being involuntarily reassigned from her new position to that of a classroom teacher.

Ms. Richerson then brought suit in the Western District of Washington claiming that the school district had violated her civil rights by reassigning her in retaliation for the exercise of her First Amendment free speech rights.

On cross-motions for summary judgment, the District Court disagreed, concluding that Ms. Richerson's speech did not meet the "public concern" test and was therefore not protected.  The District Court noted that the government has a "freer hand" in regulating the speech of its employees and concluded that the proposed mentoring relationship between Ms. Richerson and other teachers envisioned in her new position would have faced "severe difficulties" had she not been reassigned following her blog entries.  In concluding that Ms. Richerson's speech on her blog did not meet the public concern test, the District Court also noted that "it was racist, sexist, and bordered on vulgar" and characterized her behavior, in part, as "salacious" and "mean spirited."

You can read the District Court's full opinion here and the complaint and answer here and here.

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UPDATE:

On Thursday, the Ninth Circuit issued its en banc opinion in the case, again written by Judge Kozinski, which affirmed that Roommates.com, LLC enjoys some limited immunity for the content on its website under Section 230 of the CDA.

There's plenty of discussion of the opinion to keep you busy.  Following are links to a few:

Technology & Marketing Law Blog
Internet Cases
Decision of the Day
The Volokh Conspiracy

And feel free to click through to see the original posting on the case.

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When is an opinion about insurance coverage interesting?  Answer:  When it involves The Doors.

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William Patry at The Patry Copyright Blog sets the record straight on the history of copyright at the time of Lincoln.  The history buff in me says kudos for the fascinating history lesson.

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Many times, I find cases more interesting for the stories they tell than the thorny legal issues they may (or may not) present.  American Express Co. v. Goetz out of the Second Circuit is one of those cases and it tells a story of remarkable coincidence.

In the summer of 2004, the defendant, Stephen Goetz developed the idea of allowing credit card customers to personalize their cards by choosing a photo to be printed on the card.  As part of his pitch for this idea, Goetz used the slogan "My Life, My Card" because he thought the phrase "would perfectly embody what card consumers sought."  On July 30, 2004, Goetz mailed a proposal to American Express that included the slogan.  He also created an Internet-based demonstration of his concept which prominently displayed the slogan.  And on September 7, 2004, he registered the domain name www.mylife-mycard.com and filed a trademark registration application for the slogan with the PTO the next day.

As it happens, also in the summer of 2004, American Express hired an advertising agency to develop a new global campaign for its products.  On July 22, 2004, the agency proposed a campaign to American Express featuring the MY LIFE.  MY CARD. slogan.  After American Express expressed interest in the campaign, the agency's outside counsel conducted a preliminary trademark search for the availability of the slogan as a service mark on July 29, followed by a full trademark search on July 31, which was two days before the scheduled delivery date of Goetz's proposal to American Express.  American Express decided to proceed with the MY LIFE.  MY CARD. campaign and therefore registered the domain name www.mylifemycard.com on September 1, 2004, and filed an ITU application with the PTO on September 15.

As I said, remarkable coincidence.

As for the legal issue--this is after all a legal blog--American Express won on summary judgment and Goetz's counterclaims were dismissed because both the District Court and the Second Circuit concluded that he did not use the slogan as a trademark.

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The valuation of virtual goods continues to be of interest to both attorneys and gamers--the two of course not being mutually exclusive--and the Law of the Game has an interesting tidbit about a virtual "seizure" of such goods.

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In a pure statutory interpretation opinion, the Ninth Circuit concluded that a plaintiff's election of statutory damages in lieu of actual damages for trademark counterfeiting under 15 U.S.C. 1117(c) precludes that party from also recovering an award of attorneys' fees under 15 U.S.C. 1117(b).  Not a positive result for the plaintiff, K and N Engineering, Inc., which had been awarded $100,000 in attorneys' fees by the trial court.  The Ninth Circuit's opinion in K and N Engineering, Inc. v. Bulat, No. 06-55393, can be found here.

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Apparently, for the Seventh Circuit, a picture is indeed worth a thousand words--at least in the absence of any evidence contradicting that picture.

Top Tobacco--the plaintiff in this trademark case--started off with a difficult position, claiming that it had exclusive rights to the common word "top" in the cigarette tobacco market.  Top Tobacco, which uses the mark TOP above a drawing of a spinning top, sought to stop North Atlantic from using the phrase "Fresh-Top Canister" on its cigarette tobacco cans.

The district court granted summary judgment for North Atlantic and the Seventh Circuit affirmed concluding that "[o]ne glance" at the pictures of the canisters "side by side" was "enough to decide the appeal."  Based on these pictures, the Seventh Circuit concluded that it was "next to impossible" to believe that even the most careless consumer would confuse the products.  And although the Court acknowledged that "next to impossible" was not "absolutely impossible," the pictures were all the Court had because Top Tobacco did not conduct a survey or produce any affidavits from consumers or merchants demonstrating confusion.

To see the pictures that decided the appeal and read the Seventh Circuit's opinion in Top Tobacco, L.P. v. North Atlantic Operating Co., No. 07-1244, see here.

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UPDATE:  After recovering a judgment of more than $575,000 on its copyright and trademark claims, Tekky Toys, the manufacturer of the no doubt charming farting doll "Pull My Finger Fred", successfully petitioned the Seventh Circuit for an award of attorneys' fees on appeal of that judgment.  Although the Seventh Circuit did find one portion of the fee request excessive (specifically, the claim that it took counsel 33.25 hours at $450 an hour to prepare the fee petition, which consisted of a six-page argument, three-page affidavit and computer-generated billing statements), it still awarded Tekky more than $70,000 in attorneys' fees.  The Seventh Circuit's attorneys' fee opinion in JCW Investments, Inc. v. Novelty, Inc., Case No. 05-2498, can be found here.

For the earlier discussion of the battle between Pull My Finger Fred and Fartman, see here.

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