DOUBLE ENTENDRE CAUSES STIR IN TRADEMARK FLAP
In what is destined to be a classic exposition of what constitutes an immoral, scandalous or vulgar trademark, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit closed out 2012 by ending a woman’s 11-year effort to register her rooster-shaped, chocolate lollipops, displayed in retail outlets in small replicas of egg-farm collecting baskets, under the trademark “COCK SUCKER.” Marsha Fox’s business primarily targeted fans of the University of South Carolina and Jacksonville State University, both of which have gamecocks as athletic mascots.
Writing for the panel in In re Marsha Fox, Judge Timothy Dyk, who may well deserve the “straight face of the year” award, carefully examined dictionary definitions and statutory language to conclude that the distinction between “COCKSUCKER” and “COCK SUCKER” is a “distinction without a difference.” The mark, he added, is “precisely what Fox intended it to be: a double entendre, meaning both ‘rooster lollipop’ and ‘one who performs fellatio.’ ” If Fox is correct that her mark brings nothing more than a smile to a purchaser’s face, he wrote, “The market will no doubt reward her ingenuity. But this does not make her mark registrable.” — Marcia Coyle
GROUP HONORS KAGAN FOR HER FIERY DISSENT
Evidence has emerged yet again that the phrase “exemplary legal writing” is not an oxymoron. The Green Bag law review has just announced its awards for such writing in 2012 in its annual almanac.
It was not a stellar year for the writing of Supreme Court justices; Justice Elena Kagan’s impassioned dissent in the confrontation clause case Williams v. Illinois is the only work by a justice that won an award. Not even Justice Antonin Scalia’s book Reading Law: The Interpretation of Legal Texts made the cut. But District of Columbia U.S. District Chief Judge Royce Lamberth won for his February ruling upholding the subpoena of records of the owner of a vulgar Twitter account that displays “almost incomprehensibly poor taste.”Seventh Circuit Chief Judge Frank Easterbrook’s defense of the judiciary in a Swarthmore College commencement address won as well. An amicus brief filed in cartoon form in a New York price-fixing case against Apple Inc. won praise, as did Dale Carpenter’s book Flagrant Conduct, a revealing history of the 2003 gay rights case Lawrence v. Texas. Other exemplary books: David Dorsen’s biography of esteemed appellate judge Henry Friendly and Fourth Circuit Judge J. Harvie Wilkinson III’s Cosmic Constitutional Theory. — Tony Mauro
WALTON’S NEW FACEBOOK ‘FRIEND’
If U.S. District Judge Reggie Walton had a Facebook page, Washington lawyer Larry Klayman wouldn’t “like” it. On December 28, Walton handed Klayman a loss in his $1 billion lawsuit against Facebook Inc., and its founder, Mark Zuckerberg. Klayman, who heads Freedom Watch Inc., accused Zuckerberg of putting Klayman, who is Jewish, and others in danger by failing to immediately take down a Facebook page calling for violence against Jews. Walton granted Facebook and Zuckerberg’s motion to dismiss, finding that under the federal Communications Decency Act of 1996, Facebook couldn’t be held liable for speech or information posted by third parties on its site. Klayman, who has represented himself in the case, said he thought the opinion had “some significant factual and legal flaws” and that he planned to appeal. “Clearly it’s negligent on Facebook’s part to leave death threats,” he said. “They remove Facebook pages for a lot less.” In an e-mail, a Facebook spokesman said the company was “pleased with the court’s ruling dismissing all claims with prejudice.” Facebook and Zuckerberg have been represented by Kirkland & Ellis. — Zoe Tillman
A court filing in a public records case had been on the public docket for months — ever since July. The National Whistleblowers Center, the plaintiff, had distributed the information to the press and to Congress. But the government didn’t like what it saw, and U.S. Justice Department lawyers asked a Washington federal district judge, James Boasberg, to seal the exhibit. The DOJ legal team, including assistant U.S. attorney Marian Borum, argued that the document contained confidential commercial information that cannot be publicly disclosed. On January 3, Boasberg ruled for the whistleblower center and six current and former employees of the Department of Health and Human Services who allege the agency conducted an unlawful surveillance program. Boasberg said the government asked for the sealing of records in an “exceptionally brief one-page motion” that made no reference to the law governing the request. The plaintiffs’ attorneys, David Colapinto and Stephen Kohn of D.C.’s Kohn, Kohn & Colapinto, argued against the removal of information from the court file. — Mike Scarcella
Creditors of a bankrupt U.S. battery maker are looking to hire a lobbying firm in Washington after a “jilted stalking horse bidder” enlisted a team of Wiley Rein lobbyists to thwart a Chinese company’s plan to buy most of the manufacturer. The official committee of unsecured creditors of A123 Systems Inc. on December 28 asked a bankruptcy judge in Delaware whether it can retain Capitol Counsel for $75,000 to push back against “[c]onsiderable political pressure” Milwaukee-based auto equipment manufacturer Johnson Controls Inc. has exerted on the Committee on Foreign Investment (CFIUS) to oppose the $256.6 million sale of the battery maker to Chinese car parts company Wanxiang America Inc., according to a court filing. “[T]he Debtors’ jilted stalking horse bidder, Johnson Controls Inc. (‘JCI’), has hired a seasoned political lobbyist and…is doing everything within in its power to encourage CFIUS to deny approval of the proposed sale,” the filing says. Wiley public policy consultant Scott Weaver and partner Jim Slattery are handling the Johnson Controls account. — Andrew Ramonas
Washington lawyer David Medine can’t get a break from the Senate. The former Wilmer Cutler Pickering Hale and Dorr partner was nominated more than a year ago to be chairman of the federal Privacy and Civil Liberties Oversight Board, which had been vacant and dormant since 2007. The Senate confirmed the four other members in August, but as of last week Republicans still objected to Medine. On the floor, Senate Majority Leader Harry Reid (D-Nev.) on January 2 said the GOP had agreed to confirm Medine during the lame duck session. But Senator Chuck Grassley (R-Iowa) refused to allow a vote on a nomination he called “controversial.” Medine, who now works on financial privacy issues for the U.S. Securities and Exchange Committee, will have to be renominated to the board during the current session. — Todd Ruger
BRIGHT AND SHINY
Arent Fox has completed the move to its new D.C. offices at 1717 K St. N.W. The almost 200-attorney firm didn’t have far to go — literally moving across an alley — from its old residence at 1050 Connecticut Ave. N.W. Managing partner Matthew Clark said that because of the proximity, the firm was able to spread the move over three weekends, starting with Thanksgiving through the weekend before Christmas. The firm occupies 225,000 square feet in its new digs. “We were able to take advantage of proximity and feather in the move where it wasn’t going to be terribly disruptive,” Clark said. “Through that process, we were able to keep productivity at a normative level.” — Matthew Huisman