One of my favorite blogs is Ron Coleman's Likelihood of Confusion, which (mostly) deals with his specialty: Intellectual Property (IP) law. Being in the IP business myself (with both software and books), I like to be better educated on that legal front. I learned a lot about the topic through time spent on the Open Gaming Foundation lists, but I've learned more from Ron. Tonight, I'm going to get a little hubristic, and actually step into Ron's specialty with something which has amused me on many a visit to my in-laws' house.

To lay the groundwork, I first have to explain the name of Ron's blog — excuse me, the award-winning name of Ron's blog. And to explain that, I have to delve into the ideas behind trademark. As I posted before (I told you this topic interests me):

Well, to understand what the big deal is, you have to understand the purpose of trademarks, a subject which is often misunderstood (even by people who should know better). If owner A has a trademark on the word "SKDLF", that means that manufacturer B is forbidden from calling his similar product "SKDLF". Now in a country which enshrines freedom of speech in the First Amendment to the Constitution, why should we countenance such a restriction on what manufacturer B can say? Why should we restrict manufacturer B's freedom of speech for the protection of owner A?

And there is where the misunderstanding comes in: trademark law is not about protecting the owners of the trademarks; it's about protecting the consumers from confusion. It's about ensuring that when consumer C buys a product labeled "SKDLF", he's buying a real "SKDLF". The relevant standard in determining whether a trademark has been infringed is called likelihood of confusion. (This is why Ron Coleman, a trademark lawyer whose writings I always find interesting, calls his blog Likelihood of Confusion.) A famous example of this principle was a case in which a floor mat manufacturer was found not to be infringing Ford's trademark by selling a floor mat with the Ford logo. Not just the name, the actual logo! In deciding the case, the court essentially said that "No consumer will ever confuse this floor mat with a Ford car." If trademark law were about protecting the trademark owner, Ford would have won this case; but instead, the court judged based on the rights of the consumer, and the floor mats were allowed.

Well, every time we go to Sandy's parents' house, I see an amusing example of unlikelihood of confusion at work.

I know some people find them hokey; but when I was a kid, I liked the interrelated CBS "rural" comedies: Petticoat Junction, The Beverly Hillbillies, and especially Green Acres. Green Acres was always my favorite, because it was so surreal: Arnold, the world's smartest pig; Lisa, the loopy Hungarian socialite; Eb, the clueless farm boy; Mr. Haney, the vaudevillian con artist; the Monroe twins, who never finished a construction job; Mr. Kimball, the bizarre county ag agent; and in the middle of all this loopiness was Oliver Wendell Douglas, played by the inimitable Eddie Albert. He was the sane, rational, but more than a bit pretentious "normal" person who looked down his nose at the bizarre things the other characters thought or said; but the more bizarre the idea, the more you could be sure that the odd thing would actually come to pass.

And I loved that opening, with the sweeping view across the farm to the barn, as Eddie Albert sings out, "Greeeeeeeeen Acres, it's the place to be! Faaaaaaarm living, it's the life for me. Land spreadin' out, so far and wide! Keep Manhattan, just gimme that countryside!" Man, that man could sing!

So when we drove through the town of Greenville and I first saw a new retirement living home called Green Acres, the first thing that immediately came to my mind was, "It's the place to be!"

And there, in a sub-head under the name, was the proud declaration: "It's the place to be!"

Now there's one very clear reason why this can't easily be a trademark infringement: CBS (who aired the program) and Filmways (who produced it) don't seem to have ever registered the name as a trademark. (In fact, a number of other companies have, in various fields of business.)

But even if they had registered the mark, I doubt they could claim infringement based on likelihood of confusion in this case. I doubt that anyone passing through the tiny town of Greenville and seeing that sign is going to think, "Hey! That's that 40-year-old TV show!" Even with the famous tag line, there's just not much chance of confusing a retirement living home with a TV show (much like the Ford floormats would never be confused with a Ford truck). So this strikes me as a pretty clever way to target people with an allusion to a show from their youth. Literary and cultural allusions are part of our shared heritage and form a sort of second-order common language. The folks at Green Acres are putting that language to good use.

There may be other hypothetical grounds for an infringement claim of a hypothetical Green Acres trademark. Ron tells me there's this relatively recent concept of infringing a trademark by trademark dilution:

Dilution differs from normal trademark infringement in that there is no need to prove a likelihood of confusion to protect a mark. Instead, all that is required is that use of a "famous" mark by a third party causes the dilution of the "distinctive quality" of the mark.

That might (hypothetically) be grounds for a trademark infringement claim. Look at the considerations for a "famous" mark (notes added):

Under the terms of the Act, courts may look at the following factors in determining whether a mark is famous:

1. The duration and extent of use of the mark; Six seasons of prime time TV, plus decades of reruns, plus now episodes for sale on DVD.


2. The duration and extent of advertising for the mark; Six seasons of prime time TV ads.


3. The geographic area in which the mark has been used; World wide, I'm sure. The US, at a minimum.


4. The degree of distinctiveness of the mark (either through the nature of the mark itself, or through acquired distinctiveness); OK, I don't think it's all that distinctive.


5. The degree of recognition of the mark; Go ahead, say "Green Acres" to random people on the street, and see how many people remember it. I'll bet it's a lot.


6. The method by which the product was distributed and marketed (the "channels of trade"); Broadcast TV.


7. The use of the mark by third parties; OK, this weakens the case a lot, since there are many third party uses. and


8. Whether the mark was federally registered. It never was, of course; but for our hypothetical, we're assuming it was.

So I could imagine a hypothetical dilution claim, but not a hypothetical confusion claim. Personally, I'm not sure I like this whole dilution concept. It shifts trademark law from protecting consumers to protecting trademark holders. I think that's a step in the wrong direction. But who am I? Just an average individual consumer. Apparently the trademark owners have more influence in Congress.

So for Christmas, besides a super-cool Superman Returns lunch box with the two-disc Superman Returns DVD inside (and dang, I can't find a link for that lunch box online anywhere!), Sandy got me The Tick vs. Season One, available on DVD at long last (and for sale by Disney, not Fox, where the shows originally aired — no idea how that happened). And I was reading the back, and saw a little asterisked notice: "Does not include episode 11".

Well, that made me curious, so I went to TV.com and found that episode 11 is The Tick vs. the Mole Men. I remembered that episode: it involved a beautiful supermodel named Mindy who was pursued by a bunch of subterranean Molemen, who were themselves pursued by the evil Lava King. It turns out that the lead Mole Man is in love with Mindy, who actually is a visitor from the mole lands herself. Once the Lava King is defeated, Mindy returns to be the Mole Queen.

So that left me wondering: why leave that episode out? And that led me to this discussion and a bit of unofficial speculation:

""The Tick vs. The Mole Men" features an unauthorized use of Cindy Crawford's likeness, that's why it will not be included

Officially, the episode is missing for "creative considerations", and "may appear in a later collection". But ya know, I've seen this episode maybe half a dozen times; and I just realized that Mindy Moleford does indeed have a prominent mole, just like some other supermodel.

On the other hand, Comics2Film insists that's not the reason, and that there's another reason that they do know but won't discuss because that would complicate legal negotiations between the parties. I can't imagine who else might have an opinion on this episode...

It's a cliche, but it's generally true that kids adopt computers faster than older people do. They don't have any fear that they might do something wrong and make the computer catch on fire, which seems to be in the back of the mind of every reluctant adult computer user. (I tell them and tell them that they can't make the computer catch on fire, but they just don't seem to believe it.) We've all heard the same story: "My kid (or grandkid) is a wiz with computers, but I can't figure them out."

So I'm always inspired when an older person belies the stereotype and jumps wholeheartedly into the technology. There's no reason computers shouldn't empower people of all ages. So I like to collect the opposite kind of stories: "Oh, this sixty-year-old grandmother's running her investment club's web site." Every time some older person gives me the "My grandkid" speech, I like to use these stories to show that they can use computers, too.

But this one... This one surprised even me. And inspired me.

Imagine you're a 60-year-old man. You've had a career you're proud of, but it doesn't seem to be going as well these days. Honestly, you could probably retire now, if you wanted to; but you're still active and still curious about the world around you. You're not ready for the pasture yet.

And then you see this computer; but it's a little different from the ones you've seen in business. It's one of those new-fangled microcomputers; only instead of the plain text screens on the IBM PCs around, this one has a bright, full-color screen with — flying toasters. This little Commodore Amiga is doing sophisticated computer animation.

Well, you've always had a fondness for animation, so you buy an Amiga. And while some Amiga users are just playing games with theirs, at the age of 60 you begin self-study in the art of computer animation. You never went to college, or anything; but you're bright and have been successful in your field, so you can figure this stuff out. You find it an amusing hobby, and you love it.

Fast forward almost 20 years. You're nearly 80. Your primary career has actually blossomed into a whole new phase, keeping you pretty busy. In fact, your last big gig ran an incredible eight years, beating your record for any job earlier in your career.

And yet still you've found time to keep up with computer animation. You've done some stuff to amuse yourself and your family, and people are pretty impressed. At an age when a lot of people think computers are just not for their generation, you harbor a dream to some day do an animated feature, or at least a Christmas special. Heck, you even have a professional animation credit to your name, having sold one special effects scene to the CBS show Diagnosis Murder.




Thanks to IP Maven Ron Coleman for accidentally leading me down this trail.

Still exploring. Updates soon, I hope.