Lawyer Kurt Mausert wants to be Family Court judge in Saratoga County, New York. Since his campaign website went up on April 1st, containing the standard copyright notice “All contents © 2008” in its footer, the masthead has featured this rather uninspiring slogan:
Although most family men really hate whining kids, and he is a father of four (ages 8 to 26), Mausert is loudly and plaintively complaining that his opponent — incumbent judge Courtenay W. Hall — has “stolen” his Family Man slogan and violated the copyright held on it by the Mausert election Committee. See “Saratoga County Family Court candidates battle over slogan” (Schenectady Daily Gazette, Sept. 5, 2008; update); “Whose line is it, anyway?” (TU Local Politics weblog, Sept. 2, 2008). A few months ago, Mausert also complained that leaders of the Independent Party treated him unfairly by not interviewing Mausert before choosing to endorse Judge Hall. The candidates are fighting for the Independence Party endorsement in a primary election on Tuesday. They will both be on the November ballot, Hall as a Republican and Mausert as a Democrat (See The Saratogian). [You can find a Campaign Update at the end of this post, describing Judge Hall’s victory in the November election and related topics.]
According to Mausert’s campaign manager, attorney RIchard Moran, all of Mausert’s campaign literature has included the Family Man slogan, but when Judge Hall sent out his first flier about a week ago he also claimed to be a “Family Man for Family Court.” Moran told the Gazette:
“Even if we hadn’t taken the care to post our copyright notice, it is simply unfair for one candidate to swipe another’s popular and well used slogan.”
Judge Hall had no comment, but his campaign manager Jeffrey Bagnoli told the Gazette:
“The allegations in that press release are patently untrue. Judge Hall used the slogan ‘A family man for Family Court’ 10 years ago, when he ran for the office for the first time.”
According to the Gazette:
A press release issued by the Mausert campaign about the accusations includes the question, “Is Courtenay Hall a Thief?,” which Bagnoli said is defamatory. Mausert said the question does not defame the judge, though.
“It’s not defamatory, it’s a question,” Mausert said. “I’m asking the question, ‘Do the people think my slogan was stolen?'”
Bagnoli says the charge violates the judicial code of ethics. Mausert responded that the press release merely asks a question and is therefore not defamatory. In the print edition of the Schenectady Gazette, Kurt is quoted saying:
“You have two tall, thin, bald white guys running for the same office. If you met me five weeks ago and then received his literature today with the same message on it, it’s going to be confusing.”
more (3 PM): The Glens Falls Post Star has more coverage with revealing quotations,”Candidate claims opponent stole his slogan” (by Drew Kerr, Sept. 4, 2008):
“The Web site has a copyright on it, but Mausert said he has no intentions of pursuing a legal case against Hall. Instead, he said the incident speaks more to Hall’s character.
” ‘Forget about any man-made law,’ Mausert said this week. ‘This is about integrity. People’s words and phrases are just as much their possession as an automobile.’
“. . . ‘For him to come out a week and a half before the primary with the same thing, it’s bound to cause confusion,” Mausert said. “I have to think this is deliberate.’
Calling Mausert’s allegations ‘over the top’ and ‘smear campaigning’, Hall’s campaign manager Jeffrey Bagnoli, responded that “It’s preposterous to think that because he puts the slogan up on a Web site that he thinks he owns it.” According to the Post Star, “Bagnoli also said Mausert should ‘give a lot more credit to voters in Saratoga County’ who should be able to differentiate the two.”
Meanwhile, over at Court-o-rama, Anne Skove suggests sending the two candidates to mediation, and notes how important it is to see the way judicial candidates handle conflict. She adds, “Usually we bemoan the fact that the public knows too little about the candidates. In this case voters may have learned just enough.”
update (September 14, 2008): Judicial Candidate Kurt Mausert left comments here at f/k/a on September 11th (and often thereafter), as well as at Prof. Randazzo’s Legal Satyricon weblog, and Legal Blog Watch, defending his accusations against Judge Hall. Although tempted to respond point by point, I’ll let the reader decide for himself or herself whether it’s important for a judicial candidate to do legal research before leveling accusations at an opponent claiming a violation of law; whether his charges are persuasive that using the “Family Man” slogan means Judge Hall lacks integrity, and that voters are likely to somehow confuse the two candidates because they are focusing on the (totally pedestrian) slogan, rather than the issues; and whether calling suggesting that your opponent is a thief and Prof. Randazazzo “arrogant” and a “haughty snob” suggests appropriate judicial temperament — or just desperation.
Kurt Mausert appears to have many fine qualities, and is making proposals for improving Family Court with which I, as a former Law Guardian and mediator, agree (e.g., having a website that helps explain how the court works and what to expect as parties; and using mediation to resolve disputes). It’s too bad — especially since his website tells us “Kurt has trained in the martial arts (Kempo) and works out regularly at Global Fitness in Saratoga Springs” — that he has come out swinging with such wimpy accusations. Two points that seem especially worth mentioning before we close:
- With a few minutes of Googling, Lawyer Mausert or Lawyer Moran could have learned (as I did) that slogans are not protected under copyright law. Thus, the U.S. Copyright Office tells us they “cannot register claims to exclusive rights in brief combinations of words such as: . . . Catchwords, catchphrases, mottoes, slogans, or short advertising expressions.” (Circular 34, rev’d Feb. 2006) A distinctive commercial slogan can sometimes get a trademark (see My Norrby’s treatise, “Trademark Protection of Slogans“), but as the Fair Shot weblog has noted, “unlike the commercial case, in which dilution can be stopped by a lawsuit, there is no recourse for dilution of a political slogan in common currency”. [Note: In comments below, Mr. Mausert asserts a common law (as opposed to federal statutory) trademark violation has taken place based on New York law, and that experts tell him he has a good case under that theory.]
- “A Family Man for Family Court” is not a “message” and is only “popular” in the sense that it has been used over and over by less-than-ingenious Family Court candidates.
update: (12 PM): Commenting on our post at Legal Satyricon, First Amendment and Copyright Law Professor Marco Randazza says, “At least one of the candidates doesn’t know the difference between copyright and trademark — and certainly knows nothing about either field.” (4 PM): Getting into the election year groove, Carolyn Elefant offers a thorough (but un-snarky) summary of this controversy at Legal Blog Watch this afternoon.
afterwords (3 PM): Always pleased to learn a little etymology, Prof. Yabut thinks its pretty interesting that “The term ‘slogan’, is of Gaelic origin, and descends from the word ‘sluagh-gharim’, war cry.” (The Swedish National Encyclopedia, 1995, via My Norrby)
update: (September 10, 2008): According to Channel 6, Judge Hall beat Kurt Mausert for the Independent Party slot in the November election for Saratoga Family Court. with 149 votes to his challenger’s 126 votes. (WRGB.com, Primary results: Saratoga County) As noted above, Mausert already has the Democratic Party endorsement, and Judge Hall is running as the Republican candidate.
update (September 19, 2008): Click for the decisions in Mausert V. Hall (September 6, 2008) by the group Fair Campaign Practices for the Capital Region, Inc regarding Mausert’s claims against Hall. FCP made “No Finding” on the issue of Hall misappropriating the “copyrighted” slogan, saying “Copyright infringement is a legal claim that is appropriately resolved by the courts.” FCP did note that Hall had failed to identify the name and address of the sponsor for that piece of campaign literature (FCP Principle 5).
Campaign Update (Nov. 5, 2008): According to the Schenectady Gazette, Republican Family Court Judge Courtenay W. Hall defeated his challenger Democrat Kurt Mausert yesterday — with 58% of the vote — even though Barack Obama received 51% of the votes in the County, where a majority of the electorate are registered as Republicans. Obama received almost 52,000 votes; Hall got over 48,000; Mausert garnered less than 36,000. (In addition, Democratic challenger Jeffrey Wait has apparently beat the Republican incumbent Saratoga City Court Judge Matthew Dorsey for the City Court post.)
The headline in the Saratogian newspaper declares this morning that “Hall overcomes accusations for a win” (Nov. 5, 2008). Reporter Anne Marie French explained (prior to the final vote count being tallied):
“Despite an election season plagued with allegations by his opponent of unfair campaign practices, Courtenay Hall seemed on his way to being elected by county residents to serve a second 10-year term in his current post as Saratoga County Family Court judge. Hall, as he did in his campaign, remained reserved with his comments about the race and his opponent with final figures not being confirmed.
“Hall’s opponent, Democrat Kurt Mausert, a criminal lawyer based in Saratoga Springs, filed five separate complaints on three occasions with the Fair Campaign Practices For the Capital Region Inc., which were related to a variety of issues.
“Mausert suggested Hall had stolen his campaign slogan prior to the September primary, failed to identify the sponsor of campaign literature, refused to debate after repeated requests, and improperly pressured attorneys to participate in his campaign. The FCP issued no findings or findings of no unfair campaign practices in all of the complaints.”
- Here are links to the relevant Fair Campaign Practices decisions: 2008-1 Mausert v. Hall, 2008-5 Mausert v. Hall, 2008-12 Mausert v. Hall. The FCP noted that Mausert had not suggested debate procedures that would ensure the moderator was impartial or that the moderator would be able to approve questions for their appropriateness under the Judicial Code of Ethics.
one mosquito
whining all day…
my pillow
mosquitoes whine–
even the rustling bamboo
is slandered
the whining mosquito
also thinks I’m old…
edge of my ear
… by Kobayashi Issa, translated by David G. Lanoue
p.s. Having started this mosquito theme, and having written no new poetry this week, dagosan wants to share this photo taken at the end of our block (Washington Ave. in the Schenectady Stockade) a couple weeks ago, and a poem it inspired.
swat swat
swat swat swat
calamine sunset
.. by David Giacalone – The Stockade Spy (Sept. 2008)
[…] Minor Political Race, Major Misunderstanding of IP Law f.k.a. reports on a tiff between two bald white guys running for a family court judge-ship. At least one of the […]
Pingback by Marc Randazza - The Legal Satyricon — September 5, 2008 @ 10:10 am
The quality of the slogan is not the issue. Whether a trademark argument should have been asserted as opposed to a copyright argument is not the issue.
The issue is one of fairness and integrity. Is it fair to the voters to act in such a way (copying your opponent’s well used slogan with just a week to go before a primary) as to cause confusion? Does that show integrity?
Making an issue of your opponent’s lack of integrity and seeming attempt to confuse voters is not “whinning”. It is a legitimate complaint. My county has been monopolized by the GOP for generations. There has never been a non-Republican elected to the Family Court here. My opponent taking the slogan I have used for 5 months is an act of arrogance stemming from the GOP being used to having things just the way they want them.
My speaking out against this arrogance is not whinning. Complaints about my legitmate concern does, on the other hand, sound very much like whining.
Thanks for covering this story and providing links to my site. This is a race that people need to pay attention to. In most Family Court races (indeed, in most judicial races) many don’t pay much heed. This controversay is changing that a bit.
Comment by kurt mausert — September 11, 2008 @ 3:22 pm
Thank you for taking the time to Comment, Kurt. You are surely correct that the fairness or integrity issue resonates the most here. But, when running to be a judge, making a legal claim without doing any legal research is pretty important, too. And, when judicial temperament is important, using words like thief is also telling.
As to the integrity and confusion issue: I do not believe a) that the slogan is distinctive enough to matter in the slightest to voters; b) that voters who met you personally came away with this common-place and shop-worn slogan as their only way to identify you — especially since the slogan will not be attached to your name on the ballot in November; or c) that the public is so easily confused.
As I said in my posting, you seem to have some good ideas for the Family Court. The last few years of my practicing law, my entire practice was law guardian work, and so I have had hundreds of law guardian clients; I also ran the Law Guardian Back-up Center for a while. I was also the first lawyer to open a divorce/family mediation practice in the Capital Region. In addition, I started a website– called SHLEP — that is all about helping parties without lawyers get help at the courthouse. So, we are probably in sync on many issues.
Your ideas for improving Family Court are far more important than your slogan. I hope you’ll figure out a way to get them before the voting public and get out of the slogan and name-calling business. Unfortunately for the speaker, it’s the listener (or reader) who decides when someone is whining. I gave my reaction and others will decide for themselves.
Comment by David Giacalone — September 11, 2008 @ 4:25 pm
PS–In following up the intellectual property question regarding the slogan, I have been told by 2 IP lawyers that the stronger claim is one for breach of trademark (common law established via usage). Often attorneys plead their case with a theory that needs to be amended. The point is that I recognized a wrong when I saw it. I just pled the weaker theory. And as for disposition goes–the temperment of a judge should not necessarily be that of a candidate. One person can exhibit different temperments depending on his situation. My attitude as a candidate fighting an uphill battle against an entrench GOP machine will of course be different than my temperment on the bench. One is a position of fighting while the other is a position of helping parties to resolve their fight.
Comment by kurt mausert — September 20, 2008 @ 10:41 am
Hello, again, Kurt. Let me respond quickly to your new points in Comment #4.
1) Your copyright complaint against Judge Hall was was not merely “the weaker claim,” it was totally without merit, since slogans can never be copyrighted. The common law trademark claim might be stronger, but it looks to me to have a rather slim chance of winning, because the slogan has been used so many times in so many places, including by your opponent in his first election to the Family Court position. Did the IP lawyers who you consulted give you any indication of the strength of your trademark claim rather than just telling you it was hypothetically possible to bring such a claim?
2) You have never responded to the claim that Judge Hall used the “Family Man” phrase himself in his first election. If he did, it seems your use of it raises some new issues. Of course, I continue to believe that focusing on this bland, embarrassingly-obvious slogan looks like desperation. And, your assertion that voters come away from meeting with you or reading your materials with Family Man as the sole way to remember you, is insulting to both yourself and the voter.
3) I absolutely disagree with the notion that acting injudiciously in a campaign is appropriate for someone who wants to be a judge. Far too many politicians seem to feel they can do whatever is necessary to win and then they will somehow become become role models. How you win says a lot about who you are and how you will act when the going gets tough.
Finally, you talk about “entrenched GOP machine” in Saratoga County as if there is some great conspiracy that keeps the voters from pulling the Democratic lever. The political demographics are stacked against you, but that does not mean that anything underhanded is being done to keep Democrats off Family Court.
Comment by David Giacalone — September 20, 2008 @ 11:30 am
Dear David,
My IP lawyers (one of whom is regarded as the expert in this geographic area) was quite firm in his opinion that I have a common law trademark established via useage. What is relevant is this election, at this time, and in this place. And again, I am not going to litigate. The essential point is that I was using it first (10 years doesn’t count–and I have seen no proof it was used then–why hasn’t my opponent offered some proof he used it then?) and my opponent taking it just before the primary was bound to cause confusion.
He only used it when targeting Independence party members–it is not on his GOP mailings. Why? Because he knew that was who I had targeted in advance of the primary. A dirty trick, that.
You may not like my slogan, but taste is subjective. And the quality of the slogan is not the point. My opponent’s willingness to take something that I had been using for 5 months and risk causing confusion is.
Desperate? Since when is desperate a bad thing? Desperate can cause one to fight harder and win battles that would otherwise be lost. In my county, there has NEVER been anon-Republican elected to the Family Court bench. And for the last century that has been true for all other county level benches. You can’t get a jub in the justice system in this county without being registered in the GOP. They even ask you in job interviews what party you belong to. Then they send you a “bill” directing you to remit a percentage of your salary to the county GOP party.
Walk a mile (up a very steep uphill grade) in my Democratic shoes in this county before you presume to judge my tactics. This little slogan tiff made it into 5 area newspaper (2 front pages) and one evening news program. One of the headlines was “Bad Judge”.
I never proposed that “acting injudiciously” in a campaign is appropriate. Those are your words. If you want to have a debate, it is unfair to portray my points in your own words and then attack your own contstruction. My point was that different temperments are appropriate for different situations. That was all. You may view what I have said as “injudicious”, but I don’t accept that characterization.
I do agree with you about how you win saying a lot about you. So far, my opponent has taken my slogan, people (maybe his supportes) have stolen more than 10% of my signs, and now he is refusing to debate me. He may win, but shame on him.
You are completely wrong about nothing underhanded being done to keep Democrats our of Family Court. You can pull any lever you want in the voting booth, but the Dems have been hamstrung for decades because people are afraid to join them for fear of not getting or keeping their government jobs. Yes, it looks like a conspiracy. Especially when letter get sent by the County GOP directing the payment of a portion of one salary back to them. It has the infernece of blackmail (known as coercion in the NY Penal law).
The Dems are thus deprived of an infastructure–people can’t donate time, effort, money to that opposition party. Without sufficient strength, Dems can’t get their message out and so the powers that be maintain the imbalacne of power.
I respect the fact that you seem to have strong opinions (I am often accused of the same), but you simply don’t know the lay of the land in my county. I don’t think you would speak as you have if you did know it. This is an old style regime that rules by fear. I myself first experienced it when I was fresh out of law school and interviewed with the former DA. He immediately asked me what party I belonged to–an illegal question. I didn’t get that job. I will not play “nice” against this machine.
Comment by kurt mausert — September 25, 2008 @ 10:52 am
Dear David,
Here is the latest news in the Family Court race. It seems that my opponent has a terrible record for being reversed on appeal.
I beleive that this issues, as well as the other issues I’ve raised in this discussion deserve serious consideration. The title of this blog as it appears on the internet is “Whiny” family man…. The use of that word does not do these issues, and my raising them, justice. I request that you delete that characterization. It simply isn’t accurate and is a bit insulting.
Thank you,
Kurt Mausert
See the Post-Star article, “Judge candidate slams his opponent’s record” by Don Lehman, October 08, 2008
Comment by kurt mausert — October 12, 2008 @ 10:46 am
Sorry, Kurt. When that title was written on September 5th it was spot on. Your public quotes at the time and many points made by you in comments here and elsewhere were and still are, to my ear, whiny. Indeed, the more of your words I read, the less judicial your temperament seems.
To be honest, I do not appreciate your attempt to use my weblog — apparently hoping to capitalize on its high Google placement or to counter that placement — to present your broad campaign message and arguments. I have therefore removed the article that you pasted into your Comment, and have instead created a link to that article for interested readers to use.
This posting focused on the issues you raised concerning copyright law and unfair use of “your” content-less Family Man slogan, and the manner in which you raised it.
I was generous enough to say in the original post that you appear to have some good qualities and to be making good proposals. Later, at your request, I removed a comment that made accusations against you that I could not verify. I also let you leave a very lengthy comment on September 25 without responding to some of the points that seemed inapt.
I am not, however, going to let your re-write my headline merely because my reaction to your actions and words puts you in a negative light. As you know, I have no stake in the Family Court election in Saratoga County (and am in fact a lifelong Democrat). I do have a stake in maintaining the integrity of my weblog and my free speech rights.
Comment by David Giacalone — October 12, 2008 @ 11:16 am
Dear David,
To quote one of my favorite characters, “With great power comes great responsibility”. Well, actually it was his Uncle Ben–but it is a moto Spider Man has tried to live by. It is a good moto.
You have a blog that get many visitors. The topic of our exchange is a serious one: a judicial campaign. There are issue of ethics, law, and politics. It seems a bit childish and low brow to call someone “whiny” as a means of enticing readers to look at the story. If you disagree with my comments, meet them head on an intellectual level. Don’t resort to sensational headlines to draw in readers. That used to be called “yellow journalism”.
I could just as easily portray your last posting as the protests of a child yelling, “This is my toy and I’ll play with it as I will.” Well, yes, it is your blog. You can take down postings, call people names, etc. But just because you can do something doesn’t mean you should.
You keep getting confused about what my tome should be. My temperament is not judicial at this point and it shouldn’t be. I’d be a damn fool if it was. I am a candidate in a tough, up hill fight against an incumbent in a county where no non-GOP Judge has ever been elected to the Family Court bench. The best way to lose a fight is to act like you’re not in it.
A judge is not in an adversarial role. A candidate is. Once my candidate role is over, if I win, it will be time to display a judicial temperament. In the meantime, I am pointing out my opponent’s record and his questionable ethics. I would not be serving the voters if I didn’t blow the whistle on these things.
And objecting to insults being substituted for intellectual discourse (as in your choice to call me “whiny”) is also proper.
It seems it is your turn to complain (note I didn’t call you whiny).
Kurt Mausert
Comment by kurt mausert — October 23, 2008 @ 4:58 pm
As I said the other day, Kurt, the more you write, the less you sound like someone who should be a Family Court judge. Your notion that the way you campaign says nothing about you as a person and a public servant is scary.
Comment by David Giacalone — October 23, 2008 @ 5:11 pm
This is a PS to my 10/23 comment. David: would you prefer the “judicial temperament” of my opponent? He is alleged to have solicited aid from attorneys who practice in front of him (in possible violation of Canon 5 of the Code of Judicial Conduct).
He refuses to come out into the public view and debate me, thereby not having to answer for his reversal rate on appeal (which is 10 times higher than some nearby Family Court Judges).
When the press contacts him, he won’t respond. Instead, his spokesperson uses words like “lies”, “nonsense”, “despicable” and thus avoids dealing with the actual merits of my arguments.
I guess he is staying above the fray and showing “judicial temperament” .
Comment by kurt mausert — October 23, 2008 @ 5:11 pm
Dear David,
I am trying to be patient with you, but you seem to have developed a bad habit–one that I have seen far too often in attorneys who can’t admit they made a mistake–you keep constructing my position for me and then attacking it. The fatal flaw is that what you are attacking was never my position.
I never claimed the way I campaign says nothing about me as a person and a public servant. Those are your words. You are having a fight with someone, but it isn’t me.
This isn’t the first time you’ve done this in out discussion. It is either intellectually dishonest or you’re not paying attention. Not good options for a mind trained in the law.
The next time you want to attack one of my points, please make sure that it is actually my position. Don’t just make it up. If you have any questions, you can ask me. Otherwise, you do your readers a disservice and, it doesn’t make you look too good.
Kurt Mausert
Comment by kurt mausert — October 26, 2008 @ 8:30 am
Kurt, For the past few weeks, I’ve been kind enough not to take your arguments apart one by one. I have neither the patience nor time to do it and won’t do it here. It’s pretty funny that the lawyer who made the mistake is accusing me of not admitting a mistake.
In an earlier comment you said:
I’ll stand by my assessment of your whiny-ness and your attitude on campaigning tactics vs. personal qualities and public service. Instead of saying “your notion”, perhaps I should have said “your apparent attitude.” Your statements and tone suggest that you see (or want others to see) very little connection between how you campaign and how you will serve. [I know of no other “position” of yours that you could conceivably say I have distorted or mischaracterized.] My readers can see your words here and at other websites and draw their own conclusions.
Now, maybe you should consider using your time to campaign rather than jousting and grousing here at my weblog. In my opinion, your comments here are doing far more damage to your image than my opinions about your words and actions.
Comment by David Giacalone — October 26, 2008 @ 9:00 am
Kurt,
I’m nowhere near your area, can’t vote for or against you, and don’t really have any thoughts on your candidacy. But the harder you try to spin this back on David, now attempting to attack him for his failure to acquiesce to you, the more pathetic you look.
I trust that f/k/a isn’t the prime force in your campaign for a judgeship, and would hope that your efforts would be better spent with some positive basis for seeking election. Digging yourself deeper into a hole hardly seems like a good way to win an election, and pathetic isn’t a characteristic people look for in a judge.
Comment by shg — October 26, 2008 @ 10:01 am
Dear David,
I see our exchange as part of this campaign. People read this and can judge my comments for themselves.
Thank you for reprinting my earlier quote. It backs up my claim that you have misunderstood and misquoted my position–I never claimed that how I campaign does not reflect on me as a person. I merely drew the distinction between the mood needed to be a candidate and the mood needed to be a judge.
Have you ever been a candidate? If not, judge me after you have done so. Your opinion might mean more.
As for admitting a mistake, I did that (maybe you weren’t paying attention to that either). My original claim should have been in trademark, not copyright. But the main point I made was that the issue was one of fairness–asserting the wrong legal theory notwithstanding. And in pointing out the unfairness of taking my slogan I made no mistake.
There was a time when gentlemen, especially lawyers, prided themselves on courtesy. Yet without meeting me, and seeing my words in a very limited context, you felt free to label me as a “whiny man”–not that I had whined once–but that I was a “whiny” person. There is a huge difference.
I have no problem with you pointing out the error in legal theory (copyright v. trademark), but using insulting language and sweeping labels was unwarranted. That was your mistake–and one you have not yet admitted.
You continue to make mistakes by falsely portraying my positions and then attacking them. I repeat: you either haven’t been paying attention or you are being intellectually dishonest.
You can’t expect to publicly attack someone on the internet and expect your remarks to go unchallenged (unless you are dealing with someone with no backbone).
As for the fellow who thinks I’m “pathetic”, did he take the same writing course that you did? God, whatever happened to honest debate without name calling?
I haven’t developed a successful law practice over the last 20 by caring a rat’s behind for what people think of me. Courage is an essential for a judge to have. If I make it to the bench, I won’t have my decisions influenced by people like you who like to call names rather than deal with the merits of the issues.
You want me to stop writing? Then stop taking your cheap shots. Because I’ll answer every one of them. Tenacity is also a good quality for a judge to have.
“Pathetic”–it is easy to call names from a distance without signing your name. I call that “cowardly”. Not a good quality for a judge. Of course, there are many bad judges. Still, I hope you never add to their number by becoming one.
Kurt Mausert
Comment by kurt mausert — October 26, 2008 @ 7:50 pm
Kurt, Every time you write, you sound more petulant and less judicial. You really should spend your time on more productive campaign issues.
Regular readers here know that “shg” is Scott Greenfield, who is clearly no coward, and if you click on his Comment Name “shg” you will go directly to his website (that’s how people in be world of weblogs often identify themselves).
Second, you have hurled far more personal insults at me — going to important characteristics — than I ever have against you. If “whiny” is the worse thing you have ever been called, you’re very lucky.
Your complaints about that boring, content-less, over-used “Family Man” slogan sounded very whiny to me. I Googled to find out more about you before writing this post, and your earlier complaints about the Independent Party not interviewing you added to my impression of a whiny man. Your additional comments here and elsewhere solidified the impression.
I don’t think you ever admitted a mistake about the copyright issue before at the website, but instead merely said it was the “weaker argument.” You made strong, direct, unequivocal claims about your opponent violating the copyright laws and being a thief without knowing (caring?) that you cannot copyright a slogan. Your campaign manager also stated you had “taken the care to post our copyright notice,” when that notice is placed at the bottom of every main page by ever website designer.
Did you even think about the trademark notion before it was mentioned here and by Prof. Randazzo? Did you know that federal trademark law would not cover political slogans when you switched to making the trademark complaint? Did you even know there was a distinction between federal and common law trademark? Has any expert been willing to say publicly that you have a strong common law trademark case regarding this oft-used phrase “Family Man”? You were allowed to make that claim here; it’s hard to know what more this weblog can do for you on that issue, since we’re certainly not going to do your research or contact experts to get an opinion on what is really a sideshow question for most voters.
Of course, my main point was that an election to Family Court should be focusing on far more important things than who first used an insipid slogan — and that voters hopefully go into the election booth armed with more than memory of a slogan, which would not be on the ballot anyway.
I believe you have acted and spoken as if the injudicious personality and temperament traits demonstrated during a campaign are not relevant to what the person is likely to do on the bench. If you believe they are relevant, I am surprised at the tone you have used in this campaign. [By the way, today’s Saratogian newspaper (October 27, 2008) has a Q&A with each candidate for Family Court saying why they should be elected, to give readers a taste of each candidate’s approach to the campaign.]
There is a very big difference saying someone sounds “whiny” or even “pathetic” than making the accusations and insults you have hurled at your opponent, me, Scott and Prof. Randazzo. I’m going to let readers decide about the appropriateness of the charges and assessments being made on all sides.
Comment by David Giacalone — October 27, 2008 @ 8:04 am
Dear David,
You continue to misstate the facts. I am fine with your readers forming their own opinions, but they should do so with the facts. Here are some that you have left out or changed to suit your arguments:
1) I have stated that copyright is not the right theory–it is common law trademark. That is according to 2 different attorneys that practice in the area of intellectual property–Payl Rapp, & Robert Lippman. I don’t practice in that area & so I reply on their opinions.
2) I never stated that my opponent was a theif. I rasied a question about whether his actions amounted to unlawful taking. You claim to be a lawyer–you should know the difference between raising an issue and making an accusation.
3) Again, you dive into copyright v. trademark argument when the basic point (which you seem to refuse to acknowledge) is that I had become know by a slogan which I had used for more than 4 months. My opponent comes a long with less than 2 weeks before the primary and starts to use it. Unfair and likely to cause confusion. I complain about it and you pronounce me “Whiny”.
4) And yes, I complained about not being interviewed by the Independnce Party before they endorsed my opponent. I had been assured by the head of that party in this county that my interview would be scheduled. It wasn’t. Would you like losing an important 3rd party line because someone “forgot” (that was the word the party leader used)? So I called him as asked him to reconsider. Yes, I made an issue of it in the press so that party members would understand that their leader didn’t give me a chance–I was asking them to. What should I have done–nothing?
5) I have never “insulted” my opponent. I have researched and publicized his awful record on appeal and disclosed possible ethical violations in regard to his alleged use of the courthouse for personal, political purpose (one Supreme Court Justice–Spargo–was removed for improper use of the courthouse, among other things). He refuses to debate me in public (or anywhere else) and won’t speak to these issues.
I was willing to have an honest, courteous exchange with you about all these issues. When you called me “whinny”, I didn’t write back immediately and call you a name. I tried to engage in debate. More recently, I polietly asked that you revise your “whiny” headline as I found it unnecessary to such an exchange and insulting. Your repsonse to my request was to attack me and accuse me of trying to rewrite your blog. I found it immature and said so. I could have called you an insecure brat or other names, but I didn’t. I made fair comment on what you wrote and again asked for debate without unnecessary name calling.
Would you prefer a judge who encorages immature arguing and name-calling?
Excuse me for not knowing who all the bloggers are. You obviously know this guy and he knows you. This was a fact he didn’t reveal when he weighed in on your side, but it didn’t take much to figure out that he had a bias in favor of you. A good judge should be able to spot such a bias. A good debater should reveal it before weighing in. It is an issue of credibility.
You made a mistake when you injected insults into your “reporting”. It was poor journalisn –admit it. The little red circle with an line through “whining” and the mosquito poem was something I’d expect in a high school newspaper. It was, in my opinion, sensatonalism and cheap.
Are you one of those bloggers who thinks that journalistic standards don’t apply to blogs? If so, say it and I won’t be so disappointed.
You are the one sounding “whiny” now–I can only imagine your discomfort at throwing your unnecessary insult only to find that the object of it won’t take it lying down. Your ire is rising and your frustation is growing, it seems, the more I call you on this nonsense. You can dish it out, but you seem to have trouble taking it.
You made this personal. I’m not a candidate in this blog now–I’m a man who is defending his reputation and his name. You take a shot at me & I will defend myself. I don’t suffer dishonesty including intellectual dishonsesty, lightly.
I didn’t give up my free speech rights when I became a candidate to the extent that I have to tolerate you misquoting me, falsely stating my positions, and insulting me.
You want this to stop–that’s fine. Back off and I will. Or, I will answer everything you write if I find it to be wrong. A good judge likes the truth.
Kurt Mausert
Comment by kurt mausert — October 27, 2008 @ 2:59 pm
Kurt, You seem to see “insults” and “accusations” and “attacks” everywhere (but apparently think that framing a charge in the form of a question makes everything okay). I’m going to leave readers with your avalanche of words and let them judge what is going on.
Obviously, I do not have to allow your attacks on me at this website and could easily delete them, but am willing to let you have your say.
p.s. I have never met nor spoken with Scott Greenfield; we do occasionally leave comments at each other’s weblogs, sometimes agreeing, sometimes not. Also, “whinny” is what a horse does, while “whiny” has to do with tone and not merely the fact of making a complaint.
Comment by David Giacalone — October 27, 2008 @ 3:44 pm
But you do delete other writers comments….? Even if they haven’t said anything malicious or crude, but solely because they disagree with you?
Comment by Nathan — October 28, 2008 @ 3:11 pm
That’s fair enough, indeed, Nathan. I appreciate your willingness to try again. Please believe me, my consumer advocacy is done solely because i believe I’m helping consumers (and all I can do is tell it like I see it, after doing a reasonable amount of research). Helping lawyers has never been my goal (click around the ethics portions of this weblog to see my perspective on the Bar). When I removed those Comments today it was with quite a bit of anguish.
Comment by David Giacalone — October 28, 2008 @ 3:46 pm
I have to admit that i stumbled over your article when searching google for today’s credit card news.I email our client the latest news to help educate and inform them. I do believe in the service that the company i work for offers, and i am also an advocate for our clients rights and their well-being. It is not my habit to respond when encountering information i believe does not describe a balanced over-view of my industry….i thought i would dish out a few good licks and continue my day satisfied. But what i really desire is to see this subject treated fairly and without bias or motive. Like everything else it does have it’s pro’s and con’s.
Comment by Nathan — October 28, 2008 @ 4:15 pm
Dear David,
You continue to avoid my critical point: the tone of your reporting and your debate with me started on an improper note and continues on that same note.
Regardless of whether you were right or wrong, there was no need to hpye up your point by calling names. You played up “whiny”, complete with the mosquito illustration. It was immature and reminded me of some high school paper.
I have called for honest debate with you (or any of your other blogger friends) without name calling. It is just silly. Why can’t you just admit it was a bad start? If your point of view and your story has merit, you don’t need to try to give it legs with sensational headlines (tyring to be clever but in my view failing).
Merit is the issue. Fairness was the issue in the beginning, but you buried that in the “trademark v. copyright” banter.
Noting your unwillingness to be intellectually honest (at least by my standards), I will leave you with this saying from India: “The jackals will bark but the caravan will pass.”
The election is over. I lost, and so I go back to my private practice. I would rather lose with honor than win with dishonor.
I don’t spend my life blogging–so you won’t have to worry about feeling “frazzled” after dealing with me anymore–unless you take more cheap shots.
KM
Comment by kurt mausert — November 5, 2008 @ 1:20 pm
Your update of 11/5 is incomplete. You failed to report on the Capt. Dist. Women’s Bar Assn. upgrading my rating to one superior to that of Hall’s based upon the fact that Hall failed to disclose to them that one of his campaign workers sat on their screening panel. Neither Hall or his campaign worker disclosed this fact–instead, they went through the screening process while keeping the Bar’s judicial screening panel in the dark about this conflict of interest.
You also failed to report that Hall refused to engage in any discussion with me about the structure of a debate. It is hard to set up a debate and the rules for one when the other side refuses to even discuss the issue.
I find your lack of reporting on these important points suspect.
Kurt Mausert
Comment by kurt mausert — January 2, 2009 @ 11:56 am
Kurt, The election you lost was 8 weeks ago. Your complaints and threats only make you look bad, and I’m thinking of deleting them for your sake. Unless your tone becomes significantly more civil, I would prefer that you stop leaving comments at this site.
p.s. I have never claimed to be a journalist.
Comment by David Giacalone — January 3, 2009 @ 11:19 pm
David–You began this conversation by calling me names–“whiny”, complete with a silly cartoon mocking me. You continued by misrepresenting my views and failing to report all the relevant details of the story, I asked repeatedly for a discourse that was free of name calling. You responded with the false complaint that I had “assaulted” you and another false assertion that I was devoting most of my time to this exchange rather than on my campaign.
Now it is you are being “whiny”. If you can’t take the heat, get out of the kitchen. You want me to stop writing? Then stop writing about me. You last post was inaccurate, made false allegations, and was incomplete. I responded. I will continue to do so as long as your write about me.
If you want to delete everything about me on your blog (and I do mean EVERYTHING), that is fine with me. But if you leave comments that you wrote about me up and/or post new ones while refusing to allow me to defend myself, I will seriously look at my litigation options. Your choice.
You should turn some of your scrutiny on yourself—you inaccurate “reporting” complete and your “style” which incorporates bad cartoons and name calling is what you should be worrying about.
Sincerely,
Kurt Mausert
Comment by kurt mausert — January 4, 2009 @ 2:07 pm
PS–Maybe next time, you’ll be a little more cautious about who you try to publicly ridicule.
Comment by kurt mausert — January 4, 2009 @ 2:15 pm
PPS–You don’t have to make the overt claim of being a journalist–by publishing (whether electronically or otherwise) and writing what appears to be “news” & opinion, you have set yourself up as a journalist. Writing about people in a public forum gives you immense power. You have used that power in regard to me in what I consider an irresponsible manner.
Comment by kurt mausert — January 4, 2009 @ 2:17 pm
Kurt, I do not think an objective reader would agree with your conclusions, but I have given you plenty of space to state your facts and views. Now, before you further harm your reputation with even more whining, carping, threats, insults and bad legal analysis, please go away. Instead, use your time and energy to make your family, clients and profession proud of you.
Comment by David Giacalone — January 4, 2009 @ 2:35 pm
David–my family, friends, and other attorneys I know are proud of me. One of the things they like about me is that I don’t turn tail and run away from people abusing their power—like you. Yes, you have power. You have a blog with a readership. Not only that, but other site have picked up your blog and republished your “work”.
You want to talk about objective? Here are the objective facts:
You began writing about me without interviewing me. You began with name calling (“whiny”) and with a silly cartoon of a mosquito. You focused on the difference between trademark and copyright rather than my basic complaint, i.e. the lack of fairness exhibited by my opponent.
When called upon to debate without unnecessary insults and cartoonish characterizations, you complained that you were “frazzled” by me and refused to address the issue of your arguably immature approach to covering the issues.
You passed public judgment on my “judicial temperament”, accused me of using an “insipid” slogan, falsely claimed that I had “insulted” my opponent, and attacked the manner in which I was running my campaign.
When I took issue with your sweeping judgments (let’s keep in mind that you have never met me, you don’t know me, and you wrote your gross generalizations about my personality without ever speaking to me), you complained that I wasn’t being civil.
This is a bit like a mugger complained that his intended victim is fighting back unfairly. You attacked me. You did so in what I consider to be an unfair and immature manner. I responded. But because I’m not playing by your rules, you are telling me to go away.
No, David. I won’t go away. As long as you continue to write about me and leave your half truths and subjective condemnations of me on the web for all to see, I will defend myself. It seems that it is your turn to whine. You picked on the wrong guy this time.
Kurt Mausert
Comment by kurt mausert — January 5, 2009 @ 12:07 pm
Kurt, You make the mistake of thinking you have a right to leave a comment at this website. You do not. I have every right to delete every word you’ve written and block your from leaving more. I haven’t so far, because I don’t mind your stating your facts and conclusions in a civil manner. You’ve gone past that and are getting rather repetitious.
When I fail to “debate” someone at my website, it is usually because I believe that our positions can be judged directly by readers, or that the point made is not worthy of response (either due to be off point or just off). At other times, it is because my health condition requires that I stay out of the fray.
Meanwhile, I refuse to go point by point through your litany of complaints. And, I continue to believe that a neutral, reasonable person who read my original post and our discussion in the comment section would think that you’re doing yourself more harm than good by continuing this discussion and repeating all your points again and again.
Comment by David Giacalone — January 5, 2009 @ 12:42 pm
David–You can take my comment off and block them. Do that and you will prove (at least in my mind) that you lack the courage of your convictions. Remember–you started this . You publicly attacked me. Yes, I use the word “attacked” because you went beyond disagreement and into the land of insults and demeaning characterizations.
You tried to go point for point with me when I first began defending myself against your disparaging remarks. You weren’t successful.
I was content to let things settle after the election. You had to go and write a piece that stated:
“Upset that f/k/a called him “whiny” and would not remove that word from our headline, and feeling that his positions were being distorted, lawyer Kurt Mausert spent much of the past few days assaulting the Editor (and even Scott Greenfield) instead of focusing on his campaign to become Family Court judge in Saratoga County, New York.”
I never “assaulted” you (unless you consider standing up for myself an assault against you. And you had no basis to assert a “fact” about how much time I spent writing to you and claiming that I did this instead of focusing on my campaign. I spent a few minutes of my time responding to your postings—I spent hours every day for months on my campaign. You inference to the contrary is inaccurate and demeaning.
You claim to want to be rid of me–so why do you keep taking cheap, inaccurate shots at me? Do you expect me to let you smear my name without replying?
It is very simple—I am not even going to ask you for an apology since I don’t think enough of you to believe you would offer one–if you want me to go way, then stop writing about me. Otherwise, I will continue to respond. Block my responses and I think your “objective reader” could view that as an act of a coward.
Comment by kurt mausert — January 5, 2009 @ 1:28 pm
I may be neither neutral nor reasonable, but I am quite familiar with the blawgosphere and how things work. Kurt, you have gone fairly far off the charts in appearing like a blithering idiot. I assume that isn’t your intention, and that your attempt at haranguing David in your own defense is simply a grossly misguided effort to salvage some dignity from the embarrassment you feel. It’s not working. It will never work.
Here’s the bottom line. You now look like some nutty cyberstalking, lacking the ability and discretion to let go, and making the rookie error of thinking the more you write, the stronger your stand, the better you look. It just doesn’t work that way, no matter how much you want to believe otherwise. You clearly don’t understand what you are doing to yourself.
David’s original take on your whining was relatively inconsequential. Your bizarre “tough guy” stance makes you look borderline psychotic. If that’s not what you are attempting to achieve, then it’s time you came to the realization that your efforts are misdirected and simply drop them.
David has a great deal of credibility as a blogger. You, as a commenter, have no credibility. As a loser for a judgeship, you have even less. As a stalker, you not only have zero credibility, but are begging for a healthy dose of the Streisand Effect. Google it if you don’t know what that is.
You are on the verge of learning what it means to be perceived in the blawgosphere as a psycho. If this isn’t you, then take a deep breath and go find some more productive way to spend your time. You are doing yourself terrible harm by perpetuating this nonsense. Discretion is the better part of valor. Learn how to graciously exit a bad situation, and do so immediately.
Comment by shg — January 5, 2009 @ 1:37 pm
I had exited the situation. I stopped writing. Your buddy David started the ball rolling again with more bogus assertions. [See Editor’s Note below]
Yes, I am new to the blawgosphere. But I am not new to practicing law. Being a stalker means to act a predator. It is someone pursuing another person with no provocation. David began coming after me, not the other way around. And he continued it after the dust settled by writing again on 11/5.
Let e understand your advice–I am supposed to let David take all the shots he wants despite the fact that much of what he is saying isn’t true and could damage my name? And I am supposed to do this so that bloggers like yourself will think better of me?
I have short list of people whose opinions I care about. I don’t even know your name (do bloggers have a phobia about signing their names–why the hiding?), but I’m pretty sure you’re not on it. Go give some advice to david before this spills out from the “blawgosphere” and into a court of law.
Kurt Mausert
[Ed. Note: Kurt says that I caused his latest spurt of accusations and complaints (starting Jan.2, 2009, with Comment #23 above, and a comment at another post), by writing about him again and “starting the ball rolling” eight weeks earlier, on Nov. 5, 2008, the day after the election. My election coverage is at the very top of this post and Kurt responded to it on Nov. 5, 2008, in Comment 22. I also wrote about Kurt Mausert in a post on October 28, 2008, with a brief update on November 5, 2008; here’s what I said in that post:
Comment by kurt mausert — January 5, 2009 @ 1:49 pm
Ah Kurt. You sound like a 5 year old, stamping your feet and screaming, “the other kid did it first.”
This is David’s blog. He doesn’t owe you a soap box, though it has been fun to watch for a while, wondering how long it would take you to catch on. Now that’s clear you won’t, it’s just tedious.
Threatening litigation proves 3 things: the voters of Schectady got one thing right, you think more highly of your skills than others and you lack the discretion and temperament to ever sit as a judge.
Want to go after David (or me for that matter, and you need only click on my name to get all the information about me you need), start your own blog, rant away and see how many people care what you have to say. Beyond that, I can’t understand why David allows you to continue this idiocy any longer.
To the extent your reputation might be harmed, you’ve already accomplished that on your own.
Welcome to the blawgosphere, Kurt. Push it any further and you may learn what the blawgosphere really thinks of you.
Comment by shg — January 5, 2009 @ 2:14 pm
Scott–you speak as if the blawgosphere were of one mind when in fact it is composed of many individuals who each have their own opinions. In any case, I haven’t built my practice worrying about what others think about me. If you have, then shame on you. Lawyers should be made of sterner stuff than cowering in fear of public opinion. Often, the majority of that opinion is wrong.
As for the election–it was Saratoga County, not Schenectady. In my county, no Democrat has ever been elected to the Family Court bench. I pulled off a 42% showing at the polls with no prior political experience. I’m not at all embarrassed about that.
Since you seem to want to educate me about bloggers and the psychology involved, can you please explain why someone who doesn’t claim to be a journalist (David) feels free to write about a complete stranger in disparaging terms (come on Scott– mosquito cartoon?–how old are we now?)
and then complains when that person defends himself?
And I am not screaming, “The other kid did it first.” I am not doing what David did — no cartoons from me–no misquotes or mischaracterizations against David. I am defending myself. You are an attorney. You should know that self defense is allowed for in the law. The law doesn’t condemn both parties for using force–it only finds fault with the party who used it first and in an improper fashion. There is nothing immature about self defense whether it is verbal or physical.
I have proposed a means for this to end—David can stop writing about me. The election is over–what’s the point? He can delete everything about me. That would be great. Why doesn’t he? Instead, finding himself “frazzled” again (?) he now has you to defend him. And your method is to threaten me with the condemnation of the blawgoshere. That’s a civil and intellectually honest approach?
KM
Comment by kurt mausert — January 5, 2009 @ 2:47 pm
Scott–I looked at your blog. We have had at least one organization in common–NYSACDL. But of more interest to me is the gatekeeper phrase you use in regard to people posting comments on your blog:
“…please keep it civil and respectful.”
Do you think that the “whining” characterization, complete with the “no mosquito” cartoon was either civil or respectful. If so, well…you and I have different ideas of what those words mean. If you don’t, why are you defending their author? Why don’t you advise David to adopt your own professed standards of being “civil and respectful”? Or are fellow bloggers exempt and since I’m not a member of that club I must live with a different standard?
KM
Comment by kurt mausert — January 5, 2009 @ 3:05 pm
You assume too much and understand too little. You state that David’s calling you whiny hurt your reputation, then claim you don’t care what others think, then threatening lawsuits, then whining (and you are a horrible whiner) that being taught some blawgosphere etiquette violates your definition of “a civil and intellectually honest approach?” You are insufferable.
I don’t defend David. He can make you disappear any time he wants. You, dear Kurt, are the only one who doesn’t get it, because you, dear Kurt, prefer to curse the darkness than light a candle.
This is David’s house, not yours. You are a guest, as am I. If I were David, I would throw you out the door for your behavior, though David is far kinder than me.
Comment by shg — January 5, 2009 @ 3:10 pm
Kurt,
Here’s another voice from this inconsequential blawgosphere (and I agree that it’s inconsequential): you’re not looking good. Quit, now. Bury this, let it go. Forget all about it and move on.
If you’ve built your practice without caring what others think about you (and I don’t doubt you have), why waste your time on this inconsequential blog? You’ve said your piece.
Trust me, I’ve been in your position; I know what it feels like when you can’t let something go. But I’ve learned the hard way that the harder I fight the worse I look. Which, I’m afraid to report, is the case.
As Scott says, this is David’s house. He lets us be here. Accept that and move on.
Comment by Gideon — January 5, 2009 @ 6:51 pm
Also, I realize you haven’t commented since 3:05pm. I’m a bit late to this fete. So please, please don’t use my comment as a reason to re-enter the ring. Just ignore it.
Comment by Gideon — January 5, 2009 @ 6:52 pm
This discussion has gone on too long. I think Kurt Mausert has had more than enough opportunity to raise objections to anything I have said or not said (and has surely taken that opportunity more than enough times). Nothing useful will be gained by continuing the back and forth. So, I’m going to take the unprecedented action of closing the Comment Section to remove temptation to continue with accusations and vitriol. Readers are urged to start at the beginning of this posting and then go through the dozens of comments, should they want to come to any conclusions about the fairness or appropriateness of the discussion.
It is worth pointing out, I think, that Kurt Mausert entered the public sphere by running for office. When you run for an important office (and I believe Family Court judges play a very important role in their community), you need to be prepared for criticism of your campaign tactics and commentary about the public persona you present in the campaign. In the context of political commentary, I believe the use of adjectives such as “whiny” and “insipid,” and of clipart depicting a mosquito, are well within the bounds of acceptable, and even “civil” punditry, editorializing, etc. Some reasonable people would consider them to be rather tame.
Abraham Lincoln was no coward, and his thick-skinned attitude toward criticism is, I believe, a wise and dignified example to be followed by those in the public eye — both politicians and pundits.
Comment by David Giacalone — January 6, 2009 @ 9:21 am