Comments on: When the Law Forces You to Sue http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/ Information, Law, and the Law of Information Sat, 28 Nov 2009 11:40:16 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Rainer http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/comment-page-1/#comment-18119 Rainer Tue, 28 Aug 2007 14:07:37 +0000 http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/#comment-18119 That looks to me like a lot of waves for a small case. And I think it's owned the big names of the competitors. First, J&J were NOT forced to sue - they just risk losing control of a valuable mark. Second, there would have been a better solution by license agreements, wouldn`t it? So maybe there's just one at J&J having had a bad day. That looks to me like a lot of waves for a small case. And I think it’s owned the big names of the competitors.
First, J&J were NOT forced to sue – they just risk losing control of a valuable mark. Second, there would have been a better solution by license agreements, wouldn`t it?

So maybe there’s just one at J&J having had a bad day.

]]> By: Drew http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/comment-page-1/#comment-16679 Drew Fri, 17 Aug 2007 15:04:52 +0000 http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/#comment-16679 A license for a nominal fee crossed my mind, but ARC might then be impliedly conceding that they were required to take the license. Some sort of estoppel argument might conceivably come back to haunt them later on. A license for a nominal fee crossed my mind, but ARC might then be impliedly conceding that they were required to take the license. Some sort of estoppel argument might conceivably come back to haunt them later on.

]]> By: William McGeveran http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/comment-page-1/#comment-16582 William McGeveran Thu, 16 Aug 2007 15:22:55 +0000 http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/#comment-16582 Luis: That's fascinating. Of course, uses that still point correctly to the source of the code should be all right, because in principle they actually <b>strengthen</b> the mark. But it could be tricky to draft such a condition to apply to exactly the kinds of downstream uses you want to favor. Chris: Agreed, although "token" licenses are sometimes rejected as "naked" licenses. Note the comments from Michael Froomkin and me on the Concurring Opinions cross post... Also, I think you are correct that some of the backstory is the ARC's refusal to <b>agree</b> to a license -- so should J&J be able to do something unilateral? Luis: That’s fascinating. Of course, uses that still point correctly to the source of the code should be all right, because in principle they actually strengthen the mark. But it could be tricky to draft such a condition to apply to exactly the kinds of downstream uses you want to favor.

Chris: Agreed, although “token” licenses are sometimes rejected as “naked” licenses. Note the comments from Michael Froomkin and me on the Concurring Opinions cross post… Also, I think you are correct that some of the backstory is the ARC’s refusal to agree to a license — so should J&J be able to do something unilateral?

]]> By: Chris S http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/comment-page-1/#comment-16572 Chris S Thu, 16 Aug 2007 14:06:48 +0000 http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/#comment-16572 Well as another trademark geek here, while I do see the abandonment argument, or even possibly a laches problem if they were to send C&D's and then not follow up, this to me sounds like a situation that could have easily been avoided without litigation through licensing. TMs can be licensed (along with the good will) for limited purposes, and there is nothing which requires that the cost of such licensing be prohibitive (could even well be a token fee). To me this says that if J&J really was "reluctant," they have options that allow them to assert their rights that do not involve bringing suit. Unless of course we have a situation where both sides are stonewalling and there was no way forward... Well as another trademark geek here, while I do see the abandonment argument, or even possibly a laches problem if they were to send C&D’s and then not follow up, this to me sounds like a situation that could have easily been avoided without litigation through licensing. TMs can be licensed (along with the good will) for limited purposes, and there is nothing which requires that the cost of such licensing be prohibitive (could even well be a token fee). To me this says that if J&J really was “reluctant,” they have options that allow them to assert their rights that do not involve bringing suit. Unless of course we have a situation where both sides are stonewalling and there was no way forward…

]]> By: Luis http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/comment-page-1/#comment-16499 Luis Wed, 15 Aug 2007 21:38:09 +0000 http://blogs.law.harvard.edu/infolaw/2007/08/15/when-the-law-forces-you-to-sue/#comment-16499 This is going to become a more common problem as a collaborative-mashup-commentary culture becomes more widespread. We're already running into it full force in free software, where we'd like to be able to say 'use the trademark unless you're a bad guy' but can't because of this same risk. This is going to become a more common problem as a collaborative-mashup-commentary culture becomes more widespread. We’re already running into it full force in free software, where we’d like to be able to say ‘use the trademark unless you’re a bad guy’ but can’t because of this same risk.

]]>