Do you like vodka and Russian vodka in particular? but what if your vodka looks like it comes from Russia and tastes like it comes from Russia, but it really comes from Brooklyn? This case, which makes you want to get a drink, started when Spirits International tried to register Moskovskaya as a trademark for its vodka. Although Moskovskaya is Russian for “of or from Moscos,” Spirits International admitted its vodka had no connection whatsoever with Moscow. The Patent and Trademark Office refused to register the mark deeming it geographically misdescriptive, and Trademark Trial and Appeals Board affirmed noting that a mark is misdescriptive if the relevant consuming public is misled. But Spirits International appealed, and the Court in a spirited decision reversed, stating that the mark should be denied only if a substantial portion of the consuming public understands Russian. So enjoy your vodka and as it is said in Brooklyn, “za vashe dorovye” which means, “see you under the table.”

THIS IS NEIL CHAYET LOOKING AT THE LAW™

In Re Spirits International NV, Federal Circuit Court of Appeals, No. 2008-1369, April 29, 2009, Dyk, J., USLW, Vol. 77, No. 43, Pg. 1690, 5-12-09, (prost, bottoms up, bottoms down)

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It is said you should keep your enemies close and your friends closer, and that’s particularly true about your friends on Facebook. This case got started when a lawyer was taking a deposition of an 18-year old woman who was going to be a hostile witness in an upcoming case. During the deposition, the lawyer learned the witness had an account with Facebook and decided to find out more about her by visiting her personal pages. When he found access was blocked, he hired an investigator to become one of the witnesses friends and report back to him. Before he went ahead, he contacted the Philadelphia Bar Association Ethics Committee, which concluded the proposed course of action was deceptive from the get go, because it omitted the material fact that the investigator intended to become the witness’s friend in order to discredit her testimony in the upcoming case. So friendly lawyer is still an oxymoron, and as it is also said, “With friends like these, who needs enemies.”

THIS IS NEIL CHAYET LOOKING AT THE LAW

Ethics Opinion, USLW, Vol. 77, No. 43, Pg. 2679 5-12-09 (FACE FACTS, FACE DOWN, MY SPACE, YOUR SPACE)

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The jailhouse snitch is back in business.  Forty-five years ago, the U.S. Supreme Court condemned the use of placing a jailhouse informer in a defendant’s jail cell to obtain incriminating statements.  Nevertheless, in this case while the defendant was awaiting trial on charges of murder and robbery, officials placed a jailhouse informer in his cell and he basically confessed to the murder.  When the case came to trial, prosecutors conceded the informer’s questioning violated the Sixth Amendment right to counsel and did not present the informer’s testimony in their case-in-chief.  But when the defendant took the stand and fingered a codefendant as the murderer, prosecutors introduced the informer’s testimony to prove the defendant was lying.  The Court noted that it has held in every other context that tainted evidence is admissible to discredit a witness.  So if you happen to be hearing this while you’re in prison, take a close look at your cellmate, because a snitch in time can add to your time.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Kansas v. Ventris, U.S. Supreme Court, No. 07-1356, April 29, 2009, Scalia, J., U. S. Law Week, Vol. 77, No. 42, Pg. 1664, 5-5-09

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Imitation may be the highest form of flattery, but plagiarism is unbecoming and becoming worse.  A company called iParadigms decided to offer plagiarism protection services to high schools and colleges.  The way it works is that participating schools submit student papers through the website TurnItIn.com.  The work is then compared with other works on the internet, commercial databases, and TurnItIn’s own ever expanding archive of submitted papers.  Several students copyrighted their papers before turning them in and then objected to them becoming part of the archives.  After their papers were archived anyway, the students sued.  The Court held that even though iParadigms makes a profit, it provides a substantial public benefit and, because of the fair use exception, does not violate the copyright law.  So TurnItIn has survived and if you plan to plagiarize, it may be time to take a u-turn.  Since if you turn it in, TurnItIn will turn you in return.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

A.V. v. iParadigms LLC, Fourth Circuit Court of Appeals, No. 08-1424, April 16, 2009, Traxler, J., U.S. Law Week, Vol. 77, No. 42, Pg. 1664, 5-5-09

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When you’re off the reservation, smoke signals won’t help you.  This case involved the question of whether federal overtime pay requirements apply to employees of stores located on tribal lands.  This case involved Baby Zack’s Smoke Shop located on the Puyallup Tribe Reservation.  Baby Zack’s sells to members and nonmembers of the tribe and, given the increase in tobacco taxes, which Baby Zack’s customers don’t seem to pay, it’s no surprise that Baby Zack’s and its employees were working overtime.  After complaints were received by the Department of Labor, a federal court ordered Baby Zack’s to fork over more than $31,000 in unpaid overtime.  Baby Zack’s appealed arguing that tribes possess inherent power to control events occurring on tribal lands.  But the Court of Appeals ruled that Congress can limit, modify or eliminate local tribal self government.  And since the Puyallup Tribe has not enacted its own wage and hour laws, federal law applies, proving that over time overtime applies to Indian reservations without reservation.

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Solis v. Matheson, Ninth Circuit Court of Appeals, No. 07-35633, April 20, 2009, Ezra, J., U.S. Law Week, Vol. 77, No. 42, Pg. 1669, 5-5-09

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If you sign away your right to participate in a class action, well, the Courts may send you right back to class anyway.  This case involved T-Mobile customers who’d purchased wireless PC cards for use in laptop computers.  The service agreement included a mandatory arbitration clause and also stated that customers waive their right to participate in any class action lawsuit.  According to the Court, many customers couldn’t get the cards to fit into their computers, technical support didn’t help, and the stores where they bought the cards ignored them, so they filed a class action suit.  T-Mobile sought to deep-six the suit and the judge that first heard the case dismissed it on the grounds that the customer agreements were valid.  But the Ninth Circuit Court of Appeals reversed holding that a class action waiver in a contract where individual damages are likely to be small is unconscionable.  So the little guy has won one and subscribers who thought they had no class are back in class, obviously they played their cards right.

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Chalk v. T-Mobile USA, Inc., U.S. Court of Appeals for the Ninth Circuit, No. 06-35909, March 27, 2009, Reinhardt, J.

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When the Supreme Court takes a close look at dirty words, well, you can read the handwriting on the wall.  This case got started when Cher appeared on Billboard Music Awards and addressed her critics saying simply, “f” them.  Then Nicole Richie asked on the Simple Life, “Have you ever tried to get cow s— out of a Prada purse?  It’s not so effing simple.”  In each situation, the FCC received complaints that children were in the audience and decided to issue notices of liability.  Fox and other networks sued arguing for years the FCC imposed liability only when expletives were used repeatedly and deliberately and that fleeting and spontaneous use were forgiven.  The Second Circuit found for the networks but the U.S. Supreme Court reversed, concluding it was reasonable for the agency to assume that creating a safe harbor for isolated uses would lead to their increase.  Four justices dissented, but the majority ruled and as for “f” words, well, there’s no way fudging way around it, fleeting has fled, replaced by future fines.

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FCC v. Fox Television Stations, Inc., U.S. Supreme Court, No. 07-582, April 28, 2009, Scalia, J., U.S. Law Week, Vol. 77, No. 42, Pg. 4337, 5-5-09

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Well, folks, here’s a case that qualifies for this year’s chutzpah award.  You, of course, remember Oklahoma bomber, Timothy McVeigh, who was convicted and sentenced to death for killing 168 people.  Well, Leslie Stephen Jones, who was his lead lawyer, decided he would donate all the files, materials and evidence to the Center for American History at the University of Texas.  Now you’re probably thinking, what’s wrong with that?  Well, the lawyer had the material appraised and then claimed a charitable tax deduction for $295,000.  The IRS disallowed it and Mr. Jones appealed to the U.S. Tax Court, which ruled he really didn’t own the materials so he couldn’t take the deduction.  Mr. Jones then appealed to the Tenth Circuit which held that ownership doesn’t really matter.  That unless the property produces a long-term capital gain, a taxpayer’s deduction is limited to his cost or basis in the property and since Mr. Jones paid nothing for the evidence, he can’t take the deduction.  Actually, the Court was quite charitable in its treatment of Mr. Jones, a lawyer who tried to make a killing out of a killing.

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Leslie Stephen Jones v. Commissioner, Tenth Circuit Court of Appeals, March 27, 2009, Baldock, J., U. S. Law Week, Vol. 77, No. 39, Pg. 1618

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Sir Walter Scott once wrote “what a tangled web we weave.”  Well, the web just got a lot more tangled as a result of this case.  It involved a lawsuit brought by recording companies against individual defendants, including students, for illegally using file-sharing software to download copyrighted songs without paying royalties.  One of the defendants, a student, moved to allow the Courtroom View Network to webcast the trial live.  The Court that first heard the case allowed it, but the Court of Appeals reversed stating the rules clearly state that no person can take any photograph or make any recording or broadcast except as specifically provided by rule of Court or court order.  The students argued that webcasting is not broadcasting.  The Court acknowledged a possible semantic loophole but said that broadly speaking, both television and the internet are broadcast media and the difference between them is one of degree rather than kind.  So Courts may change webcasts, but webcasts haven’t yet changed the Courts.

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In re Sony BMG Music Entertainment, First Circuit Court of Appeals, No. 09-1090, Selya, J., 4/16/09

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Ready, aim, fire, but not on county property.  Just when you thought most of the questions about the right to bear arms had been answered by last term’s U.S. Supreme Court case, here comes another one.  This one got started when Alameda County, California officials made it a misdemeanor to bring or possess a firearm or ammunition on county property.  The County claimed the impetus of the law was a shooting at the fairgrounds, but the plaintiffs argued that the law was aimed at gunning down gun shows.  They quoted one County supervisor who said she’d been trying to get rid of gun shows for years but was thwarted by spineless people hiding behind the Constitution and attacked by aggressive gun-toting mobs on rightwing talk radio.  The Ninth Circuit Court of Appeals upheld the law ruling that unlike the D.C. ordinance, this one regulates gun possession on county property and thus falls within the Supreme Court’s express allowance of laws forbidding carrying firearms in sensitive places.  So the Supreme Court fired a shot heard around the world, and the Ninth Circuit has followed up with a silencer.

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Nordyke v. King, Ninth Circuit Court of Appeals, No. 07-15763, April 20, 2009, O’Scannlain, J., U.S. Law Week, Vol. 77, No. 41, Pg. 1651, 4-28-09

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