Sky’s tweet had exactly 2,100 tweets and quoted tweets as of 6:57 pm on 6/26/2021 (exactly 28 hours after posting it), and by the time you read this, I’m sure that number will go up. However, here’s the thing: The number of people who have gone bankrupt after winning a lot more than $500,000 in the lottery is staggering. Nearly one-third of U.S. lottery winners declare bankruptcy according to a study by Wolf Street. Studies show that lottery winners are more likely to declare bankruptcy within three to five years than the average American despite a much larger security blanket.
My personal view is that money can make life easy, but it can’t necessarily make life good. Would I take millions if offered? Of course I would, so I understand you wanting the money. Things are hard, and that might make them easy. But Clarence’s warning seems sound. Discarding the warning so easily is bad not only in theory, but in practice. The data shows that.
If you’re looking for a free ride, you have problems that handouts won’t solve.
By now, most of you nerds must be aware of the newest incarnation of TSR (“newer TSR”). They exist despite the fact that the new TSR (ummmm, “new TSR”) hasn’t died yet. Among other well-known gaming people, Ernie Gygax serves as Executive Vice President. The idea behind the newer TSR is to recapture the magic (get it?!) of the old days of the original TSR and Advanced Dungeons & Dragons. Unfortunately, Ernie casted Dispel Magic in an interview that ruffled a lot of feathers. I’m not commenting on that. As I’ve said, this is a not a blog for political issues, matters of human rights, or nuclear war. That’s way too heavy for this blog. Besides, do you really need yet another voice in this massive choir of commenters? No, so instead I’m going to discuss an aspect of IP law that’s probably relevant to the case and many of you may not know.
Disclaimer
Okay, you knew this was coming, but it’s especially important here. This is not legal advice. All I’m doing is stating the law in the abstract. If someone, including either or the two TSRs, thinks it applies to their facts, then they can hire an attorney to get legal advice. But isn’t stating the law legal advice? No, it’s not. Anyone can state what the law is (e.g., “The speed limit is 55 mph.”). Only attorneys can apply that law to another person’s fact pattern (e.g., “The speed limit is 55 mph, you’re driving 65 mph, and therefore you’re violating the law.”). No district attorney is going to prosecute you for telling someone they’re speeding, but this is an easily digestible example to define “practice of law.” This is key here because I strongly suspect that I have only a fraction of the facts surrounding this case, so it would be impossible for me to practice law here. So I ain’t. Got it?
I’m My Own Inspiration, aka, The Tweet Heard ’round the World
This blog post was ultimately inspired by, well, me. That is, it was inspired by my response to Luke Gygax’s tweets with which many of you are familiar. Of course I was deflecting from the actual topic to the law. It’s what I do.
I have reasons for distancing myself. The way TSR treats people online in their public exchanges is rude. The museum is a for profit business and was asking for donations. Using names of people to promote without their knowledge. Going out of the way to talk gender/woke stuff
What concerns me is that some people give up rights simply because they don't understand them or can't afford to enforce them. They may still have "senior common law" rights to "TSR." It depends on the specific facts I don't have. They really should speak to an IP attorney.
— Rob Bodine, #Attorney by Day, #Nerd by Day & Night (@GSLLC) June 26, 2021
Trademarks and the Constitution
Oh, you thought you were going to get through this without any heavy-handed legal philosophy, didn’t you? Here’s some constitutional law, suckers.
The US Constitution defines a government of limited powers. That is, unlike the states, the federal government lacks power unless 1) the US Constitution expressly says it has that power; or 2) the federal government absolutely must have that power in order to use a power that the US Constitution expressly says it has. As for number two, nowhere does the US Constitution say that the feds have the power to enter into employment contracts, yet they must have that power in order to, for example, create the IRS and hire accountants, admin assistants, janitors, etc., because otherwise the power to collect taxes would be rendered useless.
This is not a controversial statement among lawyers, though lawyers are (believe it or not) human, so many of them sometimes ignore this principle as well because . . . okay, no pontificating. The notion that the feds lack the power to act by default seems to be lost on many people, but there it is. Accept it or deny it, but it’s 100% true.
Okay, back on point, the Arts & Sciences Clause grants the federal government the power to grant patents and copyrights, but it doesn’t mention trademarks. That’s left largely to the states. (Weird, huh? When have you ever heard of state trademarks?) However, there’s a back door that gets the feds into that game. The Commerce Clause allows the feds to regulate “interstate commerce” (i.e., business transactions that cross state lines). If a vendor in Arizona sells something to a consumer in Utah, then that sale could open the door to federal regulation even if the feds don’t otherwise have the power to stick their noses into it. So, the Lanham Act provides for federal registration of trademarks with the US Patent and Trademark Office only if the owner is using their trademark in multiple jurisdictions. If you’re using the trademark in only one state, you don’t qualify for a federal trademark. However, if you do qualify for a federal trademark, it applies across the entire United States. (Well, almost, which will be my ultimate point.)
There’s a limited exception for those with an “intent to use,” but I’ve given you enough to digest.
So what happens if you don’t register your trademark federally? As long as you’re using the trademark in commerce, you develop “common law trademark rights,” but unlike the federal trademark rights, those rights apply only in the jurisdiction or region where you’ve been using the trademark.
If you’re doing business in a large state, common law trademark rights may arise only in your local region. In that case, registering your trademark with that Secretary of State for that state would grant you trademark rights across the entire state.
Seniority of Trademarks
Okay, I’m finally approaching my point. Imagine a situation where I’m using a trademark, Bodine’s Bovines, on my cow farm in Virginia. Therefore, I have trademark rights only in Virginia. Only I can use that trademark in Virginia.
This probably ends as poorly for me as it did the MacDougals.
Next, Fred Bodine (no relation) opens a couple of cow farms, one in Utah and one in Nevada, both using the same Bodine’s Bovines trademark. He registers the trademark federally based on his use across state lines, so now he has a trademark that applies across the entire United States. Finally, I decide to open a second farm in North Carolina. I try to register my trademark federally, but Fred beat me to it, so my application is denied. Also, Fred sends me a cease-and-desist letter preventing me from using Bodine’s Bovines at all. Does he have a right to do that? In North Carolina, yes, but in Virginia, no. I opened my Virginia farm first, and even though I never registered the trademark with either the feds or even the Commonwealth of Virginia, my use in Virginia was “senior” to Fred’s use (i.e., because I used it in Virginia first). However, Fred can block me from using it outside Virginia because he registered the trademark federally before I opened the North Carolina farm.
What if instead I had a federal trademark based on prior use both in Virginia and North Carolina, let it lapse, and then Fred came along and grabbed it based on his use in Utah and Nevada? I’d still have senior rights in both Virginia and North Carolina.
Take a hint, people.
So, you can think of a federal registration as having the same effect of using the trademark in every state starting at the time you registered it. Where you got there first, you get to use it, but you’re blocked where you didn’t get there first. In a more complex case, you could imagine a patchwork of multiple, identical trademarks being used by several different companies in several jurisdictions, with one of those companies having a federal trademark covering the unclaimed jurisdictions. So, the company with the federal trademark could nevertheless be blocked from using that trademark in jurisdictions with senior users. This isn’t a far-fetched scenario, but if its mere possibility surprises you, then . . . surprise!
So, what happens next? Well, when the two parties each have something the other wants, they could strike a deal. For example, each could license the other the right to use their trademark in jurisdictions in which they’d otherwise be prevented from marketing. If both parties are on relatively equal footing, the license fee may be, I don’t know, as small as $10 per year. However, if one party doesn’t realize how much of an advantage they have or lack the funds to enforce their advantage, they may make the same deal.
Sound familiar? No? Well, too bad. I’m not getting into specific cases. 🙂
Epilogue
After completing this post, I found a relevant Twitter thread.
Because @abstruce asked for it, here’s a quick runthrough of what I see are the trademark (“TM”) issues in the TSR dispute. This isn’t legal advice, just an overview of an area that I don’t specialize in. I don’t know any of the facts beyond what I read. https://t.co/kyCZEH9ApG
There’s a lot of overlap, but Orcish Law makes a few other relevant legal points and peppers in a lot more gifs. I left much of that out because I have a tendency to ramble, so I try to keep my posts as short as possible. We both included disclaimers though. It’s what we do.
If the trademark is valuable, and you can afford a lawyer, get one. Otherwise, you’ll have to either cut a bad deal or find a new trademark.
Somehow, he made it back to Olympus, but despite always coming through for the gods via his skills as a blacksmith, this treatment continued. He was cast out again, this time by Zeus (who may have been his dad) after a family spat. He made it back a second time because some drunk hedonist named Dionysus snuck him in. Even Dionysus screwed him over, though, foiling his plans to teach Hera a lesson. As the archetype of the “middle child,” I can relate to all of this. I was always treated like crap despite being the only reliable member of the family. But hey, it was my fault for continuing to keep them in my life for the first forty years or so. Hephaestus should have cut ties as well.
However, Hephaestus ultimately had it better than I. He was put in an arranged marriage with Aphrodite in order to avoid a war among the other gods for her hand in marriage. I’m sure he liked this arrangement. Aphrodite has not returned my requests for comments on the matter, but her infidelity speaks volumes. In the end, she wasn’t much of an olive branch.
Yes, I used a hashtag including a Norse word in it. Norse gods >> Greek gods.
Going forward, Sundays are lazy days for me. I either post something silly or other people’s work. Usually both. Today, I use a meme to highlight the fact that last week was the first time in decades that I’ve eaten breakfast cereal.
I couldn’t find any of these, so Froot Loops had to do.
I’ve been to only 11 concerts in my life (as in buying a ticket to see a concert, as opposed to live music in bars, which I’ve done a lot). Why? Because I don’t like going, and I go only when going is really important. Needless to say, I’m pumped about seeing Genesis later this year. While not my favorite band, my favorite album of all time is their 1980 effort, Duke.
With the pandemic winding down, Wolf Trap and many other local venues have announced concerts again, and I’m so desperate to go out and do things with people (that isn’t work) that I may just double my entire concert-going experience this year alone. Among the local shows are Blue Oyster Cult, Black Sabbitch, Air Supply, Trombone Shorty, Toad the Wet Sprocket, Ann Wilson, Harry Connick Jr., Abba, Joan Jett, Three Dog Night, Bog Bad Voodoo Daddy, Bob Mould, Indigo Girls, and Train (with Vertical Horizon. I doubt I’ll see all of these shows, but if I did, that would more than double my lifetime concerts. Lindsey Buckingham is touring, but I’ll be in Las Vegas while he’s here. We’ll see how the summer shakes out, but I’m bound to see some of these.
As a follow up to my posts on how MeWeexposes out our hypocrisy, my first and secondFacebook suspensions, and most recently my announcement that I’m not giving up on it, I demonstrate that MeWe isn’t immune to at least on of the more annoying aspects of social media. Meet my new friend, Doriane.
Four days later, it continued.
I almost called ” Doriane ” out right then and there, but I wanted to have some fun. I’m going to keep playing with “Doriane” as long as I can. If necessary, I’ll be proactive and reengage myself with one of my own selfies. In the mean time, I’ll have fun with one of her friends.
Vsauce had once again popped into my stream, but this time I’m not sharing this video for its primary theme. I point you to the end; specifically the 17:41 mark.
To summarize, as neanderthals grew in numbers, they moved outward but always stopped when they reached a significant geographical barrier, such as an ocean, sea, or mountain range. Homo sapiens seems to have seen such barriers as challenges, so we pushed forward.
My favorite quote is often attributed to the founder of McDonald’s, Ray Kroc, but he got it from Calvin Coolidge. It’s relevant here and #1 on this list.
Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan Press On! has solved and always will solve the problems of the human race.
So, what’s the point? Many have asked why space travel is worth the expense in such trying economic times. Most scientist give a terrible answer, reducing our need to explore to a mere psychological curiosity. Here’s the better answer: It’s because our persistence and need to explore is our best means of survival. An easy way to think about this is that our population and individual gluttony continue to grow, but our planet’s space and resources don’t. The barrier we face in dealing with this problem is far more imposing than any ocean, and focusing on our gluttony (as so many do) will only delay the inevitable. Evolution always requires that we are in a constant state of pushing forward, and that means addressing colonization of space sooner rather than later. Press on!
Frylock's Geekery 