Wednesday, May 13, 2020

Federal judge mulls contempt charge against Michael Flynn - POLITICO

Former National Security Advisor General Michael Flynn leaves after the delay in his sentencing hearing

In another gift to a teacher of Remedies U.S. District Judge Emmett Sullivan is issued an ORDER appointing former federal judge John Gleeson as amicus curiae. Gleeson is directed to argue against the Department of Justice's motion to dismiss charges against former National Security Adviser Michael Flynn. - Despite Flynn's guilty plea.  The retired General lied about his contacts with Russian ambassador Sergei Kislyak, and failed to disclose his work as a foreign agent via his $600,000 consulting contract with a foreign power - Turkey.

The Justice Department has moved to dismiss its criminal information against Flynn.  The DOJ cites evidence that FBI agents set out to catch Flynn in a lie, for which he could be prosecuted under 18 USC 1001 which makes it a crime to make a "materially false" statement to a government agent.

At the heart of this dispute is the claim that Flynn, a  retired lieutenant general and former head of the Defense Intelligence Agency should have been warned in advance that lying to an FBI agent conducting an investigation is against the law.  The disputed handwritten notes say plainly "Our goal is to determine if Mike Flynn is going to tell the truth  (re) his relationship with Russians." The agents did not tell him in advance that it is a crime to lie to the FBI, even though he was a subject of investigation, not merely a prospective witness.  Flynn - then National Security Adviser to the President -  met with the agents and lied just days after Donald Trump took the oval office.

Flynn pleaded guilty to lying.

The DOJ claims now that 

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative
basis and therefore does not believe Mr.Flynn’s statements were material even if untrue.
Moreover,we not believe that the Government can prove either the relevant false statements or
their materiality beyond a reasonable doubt.
Their account is disputed  by Bill Priestap the agent who wrote the notes. 
Federal judge mulls contempt charge against Michael Flynn - POLITICO

A constitutional right to education fulfills our democratic promise  | TheHill

A constitutional right to education fulfills our democratic promise  | TheHill


Tuesday, May 5, 2020 - is such a `generic' trade name protectable under the Lanham Act?

Find Cars for Sale at Autotrader logo
I've told my Business Torts students that is a protectable trade name.  The busy online platform does what its name describes - people buy and sell cars.  It is a term that describes what many do.  But it has been in business as a .com long enough that consumers recognize it as the name of a particular marketplace.  That is called acquiring "secondary meaning".  Argued on its first day of telephonic oral argument the Supreme Court may tell me that I'm wrong. - gwc - is such a `generic' trade name protectable under the Lanham Act?
by Jessica Litman  // Scotusblog May 5, 2020
The Supreme Court’s first telephonic oral argument raised the question whether a business can create a registrable trademark or service mark by combining an unprotectable generic term for the services it offers with the generic top-level domain name “.com.” Trademark law bars registration of generic terms, but it permits the registration of merely descriptive terms if they have acquired enough secondary meaning that the public understands them as trademarks rather than as terms that describe goods and services. The U.S. Patent and Trademark Office refused to register BOOKING.COM as a service mark for hotel reservation services. The U.S. Court of Appeals for the 4th Circuit held that the mark was entitled to registration, and the Supreme Court agreed to review that decision. The legal and policy issues raised by the case are straightforward, and both parties are represented by experienced lawyers, so the case presented a good vehicle for the first remote argument in this unusual May session. The court adopted a new, more formal procedure under which each justice, in order of seniority, could ask a single round of questions of each lawyer.
Erica Ross, representing the Patent and Trademark Office, argued first. Ross relied heavily on an 1888 Supreme Court decision, Goodyear’s India Rubber Glove v. Goodyear Rubber Co., which held that the combination  of a generic term with a corporate designation like “Company” did not create a protectable trademark. She emphasized that the principle that generic terms cannot be protected as trademarks is longstanding and fundamental. For that reason, courts have long held that evidence that seems to show that a generic term has acquired secondary meaning will not allow the term to be protected as a trademark. Further, she explained, because only one entity at a time can use any given internet domain name, it will be easy for a business to generate a survey that proves that a significant number of consumers associate any domain name with a specific business, even if the consumers are not familiar with that business. That would allow online businesses to monopolize generic terms even though they would not be able to do so for an equivalent brick and mortar business.
Attorney Lisa Blatt argued on behalf of Blatt insisted that when Congress passed the Lanham Act, the primary federal trademark law, it repudiated the 1888 Goodyear case, in favor of a rule that asks what consumers believe that a term signifies. The statute tells trademark examiners and the courts to determine whether a term is generic by examining the primary significance of that term to consumers. This test allows consumers to decide which terms merit trademark protection. Blatt insisted that the anticompetitive harms the government predicted would not materialize. Her client has no interest in suing a company that uses a similar domain name, she argued, because it would be unable to show a likelihood that consumers would be confused. A registered mark would give her client a weapon against counterfeiting, fraud and cyberpiracy.