Latest from the Blog

Blog Post #1: “Declaration of Principles”

Disclaimer:

When Charles Foster Kane published the first edition of his recently-acquired New York Inquirer, the front page carried – above the masthead – a “Declaration of Principles” which, he promised his readers, would make his newspaper “an outlet free of special interests and will champion the public good.”

Let me state right from the outset that I disavow any such lofty principles. What goes into my blog posts will exclusively champion my own personal interests. And while I hope that they comport with some public good, and that I am not writing only to the one person I see while occasionally shaving, how this adventure is viewed is for others to determine.

Mostly, it is just a note pad to relieve the itch I occasionally feel when I see something interesting and want to memorialize my reaction, perhaps with a view to revisiting it when my memory begins to fade . . . and I want to relive – or attempt to rekindle – earlier passions. (Since I am approaching 83, the idea that anything I now write could be considered an “early passion” is itself a bit outlandish.) It is also a way of keeping my typing fingers flexible. As an active litigator for roughly 40 years, I spent a good deal of my time drafting and revising often trenchant-sounding legal briefs, briefs seeking to get – and hold – a judge’s attention. So readers, beware!

By way of introduction, I am an “intellectual property” lawyer who has spent much of the past 40 years litigating on behalf of entertainers (Billy Joel, Willie Nelson, Van Halen, Dave Matthews, The Three Stooges) and merchandising companies who slap the entertainers’ names and likenesses on all sorts of “important products,” like T-shirts, caps and bandannas. (In one oft-cited legal opinion, the late Judge Terence Evans – ultimately a judge on the 7th Circuit Court of Appeals – wisecracked that, “we’re only talking about selling a lot of mostly junk merchandise at grossly inflated prices!”)

My foray into the rock music field was occasioned in no small part by my creation – in 1980 – of a novel legal procedure that, for the first time, enabled entertainers to control – in fact, to prevent – the sale of bootleg souvenir merchandise outside the arenas at which they were performing. Once concert-goers were limited to purchasing their (licensed) souvenirs inside the arena, the resulting financial windfall (a single concert could produce $200,000.00 in merchandising sales even in the 1980s) pretty much guaranteed that I would be kept busy for years to come. The procedure, with a little Congressional tampering, became the Trademark Counterfeiting Act of 1984.

This procedure became possible when I was able to convince a single federal judge, Lawrence W. Pierce (of the Southern District of New York) to reinterpret three oft-used remedy sections of the 1946 United States Trademark Act; and then to authorize seizure of the merchandise from what sometimes appeared to be an army of itinerant peddlers hawking their brummagems outside the concert venues. The seizure order itself – at the beginning of the lawsuit – was also a first: the first time that remedy was used prior to the termination of the case.

The immediate problem was that the remedy sections of that statute, on their face, were only available to “registrants of marks registered in the United States Patent & Trademark Office.” Since my client (the rock group Styx) had no federal trademark registration, we appeared to have an existential problem. However, I was successful in convincing the judge that (1) Congress really did not intend to freeze out non-registrants (despite the statute’s clear language), and (2) a great deal of good would result from sweeping the streets of those bootleg peddlers, who were destroying legitimate business, and clearly would not be paying taxes on their earnings.

The judge “bought” the argument . . . as did hundreds of other federal judges in over 30 states and the District of Columbia. The point to emphasize here is that in interpreting a statute, a court is not always bound by the literal meaning of the words; on the contrary, the critical element is the intent of the legislature in enacting the statute. 

Here was the winning argument: a critical phrase in the remedy sections (“false designation of origin”) was added in order to bring the United States into compliance with a very old trademark treaty; that treaty guaranteed protection of foreign company names without registration; and another section of the Trademark Act guaranteed Americans the same rights as those provided to citizens of other treaty countries. So theoretically, Americans — including Styx — should warrant protection even without the formal registration otherwise mandated by the sections. Since the phrase was added at the very last moment before enactment, Congress — I argued — simply must not have had the time to clean up the inconsistency between the treaty-required phrase (“false designation of origin”) and the registration-required language of the earlier drafts of the remedies sections. But logic demanded an interpretation that ignored the registration barrier. To rule otherwise, Judge Pierce would have had to reject America’s treaty obligation. So my success before Judge Pierce was based on not only a novel statutory interpretation, but an appealing — logical — argument.

It is crucial to emphasize that the law is a living, breathing thing: always susceptible to reinterpretation; and the overriding principle must always be that the law follows logic. While much of the law today involves statutory interpretation (the critical piece in the Styx case), our legal system has mostly grown through judge-made “common law” developed over many hundreds of years; and the very essence of our common law is common sense. Judges are not automatons; they want to do the right thing, they want their decisions to have meaning. 

I urge anyone reading any future posts to keep these principles in mind when I meander into disputes involving the interpretation of documents, of rules, and especially of statutes.

To return briefly to the slightly misleading title of this post, what I can promise is that everything I say will be, to parrot a well-worn phrase, the truth, the whole truth, and nothing but the truth. At least as I see it. I do not intend to hold back. You will find no false sense of modesty in those posts.

To anyone still reading, welcome to my blog. Otherwise, hi, Jules!