
NYSE claims photo of trading floor violates their trademark rights - dctoedt
http://talkingpointsmemo.com/archives/2011/05/nyse_tries_to_body_slam_tpm.php
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alexqgb
I'm starting to wonder if the increasingly awkward framework of IP law isn't
being used by unscrupulous lawyers to snooker otherwise intelligent clients
into thinking they have legal claims to recompense that the law doesn't
actually support.

In truth, the principles and practices governing these branches are remarkably
distinct from one another. My suspicion is that the 'IP Law' umbrella has
become a handy device for the kind of legal weasels who would let their
clients believe they're more interchangeable than they really are, and that
abusive tactics permissible in one area can be easily (and profitably!)
adapted to the other branches.

Presently, trademark law seems to be the most sensible and least problematic
of the three branches. Copyright law is bad and getting worse, while patent
law is already an off-the-deep-end horrorshow. It's discouraging to see the
rot spreading to the TM sphere in the way it seems to be here. But kudos to
the TPM folks for turning this into an opportunity for gleeful public mockery.
It's a surprisingly effective counter to hubris everywhere.

~~~
dctoedt
> "Legal weasels"

It's more nuanced than that, I think. As Warren Buffett's business partner
Charlie Munger (himself a co-founder of a major Los Angeles law firm) says,
_always look for the incentives._

1\. A root cause, ISTM, is that we lawyers are trained to regard "zealous
advocacy" for the client's cause (read: desires) as one of our highest duties.

2\. True, we're also supposed to think of ourselves as officers of the court,
and thus as gatekeepers. But look at how the incentives line up.

3\. Start with an executive who has a highly-developed sense of "I want what I
want, and I want it _right freaking now_." And what this worthy wants is for
those [expletives] to stop doing X.

4\. Add a lawyer who has strong financial- and reputational incentives to
bring in work for him- or herself and for other lawyers in the firm. That's
because:

4.1 Law firms tend to be dominated by rainmakers, not least because other law
firms tend to court rainmakers who have big books of [portable] business. The
national litigation firm Howrey LLP recently imploded because a few of its
rainmakers were enticed to other firms, which started a run on the bank,
because none of the other rainmakers wanted to be the last one out the door.
See <http://goo.gl/Zh0Sz> (NY Times).

4.2 Our lawyer also realizes that if s/he tells the executive, "sorry, you
can't make those [expletives] stop doing X," then the executive is very likely
to go shopping for someone who is "more of a team player." The lawyer's
partners will then ask pointed questions about why the client went elsewhere.

4.3 Mix in the fact that when "creative" (read: aggressive) lawyering succeeds
in "breaking new ground," the lawyer reaps the admiration of his peers. In
contrast, there's little downside for a lawyer to be aggressive -- rarely will
a judge throw the book at a lawyer for being over-aggressive, because the
rules are designed to accommodate "zealous advocacy" (see point 1 above).

5\. Considering the above, it's no surprise that lawsuits can get "creative"
in their assertions.

~~~
dmlorenzetti
_A root cause... is that we lawyers are trained to regard zealous advocacy for
the client's cause (read: desires) as one of our highest duties._

In her book "The Argument Culture," linguist Deborah Tannen tells about
wanting to do video interviews in different companies. If she could get a
verbal agreement from the company heads, everything always went fine. However,
if the company brought in its attorneys, it was _never_ possible to negotiate
an agreement-- even if the company heads themselves directed the attorneys to
make it happen. See <https://www9.georgetown.edu/faculty/tannend/argsake.htm>

~~~
dctoedt
> _if the company brought in its attorneys, it was_ never _possible to
> negotiate an agreement-- even if the company heads themselves directed the
> attorneys to make it happen._

There are several reasons for this. Here's one:

Sure, "make it happen" is what the company heads say _now_. But suppose
problems arise later. And suppose it turns out that one of the lawyers missed
something. Sure as shootin', that's where fingers will be pointed -- "why
didn't you warn me about that?"

So the lawyer's instinct, and incentive, is to look under every rock, to call
the client's attention to every possible pitfall, lest he be blamed later for
not having done "his job."

It exacerbates the problem when the lawyer doesn't have enough business
experience to know what's likely to be an acceptable risk. (This can be true
even of senior lawyers.) You end up with two opposing counsel arguing over
who's right, not having the maturity of judgment to know when it's less
important to decide that than it is to get ink on the signature lines and let
the parties get on with their business together.

~~~
alexqgb
Interesting analysis, @dctoedt. Given what you say about its toxic incentive
structure, it's no wonder that the legal profession is held in such frequent
contempt. I suppose this goes hand-in-hand with the fact that lawyers suffer
from alcoholism and depression at rates noticeably higher than the population
in general (grim consolation for the rest of us, I assure you).

You've also done a great job explaining the phenomena noted in the (excellent)
link provided by @dmlorenzetti. Given that lawyers often have more to gain by
(slowly) killing deals than making them happen - at least not quickly or
easily - I can see why it's good policy to keep them at a safe distance from
anything that HAS to go through.

As one savvy executive put it "you want them on tap, not top."

~~~
dctoedt
Late update: I posted a much-more-detailed analysis (with lots of embedded
Dilbert cartoons as illustrations) at
[http://www.ontechnologylaw.com/2011/06/why-we-lawyers-can-
se...](http://www.ontechnologylaw.com/2011/06/why-we-lawyers-can-seem-like-
such-weasels/).

------
ggchappell
IANAL, but it's my understanding that these issues are not what trademarks are
all about. Having "NYSE" as a trademark means I can't make money selling some
investment or trading product called that. And if, in my business, I mention
"NYSE", I need to note that this is a trademark, and possibly disclaim any
connection.

It is _copyright_ (a very different thing) that prohibits arbitrary
reproduction, but even then not usually in brief form as part of news
reporting.

Yes, the article does say, "... we've been advised that the NYSE's claims are
baseless and ridiculous on their face." But it would be nice to say _why_. I
suspect that what I've said above is essentially the reason.

