Quote of the Day - After all, what is your hosts' purpose in having a party? Surely not for you to enjoy yourself; if that were their sole purpose, they'd have simply sent champagne and women over to your place by taxi.
Pave Paradise, Put Up A Parking Lot And Catch A Yellow CabTry to combine Joni Mitchell's Big Yellow Taxi song with Chuck Berry's Nadine and see if you can come up with a Ninth Circuit opinion on trademark protection. Well, Judge Sidney Thomas figured out how in his opinion, Yellow Cab v. Yellow Cab. The case almost sounds like it could be an auto accident, but it has to do with the name the two companies chose. Judge Tomas creatively cited these two songs in his opinion in the first two footnotes.
They both want to use the same name, and prevent each other from using it. One company's in Sacramento and the other cab company is in Elk Grove, not that far from the state capital, just in case you were wondering.
The point is, however, that the Yellow Cab of Oak Grove (the second-in-time user of the phrase 'Yellow Cab') defeated Yellow Cab Company of Sacramento's bid to prevent others from using its name. At least initially. The Ninth Circuit reversed that decision, saying that two questions remain: "(1) whether the mark “Yellow Cab” has become generic through widespread use in the marketplace, and (2) if descriptive, whether the mark has acquired secondary meaning."
In other words, when you say "Yellow Cab" do you think of either of these companies or just a taxi? Kind of like the analysis of the terms xerox, kleenex and jello. The Ninth Circuit thinks that maybe the term 'yellow cab" is as generic and instead deserves protection. The case is headed back to the lower court for further proceedings, and meanwhile, I can't get those two tunes out of my head.
Are The Special Interests In The Governor's Office Or The Classroom?Is it a lawsuit or politics? Teachers have filed suit against the Governator, claiming he has failed to provide the minimum level of school funding mandated under Proposition 98. It's a writ of mandate seeking the return of some $1.8 billion in funding.
It may have started when Governor Schwarzenegger set out his plan to limit tenure for public school teachers. They're fighting back with an ad campaign blaming the Governor for all types of ills in the schools. Not all teachers agree, however.
Who's making the grade? Are the teachers right or is our fearless leader?
MTBE May Have Lost Its Final BattleMethanex Corporation of Canada lost its bid through NAFTA to challenge California's ban of MTBE. Methanex produces the additive in Canada, and wanted to sell it to gasoline producers who shipped gasoline here. The challenge took the form of a lawsuit, defended by the attorney general.
It took five years of litigation for a three-judge NAFTA panel to decide the case. If we had lost the case, California would have had to lift its ban on the additive. Instead, the NAFTA judges ordered Methanex to pay $4 million to cover legal costs.
Sure that's a tidy sum, but Methanex was seeking reimbursement of a cool $1 billion for its lost revenue. This challenge, however, wasn't the first. MTBE advocates have lost a series of battles, culminating in this (perhaps) death blow.
New and Improved Graphics, Animation, Audio and a Host of Features for MIPTCOn August 9, 2005, you will notice a new look here at MIPTC, just a few days after our two-year anniversary - August 4, 2005 (and some 800+ posts later). There are some significant design changes: animation, sound, new graphics, menus, and a cleaner look. Upon loading the page, you'll notice that the script for the name of blog animates, and you can hear it write, and dip in the inkwell to refresh the ink. If you want to see it again, position your cursor over the inkwell and click.
The Old English Judge is also animated, and he speaks. If you run your cursor across the judge, you'll hear him try to get your attention with an "a-hem" or two, and two spoken phrases.
The drop-down menus across the top of the scroll clean up the left navigation bar and guide you to the many features available on MIPTC. Please, click away and look around. There are several features available, and among them translation into many different languages.
You can also sign up for daily email updates, leave audio comments in your own voice, and visit the MIPTC store (and hopefully walk away with some trinkets of the judge). RSS fees are available for MITPC's headline, summary and full-text feeds, as well as our podcast and vidcast feeds.
You'll see on the left navigation bar rotating photographs of the author (and the author typing on his favorite keyboard), as well as our namesake book and its author, Leonard Rivkin, who was kind enough to give MIPTC the .com extension for the blog.
Across the top of the scroll, MIPTC has also added a drop-down menu for our sponsors, Law.com and LawCatalog.com, and we hope you visit and express your appreciation for them helping bring you MIPTC.
For those of you who have an aversion to graphics and small text, MIPTC is now accessible to those who are blind or differently-abled.
If you're like me and use a Pocket PC or other web-enabled PDA, MIPTC is also set up for you, too. You can read MIPTC on your PDA because we're PDA-friendly.
There are a host of other small changes, too, which you'll find as you look around. Kind of like those old Highlights magazines.
Thanks for being a loyal reader, and I hope you enjoy the new look and new features. As always, if you have some suggestions, please send me an email, leave me a comment of give me a call. Most of the features that are here now were suggested by readers.
Hybrids - Coming Soon To A Clogged Carpool Lane Next To YouRed tape, as usual, is the holdup this time. Since August 2004, hybrid cars have stalled on their way into the carpool lane. Not one is in there yet, even though the law went into effect in January 2005.
California passed a law last year allowing hybrids into the carpool lane, and so far, some 24,000 have registered. There are as many as 57,000 on the road now, but an ultimate cap of 75,000 that will be allowed in the carpool lane.
As a consequence, carpool lanes soon may soon be as bad as the rest of the freeway.
While you might expect certain groups to get on board and back incentives like carpool lane access for these vehicles, the American Lung Association is noticeably silent. According to an AP article on FindLaw, " 'We were not convinced that this incentive was needed and we were concerned about the potential to slow traffic in HOV lanes and discourage people from car pooling,' spokeswoman Bonnie Holmes-Gen said." Some, on the other hand, had other reactions. Ford is not behind the idea at all.
The bill's author, Assemblywoman Fran Pavley (D-Woodland Hills) reported the holdup on final access for hybrids was stalled due to federal law. Now, however, that hurdle has been removed, no thanks to this advice from the Federal Highway Administration. (I think that message is a classic example of where red tape comes from.)
Despite all this work, carpool lanes are still reserved for HOV cars and motorcycles, and hybrids are still banned.
At this stage, we're just waiting for State regulators to set the parameters for how many miles per volt you need in order to clog the carpool lane.
California Supreme Court Rules Contractual Jury Waivers UnconstitutionalJury waivers (actually not the kind of jury in that last link about artists - we're talking contractual waivers of court juries) are unconstitutional, and against public policy.
We've known known this was coming. The Supremes agreed to review the appellate case that went the same way last year. There was, however, an earlier case from 1991 [Trizec Properties, Inc. v. Superior Court (1991) 229 Cal.App.3d 1616] that upheld such contractual waivers, but it's now been overruled - unanimously - but only kind of.
Justice Chin "reluctantly" joined in the opinion, and in his concurring opinion asked the California Legislature to legalize the practice. He thinks contractual provisions allowing the waiver of jury trials will unburden the court system. The one argument in favor of allowing a waiver of jury trials is already there, though. California Civil Code of Procedure section 631(d)(2), says that you can waive a jury trial "by written consent filed with the clerk or judge."
What that statute typically means, however, is that waiver occurs after filing the suit, during the litigation and not before. That's how the Supreme Court decided yesterday, and now it will take the Legislature to restore it back to the way it was before.
Meanwhile, we're going to court.
If Napa Means Napa, Why Doesn’t Burgundy Mean Burgundy?As I wrote a few months ago, the California Court of Appeal upheld a state labeling law that says the names of places mean something and if you want to use the name of that place in your wine's name, then the bulk of the grapes have to come from that place. So if you put Napa on your label, your grapes have to be grown in Napa. Makes sense to me since I'm a believer in truth in advertising. The same does not hold true, however, for Champagne, Burgundy, Chianti, or for that matter Parmesan cheese (and don't try and convince me that stuff in the cardboard tube is "Parmesan").
To most of the world excluding the United States, these geographic designations have legal meaning. Why don’t we follow suit? It is bound up in a mess of international agreements and treaties that affect not only wine, but also cheese, beer and other food products as well. One plausible historical explanation is that earlier in this country’s history, it made sense for immigrants to name their new creations made here in the New World after the products that they were trying to replicate from their home countries.
Smart marketing indeed.
In our current era of internationalism, though, I suggest it is time for the U.S. to fall in line with the rest of the world and respect these “semi-generic” geographical names, and I'm not the only one: a group of American and international vintners agrees. After all, I’m guessing that we’re the only ones that think of these designations as “semi-generic.”
I want my parmesan from Italy, my port from Portugal, and my Champagne from France.
Attorney Mistake Relieves Client From Default JudgmentHe said, she said. What's a Court to do when parties on opposite sides of a dispute each say the exact opposite?
The Fourth Two in Riverside faced this "unremarkable" (their word, not mine) situation. Here's how the scenario played out:
We have your everyday contract dispute between SMS Supermarket Service and a service provider, Solv-All. Once SMS filed suit, the parties began to talk settlement. That's where the trouble began.
The parties engaged in a series of settlement negotiations and agreed several times to delay the time for Solv-All to respond to the lawsuit. Apparently, the negotiations stalled, and here's where the stories diverge. SMS says it told Solv-All to file an answer to the complaint and get to litigating the case. Solv-All, on the other hand, believed that the ball was in SMS' court to respond to its last settlement offer. Solv-All knew its deadline to answer was about to pass, but since SMS had granted extensions before, it would grant one again so the parties could continue to negotiate.
Whoops. In a major way. That's not what SMS thought, and promptly took Solv-All's default.
Game over for Solv-All. SMS refused to set the default aside, and was set to prove up its damages. All of them. Faced with certain defeat, Solv-All moved to set aside the default.
As most attorneys know, that's where the going gets tough. If, as here, the attorney who let the default get taken is at fault, then that attorney is the one who has to concede the mistake. The rules say that relief is mandatory if the attorney admits the mistake. As you can imagine, it's not an easy admission to make.
But as we all know, what the rules say must be is frequently not the case. At least that's the result that happened to the Solv-All attorney here who did admit to the mistake. The trial court ruled that the attorney's neglect was not excusable, and could not obtain relief.
Never fear, though. That's why we have appellate courts. This appellate court saw the light and relieved the Solv-All attorney (and his clients) from the default.
Now the case will get heard on the merits instead of being resolved through a technical, procedural victory - not form over substance.