An Ode to First Monday

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I would be remiss if I let today get by without noting that it’s the First Monday in October — which appellate geeks all know is the start of the term for the United States Supreme Court. Turns out one New Jersey resident is well aware of the significance of the day. Graham Blackman-Harris has been to nearly every First Monday for the past 20 years.

What Blackman-Harris told the Washington Post is true:

“Every American should see the Supreme Court in action,” he said. “Anyone going to the court will see we have a magnificent array of talent on that court.”

Every citizen should get thee to the Court at least once in a lifetime. It’s really awe inspiring to see argument in action.

The Court had an interesting first day including this curious order [pdf]:

10-11054 MURPHY, CHARLES M. V. KOLLAR-KOTELLY, JUDGE, USDC DC
Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

It turns out that this is what happens when you sue Supreme Court justices personally — they recuse themselves and the litigant is guaranteed an affirmance. The Volokh Conspiracy commenters have a line on the backstory. Lyle Denniston has a good summary of today’s argument over at SCOTUSBLOG.

Finally, for a rundown on the cases the Court will be considering this Term, the New York Times’ article hits the highlights. However, I like Wired’s take even more, because it points out the intellectual property cases on deck, including:
Golan v. Holder, October 5, 2011, which will decide if Congress can recapture, on behalf of copyright owners, works that are in the public domain.
Mayo Collaborative Services v. Prometheus Laboratories, Inc., December 7, 2011, which concerns the patentability of observations.
ASCAP v. United States, (date TBD) which will decide whether a download is a public performance under the Copyright Act.

Grab the popcorn, folks. It’s shaping up to be an interesting term.

More Papers Pick Up the Seminole Trademark Brouhaha

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I learned a valuable media lesson this week about what reporters want to hear, and what they need to spice up their stories. It turns out that the quote I gave the Tampa Tribune last week — “As a lawyer, I would have a field day if I was representing the school board on that,” because “It’s really hard to make a claim when you have been working side by side for 30 or 50 years.” — is the one the reporters liked the most. This quote was since picked up and republished by a sports columnist for the News Sun, and even nationally by a USA Today blogger.

Of the three quotes chosen by reporters last week, this is one that I wish I had phrased a little differently. But as the saying goes, all press is good press, right?

Media Blitz

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Today my phone rang off the hook with reporters looking for an expert on intellectual property law to comment on the issues surrounding the cease and desist letter received by Bradenton Southeast High School, which has competed in high school sports under the name Seminoles for over 30 years. It seems the company that does all of the official licensing of sports memorabilia for many colleges took offense to the Bradenton Southeast Seminoles, on behalf of the much more famous FSU Seminoles.

Now, it isn’t the meanest cease and desist letter I’ve ever seen. And the law does incentivize trademark owners to police their marks or risk losing them. But seriously? It takes a much lighter touch if you are going to c&d a high school that has been using the names and logos for 30 years or more — particularly if you have recruited football players from that high school and sent Bobby Bowden on recruiting trips there. I was quoted explaining the doctrine of acquiescence in the St. Petersburg Times Seminole Watch blog, moderately explained both sides of the story to the Sarasota Herald Tribune (at page 4), and sounding a bit more feisty in the online version of the Tampa Tribune. With perhaps more to come!

Update: Two more papers picked up my quotes.