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Why people hate lawyers

Law professor Ann Althouse recently observed that lawyers are the only people about whom it's considered socially acceptable to joke, "People like you should all be dead."

Most of us in polite society wouldn't feel comfortable saying that to a gay man, or a black person, or a Jew. (Most of us wouldn't even want to.) But telling a lawyer to his face the old joke about 10,000 lawyers at the bottom of the ocean being "a good start" is perfectly okay.

Lawyers play an important role in our society, and I don't believe they deserve to be singled out for this kind of animosity. Yet time and again, an incident will arise that reminds me why, justly or not, they often are. It's unfortunate that the arrogance of a few lawyers can engender hatred for the entire legal profession, many members of whom are protecting our rights, seeking justice for the downtrodden, and reining in an overreaching legislature. But it can.

Monster Cable is a company that makes speaker cable and audiovisual interconnects. Their brand name is important to them. (In fact, they recently spent $6 million for the naming rights to San Francisco's Candlestick Park stadium. It's now Monster Park.) And they've apparently decided to sue every business that uses the word "Monster" in any way.

Companies sued by Monster Cable include:

-- The Discovery Channel, for its show "Monster Garage"

-- The Walt Disney Company, for the movie "Monsters, Inc."

-- Monster.com, the online job-hunting service

On top of all that, Monster Cable went after Bally Gaming for its "Monster Slots" slot machines, and almost almost sued the Chicago Bears for calling their players as the "Monsters of the Midway", a nickname dating back to the 1930's. It's also thinking about going after the Monster Seats in Fenway Park.

Now, I used to be a lawyer myself at one point. (I quit because I hated the work.) I never specialized in trademark law, but I remember a few points from law school.

First (and any lawyers out there, feel free to correct me if I'm mistaken), a given trademark generally applies only to a certain class of product (or service, in which case it's called a service mark). That's why there can be an Apple Bank, Apple Rental Cars, Apple Furniture, and Apple Computer.

Second, the key element of the test for trademark infringement is, loosely speaking, whether there is a likelihood that customers will confuse the origin of the two companies' goods or services. In other words, will people think Apple Computer is the company behind Apple Furniture's furniture?

How similar do two companies' marks have to be before courts will find that a likelihood of such confusion exists? Well, the criteria are hard enough to meet that none of the "Apple" companies I mentioned above is in legal trouble with the others. Yet Monster Cable's attorneys were apparently concerned that people might mix them up with, say, a movie company or a job-hunting website.

And, presumably because the costs of litigation are so prohibitive, in each of the four cases mentioned above, Monster Cable either reached a confidential settlement with the company it attacked, when by all appearances its claims should have been laughed out of court.

All this is depressing enough, but, as several newspapers report, now it gets really nasty. Apparently tired of suing huge companies with the resources to fight back, it would seem that Monster Cable looked around for smaller outfits it could more easily intimidate, and it found a few:

-- Snow Monsters, a tiny company that makes instructional ski videos for children

-- MonsterVintage.com, another tiny company, which sells vintage clothing

Needless to say, small companies like these lack the funds to weather a months-long legal battle. Unless they can win a declaratory judgment (i.e., have the court tell Monster Cable to get bent before any long, expensive litigation ensues), they will probably have to either change the names of their businesses, or let Monster Cable wet its beak: Its "licensing packages" demand as much as $1,000 a year plus 1 percent of gross sales, in exchange for the right to use the word "Monster".

As a former lawyer, I know it's important to consider both sides of any dispute. So, what's Monster Cable's take on the situation?

"We've spent millions of dollars as well as countless hours building our brand," says an in-house attorney. Company founder Noel Lee adds, "We have an obligation to protect our trademark; otherwise we'd lose it."

Given that trademark law specifically provides for the coexistence of similar trademarks for different classes of products, Lee's argument is disingenuous.

But if Monster Cable is really concerned about protecting its trademark, it could start by protecting it from a consumer backlash against its bullying, strongarm tactics. Its legal team apparently believes that ski videos for kids and an old clothing shop represent a real threat. That it's necessary to crush little companies with no relevance to its business at all.

That's why people hate lawyers.

FOLLOW-UP:
See this post about another possible Monster Cable target.

7 comments:

The Friendly Grizzly said...

I cannot for the life of me understand why someone wants Monster Cable products in the first place. Fancy packages, a little gold toning on the connectors. Biigg Deeeaall. I'm gonna pay that kind of money to conduct electricity?

fasteddie said...

why people really hate lawyers: this just in from the NYTimes http://www.nytimes.com/2004/12/30/opinion/30thu4.html

an excerpt:

When Defense Secretary Donald Rumsfeld approved the initial list of interrogation methods for Guantánamo Bay in late 2002 - methods that clearly violated the Geneva Conventions and anti-torture statutes - there were no protests from the legal counsels for the secretary of defense, the attorney general, the president, the Central Intelligence Agency or any of the civilian secretaries of the armed services. That's not surprising, because some of those very officials were instrumental in devising the Strangelovian logic that lay behind Mr. Rumsfeld's order. Their legal briefs dutifully argued that the president could suspend the Geneva Conventions when he chose, that he could even sanction torture and that torture could be redefined so narrowly that it could seem legal.

It took an internal protest by uniformed lawyers from the Navy to force the Pentagon to review the Guantánamo rules and restrict them a bit. But the military lawyers' concerns were largely shoved aside by a team of civilian lawyers, led by Mary Walker, the Air Force general counsel. The group reaffirmed the notion that Mr. Bush could choose when to apply the Geneva Conventions.

Okay. Is this kosher?

GaijinBiker said...

Hard to say whether it's "kosher" -- if you mean, is it legal from a procedural standpoint, I think that the President has a pretty wide scope to do what he wants until Congress or SCOTUS calls him on it.

You should understand that the Times article is filled with the usual liberal bias -- for example, it claims the methods "clearly violated the Geneva Conventions" when in fact the Bush administration's view (shared by at least some well-known legal scholars) is that the Geneva Conventions do not apply to the prisoners held at Guantanamo for several reasons, i.e., because they are not members of a fighting force recognizable by a common uniform, etc.

Therefore it is incorrect for the Times to state that the White House's briefs concluded that Bush could "suspend the Geneva Conventions when he chose" -- to the contrary, the briefs concluded that the Conventions did not apply to the situation in question.

It may be the case that there was disagreement among different groups of lawyers (Navy, civillian, etc.) as to what interrogation methods would be legal and/or appropriate, but that is not surprising. Different people have different opinions.

At any rate, the article you quote doesn't really touch on the subject of my post, which is that some lawyers seem to put their personal financial gain above their duty to give their clients responsible advice.

fasteddie said...

No it doesn't. Liberal, Conservative. always the political defence, politcs are starting to sicken me. How about what it is morally right or wrong. People can fucking justify anything they want, even find "legal" loopholes it does not excuse doing something that is morally reprehensible. You know the Nazis were just following lawful orders handed down through the chain of command!

You excuse actions authorized by the president blindly, out of patriotism that anything that the administration does is okay? Politics sicken me.

fasteddie said...

"because they are not members of a fighting force recognizable by a common uniform,"

It is technically not breaking the rules, but it is breaking the standards of what humane treatment of fellow human beings should be.

Legally defensible? Yes. Morally evil? Yes. I can't believe we allow it to happen, and I strongly condemn these rationalizations as cold hearted and lacking in empathy. Do you approve of these practices also?

fasteddie said...
This comment has been removed by a blog administrator.
Anonymous said...

Monster Cable,

It is with great regret that I must inform you that I have Monster Nuts(tm). As such, I am obligated to notify you that your Monster brand audio interconnect cables conflict with my mark - Monster Nuts(tm).

Although they will never be confused with your semi-decent quality audio interconnects, I hereby invite you to license the use of my Monster Nuts(tm) at a flat rate of $500 a year, with an additional %.05 of your annual gross revenue sent to me as licensing costs.

You have 10 days to comply with my licensing demands, otherwise I will unfortunately be forced to take stronger actions.

Regards,

Owner of Monster Nuts(tm)

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