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.