Letters to the Editor

Lay Off the Coffee Talk

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Quackers,” September, is a very interesting article, and I don’t mean to be a downer, but the McDonald’s coffee lawsuit myth should not be repeated in these pages. The coffee was scalding hot, McDonald’s had received hundreds of complaints, and the plaintiff suffered horrific third-degree burns.

The suit was far from frivolous, and the ABA Journal does a disservice to plaintiffs and plaintiffs lawyers by propagating the myth that it was.

Brandon C. Butler
Washington, D.C.

I am used to seeing ill-informed ridicule of the law in big-city tab­loids, but I was absolutely appalled at seeing it in the ABA Journal—even in a lighthearted news article about the dispute between San Francisco tour groups.

I question overdoing the ridicule of kazoo infringement, just because kazoos are inherently funny. In­fringe­ment is about equally real money, regardless of whether it’s a familiar kazoo gimmick or a Fortune 100 company logo. I’ve seen other coverage of the kazoo dispute that was made amusing to read, because kazoos are funny, without the author adding ridicule or denigration to the story.

But worse was gratuitously disparaging the Liebeck v. McDonald’s case (of which I carry an accurate fact summary in my briefcase at all times, for my own self-defense).

Andrew Mead von Salis
New York City

I am writing to correct a common misconception about proof of distinctiveness of a trademark. Your “Quackers” story states, “After five years, acquired distinctiveness is presumed.”

There is no language in the Trademark Act of 1946 (the Lanham Act) that provides any kind of a presumption of acquired distinctiveness after any period of time.

The provision that mentions five years is section 2(f), which says, “The director may accept as prima facie evidence that the mark has become distinctive, as used on or in connection with the applicant’s goods in commerce, proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made.”

The statute is permissive rather than mandatory. The examining attorneys use their reasonable dis­cretion in de­ciding whether or not to ac­cept an argument that a mark is distinctive on the basis of a five-year claim.

The provision plays no role in an opposition where an opposer is al­leging that a mark is not distinctive, and it plays no role in infringement litigation.

David J. Kera
Alexandria, Va.


Regarding “Working in the Cloud,” August: Having reviewed many software-as-a-service provider contracts for clients, I can say that SaaS providers present unique issues. I can’t emphasize enough the value of due diligence.

We’ve found SaaS providers that really just resell a melange of subcontracted and third-party services.

Knowing the location of the data, having it accessible to you (not three layers of subcontracted providers down from your vendor), and getting regular data backups are a must.

Finally, understanding the service-level agreement and customer service delivery is critical. What would happen if the system crashed during a major litiga­tion? If the firm goes bankrupt? How long can you live without it while it’s being fixed?

Cindy Wolf

If you are going to store data in “the cloud,” be sure you know what format the vendor uses. Don’t get stuck with a proprietary format. If you wish to move your data, or if the vendor closes, as noted by columnist Dennis Kennedy, be sure what you get back is immediately transferrable to your local system or to another vendor.

Bruce L. Dorner
Londonderry, N.H.

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