The 2004 Bar Exams: Results Out

April 8, 2005

According to a press release by the Supreme Court, 31.61% of law graduates who took the Bar Exams in September 2004 have passed the bar.  If I’m not mistaken, this has been the highest passing average in years.   Strangely enough, the announcement of the release was made but the list of examinees won’t be posted until 6pm tonight.  This can only mean that the examinees will spend most of today on their knees praying, biting whatever nails they have left, or pulling their hair as their agony comes to an end.  It’s not pleasant, believe me.  But the high passing average is encouraging. 

Good luck, guys!

Google AdWords and Trademark Law

Recently, Google suffered a legal setback when its motion to dismiss was denied by a California district court.  Google is being sued by American Blind and Wallpaper Factory for, among other things, trademark infringement because it permits and encourages third parties (including the competitors of American Blinds) to use the latter’s trademarks as a Google AdWord.

This is yet another indication that trademark law is granting marks owners far greater rights than that contemplated by the law.  Trademarks are protected because of their ability to direct consumers to the product that they want to purchase.  This reduces search costs and gives incentives to the trademark owner to maintain higher quality levels (or even to establish varying quality levels  — think of Toyota and Lexus).  Therefore, trademarks need only be protected if the trademark is used in a way that confuses consumers into making wrong purchases (e.g., purchasing Lifeboy instead of Lifebuoy soap).  This obviously corrupts the search process and degrades trademark protection.

For this reason, trademark owners are given a monopoly on the words that constitute their marks.  But this monopoly or exclusive use is limited only in instances where it may cause confusion in the market.  Therefore, it has been established that trademarks can only be protected within certain classes of goods (United SuperMarket does not infringe upon United Airlines).  In one case, the use of a mark by a newspaper for purposes of running a poll is also permissible.  What the courts should not tolerate is the case where the mark is being used to pass off one’s goods as being that of another.

But this isn’t what’s happening in the case of Google AdWords.  Google does not use the marks in order to confuse the market into making wrong purchases.  In fact, Google Ad Words are valuable because they provide more data that informs the consumer as to other choices in the market.  From a policy standpoint, more information in a market increases its efficiency.  So, trademark owners should not be permitted to prevent this from happening in the name of trademark protection.

Neither do Google Ad Words cause consumers to incur higher search costs. One has to come to grips with the fact that Google is an information tool which by itself lowers search costs.  In fact, in my view, Google Ad Words do not affect search costs either way.  In that sense, Google Ad Words do not impact the efficiency of a trademark system.

What it does is provide even more information that may be useful to the consumer and makes the market for the goods even more efficient.

Trademark holders (like other IP rights holders) need to understand that the exclusive rights granted to them are done so because it is in the public good.  When they exercise those rights in ways that do not promote the public good, then they make an argument for reform in the trademark system.

Supreme Court Does Not Tolerate Computer Viruses

The Supreme Court recently issued a resolution saying that a computer virus does not excuse a lawyer from filing court pleadings beyond the permitted period. The Court in this case upheld the dismissal an appeal. Here’s the Court press release in PDF or HTML. Apparently, the lawyer was supposed to file a Petition before the Court of Appeals but failed to do so within the allowed time because his computer was infected by a virus which deleted the word processing file containing the Petition. According to the rules, the lawyer could have been granted another extension if he had a “most compelling reason.” By dismissing the appeal, the Court ruled that a computer virus is not a compelling reason for failing to file the Petition in time.

We agree with the Court of Appeals that the reason stated in her second motion is not compelling. Petitioner’s counsel should have been systematic in his legal work. He should have saved the encoded petition in a diskette and have it printed. Had he followed this procedure, he would not have encountered a problem when his computer was infected by virus.

I can understand it if the Court had said that it was the duty of each lawyer to take measures to guard against viruses.  It’s quite another thing to say that lawyers are required to make back-ups of their work on a daily basis.  In effect, anything less would be considered malpractice for a lawyer.  As a practicing attorney and knowing the average technical abilities of my fellow brothers and sisters in the profession, I am confident that 99% of us do not even make regular back-ups of our data.  Still, I find myself quite happy about this development. (more…)